THE
OPINION
OP THE .
BOJYORJIBLXI J. S. RICmiRn S OJY.
IN THE CASE OF
MCDONALD, vs. mcmeekin.
CHARLESTON,
Printed at BIain's Office, 26 State"Street.
1834*
"AH persons who shall be chosen, or appointed to any office of profit or trust
before entering on the execution thereof, shall take the following Oath :—
''I do swear or affirm, that I am duly qualified, according to the Constitution
of this State, to exercise the office t,o which [ have been appointed, and will,
to the best of my abilities, discharge the duties thereof, and preserve, protect,
and defend the Constitution of this State and of the United States.'' [ State
Constitution, Art. 4. ]
"We do further ordain and declare, that the atlegianee of the citizens of this
State, while they cont \nue such, is due to the said State,- and that obedience
only and not allegiance, is due by them to any other power or authority, to
whom a control over them has been or may be delegated by the State: and
that the General Assembly of the said State, is hereby empowered, /rem time
to time, when they may deem it proper, to provide for the administration to
the citizens and officers of the State, or such of the said officers as they may
think fit, of suitable oaths or affirmations,binding them to the observance of such
allegiance, and abjuring all other allegiance >• and also to define what shall a-
mount to a violation of their allegiance, and to provide the proper punishment
for such violation." (Ordinance of March 1833.)
In December, 1833, the Legislature of South Carolina, passed an Act enti-
tied "an Act to provide for the Military organization of this State:'"' by the
10th Sec: of which.it was enacted as follows: In addition to the oaths
now required by law, every officer of the Militia, hereafter elected, shall, be-«
fore he enters on the duties of his office, take ana subscribe, before some per-
son authorized by law to administer oaths, the following:
"I, A. B. do solemnly, sweari (or affirm, as the case may be) that I will be
fhithful, and true allegiance bear, to the State of South Carolina."
OPINION.
The State of Sou'h Carolina
EX RELATIONE
OF JAMES ME'DONALD.
!
LANCASTER DISTRICT.
APLIL 1884.
Brig. Gen. THOS. M'MEEKIX.
The motion is for a mandamus, requiring the Brigadier General
to commission James McDonald <ts Colonel of the 27th Regiment
of the 6th Brigade of the 3rd Division of the Militia of the State.
This motion is resisted on the ground of the omission of James
McDonald to take the Oath of Allegiance to the State of South
Carolina, required by the 1 Oth section of the Military act of Dc-
cember 1833.
James McDonald replies, that he has taken the oath prescribed
fey the 4th Art. of the Constitution of South Carolina, and is there-
fore entitled to his commission, without taking the former oath;
although required, in terms by the aforesaid Military act. Be-
cause,
1st. The Military Oath is an infraction of the 4th Art. of the
Constitution of South Carolina; which 4th Art. prescribes, the only
oath required of all officers, to secure their fidelity, obedience, or
Allegiance;
2dly. Because the Military Oath is not within the meaning of the
Ordinance of the convention of the People passed in March 1833.
But,
3dly. If the Military Oath, be within the meaning of the said
Ordinance, it is still, null, and void: In as much as, then, both, the
said Oath and the Ordinance are infractions of the Constitution of
the United States; by exacting a Religious pledge of exclusive
Allegiance to the State of South Carolina, and the abjuration of
any allegiance to the United States. When, in fact, allegiance is
due, by the citizens of South Carolina, to the United states, as
well as to the State, by virtue of the Federal Constitution. I have
taken these three heads of the argument, by way of synopsis of the
whole matter for discussion, in order to avoid prolixity.
6
Upon the first ground, [which considers the 10th Section of th®
Military Act, as one of ordinary Legislation, and independent of the
Ordinance] my judgment and conviction are clear.
It would be enough to say, that, as the fourth Art. of the State
Constitution, prescribes by a specific Oath, the particular sanction,
morai bond, or Religious tie, which is to bind every officer "to
protect, defend, and preserve, the constitution,'' by no ordinary
act of Legislation, can that Constitutional sanction, bond, or tie, be,
in any respect, altered, increased, or lessened.
The great political power of the Convention, of 1790, that form*
ed the State Constitution, has, in this instance, as, in the whole
digest of principles, set forth in the Constitution, legislated' for
itself. That Convention chose its own security for obedience in
return for the Constitutional protection, with which, the allegiance
required, is commensurate, And, by the very act, the framers of
the* Constitution have forbidden all modifications of the terms of
that security,by any act of ordinary legislation. This is as plain, as
if the convention had required a penal bond to a certain amount,
of every officer in order to secure his fidelity.
Had such a bond been required.as the prerequisite of office instead
of the moral bond of an Oath, none could have doubted, that the
precise penal bond must have been given, and remained unalterable
in amount,until the 4th Art. of theConstitution had been itself altered,
by the proper authority. And the fact, that the Constitution does
require of certain officers (as the Governor, Senators,and Represen-
tatives) a pecuniary qualification, is the best illustration of the
strict analogy, between a bond and an Oath, if the former, like the
latter had been required by the Constitution. Both, the Oath and
this pecuniary qualification are unalterable, by a mere act of Legis-
lation, simply, because they are Constitutional euactments. What
then is the true doctrine 1 The Legislature have a right to order new
Oaths, in order to enforce their Laws. But the Constitution has
restricted the Oath of Allegiance, to a certain form prescribed in
its own provisions. And when the Legislature, besides this, requires
another Oath of Allegiance, do they not plainly add to, and al«
ter the Constitutional Oath, upon the very matter of allegiance which
the Constitution has already provided for, but which belongs ex-
clusively to the Constitution, and is not, and ought not to be left
open to any ordinary act of the the Legislature, The Constitution
of the United States fully illustrates the distinction. That Con-
stitution requires some Oath of fidelity from all officers, both, of
the United States and of the States; but specifies no particular
Oath whatever i^except^the one to be taken by the president.
-7
Now,it is plain, that no other Oath can be requiredofthe President;
This pledge of his fidelity is specifically required by the Constitution:
and a specific regulation of the subject is exclusive of all other action
on the same subject. If it were otherwise, the Constitution would bt
the subordinate, and not the paramount Law. But Congress may en*
act an Oath, for all other officers, conformably to the general pro-,
visions of the Constitution : Because the generaljsubjectof Oaths is
still open for Legislation, with this one exception, made by the
Constitution of the United States. The whole argument may be
summed up in a single sentence. The 4th Art. of the Constitution
like all other articles of that instrument, is unalterable, by mere
Legislative action. But the military bill would alter this article as
to military officers; and the conclusion must therefore be clearly
in favour of the applicant James McDonald, upon this first head of
the argument
Upon the 2nd ground; which considers the Military Oath, in
connexion with the ordinance of the Convention, and enquires
whether the permission given to the General Assembly to adopt
from time to time Oaths of exclusive Allegiance to the State, and
abjuration of all other Allegiance, may notjustify the military Oath,
my opinion is, that so much of the ordinance as relates to this sub-
ject, may be read in connexion with the 4th Article of the Constitu-
tion, " ut res magis valeat quam pereat," as " in pari materia f
and constitute a part of its context. That article has been altered,
if the Convention had the power to alter the Constitution of South
Carolina.
But without entering upon that branch of the argument in detail;
and also dismissing the minor question, of the manner of its call,
its principles of organization, its supposed commission, and pecu-
liar object; which have not been made express points in the case,
nor belong, necessarily to its adjudication; I assume that the Con-
vention had the proper authority so to alter the Constitution ; be-
cause it was a Convention of the People called by the General
Assembly in virtue of the Constitution.
Assuming then that the 4th Article has been thus altered by
proper authority, the 2nd ground is resolved by the following en-
quiry.
Is the Military Oath consistent with the Legislative right,
given by the 4th Article, when so altered by the Ordinance ?
The Ordinance defines Allegiance to mean exclusive subjection
to the State, in the duty of Allegiance; and requires the abjuration
of all other Allegiance, as a part of the Oath to be adopted.
The Oath, adopted by the Military Act, is in brief terms;
"I will be faithful, and true allegiance bear to the State of South
G
Carolina." But allegiance had been already defined by the ordi-
nance to mean exclusive subjection in the matter of allegiance.—
And, for the purpose of interpreting an Oath, passed under the au-
thority of the ordinance, we must take the definition and meaning
required by the ordinance. It then follows, that the term, allegiance,
in the Oath, means exclusive allegiance.
But this question occurs. Does the Oath also mean abjuration of
all other allegiance? The answer to this may not be equally sa«
t'isfactory. Because we have been accustomed to find Oaths of
abjuration in express language. As the English Oath "to abjure the
Pretender.'1—To .abjure certain doctrines of the Church of Home,
the American Oaths to abjure allegiance to George the 3rd. &c.
&c. But these may have been so framed, because allegiance had
not been, then, defined to mean an exclusive duty.
But where we must trace a Law to a specific authority, as in the
case before us, the obvious intent and object of the authority, may
be well applied to indicate the true construction of the Law, and
rule the import of its terms.
The ordinance inte nded that abjuration of all other, should follow
allegiance to, ahe State. And as we an to take allegiance to im-
port exclusion, allegiance (exclusive allegiance) equally implies re-
jection, or abjuration, of the same duty to all other powers. In
a word, the fixed definition of allegiance, in the ordinance, gives
construction to the Oath of allegiance, and renders the term, at
least for our purpose, exclusive, abjuratwe, and limited, to residents
in the State, whatever may have been its former meaning.
It must be admitted that this introduction -of the ordinance inta
the Constitution, has to struggle har.l with the apparent legislative
construction of it—"But how else can it be viewed, but as a prima-
ry, fundamental, or Constitutional Law of the State."—At the
same Session of the Legislature, an Act was passed by "two thirds
of the whole representation," commencing on alteration of the 4th.
Article of the Constitution by incorporating with that article, the
present Military Oath; but extending it to all officers; provided the
next Legislature shall assent 10 such alteration by "a vote of two
thirds."
Now, by this Act, the opinion of the Legislature is plainly de-
clared, that they cannot change the Constitutional Oath by any or-
dinary Act of Legislation,although they have virtually done so by
the 10th Section of the Military Bill. And it would seem that if
they had power to pass the 10th Section, they had -it equally, to
pass the amendatory Act. For both the 10th Section and the Act
change the Constitutional Oath. But may not the regular and
proper construction be, that both the 10th Section and the Act
9
will be of force, without the assent of the next legislature, by virtu*
of the power given by the Ordinance to future legislatures to enact
Oaths of Allegiance ?
By that Act, too, their opinion is indicated, that the Ordinance
did not alter the 4th Article of the Constitution. For it is scarcely
admissible to suppose, that the Legislature, at its first Session [only
nine months after the Convention] would have provided for an al-
teration of the very Article, so lately perfected by the high author-
ity of the State. W ould they have estopped legislation, ''from time to
time," upon the subject of Allegiance, if the Legislature had con-
ceived, that the 4th Article, so perfected by the Ordinance, had con-
ferred that power on all future Legislatures.
For assuredly, such estoppel, would be the effect of the propos-
ed Legislative alteration of the 4th Article, if it should prevail, fi-
nally, as an amendment of the Constitution.
But the proper answer to all such difficulties, may be this.—
That the Legislature did regard the Ordinance as an altera-
tion of the 4th Article of the Constitution. But as, that Article,
when thus altered, can be but a part of the Constitution, and sub-
ject like other parts, to furi her alteration, the Legislature thought
fit, to proceed, forthwith, to commence their own extra Legisla-
tive power of altering the Constitution, upon the very modifica-
tion, so latelyfintroduced by the. Convention.
Strictly, and constitutionally, they had a right so to do, if my
view of the Ordinance be correct; and, if, it may be coupled with
the Constitution, as a part of the fundamental Law of the State.
Let me here observe, that this example of the Legislature, who
cannot be suspected of disrespect, puts at naught, the entire notion
of there being disrespect, in judging of, or passing upon, the Acts
of the convention, by any tribunal before which the Ordinance may
be brought. That Convention stands, precisely as stood the Con-
vention, that formed the present Constitution.
But on principles, and in common sense, there is a manifest dis*
tinction, between the acts of the Convention, to Nullify a law of
Congress, and their act which goes to alter the Constitution of
South Carolina. These two acts are referable to distinct powers ;
and we have nothing to do, nor had the Legislature, with the form-
er act ( Nullification.) It is the simple juxtaposition of the two
acts (in One Ordinance, and at one and the same time) which has
led to the confusion of all fair reasoning, in the just analysis of these
two distinct acts of the Convention. The one, is the ordinary act,
and within the power of every Convention, convened, to make or
alter a State Constitution.
The other is an act, done, pursuant to the peculiar doctrine,
Which presupposes, that a Convention of the People called for the
purpose, has the ultra constitutional and sovereign authority to lift
the constitution of the United States, '• pro hac vice," in or<.'e* to
let in a specific act of the Convention, to Nullify a Law of Con-
gress, supposed, either, to abuse, or pervert, or infract, the Feder-,
al Constitution. Of this doctrine, the late Nullification of the Tariff
Law is an example and illustration. Now, as I understand the
intended oath, exclusive allegiance, and abjuration of all other
allegiance, are essential to this high and peculiar sovereignty of a
State. Because any allegiance, by acknowledging sovereignty
in the United States, might come in, to.counteract such a right, of
lifting the Federal constitution. Any one who acknowledged al-
legianee to the United States might regard such an act, as an
infraction of, or an attempt to change the Constitution of the United
States by one State, ins ead of doing it, constitutionally, by
three-fourths of all the States. Or at least, any allegiance to the
United States would be in opposition to such an act, if the Nulli-
fied Law of Congress should happen to be " casus foederis," or had
the constitutional warrant for its support, as a revenue law has.
This forms the plain distinction between the Virginia doctrine of
°J8, and the South Carolina Nullification of 1832.
But whatever be the doctrine, right or wrong, Jeffersonian or
Anti Jeffersonian, the Court has nothing to do with it, except, in so
much as it exemplifies the intended, and therefore, the true meaning
of the term, ** allegiance." And for that purpose, we must endeavor
to comprehend the doctrine, and use it, for illustrating the mean-
ing of the oath, as well as the Ordinance itself.
The Ordinance affords us, the literal meaning of the oath, by de-
lining allegiance ; and the doctrine unfolds the philosophy, end,
and object of that meaning. It breathes the spirit of the law into
the letter, and renders the interpretation of the oath, full, com-
plete, and satisfactory. Taking the whole argument upon this se-
cond head, in all its bearings, my understanding comes to the con-
elusion, that the Military Oath, may be fairly supported, as con-
sonant to the Ordinance ; constituting as in my opinion it does,
virtually,a modification of the 4th Article of the State Constitution,
made by the competent authority of the Convention.
I say " competent authority." Opinions upon the powers of
the Convention, have been so various, that I must be indulged in
expressing my own. It is indeed essentially necessary to the view
of the Ordinance just taken.
After early and repeated consideration of the subject, my un-
derstanding admits of no other opinion, as consistent with reason
11
and just principles, than the following. The Legislature have tht
extraordinary authority of calling Conventions of the People. But
this must be done, with the concurrence of " two thirds of the
whole representation." The authority is to summon together the
whole power of the people ; and this is evidently the reason for
requiring so general a concurrence, as the vote of two thirds.
But to suppose, that the Legislature have, by implication, the
further authority of restricting, in any possible way, the powers of
such a body, would be to render the Convention of the people, a
mere pliant instrument, in the hands of any'large legislative majo-
rity ; would destroy its essential character, and render it no longer
a Convention " of the people."
It would seem, then, that all the powers of the people necessari-
ly belong to such a Convention. But is there any positive restric-
tion on its powers when so caPed ? I answer there can be none,
except moral restrictions, and such positive restrictions as the
people have placed upon themselves,were they personally present,
and acting for themselves in Convention.
But are there any such ? I know of none ; but those of the
Federal Constitution. That compact, by its express provisions
cannot be changed, by less than three fourths of the States ; and
therefore necessarily places every single State, within its restric-
tions, while in the Union. And, inasmuch as a Convention can
have no more power than the people themselves, such a body must
also, necessarily be within the restiictions of the Federal Constitu*
tion. A Convention of the People, it would then seem, has all the
powers of the people of the State, considered as citizens of So. Ca*
and of the United States i. e. the People in organized Society; and
not, now in their primitive character. Such a Convention for in-
stance, could not levy war, introduce a King, nor do any act, which
no one of the United States could do. But it would, still, have all
the powers of the State of South Carolina.
The People might have placed it under further restrictions, but
they did not. And yet, in my individual judgment, the late Con-
ventiondid right, in dissolving itself, when the question of Nullifi-
cation was decided ; because that was the true object of its call,
and it was morally right, then, to lay down its extraordinary pow-
ers. I felt that view before its dissolution, imperative upon my-
self, as a member. But 1 cannot add that the Convention had no
further power, simply, because the Legislative resolutions upon
the subject of its call, would restrain its action to certain subjects.
The Convention of the People cannot be divested of its powers
in such a manner ; and I am bound to respect all its acts, dona
within the powers of the State of South Carolina.
22
The contest so far has been equal. The military oath if cast
down, by the 4th article of the Constitution, as it stood,has risen, at
the touch of the Ordinance, with renewed vigour. And we are
compelled to come to the third enquiry, in order to deride upon
the motion before the Court. We have, now, therefore to enquire,
whether the Ordinance and the Military Oath, may not, both, or
either of them, infract the Constitution of the U. S. Whether they
are to yield to the "supreme law" of the Federal Constitution, will
not require argument, under the view taken ol the Ordinance, as
forming a part of the State Constitution.
But let me notice at the outset,that when an article of the State
Constitution, is supposed to be an infraction of the Federal Con-
stitution, there must have been some practical operation of the ar-
tide, before it can be brought up for adjudication; and the ques«
tion before the Court must be confined to the specific operation
complained of, and its unavoidable consequences. The Military
Oath is complained of, by James McDonald, as \iolating his
rights, as a citizen of the U. S. as well as of So. Ca. This speci-
fic enactment may violate the Federal Constitution, and be set a-
side. And yet the 4th Article of the State Constitution, as a-
mended, and from which the oath is derived, may still remain in
our Constitution, for other purposes. Twenty acts may be pass-
ed successively, under that article : nineteen may be set aside, as
violating the Federal, Constitution ; but the twentieth act may yet
be constitutional and valid ; and the 4th article good for its sup-
port.
For instance, suppose South Carolina were to require aliens, or
denizens, to take such an oath, in order to render them competent
to hoid lands. Such a law might not violate the Federal Consti-
tution ; and the ordinance, or, as I call it, the 4th article of the
State Constitution, might then stand, as the proper support of a
very possible Law. It does, therefore, appear to me, that no part
whatever of the ordinance is* necessarily, before the Court for ad-
judication, upon its own provisions. The injury complained ol, is
from the oath alone. The Relator alleges, that to require him to
take the Military Oath, as a prerequisite to his office, would violate
the Constitution of the United States, and deprive him of his rights
as a citizen, now owing allegiance to the U. States as well as to S.
Carolina, by requiring him to disfranchise himself of the protection
of the Federal Government. It is the supposed injury to the Re-
lator, that enables the Court to take cognizance of the question
made. Courts act, only, upon cases which have actually occurred.
Does then the Military oath violated violate the Federal Consti-
tution by disfranchising the Relator, is the proper question now to he
considered.
13
My opinion upon this most important head of the discussion
must, for the sakeot reasonable brevity,consist, chiefly, in conclu-
sions drawn, from the principles and character of our own Govern-
ments. And I assume the following positions, with brief reasoning.
That the Union of the States is indispensable 1, To exempt us
from the collisions incident to neighbouring nations. 2. To insure
National Independence. And 3. To preserve our Liberties;which
constitute the ultimate object of the confederate States. We know
that Union procured us independence, and gave us Liberty, and
our Fathers concluded, that the continued Union of the samepow-
ers, would preserve Independence, and Liberty, to them, and to
their posterity. But the Union was mouldering away in the weak
cement of the old confederation. And the present constitution of
the General Government was resorted to, in order to strengthen
the basis of the Union, and to render it permanent. But they would
have that Constitution, Republican, in its principles ; i. e. deriving
all its powers from the people,and representing them in the Govern-
ment. Because the history of nations assured us, that a Republic
affords the best security for individual liberty, for freedom of in-
dustry, of capital and of religion : and because that form of Go-
vernment -was analogous to the State Constitutions, which had
been already established and were to form the basis of our Gene-
ral Government. They, therefore, adopted the present Federal
Constitution, to confirm the Union; and through it, to preserve the
peace, independence, and liberty of the United States.
The powers conferred by this Constitution, on the Govern-
ment of the United States are for our general consideration. But
the more immediate objects of enquiry are, now, what is Sover-
eignty ? What is Allegiance ? And where is allegiance due ? In
order to discover whether the Relator will be disfanchised, and
the Federal Constitution broken, by confining his allegiance to
the State of South Carolina. For these purposes we lay down the
following additional premises of the argument.
Man and his powers, moral and physical, constitute the elements
of society.—Man and his powers, when organized, make national
society.—The moral principles by which the society is organized,
make up the constitution of that society. The C onstitution gives
the character and powers of the Government. The practical use of
those powers, by agents, constitutes the administration of the Gov-
ernment. The administration is for the practical benefit and pro-
tection of all, who form the society. And each individual member,
entitled to the benefit and protection of the Government, is a citizen
or subject:—his allegiance is due therefor. And hence it follows
that "allegiance and protection are reciprocal :" the one cannot ex-
14
ist without the other. Let us apply those plain principles to the
American Government. The character and powers of our Gov-
einment, appear, in a Digest or Code of principles, and rules, rati-
tied by the States, severally, and called the Constitution of the U.
States. This Government consists in a Democracy, by represen-
tation (usually called, a Republic;)—The powers of the people of all
the States, as far as given by the Constitution, being delegated to
representatives, periodically elected.
The whole practical sovereignty, consists in the powers of the
people, after the rules of their society have been established, and
necessarily reside in the people, who hold all the ultimate sovereign
powers. For although the Sovereignty is delegated for a time, un«
der the rules of the Constitution, it is yet continually returning to
the people, to be again delegated under the same rules. So that
when we speak of sovereignty in the Government, or in Congress;
these are but names tor the people who are represented by their
Government or Congress; and who thus representing the peo-
pie, are endowed for the time, and, for the people, with sovereign
powers. For example ; the sovereign power of South Carolina is
in the people. But the General Assembly representing the people,
are endowed with many sovereign powers. The sovereignty of
the United States, as given by the Constitution, is in the people of
the United States ; but Congress representing the people, are en-
dowed, with that sovereignty. This identity of the people, and their
Government, must be always kept in view. And on a formal and
solemn occasion would be correctly expressed. As in an indict-
ment for treason, which would charge the crime to have been
committed against the people of the United States;—and not against
Congress, or the Government.
In one instance at least, the Senate and President are endowed
with a high prerogative of Sovereignty; as, to conclude a peace, by
treaty. But they also represent the people, are agents only, and
ratify the treaty, for the people of the U. S. Thus the sovereignty
is variously delegated, for a time, and for convenient practical
use, under the rules of the Constitution ; but is continually return^
ing to the people, to be again delegated under the same rules. Or
correctly speaking, all governmental powers are always in the
people, who practice and enforce them, through their agents
in the Government. Any distinction between the practical use of
those powers, and the right to them, is irrational and absurd. Both
the use and the right, are in the people. As plainly as when, a
company act by an agent, the thing, or act, done and the right, are
equally by the company.
We have, now, the meaning of sovereignty; and have answered
the first question.
15
2. Allegiance, we have seen, commences with the benefits, andL
protection of organized society. It consists in obeying the sove-
reign powers, as far as they are set forth; either, in the primary
rules of the constitution, or the secondary rules (Laws) laid down
by the Government, within the powers delegated by the Constitu-
tion. But as piactical sovereignty, arises only, when the primary
rules of society are formed, so as to organize men into a nation, un-
der some intelligible principle; so also, allegiance instantly attaches,
upon such a national formation; and is commensurate with the
powers, adopted for the government of the nation.
We have now answered the second question; and seen, that Al-
legiance is due to the Sovereign power, for protection, and the ben-
efit3 of Government; to which every citizen is entitled.
It may not be amiss, to notice the character of governmental com-
pacts, and certain duties flowing from them, before enquiring,
whether the United States, have any sovereign powers.
The Governmental or social compact, the fundamental or su-
prcme law, which we call, the constitution, has this essential char-
acteristic. That the individual parties to it, have not therigh' to
depart from it, at discretion. This restriction is indispensable to
the peace and safety of society, and to the necessary coercive
power of the Government. But a majority may depart from it,
without the concurrence of the minority of the same community;
because all moral power inheres in a majority, as a primary prin-
ciple of free governments, '
Government is in fact, but the depository of the anterior sover-
eign authority of the people, rendered express, and positive, practi-
cal, and limited, by the Constitution. It represents the national
society in its practical powers, The Laws are manifestations of
the same powers; and obedience to those laws is the price ofindivi-
dual liberty, which is secured by the laws. Such liberty consists in
the rights of the citizen being thus secured; and is made up, as much
of obedience to the powers of Government, as of resistance to the
violation of rights. It cannot be opposed to obedience, for such
liberty and obedience are required to be in unison,'in order to se-
cure the justice of the Laws-and to protect that very liberty. To
know the extent of constitutional authority, and to obey the Laws
deduced from it, and no farther, constitute the means of individual
independence. For then, we command what we ought, and pre-
serve our rights. Washington and Hampden fought for no other
liberty. They felt and knew that legitimate liberty and civil obedi-
ence cannot be opposed to each other, but constitute twin emana-
tions of the same laws, constitutional laws, is their common source.
But when the Law over-leaps its constitutional bounds, it conapro*
16
tnits its own authority, impairs our independence, and makes resis*
tance just. It is in such cases, that unwise laws open the door to
resistance, and excuse it.
Rulers and people are to be equally guarded. The former, not to
exercise power, in place of authority; and the latter, not to mistake
violence, for independen ce. Else, they lay aside their proper char-
acter, forget that they are, both, but the organs of the Laws; bring
their rights in question, invite opposition, and lose the triumph of
their cause.
Such principles and sentiments, should be felt by all parties, the
Government and the People, at the present moment: and are the
proper predicates of the next consideration of our subject;
3. It remains to be shewn, that the people of the United States, in
Congress assembled, have sovereign powers. That their Govern-
ment protects us: and that we are citizens of the United States,
receiving the benefits of the Federal Government. And then,
our allegiance follows,according to the constitutional powers of the
Government,but no further. The people of the several States adopt-
ed the Constitution of the United States,in the following manner:—
"We the People of the United States, in order to form a more
perfect union," &c. &c. "do ordain and establish this Constitution
for the United States of America."
In these words, we see, at once, that all the powers conferred by
the Constitution, are given to the United States, collectively: and
that the people, by adopting that -constitution, made themselves
parties and members; and of course, citizens, of the national soci-
ety and government, created by their constitution. They made it
their governmental compact; and all the incidents of such a com-
pact unavoidably follow.
But does that constitution confer sovereign powers ? is now the
question. By the 8th sec. 1st art. Congress has power; to lay
taxes—to regulate commerce—to coin money—to naturalize aliens
—to declare war—to raise armies—provide a navy, &c. &c. ccc.
These are the highest sovereign powers: and according to the
Declaration of Independence, are the indications of "free and in-
dependent States." Treason is the crime against the sovereign
power. And by 3rd sec. 3rd art. Treason against the United
States (not Congress or the Government) is defined. Though
Congress may declare the punishment. There can be no higher
sovereign power, than, that new States may be admitted into the
Union of the old; And this power is given to Congress, by 8d
sec. art. 4.
The sovereign powers of the United States, as represented by
Congress, are, then, various, and of the highest order.
17
Now, if ali these supreme powers had been conferred on the
State Government of South Carolina, instead of the Federal Gov-
ernment, could any man deny, that allegiance would hav^ been due
therefor ? But all these powers have been conferred upon the U.
States, in Congress, which is, in fact, the Government of each State,
assembled at Washington. Can the mere name of State Govern*
ment and United States Government make any difference ? When,
in fact, and truth', both arc equally our Governments, our establish-
ed and supreme agencies, in all the powers given,by their respective
constitutions.
Suppose South Carolina to secede from the United States : and,
then, to confer the same powers on her own State Government,
with the right to enforce them; would not allegiance follow ? As-
suredly it would; call the Government what you will. And whe-
ther it exercised the same power over one, or more States.
Suppose again ; that South Carolina having separated from the
Union, were to divide the present Federal powers, and the present
State powers of Government, hetween two Legislatures, (tne For-
eign and Domestic departments) but each supreme within its
sphere of authority. Would not allegiance follow for the one set
powers, as well as for the other. Two supreme Legislatures ac»
tually existed in Rome, for some hundred years ; and may exist in
any independent nation ; and would perhaps be a useful improve-
ment in many governments.
Let Great Britain yield to Ireland, O'Connell's scheme of a Do*
mestic Parliament; give to England, to Scotland, and to Wales,
the same ; and Great Britain, would have a complex government,
in perfect harmony, with her present system. Allegiance would
be still commensurate with protection : and due to each Parlia-
ment* within its prescribed sphere. In England, allegiance would
be said,to be due to the King and Parliament; but in reality,would
be due to the People, represented by the King and Parliament,
(their organs of the sovereign power)—As we say, due to Con-
gress, meaning the people of the United States. The sign being
taken by a familiar figure of speech for the thing itself:—as plain-
ly, and simply, as if it were said, A lodged at the Golden Horse,
instead of, at Claike's Hotel in Golumbia, or at the Red Bui), in
London.
2d. Do we receive benefits from the Government of the United
States ? By 2d sec. 4th art. the citizens of each State are en-
titled to the privileges of the citizens in the several States. This
is a striking instance of sovereign power, and of the high consider*
ation received by us, for conferring such power on the U. States.
By sec. 4, article 4, a Republican form of Government,is guaran*
tied to each State.(Another instance of incalculable consideration.)
18
All these benefits are extended to us ; and we live, in a measure
under the protection of the United States; and altogether so,
when out of the States. Such were the benefits received by the
Colonies for which allegiance was due to the mother Country.
Our property escaping from us, is secured in the neigbouring
States, sec. 2, art. 4. The constitution, the Laws, and Treaties
of the U. S. ate made the supreme laws of the land, and para-
mountto the State constitution and laws. Art 6.# All State officers
are sworn to support the Constitution of the U. S. sec. 3. art. 4.
And finally Congress has power to enforce the Constitution, and
Constitutional laws, by Judicial, and executive officers; which ren»
ders the Constitution a compact of Government, or supreme law,
with power to enforce its own provisions, and not a mere league of
friendship, like the old Confederation.
If, then, citizens owe allegiance to the constitution and Govern-
ment, to which they are parties, the people of all the States owe al«
legiance, by virtue of the Federal Constitution and Government,
to the U. S. If benefits conferred, and accepted, be the price of
allegiance, or if protection be the consideration, we owe it to the U.
S. And if there be sovereign powers (the co-relative of allegiance)
we find it in the people of the United States assembled in Congress.
The argument might here end. But it is urged by some, that
allegiance cannot be divided, from its essential nature. And yet
it is admitted, that allegiance is reciprocal, and co-relative to, the
sovereign power,"that protects. But the sovereign power to protect,
is actually, and positively divided, by our constitutions, between the
State and General GovernmentsIn fact nothing is more happily
divisible than power. And allegiance being reciprocal to, is also
commensurate with, the powers that protect'; and must, of course,
if the premises admitted be correct, follow the division of the Sov-
reign power. To urge, that such a division is not to be found on
the historical file of other Governments, is to adduce hypothesis
and analogy against the plain fact, and acknowledged truth. It is
to theorize upon what the thing should be, when we know what the
thing is, and is the mere effort of ingenuity to change an acknowl-
edged compact, by substituting a plausible doctrine ; and reconci-
ling things opposite in nature.
But however plainly, it appears to my understanding, that by the
American Constitution, sovereign power and Allegiance have been
divided yet, it cannot escape observation, that this question is at the
bottom of our local politics; and has created parties among men,
who should have been united as brethren. And it would seem,
that some moral obligation ought to be felt, by all, who are called
on to devote themselves to the subject, to contribute each his mite
to the work of.reconciliation. Let us therefore look further into
19
this State question, by the light of reason, and judge fairly, on the
ground of principle and see, if they too, do not, aid and support
the positive injunctions of our Constitutions.
Truth is every where the same:—different systems may amal-
gamate; and unanimity must prevail, finally, upon this great princi-
pie; or the Union falls by inherent defect. Let us then reason to-,
gether somewhat farther. Cannot the people of the United States,
respectively delegate to their Federal Government, the Sovereign
powers set forth in the Constitution of the United States. And
cannot each State say of the mass of reserved powers, the follow*
ing are delegated to its own Legislature as set forth in the State
Constitutions each class of powers tobe excercised, by a distinct
representative Government,—all the powers, remaining still, in
the People, the former in the people of the United States jointly ;
the latter in each State separately, as before the Constitution of
the United States. The people retained ultimately all the sove«*
reign powers; but the Federal powers they retain jointly, and only
to be further modified by a vote of three fourths of all the States?
The People have actually so formed their Government, and to
question the right so to do, is to question their power to adopt
their own government. It would be, to question, whether the sove-
reign power means sovereign power; or to destroy its convenient
and practical use.
To divide the exercise of the sovereign powers,between two Gov-
erments; or rather to delegate them to one, consisting of " two co»
ordinate parts of one integral whole," as Mr. Jeffei^on calls it, is, as
simple, and inteligible, as to divide the Legislative power between
the Senate and Representatives of So. Ca. with some peculiar pri-
vileges in each house. A nation may have many such assemblies
for their own Government, as checks upon each other. It is wise
thus to divide power, and with it, the loaves and fishes of power.
Such a division checks usurpation, is wholesome for the equality of
man and for liberty; and is the best devised barrier "against anti-
republican tendencies." It is like permitting sects in religion, which
restrain each other, reciprocally, and limit the power of one over
ruling church. Such a division is as simple, in itself, as the divi-
sion of J ndicial and executive powers between classes of officers. I
may safely say, that the broad foundation of all our improvements
is to be found in the distinct powers and objects of the State and
General Govevnments. Upon this bases is erected the grand im-
provement of written constitutions; which is wholly American; and
forms an illustrious sera in the history of Governments.
The former enabled us to divide the powers of Government,
which is so important, in checking the aristocracy of power; to
make the two Governments vigilant guards against the self-encrea*
20
sing power of all Governments, and to extend the principle of re*
presentation, greatly, beyond the system of England; from which
country we borrowed the idea, both, of checks upon the abuse of
power and of representative Government.
By written Constitutions, the system of popular representation
was completed; and checks were made commensurate with power.
Written Constitutions gave origin to the check upon the Legisla-
tive power; which was unknown before, and constitutes, toge-
ther with the reciprocal vigilance of the General and State Govern-
ments, the safe-guard of the people against governmental en*
croachments.
When we consider the great extension of popular representation
in America, the improved system of checks and balances, introdu-
ced into every department of Government, the mutual and oppo*
site supervision of the State, and General Governments, and of the
States among themselves, who are deeply interested in each others
course of conduct; the bounds set in this country, to the power.of
Magistrates, who were so terrible, in ancient Rome, and, who
knew how to make their turbulence and crimes pass unpunished, in
Athens; when we consider also how restricted, in America, are
the privileges, so dangerous to liberty; in modern monarchies,—
what a guard is set over them by frequent elections, teacning our
officers, practically, that they are but. the representatives of their
powers; while the division of the Republic (into so many nations,
with distinct Magistrates, and a separate police) goes far to forbid
the possibility of a general national phrenzy ; such as have at difa
ferent times convulsed European nations; when we consider all
these practical improvements of our Government, introduced by
written constitutions, when applied to the division of the Repub-
lie into States, it is scarcely too much to say that the American
system of Government concentrates the wisdom of all experience
on the subject. Our statesmen aimed to combine these improve-
ments, with the individual equality, and liberty of a confederate
Republic; and with the active internal vigor and'external force,
of a national government. America disregarded names; took ad-
vantage of historical experience, and formed a Government, suitd'
ble to her own People, upon principles, made apparent from the
general consent of the States. At the same time, she excluded no
system, as all together vicious; but acknowledged, in each, what
was useful, combined the good, and excluded the bad. " It" (our
Constitution) says Mr. Madison, "having, in no model, the similitu-
des and analogies applicable to other systems of government, must
more than any other, he its own interpreter according to its text, and
the facts of the case" (Letter to Mr. Everett.) With such a Con-
stitution, we are not to theorize, or to argue, from the principles of
21
other Governments; and, then to bend the facts and principles o.
our own, to accord with the assumed theory. America chose to
unite to a confederacy of republics, many of the powers of a Na-
tional Government and it would be, irrational to suppose that the
principles of each, were not to prevail, in their proper places,
44 whilst it is neither, the one nor the other; but "a mixture of
both," says, the same illustrious expounder of our Constitution. We
fought for a Government, says Mr. Jefferson, " which should not
only be founded on free principles, but in which the powers
of Government should be 60 divided, and balanced among several
bodies of Magistracy, as that no one should transcend their legal
limits without being effectually checked, and restrained by the
others." [Notes on Virginia.]
Now, I ask, can it be credited, from the force of any theory,
derived from, or of any analogy to, the ancient confederacies, that
the highest species of obedience or allegiance, is not due to this
Government, possessing as it does all the Sovereign powers, which
require such obedience or allegiance ? The only answer made,
is from a theory of the indivisibility of allegiance in Confederacies;
and the fancied necessity of preserving in the States, a para-
mount power to suspend an act of Congress, deemed unconsitution-
al.
In discussing the divisibility of sovereign power and allegiance,
it would be fastidious, to decline the introduction of the doctrine of
Nullification, as set forth in the Virginia Resolutions of 1798'9,
This doctrine *has much to do with the present question. But when
rightly understood, is, so far from requiring an exclusive allegiance,
that it is, itself, bottomed upon a division of aovere'gn powers, be-
t ween the people of each Staie, and the people of the United
States ; and corresponding allegiance to each people. This,I say,
is demonstrable. The doctrine of Nullification as set out in these re-
solutions is, that upon Congress passing a Law, which is not war-
ranted by any general, or specific power,given by the Constitution
of the United States, that Lav/ is null, and void
And if such a law encroaches upon the exclusive powers, and
reserved rights of the individual States, each State, being a sover*
eign political power, may constitutionally, defend its exclusive po»
litical and constitutional rights : and may nullify such laws, for the
purpose of maintaining its liberties, rights and franchises, [usually
called State Rights] within its own limits.
The object of the State interposition contemplated, [says Mr.
Madison p 21] is solely, "that of arresting the progress of the
evil of usurpation, and of maintaining the authorities, rights, and
liberties appertaining to the States, as parties to the Constitution."
If this brief explanation of Mr. Madison were always duly attend-
22
ed to, this Virginia doctrine would be better understood, less ob-
jected to, and its counterfeit less current. It would be seen, that the
State power to nullify, is essentially political, and defensive, of the
rights of the States, "as parties to the Constitution and is not in-
vasive of, or offensive to, the opposite constitutional sovereignty of
the U. States. It necessarily, and expressly, requires the case of
a law, entirely without the federal jurisdiction of Congress— a
" casus non foederis," or usurpation; a law, which can, neither be
supported by, nor referred to any power given to Congress; and
which practically invades the right of a State, as a party to the Con-
stitutioh. It necessarily presupposes a case between two sover-
eignties, which cannot be brought, in the shape of a suit at law, be-
fore any judicial tribunal whatever.
In introducing this State veto against the usurpation of an un-
constitutional power, that infracted the exclusive right of a State,
Mr. Jefferson evidently took, for granted, the following clear and
allowed principles1. That laws infracting the constitution were
void. 2. That courts have no cognizance of controversies be-
tween a State and the United States. 3. That it is the incident
of Sovereignty not to be sued before a Court. 4. That the States
are Sovereignties; although they have not all their original sover-
eign powers. These principles are admitted by all authoritative
writers.—See, Federalist, Kent, Story, Rawle &c.
From these allowed principles, Mr. Jefferson deduced this con-
elusion.
That when ever a State had its exclusive Constitutional right prac-
tically invaded, by an act of Congress, having no Constitutional war-
rant for its support; there being no tribunal to decide between the
sovereign parties, each party (State and United States) must from
necessity, decidefor itself, in order to protect its exclusive Consti-
tutional rights; which can in no other way, be protected. " Though
a law laying a tax [say the authors of the Federalist, page 169] for
the use of the United States, would be supreme in its nature, and
could not be legally opposed or controuled. Yet a law abroga-
ting, or preventing the collection of a tax, laid by the authority of
the State (unless upon imports or exports) would not be the su-
preme law of the land, but an usurpation of power not granted by
the Constitution." " These (laws) will be mere acts of usurpa-
tion, and will deserve to be treated as such," says the same au*
thority. Here, we have the true doctrine affirmed, and the false,
negatived.
If either a State, or the United States were to pass a law to re-
strain the other from laying taxes, the true doctrine would be seen
and acknowledged. It. was seen, and acknowledged, but the other
day, by 23 States out of 24; and Congress practically adopted it.
23
South Carolina, by her Ordinance of Nov. 1832, attempted to re-
strain a tax act of the United States, by nullifying it; [an instance
of the mistaken doctrine,] and Congress forthwith made itself" the
judge of the mode and measure of redress"—[precisely the doc.
trine of Mr. Jefferson] and passed the enforcing act.
Now, can there be a doubt, had Congress acted the part of South
Carolina ; and offered to restrain the State tax act, that South
Carolina, might have constitutionally, and in like manner, made her-
self" the judge of the mode and measure of redress," and used, on
her part, the cudgel of an enforcing bill ?
Why did Congress pass such an act ? The answer'is, that no
Court could have taken cognizance of the case : and Congress
must, of consequence enforce its tax act, or yield up the essential
right of sovereignty. This practical instance is a most satisfacto-
ry affirmative example of Mr. Jefferson's constitutional doctrine of
nullification ; while it illustrates most happily, the error of the per-
verted doctrine, called Nullification, in one or two States.
The right belongs, constitutionally, and equally, and so says Mr.
J.—both to the State and the United States : and when rightly
understood, has noth ng new, or forced, in its principles, nothing
terrific, in its application : and neither the State, nor federal go*
vernment can give up this true constitutional doctrine of Mr. J. and
of Virginia in '98, '99. Let Congress yield it, and our glorious Union
falls, prematurely, into its dotage. Let the States desert the same
right, and the government of the United States becomes unfede-
ral. unrepublican, and may concentrate all power.
The potential existence, then, of the power to nullify an uncon*
stitutional law, which practically encroaches upon the constitutional
right of the opposite sovereignty, is of vital, and enduring impor-
tance to the republic,and belongs to our peculiar constitution of Gov-
ernment. It may be perverted. But we must trust to the good sense
of the proper parties, not to mistake, and use, violence, in place of
constitutional right; nor force, for independence of conduct, norac-
quisceuce in lawful authority,for heartless submission to oppression;
nor yet, to be ridiculed out of the true doctrine; because the abuse
and perversion of its principles have occasionally passed current.
I might, here fearlessly ask the question, whether this doctrine
does not evidently imply and absolutely require, for its own support
allegiance both to the United States and to the States. But I will
first show that I have described, and presented the true doctrine of
Virginia in '98 and '99. The federal acts against aliens of '98 ilius-
trate, to demonstration, the true doctrine, and point out its perver-
sion. Both of these Acts, of'98, were equally, abuses, and perver-
sions of the federal powers of Congress. But the act, against alien
enemies, came within the war power of Congress; and was a "ca-
24
sus foederis," not void, and could not be nullified. And so the
Virginia resolutions of '99 expressly tell us. On the contrary, the
art against alien friends could be referred to no power whatever
given to congress, by the constitution; while at the same time, that
act encroached upon the important State right, and authority, of
protecting and governing alien friends, who were the denizens of
the individual States. Such alien friends would lose the protecU
tion of the State, and would leave their homes, to the great loss,
of the individual States; and in derogation of a clear State right
to encourage and protect their residence, within the State. No
other State, but the one, of the alien's residence could interfere.—
No question could be brought by the State before the supreme
court of the United States. And the State had no other power
whatever, over alien friends, than that which was denoted by their
residence: and which was continually diminishing The States
must therefore,either protect the alien friend, or yield up her sover-
eign right of protecting persons & property, & which were subject
to be in vaded , by congressional legislation, in no other constitutional
way whatever, than through the war power or the taxing power.
But neither of these powers, could constitute any warrant what-
ever, for the expulsion of alien friends. This act was then alto-
gether without any support from the constitution; a perfect instance
of casus non foederis; and infracted the exclusive constitutional au-
thority of the indivivual States. Such an act. against native citi-
zens would have had just as much support from the constitution;
This is the example of this Virginia doctrine of State interpoli*
tion. The whole doctrine is bottomed upon the constitutional
distribution of power between the State and Geneial Government;
and plainly requires allegiance to both Sovereignties, in order to
support a faithful adherence to that very constitutional distribution.
But when this constitutional doctrine of the protective State
Veto, is carried out, as its perversion is called, and the doctrine is
extended to the correction of the mere abuse, or mistaken use, of a
power really delegated to Congress, it then absolutely requires
some mighty power to lift up the Federal Constitution, or neutra-
lize it, in order to let in this ultra-constitutional State Veto; which
otherwise would infract the Constitution. Hence it follows, from
the necessities of this extended Nullification, that when a State
acts in its sovereign capacity, although three fourths of the States
are requisite to alter the Constitution, it is, then, lifted up, like
Antius by the arm of Hercules; and all must be silent before its
sovereign voice. And hence, too, it follows, that allegiance must,
now, become single and exclusive ; although the people may still
obey the authority of the United States, in all respects, not thus
specifically vetoed, by the State Sovereignty. An exception which
25
i apprehend, ought to destroy the very notion of such indivisible
allegiance. But the true doctrine of Mr. Jefferson as plainly re-
quires positive allegiance to the United States in ordet to support
every constitutional law ; and the same allegiance to the State, in
order to set, at naught, any law, that can be referred to no con-
stitutional warrant; and which encroaches practically upon an ex-
elusive State right liberty, or franchise.
The illustration, by the plain and palpable distinction between
the two alien laws of '98—both equal abuses of the constitution ;
but the one, no usurpation of a new power, is decisive of the dis-
tinctiou between Mr. Jefferson's Nullification, and the late perver-
sion of it; and has never been answered by the supporters of the
latter.
This distinction too, points out plainly the reason why Virginia,
in the late commission of Mr. Leigh addresses South Carolina in
these words, [viz.] ''Resolved by the general assembly [of Virginia]
"that they continue to regard the doctrines of State Sovereignty
and State rights, as set forth in the resolutions of 1798, and sustain-
ed by the report thereon of 1799, as a true interpretation of the
constitution of the United States and of the powers therein given
to the General Government; but that they do not consider them,
as sanctioning the proceedings of South Carolina, indicated in her
skid Ordinance."
When some of the Eastern States in 1814, proposed to Nullify
the act declaring war against Great Britain, we turned to the Con-
stitution and read this sentence, " Congress shall have power to
levy war," as a decisive refutation of the assumption of those States,
in like manner, when we Nullified the Tariff act oi Congress (as an
abuse and perversion of the taxing power) those States turned to
the Constitution and read, "Congress shall have power to lay taxes."
And Virginia said to both parties, you are wrong. For there are
Constitutional warrants for both laws; and neither in the one case,
nor in the other, is there any ground for State Nullification. For
neither law usurps a new power; but is bottomed upon a power
plainly delegated to Congress. You mistake the abuse of a power
given, for the usurpation of an original power not given. " We
still uphold the resolutions of '98 and 99." But they do not war-
"rant the Nullification of any law of Congress, bottomed upon the
general power to "levy war, or to lay taxes." The question of
Constitutional power in Congress, does not depend upon the degree,
in which it is used; and of course, the same power, that can impose
a light duty can impose a heavy duty. If it can declare one war, it
can any other war. This doctrine leaves the mere abuse of the power
as the Constitution leaves it to be corrected by tne people, through a
change of representation.
26
Whereas, the mistaken doctrine strikes at the'very* foundation
of the constitutional power itself:—It would annihilate the whole
power of war and taxing—would take away the cent as well as the
dollar—one per cent, as well as one hundred per cent; and would
thus convert its own charge against Congress, of abusing its power,
into a right of taking away all power ; and would form an excuse
for the usurpation of the exclusive right of the people of correcting
abuses through the election.
it .w ould seem to forget that the supremacy of the Constitution
of the U. JS. is a declaration that it cannot be controled by a State;
and it would reconcile the impossibility of taking away apart, and
jet leaving the whole—of a partial sovereignty of the United
{States with a complete sovereignty in the individual states.
such may have been the tolly of the old confederation,but does not
belong to the present constitution of our Government, whit h, taught
by experience, on the very subject, has divided the sovereign pow»
ers by an express nine of demarcation between the States and the
United States.
Vv e have no w tried the question of the divisibility of allegiance
between the States and the United States governments. 1st, by
the federal constitution itself, 2d, by the force of reason, and 3d,by
the Virginia doctrines of'98, '99. And they all concur to support
us in tins position, that allegiance is due to the United States rep-
j- sented in congress,and to the individual states. The converse of this
position appears,evidently, to have sprung from an entire misunder-
standing of the Virginia doctrine ol State Nullification; which rightly
understood, is a constitutional doctrine, and requires allegiance to
both governments in its very foundation.
Let us now, once more, apply historical facts [the best of all
auxiliary aids in the construction of the Constitution] ; and see if
America has been a stranger to a divided sovereignty or alle-
giance.
Such a division, both of sovereign power and of allegiance, is fa*
miliar in all our political history.
1st. The Indian tribes, although dependent sovereignties, have
been always allowed a national existence, and self government.
The entire history of the States inform us that those tribes, were
bound, not merely by a double but by a triple allegiance -—to their
own government; to the States,—and to the mother country, [now
the United States] And what would we say if those tiibes were
to cast off the supremacy of the States; or of the United States,
upon the ground of the essential indivisibility of allegiance ?
1 apprehend that we would, then, perceive, and teacii them,that
allegiance in its nature, may be divisible.
2d. VV hen the Stales were Colonies, the sovereign power of
27
protection was divided between the mother country, and the co«
ionial governments. And allegiance was practically yielded to
both, according to their respective powers of protection.
3d. Upon the declaration of independence,the same division was
kept dp, by our habits, necessities, and common sentiments ; if not
by that illustrious act which gave birth to the Republic.
4th The same division was reduced to a compact of Union,
friendship, and reciprocal dependence of the States, by the con*
federation of 1778. But without power to constrain obedience.
5th. Finally, by the Constitution of 1787, a new division of so-
vereignty and protection, was reduced to a compact of govern*
ment ; and allegiance followed, according to that division between
the United States and the States.
If such a division had never existed before,it was unquestionably,
within the sovereign power of the people to make it now. But
they did make it ; and chose to be one nation " in many respects,
arid for many purposes and their fiat is conclusive on the subject
with all, who respect such a sanction, or acknowledge that sover*
eignty is practical power, and may govern itself.
It follows then irresistably, that, if our uniform practice and
habitual sentiments—our political course—our repeated declarations;
and,finally,our solemn recognition by the Constitution, can authorize
us so to conclude, there is a division of the sovereign national pow-
ers, between the People of each state, and the People of the United
States represented in Congress; and a corresponding division of
allegiance, due to each people, respectively. This division is en-
dispensable to the existence of the state and General Governments;
which, as Mr. Jefferson writes to Major Cartwright, "are co-or-;' -
nate departments of one simple, and integral whole." Their inde-
pendence of each other, depends essentially upon the due obser*
vance of the constitutional division of powers, between them. Each
must be supported, by allegiance, in the exercise of its powers, to
their extent; or we shall ielapse into the old confederation, *nd
cease to have a practical Federal Government on the one hand:
or national consolidation on the other, will swallow up the State
Governments.
It there be any who still doubt, I would say with the Father of
our Politics "Let them stand,as monuments of the safety, with which
error may be tolerated,when reason is left free to combat it."
I am not one of them ; but would claim for myself a correspond-
ing forbearance and liberality.
The general question, before the public is, whether South Ca*
rolina will place her prosperity, upon a doctrine disapproved, by
twenty three States out of the twenty four ; and will continue to
support it, by the administration of an oath, so plainly its offspring.
s§
as to require entire confidence in the constitutional truth of that
peculiar doctrine, in all,who take it. Whatever was the intention,
the oath tests belief in that doctrine ; or else, it is an ineffectual
form ; which no free government ought to require, or trifle with.
It cannot be concealed,that something has placed our population,
and cur wealth, on the high roads, from S. Carolina. Georgia,
Alabama, and Mississippi,grow strong, with our population,and rich
with our wealth, The removal, from one State to another, is so easy
and convenient,is so small a change; and so unlike the ordinary ex-
patriation of men, leaving their native country, in Europe, that it
ought of itself, to induce great consideration, in the breast of eve-
ry citizen ; if not arrest the course of statesmen, who would wil-
lingly try hazardous experiments,upon the strength of the opinion
of the majority of one State only.
Is the woi Id, yet, to be taught, the utter fallacy of attempting to
establish a political theory, in this way, when all true History, and
human nature assure us, that just principles are dear, not for their
power and control; but for their influence and beneficence ; not
because they command ; but, because they nourish our interests,
and sustain the common rights of man.
To imbibe opinion from an oath, is hateful to an independent
mind.—The very association taints the opinion ; and men feel a
great moral rir;ht invaded, bv the opinion being required ; and
will not judge of it, fairly even when meritorious. The mis-
fortune is,that violent policy engenders an opposite violence. The
mischief then encreases many fold. The best men engage on oppo-
site sides.—Proscriptions for political opinions follow; parties, at
the very height, know not that they differ but upon an abstract
theory ; and men hate each other for their logic. It is apt,finally,
to take the form of a civil war, and the quarrel subsides, after
much bloodshed, as it commmenced, with little inteligible cause
for war;a'id,as little effect upon men or principles.An abstract prin^
ciple of religion, in the reign of Charles '9th, had thrown France
into adverse and hostile parties ; but they soon fought for revenge,
more than for leligioo. The King himself set the example of as-
sassination, at the butchery of St. Bartholomews,—every house
was made a fortress,—everv garden became a battle-field,and men
were driven into scenes of carnage by the most violent passions
of the human heart. But it ended, after streams of human blood,
to the ruin of the country, in her wealth and population, while her
most cherished arts were spread abroad through Europe.
Such is the common fate of extreme opinions,in religion, or po»
litics, that would succeed by oaths and force, instead of reason and
argument. But there is a, steady common sense judgment in this
29
country which has become characteristic of America; and is discern
able in all her final acts and proceedings, that induces hope, for the
future.
The late compromise of the Tariff of duties is a practical in-
stance of this characteristic. The majority yielded, as they ought,
to the earnest feeling, and strong conviction of the minority;—both
parties abated much of their pretensions.. And this can always be
done, with dignity, by the majority, in a Republic.
With this compromise the contest has ended, in the whole South
except in South Carolina: and there is no cause for this excep-
tion, besides our local feelings. None, at least, that impartial His-
tory will uphold, as sufficient to justify farther contest. Let us
the n be at peace, and afford an opportunity for the future growth of
the State.
I have said no more than I feel and apprehend, and may be
mistaken. But I have never, since our difficulties commenced,
kept back any opinion, when once matured, whatever side politics
s^or doctrine it might aid; and 1 cannot act otherwise, now, when,
I verily believe the time has come, to lay aside all local politics, and
to look only to the welfare of my native State.
My exposition, both, of the doctrines of '98 '99, and of the effect
of the ordinance of March 1833 may give little satisfaction to any
mere party man. But they have my own deep conviction of their
truth, and 1 can do no more than present the true tablet of my in-
ward opinions, when called for by the occasion; and leave them
for others, to read, and judge of.
Nine times have I been officially sworn.—Thrice in the Repre-
sentative Hall of South Carolina ; and, always, bv her command,
that "I will preserve, protect and defend the Constitution of this
State and of the United States." This is as plain an oath of alle-
gianee, as the more express oath, taken by all Military officers to the
U. S. Was it not,I ask,a solemn pledge to preserve,protect & defend
the rights and liberties of this State, and the fundamental laws of
our National Union and Independence; or are such oaths air-form-
ed bubbles, that take their hue and colouring from the light, in
which they are placed, and to be blown away at pleasure ?
For myself, I do not doubt, and, therefore, cannot hesitate. And
my Country has, in this decision, the assurance of my fidelity to
to her complex Government; to which she has so oftea bound me.
Let the mandamus issue.
J. S. RICHARDSON.
LANCASTER, April 1834.