Cherokee Phoenix

Nullification Doctrine

Published October, 6, 1832

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Nullification Doctrine

Extract of Judge Clayton's letter written on a call made upon him. on the subject of nullification. We know that its great length is objectionable, but as the opinion advocates the right of a state to nullify the laws of the United States sustaining the Indian rights, we have thought it important to publish an extract.

'As your meeting, doubtless, in a spirit of what it conceived to be its rights, has subjected me to a political catechism, under a menace, will it be offended, if I, in my turn, without such rigor, seek to know 'what are their sentiments in regard' to Mr. Jefferson as a statesman? He has merited, and justly received, the title of an Apostle of Freedom. He is the great oracle of southern politics, in his opinions every statesman is safe who has the true and proper veneration for civil liberty. Will anything he has said be good authority with your meeting? If so, then mark his own words, uttered in opposition to the Sedition Law, one, not more unconstitutional than the tariff act. 'When (said this great man) powers are assumed, which have not been delegated, A NULLIFICATION of the ACT is the RIGHTFUL REMEDY: THAT EVERY STATE has a NATURAL RIGHT, to NULLIFY, of their OWN AUTHORITY, all assumptions of power by others, WITHIN THEIR LIMITS: that without this right, they would be under the dominion, absolute and unlimited, of whomsoever might exercise this right of judgment for them.'

Here, then, you have my opinion in full. Of Mr. Jefferson's political creed, I shall never be afraid or ashamed. Whenever his doctrines cease to be considered orthodox by the southern people, for they never were in order in the north, I feel entirely confident I am unfit to be their representative, and the execution of the threat of your meeting can never come too soon for my own inclination.

It is true that Mr. Jefferson has not pointed out the mode and manner of nullifying a law; but this must be left to the wisdom and discretion of the state whose rights are invaded by the assumed power, and must be as various as the acts are varied that violate the Constitution. Any plan, I care not what it is, that rids the state of the oppressive measure, is a nullification of that measure. To nullify is simply nothing more nor less than to render null and void. All unconstitutional laws are null and void. Is this objected to? I presume not.- Than your meeting, in its very first resolution, has declared that the tariff act is 'unjust and inconsistent with the spirit of the Constitution.' Is it too much to say that an unjust law, one inconsistent with the spirit of the Constitution ought to be NULL and VOID? As much as this doctrine is now derided, I affirm, without the fear of contradiction, that it is the very doctrine upon which Georgia has acted from the foundation of her government. And I will prove it.- I lay down these positions:

1st. That an unconstitutional law is NO LAW, and no man or community is bound to obey it, nay, they are bound to resist it, for every man is sworn to support the Constitution.

2d A law 'unjust and inconsistent with the spirit of the constitution,' is a violation of the Constitution, because it is a perversion of that instrument, a perversion is a breach of its intention, and according to all rules of construction, legal or moral, the intention must govern.

3d. That the general government can pass no law for which it does not find an authority in the Constitution, and that if it does, it is no more binding upon the states than if passed by a foreign nation, for as to all ungranted powers it is to these states a completely foreign government!

The two first positions need no commentary, the last suggests these reflections. Suppose Great Britain should pass an act for the benefit of her manufacturers, to operate in Georgia, what would the state do? I care not what, but whatever was done, precisely that ought to be done in relation to the same act passed by the federal government, for the right is wholly and absolutely usurped in both cases. If South Carolina, our neighboring state, were to pass such a law, everybody would see its absurdity, and Georgia would nullify it in an instant; then where is the difference between one state and twenty-three states? Where is the difference between the northern states doing this thing, in their separate state legislatures, or, under the pretence of constitutional authority, combining and meeting in the halls of Congress for the same purpose, if both methods be equally out of the pale of the Constitution? Why should we not as readily resist an usurped act of the general government as that of any other government? There is no reason for it, and four distinct cases has the state of Georgia applied, as Mr. Jefferson call it, this RIGHTFUL REMEDY.

May I again respectfully ask your meeting, 'what are its sentiments in regard' to Governor Troup's political principles? He says, 'whatever a state does in its sovereign capacity, will be right.

Acting upon this principle, in 1825, when the general government attempted to annul the old by what was called the new treaty, he solemnly declared it should not be done, stating boldly that he 'would employ all the limited means in his power to prevent it,' and ordered the Hancock troop of horse to hold themselves in readiness. What stronger revolutionary tendency could any measure exhibit? But this was not all, the Secretary of War ordered troops into the nation to overawe the state, listen, while perhaps the blood will curdle with indignation, at Gen. Gaine's despatch to that officer: 'Col. Chambers (said he) with five companies of the first, and Major Doneho, with four companies of the fourth regiment of infantry, have taken the positions assigned them, viz: the former at Marshall's Ferry, Flint River, and the latter at Princeton, Chattahoochee, with instructions corresponding with yours of the 21st of last month.' Did this alarm Governor Troup? Let me bring to your recollection that patriot's reply to Mr. Adams: 'The legislature of Georgia, will, at its first meeting, be advised TO RESIST any effort which may be made to wrest from the state the territory acquired by that treaty, and no matter by what authority the effort be made. If the legislature fail to vindicate that right, the responsibility will be theirs, not mine.' What became of the new treaty? Georgia nullified it. She resisted the authority of the general government because its act was unconstitutional and being in the right, through force was not only threatened, but arrayed, she triumphed, and the old treaty was sustained. So, the federal troops marched to Flint River, and then--marched back again. This is one act of nullification. I understand that the only objection to nullification is it has a tendency to revolution and bloodshed, and to bring the federal government into contempt. What could so effectually produce all these events as the case I have just mentioned?

The second instance was the case of Tassels. A mandate was sent from the Supreme Court of the United States to suspend his execution until he could be heard before that Court as a writ of error. What said the legislature?

'Resolved, That the Governor and every other officer of this state disregard any and every mandate and process that has been or shall be served upon him or them, proceeding from the Supreme Court of the United States, for the purpose of arresting any of the criminal laws of this state.'

'Resolved, That the Governor with all the forceful means placed at his command re__ and repel any and every invasion from whatever quarter, upon the administration of the criminal laws of this state.'

What language can be stronger? And do not the resolutions imply the probability of a conflict, that the state might have to battle it with the general government? But when the constitutional rights of a state are violated, what other alternative is left? We read from the lessons of the Revolution, that the motto of our forefathers was liberty or death, and so far, I am proud to say, the conduct of Georgia has evinced to the world a noble vindication of the maxim.

In reference to the third instance, I must beg leave again to reiterate the enquiry of your meeting, 'what are its sentiments, in regard' to the political course of Governor Lumpkin? For whatever may be their objections to that of Governor Troup, so far as related to these doctrines, he has been fully supported by the present Governor. At the last session of the legislature, Governor Lumpkin communicated to that body, that he had received two citations commanding the state of Georgia to appear in the Supreme Court, to show cause why the judgment rendered in our state court against Worcester and Butler, should not be set aside. What said the Governor on that occasion? That which ought to command admiration of every friend of state rights. 'Any attempt (said he) to infringe the evident right of the state to govern the entire population within its territorial limits, and to punish all offenses committed against its laws, within these limits, (due regard owing had to the cases expressly exacted by the constitution of the United States) would be the usurpation of the power never granted by the states.' And what was to be the remedy in such cases of usurpation? Harken to the Governor:-'Such an attempt, whenever made will challenge the most determined resistance ' if persevered in will evidently eventuate in the annihilation of our beloved country.' But was this all he said? No! The best evidence of his principles yet remains, and is in fact in accordance with that of Gove. Troup: 'In exercising (continued he) the authority of that department of the Government which devolves on me, I will DISREGARD ALL UNCONSTITUTIONAL REQUISITIONS OF WHATEVER CHARACTER OR ORIGIN THEY MAY BE, and to the best of my ability , will protect and defend the rights of the State, and use the means afforded me, to maintain its laws and constitution.' These are principles every way worthy of a statesman, and such as every man should be proud, much less afraid, to avow. But let us mark the issue of this missionary case, and here I must ask again, 'what are the sentiments of your meeting in regard' to the Missionaries? When I affirmed in Congress that 'before the Missionaries would be taken from the Penitentiary by virtue of the decision of the Supreme Court, Georgia would become a howling wilderness.' A LETTER from the city of Augusta, the place where your meeting was held, informed the Editor of the National Intelligencer, that I did not speak the sentiments of the people of Georgia. Now I had every reason to suppose he firmed his opinion upon the views of his neighbors, if he spoke the truth; and if so the political opinions of that city are at variance with the rest of the good people of Georgia, for the information thus given by the Augusta letter has, in all its parts, been wholly unconfirmed. And this induced me to fear that there might be an interest in that flourishing city, not altogether in unison with the good southern feeling of the rest of the state. Be this as it may, the decision of the Supreme Court has been nullified, or the matter is now thrown upon the general government to take its course. If it yields the authority of that Government has been held in perfect contempt and rendered null and void. If it proceeds, than all the consequences of revolutionary action and the effusion of blood so much dreaded in relation to the tariff, must be the inevitable result.

The decision purports to be founded upon the Intercourse Law passed by Congress in 1802, to regulate trade with the Indians, and also upon the solemn Treaties of the United States declared by the Constitution to be the supreme law of the land.- Now it is resisted by the State of Georgia, upon the ground that the Treaties are unconstitutional.

What is the planned fair inference to be drawn from this case? If a state can rightfully resist a law which has not only gone through the usual forms of legislation, sanctioned by the Executive and Legislative branches of government, but has been pronounced constitutional by the highest Judicial power, than is, passed all the guards that can give the stamp and authority of law, surely there can be but little cause to dread a similar opposition to the tariff act founded open and equally flagrant usurpation. But we are told they are not similar cases. Let us examine this point. The Intercourse Law is founded upon that power in the Constitution, which give to Congress the right to regulate commerce with the Indian Tribes. The tariff act is said to rest upon the right to regulate commerce with foreign nations. Now mark, both of these powers are found side by side, in the 8th section of the 1st article of the Federal Constitution. Suppose both laws, for the first time had been passed at the last Congress. The first, containing a provision that the Cherokee Nation of Indians within the limits of Georgia, was an independent nation, and not subject to the laws of Georgia. The second, containing a provision that the people of Georgia should pay a tax to the northern capitalists to protect the manufacturers. What would Georgia do with the first law? Need I answer that she had already nullified precisely such a law, in the present Intercourse Law, and the decision founded thereon. If then she would nullify the first law, can there be a sensible difference in point of effect or principle between that and the last? It is said their difference is their consequences, the first applies to a single state, the other to all the states; and pray what has one sovereign state to do with the rights of other sovereign states in their separate capacities? It is not recollected that one state has nothing to do with another, only in the stipulated articles that have confederated them together, and so soon as the confederated government passes law out of these articles, each state throws itself upon its original separate rights, and may employ whatever means it pleases to prevent the operation of that law, or if it chooses it may submit to its authority. The other states may desire the protective system, indeed more than two thirds clamor for it. Can this be any good reason why Georgia shall submit to it?

Suppose all the other states, like Louisiana and Kentucky, should be bought up and become reconciled to the late act, can it be contended that Georgia must become so too? Does it not occur to every mind, that there can be no possible difference between robbing the states, by piecemeal, of their constitutional rights, or doing it in one general attack upon the whole sisterhood? The reasoning that would attempt to make a difference, will establish this position. If a ruffian attacks a single individual, he must repel him immediately, but if he attacks him in company with twenty- three others, sixteen of whom are willing to be robbed, and the other seven doubting whether they will fight or submit, he must wait until they make up their minds! From such logic I beg leave most heartily to dissent. All infractions of the zconstitution are alike, whether they be great or small, so say all divines in reference to the moral law; the progress of the mischief may be different, but the final result will be the same.- The beautiful green field may be as effectually destroyed by the admission of its despoilers at a single gab as if they had rushed upon its luxuriance from a prostrated broadside.

The fourth case, strange as it may appear, is actually going on almost unnoticed, at the present time, and though silently, yet as certainly as the other three. I allude to the survey and occupation of the Cherokee Nation. Thousands who are now decrying the term nullification are perfectly willing that it should not be arrested in the case referred to, and perhaps into the threat of your 3rd resolution, would vote against any man who should be opposed to its success. The last legislature authorized a survey and disposition of this whole country, and I understand the survey is made; the commissioners are convened, preparation is making for the lottery, the drawing is to commence in October next, and in all probability the possession of the lands will pass from the Indians before the close of the year. Now what becomes of the treaties that have guarantied this very territory to its present inhabitants? The constitution of the United States declares all treaties to be the supreme law of the land, anything in the constitution and laws of the states to the contrary notwithstanding. The violation of a treaty often involves a nation in war, and but for the weakness of this nation, such might have been the consequences of this proceeding on the part of Georgia.

Can it be possible that this will not be called a plain and palpable case of nullification! The matter is too clear; concerning it there can be no manner of doubt. And although an individual, I cannot agree that it is right, yet under my doctrine, based upon the opinions of Mr. Jefferson, that a state has the right to 'jude for itself, as well of infractions (of the compact) as of the mode and measure of redress,' and the state having pronounced these treaties unconstitutional, and therefore NULL and VOID, if she is invaded by the general government, I go to support her decision 'right or wrong,' for my first allegiance is due to the state of Georgia. This is my kind of nullification; will your meeting do this? If they will, there is no difference of opinion between us; if they will not, I leave the people of Georgia to judge which doctrine suits their notion of patriotism best. Now what case can tend to blood and revolution than this? And yet I do not believe that this or any other case, will ever produce such a result. The thing is unreasonable. No oppressive and unconstitutional law can be enforced against a sovereign state. It is a free agent in a mere voluntary confederation which is wholly unnecessary to its internal municipal regulation. Having gone into the union for external objects, the moment these are lost, and an attempt is made to rob her of her inherent rights, the same free agency that made the compact ca dissolve it, nay it would become so by reason of the fraud of the opposite party. Force is out of the question. Four times has Georgia tried this matter, and just as certain as fate four times, she will meet with the same success, for no man can believe, that when the alternative is presented to the general government to give up the Union, or to cut the threats of her citizens to pamper the wealth of a privileged order, that the choice will occasion even an instants hesitation.

In all cases of usurped or assumed powers, Mr. Jefferson's doctrine maintain three things:

1st. That nullification is the rightful remedy

2d. This is a natural right.

3d. That 'every state,' of its 'own authority' as a right to 'nullify within her own limits.'

Upon this last it may be necessary to say but a word. A state entitled to 'judge for itself, as well of infractions, as the mode and measure of redress,' cannot part with its sovereignty (without becoming dependent) to any other state so as to make the other the judge of its violated rights. A submission of this kind implies an obligation to abide by the award, and such a course every body must perceive requires a state to give up its own judgment to the decision of one who may not have half the same interest at stake, or anything like a proper knowledge of the bearings of that interest. What would have been the consequence if Gov. Troup had waited till he should have submitted the case of the old and new treaty to a convention of southern states, or it Gov. Lumpkin had done the same thing in relation to the missionaries or the survey of the Cherokee Nation? Think you not the decision would have been against us? And what security has any state against any other result, when she trusts her sovereign powers to an arbitration? I subscribe most unequivocally to the doctrine contained in the above three points, and consequently I am for a convention of the people of the state to determine the best method of removing the burthens imposed by this unconstitutional, usurped, and unjust law, and whatever that method may be, I feel bound to submit to it.