Strictures on Nullification. Everett Alexander Hill

determine the relative rights and powers of the parties to it. The General Government is a case of joint agency, – the joint agent of the twenty-four sovereign States. It would be its duty, according to the principles established in such cases, instead of attempting to enforce its construction of its powers against that of the State, to bring the subject before the States themselves, in the only form in which, according to the provisions of the Constitution, it can be, by a proposition to amend, in the manner prescribed in the instrument, to be acted on by them in the only mode they can rightfully pursue, by expressly granting or withholding the contested power. Against this conclusion there can be raised but one objection, that the States have surrendered or transferred the right in question. If such be the fact, there ought to be no difficulty in establishing it.'

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

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

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