- The Webster-hayne Debate On the Nature of the Union
- Robert Y. Hayne: Speech of Mr. Hayne , of South Carolina [january 19, 1830]
- Daniel Webster: Speech of Mr. Webster , of Massachusetts [january 20, 1830]
- Speech of Mr. Hayne , of South Carolina [january 25, 1830]
- Speech of Mr. Webster , of Massachusetts [january 26 and 27, 1830]
- Speech of Mr. Hayne , of South Carolina [january 27, 1830]
- Thomas Hart Benton: Speech of Mr. Benton, of Missouri [january 20 and 29, February 1 and 2, 1830]
- John Rowan: Speech of Mr. Rowan , of Kentucky [february 4, 1830]
- William Smith: Speech of Mr. Smith , of South Carolina [february 25, 1830]
- John M. Clayton: Speech of Mr. Clayton , of Delaware [march 4, 1830]
- Speech of Mr. Livingston , of Louisiana [march 9, 1830]
Speech of Mr. Hayne,
of South Carolina
[January 27, 1830]
The resolution of Mr. Foot, of Connecticut, relative to the public lands, being under consideration, Mr. Hayne addressed the Chair as follows:
I do not rise at this late hour, Mr. President, to go at large into the controverted questions between the Senator from Massachusetts and myself, but merely to correct some very gross errors into which he has fallen, and to afford explanations on some points, which, after what has fallen from that gentleman, may perhaps be considered as requiring explanation. The gentleman has attempted, through the whole course of his argument, to throw upon me the blame of having provoked this discussion. Though standing himself at the very head and source of this angry controversy, which has flowed from him down to me, he insists that I have troubled the waters. In order to give color to this charge, (wholly unfounded, Sir, as every gentleman of this body will bear witness,) he alludes to my excitement when I first rose to answer the gentleman, after he had made his attack upon the South. He charges me with having then confessed that I had something rankling in my bosom which I desired to discharge. Sir, I have no recollection of having used that word. If it did escape me, however, in the excitement of the moment, it was not indicative of any personal hostility towards that Senator—for in truth, Sir, I felt none—but proceeded from a sensibility, which could not but be excited by what I had a right to consider as an unprovoked and most unwarrantable attack upon the South, through me.
The gentleman boasts that he has escaped unhurt in the conflict. The shaft, it seems, was shot by too feeble an arm to reach its destination. Sir, I am glad to hear this. Judging from the actions of the gentleman, I had feared that the arrow had penetrated even more deeply than I could have wished. From the beating of his breast, and the tone and manner of the gentleman, I should fear he is most sorely wounded. In a better spirit, however, I will say, I hope his wounds may heal kindly, and leave no scars behind; and let me assure the gentleman, that however deeply the arrow may have penetrated, its point was not envenomed. It was shot in fair and manly fight, and with the twang of the bow, have fled the feelings which impelled it. The gentleman indignantly repels the charge of having avoided the Senator from Missouri, (Mr. Benton) and selected me as his adversary, from any apprehension of being overmatched. Sir, when I found the gentleman passing over in silence the arguments of the Senator from Missouri, which had charged the East with hostility towards the West, and directing his artillery against me, who had made no such charge, I had a right to inquire into the causes of so extraordinary a proceeding. I suggested some as probable, and among them, that to which the gentleman takes such strong exception. Sir, has he now given any sufficient reason for the extraordinary course of which I have complained? At one moment he tells us that “he did not hear the whole of the argument of the gentleman from Missouri,” and again, “that having found a responsible indorser of the bill, he did not think proper to pursue the drawer.” Well, Sir, if the gentleman answered the arguments which he did not hear, why attribute them to me, whom he did hear, and by whom they were certainly not urged? If he was determined to pursue the parties to the bill, why attempt to throw the responsibility on one who was neither the drawer nor the indorser? Let me once more, Sir, put this matter on its true footing. I will not be forced to assume a position in which I have not chosen to place myself. Sir, I disclaim any intention whatever in my original remarks on the public lands, to impute to the East hostility towards the West. I imputed none. I did not utter one word to that effect. I said nothing that could be tortured into an attack upon the East.
I did not mention the “accursed tariff”—a phrase which the gentleman has put into my mouth. I did not even impute the policy of Mr. Rush to New England. In alluding to that policy I noticed its source, and spoke of it as I thought it deserved. Sir, I am aware that a gentleman who rises without premeditation, to throw out his ideas on a question before the House, may use expressions of the force and extent of which he may, at the time, not be fully aware. I should not, therefore, rely so confidently on my own recollections, but for the circumstance, that I have not found one gentleman who heard my remarks, [except the Senator from Massachusetts himself,] who supposed that one word had fallen from my lips that called for a reply of the tone and character of that which the gentleman from Massachusetts thought proper to pronounce—not one, who supposed that I had thrown out any imputations against the East, or justly subjected myself or the South to rebuke, unless, indeed, the principles for which I contended were so monstrous, as to demand unmeasured reprobation. Now, Sir, what were those principles? I have already shown, that, whether sound or unsound, they are not separated by a “hair’s breadth” from those contended for by the gentleman himself in 1825, and, therefore, that he, of all men, had the least right to take exception to them.
Sir, the gentleman charges me with having unnecessarily introduced the slave question; with what justice, let those determine who heard that gentleman pointing out the superiority of Ohio over Kentucky, and attributing it to that happy stroke of New England policy, by which slavery was forever excluded North of the Ohio river. Sir, I was wholly at a loss to conceive why that topic had been introduced here at all, until the gentleman followed it up by an attack upon the principles and policy of the South. When that was done, the object was apparent, and it became my duty to take up the gauntlet which the gentleman had thrown down, and to come out, without reserve, in defence of our institutions, and our principles. The gentleman charges us with a morbid sensibility on this subject. Sir, it is natural and proper that we should be sensitive on that topic, and we must continue so, just so long as those who do not live among us, shall be found meddling with a subject, with which they have nothing to do, and about which they know nothing. But, Sir, we will agree, now, henceforth, and forever, to avoid the subject altogether, never even to mention the word slavery on this floor, if gentlemen on the other side will only consent not to intrude it upon us, by forcing it unnecessarily into debate. When introduced, however, whether by a hint, or a sneer, by the imputation of weakness to slave holding States, or in any other way, we must be governed entirely by our own discretion, as to the manner in which the attack must be met. When the proposition was made here, to appropriate the public lands to emancipation, I met it with a protest. I have now met an attack of a different character by an argument.
The gentleman in alluding to the Hartford Convention, told us that he had nothing to do with it, and had nothing to say either for or against it, and yet he undertook, at the same time, to recommend that renowned assembly as a precedent to the South.
Sir, unkind as my allusion to the Hartford Convention has been considered by its supporters, I apprehend that this disclaimer of the gentleman’s will be regarded as “the unkindest cut of all.” When the gentleman spoke of the Carolina Conventions, of Colleton and Abbeville, let me tell him, that he spoke of that which never had existence, except in his own imagination. There have, indeed, been meetings of the people in those districts, composed Sir, of as high-minded and patriotic men as any country can boast of; but we have had no “convention” as yet; and when South Carolina shall resort to such a measure for the redress of her grievances, let me tell the gentleman that, of all the assemblies that have ever been convened in this country, the Hartford Convention is the very last we shall consent to take as an example; nor will it find more favor in our eyes, from being recommended to us by the Senator from Massachusetts. Sir, we would scorn to take advantage of difficulties created by a foreign war, to wring from the federal government a redress even of our grievances. We are standing up for our constitutional rights in a time of profound peace; but if the country should, unhappily be involved in a war tomorrow, we should be found flying to the standard of our country—first driving back the common enemy, and then insisting upon the restoration of our rights.
The gentleman, speaking of the tariff and internal improvements, said, that in supporting these measures, he had but followed “a Carolina lead.” He also quoted, with high encomium, the opinion of the present Chairman of the Committee of Ways and Means, of the other House, in relation to the latter subject. Now, Sir, it is proper that the Senator from Massachusetts should be, once for all, informed, that South Carolina acknowledges no leaders, whom she is willing blindly to follow, in any course of policy. The “Carolina doctrines” in relation to the “American system,” have been expounded to us by the resolutions of her legislature, and the remonstrances of her citizens, now upon your table; and when the gentleman shows us one of her distinguished sons expressing different sentiments, he neither changes her principles, nor subjects the State to a charge of inconsistency. Sir, no man can entertain a higher respect than I do, for the distinguished talents, high character, and manly independence of the gentleman alluded to, (Mr. McDuffie;) but if he now entertains the opinions attributed to him, in relation to internal improvements and the public lands, there can be no doubt that his sentiments, in these respects, differ widely from those of a large majority of the people of South Carolina; while in relation to the tariff, and other questions of vital importance, he not only goes heart and hand with us, but is himself a host.
The gentleman considers the tariff of 1816, and the bonus bill, as the foundations of the American system, and intimates, that the former would not have prevailed, but for South Carolina votes. Now, Sir, as to the Tariff of 1816, I think a great mistake prevails throughout the country, in regarding it as the commencement of the existing policy. That was not a bill for increasing, but for reducing duties. During the war, double duties had been resorted to, for raising the revenue necessary for its prosecution. Manufactures had sprung up under the protection incidentally afforded by the restrictive measures, and the war.—On the restoration of peace, a scale of duties was to be established, adapted to the situation in which the country was, by that event, placed. All agreed that the duties were to be reduced, and that this reduction must be gradual. We had a debt on our hands of $140 or $150,000,000. Admonished by recent experience, a Navy was to be built up, and an extensive system of fortifications to be commenced. The operation, too, of a sudden reduction of duties upon the manufactures which had been forced into existence by the war, and which then bore their full proportion of the direct taxes, was also to be taken into consideration; and under all of these circumstances, it was determined to reduce the duties gradually, until they should reach the lowest amount necessary for revenue in time of peace. Such, Sir, was the true character of the tariff law of 1816. By that bill (reported, Sir, by the lamented Lowndes, a steady opponent of the protecting system,) the duties on woollen and cotton goods were at once reduced to 25 per cent, with a provision, that they should, in the course of three years, be further reduced to twenty per cent., while, by the tariff of 1824, the duties on the same articles were at once increased to 30 per cent., and were to go on increasing to 37 1/2 per cent.; and by the tariff of 1828, have been carried much higher. And yet the tariff of 1816 is now quoted as an authority for the tariffs of 1824 and 1828; by which, duties admitted to be already high enough for all the purposes of revenue, are to go on increasing, year after year, for the avowed purpose of promoting domestic manufactures, by preventing importations. Suppose, Sir, the New England gentlemen were now to join the South in going back to a tariff for revenue, and were to propose to us gradually to reduce all the existing duties, so that they should come down, in two or three years, to fifteen or twenty per cent—would the gentleman consider us as sending in our adhesion to the American system, by voting for such a reduction? And if not, how can he charge the supporters of the tariff of 1816 with being the fathers of that system? In this view of the subject, it is not at all material, whether the Representatives from South Carolina voted for that measure or not; or whether the passage of the bill depended on their votes. On looking into the journals, however, it will be found that the bill actually passed the House of Representatives, by a vote of 88 to 54; and would have succeeded, if every member from South Carolina had voted against it.
The gentleman next mentions the “Bonus Bill” as the first step in the system of Internal Improvement. That was a bill, Sir, not appropriating, but setting apart a fixed sum (the Bank Bonus) for Internal Improvements, to be distributed among the States, on principles of perfect equality, and to be applied “by consent of the States” themselves. Though Mr. Madison put his veto on that bill, it was supposed, at the time, to be in the spirit of his own message; and though I must express my dissent from the measure, no doubt can exist, that if the system of Internal Improvement had been prosecuted on the principles of that bill, much of the inequality and injustice that have since taken place would have been avoided. But, Sir, I am by no means disposed to deny, or to conceal the fact, that a considerable change has taken place in the Southern States, and in South Carolina in particular, in relation to Internal Improvements, since that measure was first broached, at the close of the last war. Sir, when we were restored to a state of peace, the attention of our prominent statesmen was directed to plans for the restoration of the country from the wounds of the war, and the public mind received a strong impulse towards Internal Improvements. The minds of the eminent men of the South had, by the events of that war, received for the time a direction rather favorable to the enlargement of the powers of the Government. They had seen the public arm paralyzed by the opposition to that war, and it was quite natural that they should at that time rather be disposed to strengthen than to weaken the powers of the Federal Government. Internal Improvements sprang up in that heated soil, and I have no doubt that as a new question, hardly examined, and very little understood, the people of the South, for a short period, took up the belief that, to a certain extent, and under certain guards, the system could be beneficially and constitutionally pursued. But, Sir, before time had been allowed for the formation of any fixed and settled opinions, the evils of the system were so fully developed, the injustice, the inequality, the corruption flowing from it, and the alarming extent of powers claimed for the Federal Government by its supporters, became so manifest, as thoroughly to satisfy the South, that the system of Internal Improvement, on the principles on which it was to be administered, was not only unequal and unjust, but a most alarming innovation on the Constitution.
The gentleman has alluded to my own vote on the survey bill of 1824. Sir, I have to return him my thanks for having afforded me, by that allusion, an opportunity of explaining my conduct in relation to the system of Internal Improvements. At the time that I was called to a seat in this House, I had been for many years removed from political life, and engaged in the arduous pursuit of a profession, which abstracted me almost entirely from the examination of political questions. The gentleman tells us he had not made up his own mind on this subject as late as 1817. Sir, I had not even fully examined it in 1823. But even at that time, I entertained doubts, both as to the constitutionality and expediency of the system. I came here with these feelings, and before I was yet warm in my seat, the survey bill of 1824 was brought up. We were then expressly told by its advocates, that its object was not to establish a system of Internal Improvements, but merely to present to Congress and the country a full view of the whole ground, leaving it hereafter to be decided whether the system should be prosecuted, and if so, on what principles? Sir, I was induced to believe, that no great work would be undertaken until the objects of that survey bill should be accomplished—that is to say, until the President should submit the whole scheme in one connected view, so that we should have before us at once all the measures deemed to be of “national importance,” to which the attention of Congress might be directed.
Sir, I did suppose that a few great works, in which all the States would have a common interest, and which might therefore be considered as of “national importance,” were alone intended to be embraced in that bill, and that in one or two years, the whole of the surveys would be completed, when Congress would have it in their power to decide whether the system should be carried on at all, and if so, on what principles. Sir, I know that more than one gentleman who voted for the survey bill of 1824, expressly stated at the time, that they did not intend to commit themselves on the general question; and I was one of that number. And it was expressly because I did not consider that bill, as committing those who supported it, for or against any system of Internal Improvement, that I voted against every amendment, calculated to give any expression of opinion, one way or the other. I was unwilling to deprive it of the character which it bore on its face, as a measure intended merely to bring before the public in a single view, the entire scheme, so as to enable us to judge of its practicability and expediency. Sir, in all these views and expectations, I was deceived. By the year 1826, it came to be fully understood that these surveys were never to be finished, and that $50,000 per annum was to be appropriated, merely to give popularity to the system, by feeding the hopes of the people in all parts of the country. In the mean time, too, appropriations were made and new works commenced, just as if no surveys were going on. Sir, as soon as I discovered the true character of the survey bill, I opposed it openly on this floor, and have since constantly voted against all appropriations for surveys. Sir, as to the system of Internal Improvement, my first impressions against it were fully confirmed, very soon after I took my seat here, and (except in cases which I consider as exceptions from the general rule,) I have uniformly voted against all appropriations for Internal Improvements, against the Cumberland Road, the Chesapeake and Delaware Canal, and all other works of a similar character. But Sir, if the South, or the statesmen of the South, had committed themselves ever so deeply on this subject, does the gentleman from Massachusetts suppose it would afford any excuse for their continued support of a system conducted on principles which now manifestly appear to be as unconstitutional as they are unequal and unjust? Surely not.
The gentleman has made his defence for his conduct in relation to the tariff of 1828. He considers the country as being committed by the tariff of 1824 to go on with the system. Sir, we wholly deny that the country is in any way committed, or that Congress could commit it on such a subject, much less to the support of a ruinous, unjust, and unconstitutional policy. But how, if such a committal were possible, could the imposition of a duty of 20 or 30 per cent. commit us to the imposition of duties of 50 or 100 ? The gentleman is mistaken in supposing that I charged him with having, in 1820, denounced the tariff as “utterly unconstitutional;” I stated that he had called its constitutionality in question. I have now before me the proceedings of the Boston meeting, to which I referred, and will read them, that there may be no mistake on the subject. In the resolutions reported by a committee, (of which Mr. W. was a member,) it was, among other things,
1. “Resolved, That no objection ought ever to be made to any amount of taxes equally apportioned, and imposed for the purpose of raising revenue, necessary for the support of government, but that taxes imposed on the people, for the benefit of any one class of men, (the manufacturers,) are equally inconsistent with the principles of the Constitution, and with sound policy.”
2. “Resolved, That, in our opinion, the proposed tariff, and the principles on which it is avowedly founded, would, if adopted, have a tendency, however different may be the motives of those who recommend them, to diminish the industry, impede the prosperity, and corrupt the morals of the people.”
In support of these anti-tariff resolutions, (which were unanimously adopted,) Mr. Webster said:
“There is a power in names; and those who had pressed the tariff on Congress, and on the country, had represented it as immediately, and almost exclusively, connected with domestic industry, and national independence. In his opinion, no measure could prove more injurious to the industry of the country, and nothing was more fanciful than the opinion that national independence rendered such a measure necessary. He certainly thought it might be doubted, whether Congress would not be acting somewhat against the spirit and intention of the Constitution, in exercising the power to control essentially the pursuits and occupations of individuals, not as incidental to the exercise of any other power, but as a substantial and direct power. If such changes were wrought incidentally only, and were the necessary consequence of such impost as Congress, for the leading purpose of revenue, should enact, then they could not be complained of. But he doubted whether Congress fairly possessed the power of turning the incident into the principal; and instead of leaving manufactures to the protection of such laws as should be passed with a primary regard to revenue, of enacting laws, with the avowed object of giving a preference to particular manufactures, &c.”
Sir, these are good sound “South Carolina doctrines,” and if the gentleman finds reason to abandon them now, we cannot consent to go with him.
We have been often reproached, Sir, with lending our aid to some of the most obnoxious provisions of the Tariff of 1828. What was the fact? Not an amendment was put into that bill here, which did not go to reduce the duties. That bill came to the Senate in a form in which it was known that it could not pass. Gentlemen who would not vote for it, in that shape,—but who wished it to pass, called upon us to aid them in amending it, to suit their own purposes. Sir, if we had lent our aid to such an object, we would have deserved any fate that could have befallen us. We proceeded throughout on the open and avowed ground of hostility to the whole system, and acted accordingly.
To disprove my observations, that the New England members, generally, did not support Internal Improvements in the west, before that memorable era, the winter of 1825, the gentleman quoted two votes in 1820 and 1821, reducing the price, or extending the time of payment for the Public Lands. Now, Sir, the only objection to his authority, is, that it has no manner of relation to the point in dispute. I stated that New England did not support Internal Improvements, as a branch of the American system, before 1825. The gentleman proves, that on two occasions, they voted for certain measures in relation to the Public Lands—measures which I had always supposed had been forced upon Congress by motives of interest,— but which, whatever may have been their character, do not touch the point in dispute in the smallest degree. I think this mode of meeting my argument, however creditable to the gentleman’s ingenuity, amounts to an acknowledgment that it is unanswerable.
The gentleman complains of his arguments having been misunderstood in relation to consolidation. He thinks my misapprehension almost miraculous in treating his as an argument in favor of the “consolidation of the government.” Now, Sir, what was the point in dispute between us? I had deprecated the consolidation of the government. I said not one word against “the consolidation of the Union.” I went further, and pointed out and deprecated some of the means, by which this consolidation was to be brought about. The gentleman gets up and attacks me and my argument at every point, ridicules our fears about “consolidation,” and finally reads a passage from a letter of General Washington’s, stating that one of the objects of the Constitution was, “the consolidation of the Union.” Surely, Sir, under these circumstances, I was not mistaken in saying, that the authority quoted did not apply to the case, as the point in dispute was the “consolidation of the government,” and not of “the Union.” But, Sir, the gentleman has relieved me from all embarrassment on this point, by going fully into the examination of the Virginia doctrines of ’ 98, and while he denounces them, giving us his own views of the powers of the Federal Government; views which, in my humble judgment, stop nothing short of the consolidation of all power in the hands of the Federal Government. Sir, when I last touched on this topic, I did little more than quote the high authorities on which our doctrines rest; but after the elaborate argument which we have just heard from the gentleman from Massachusetts, it cannot be supposed, that I can suffer them to go to the world unanswered. I entreat the Senate therefore to bear with me, while I go over as briefly as possible the most prominent arguments of the gentleman.
The proposition which I laid down and from which the gentleman dissents, is taken from the Virginia resolutions of ’ 98, and is in these words, “that in case of a deliberate, palpable, and dangerous exercise by the Federal Government of powers not granted by the compact [the constitution] the States who are parties thereto, have a right to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” The gentleman insists that the States have no right to decide whether the constitution has been violated by acts of Congress or not,—but that the Federal Government is the exclusive judge of the extent of its own powers; and that in case of a violation of the constitution, however “deliberate, palpable and dangerous,” a State has no constitutional redress, except where the matter can be brought before the Supreme Court, whose decision must be final and conclusive on the subject. Having thus distinctly stated the points in dispute between the gentleman and myself, I proceed to examine them. And here it will be necessary to go back to the origin of the Federal Government. It cannot be doubted, and is not denied, that before the formation of the constitution, each State was an independent sovereignty, possessing all the rights and powers appertaining to independent nations; nor can it be denied that, after the constitution was formed, they remained equally sovereign and independent, as to all powers, not expressly delegated to the Federal Government. This would have been the case even if no positive provision to that effect had been inserted in that instrument. But to remove all doubt it is expressly declared, by the 10th article of the amendment of the constitution, “that the powers not delegated to the States, by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The true nature of the Federal constitution, therefore, is, (in the language of Mr. Madison,) “a compact to which the States are parties,” a compact by which each State, acting in its sovereign capacity, has entered into an agreement with the other States, by which they have consented that certain designated powers shall be exercised by the United States, in the manner prescribed in the instrument. Nothing can be clearer, than that, under such a system, the Federal Government, exercising strictly delegated powers, can have no right to act beyond the pale of its authority; and that all such acts are void. A State, on the contrary, retaining all powers not expressly given away, may lawfully act in all cases where she has not voluntarily imposed restrictions on herself. Here then is a case of a compact between sovereigns, and the question arises—what is the remedy for a clear violation of its express terms by one of the parties? And here the plain obvious dictate of common sense, is in strict conformity with the understanding of mankind, and the practice of nations in all analogous cases—“that where resort can be had to no common superior, the parties to the compact must, themselves, be the rightful judges whether the bargain has been pursued or violated.” (Madison’s Report, p. 20. ) When it is insisted by the gentleman that one of the parties “has the power of deciding ultimately and conclusively upon the extent of its own authority,” I ask for the grant of such a power. I call upon the gentleman to shew it to me in the constitution. It is not to be found there. If it is to be inferred from the nature of the compact, I aver, that not a single argument can be urged in support of such an inference, in favor of the United States, which would not apply, with at least equal force, in favor of a State. All sovereigns are of necessity equal, and any one State, however small in population or territory, has the same rights as the rest, just as the most insignificant nation in Europe is as much sovereign as France, or Russia, or England.
The very idea of a division of power by compact, is destroyed by a right claimed and exercised by either to be the exclusive interpreter of the instrument. Power is not divided, where one of the parties can arbitrarily determine its limits. A compact between two, with a right reserved to one, to expound the instrument according to his own pleasure, is no compact at all, but an absolute surrender of the whole subject matter to the arbitrary discretion of the party who is constituted the judge. This is so obvious, that, in the conduct of human affairs between man and man, a common superior is always looked to as the expounder of contracts. But if there be no common superior, it results, from the very nature of things, that the parties must be their own judges. This is admitted to be the case where treaties are formed between independent nations, and if the same rule does not apply to the federal compact, it must be because the Federal is superior to the State Government, or because the States have surrendered their sovereignty. Neither branch of this proposition can be maintained for a moment. I have already shewn that all sovereigns must, as such, be equal. It only remains, therefore, to inquire whether the States have surrendered their sovereignty, and consented to reduce themselves to mere corporations. The whole form and structure of the Federal Government, the opinions of the framers of the Constitution, and the organization of the State Governments, demonstrate that though the States have surrendered certain specific powers, they have not surrendered their sovereignty. They have each an independent Legislature, Executive, and Judiciary, and exercise jurisdiction over the lives and property of their citizens. They have, it is true, voluntarily restrained themselves from doing certain acts, but, in all other respects, they are as omnipotent as any independent nation whatever. Here, however, we are met by the argument that the Constitution was not formed by the States, in their sovereign capacity, but by the People, and it is therefore inferred that the Federal Government, being created by all the People, must be supreme, and though it is not contended that the Constitution may be rightfully violated, yet it is insisted that from the decisions of the Federal Government there can be no appeal. It is obvious that this argument rests on the idea of State inferiority. Considering the Federal Government as one whole, and the States merely as component parts, it follows, of course, that the former is as much superior to the latter, as the whole is to the parts of which it is composed. Instead of deriving power by delegation from the States to the Union, this scheme seems to imply that the individual States derive their power from the United States, just as petty corporations may exercise so much power, and no more, as their superior may permit them to enjoy. This notion is entirely at variance with all our conceptions of State rights, as those rights were understood by Mr. Madison and others, at the time the Constitution was framed. I deny that the Constitution was framed by the People in the sense in which that word is used on the other side, and insist that it was framed by the States acting in their sovereign capacity. When, in the preamble of the Constitution, we find the words “we, the People of the United States,” it is clear, they can only relate to the People as citizens of the several States, because the Federal Government was not then in existence.
We accordingly find, in every part of that instrument, that the people are always spoken of in that sense. Thus, in the 2d section of the 1st article, it is declared, “That the House of Representatives shall be composed of members chosen every second year, by the people of the several States.” To show, that, in entering into this compact, the States acted in their sovereign capacity, and not merely as parts of one great community, what can be more conclusive than the historical fact, that, when every State had consented to it except one, she was not held to be bound. A majority of the people in any State bound that State, but nine-tenths of all the people of the United States could not bind the people of Rhode Island, until Rhode Island, as a State, had consented to the compact. It cannot be denied, that, at the time the Constitution was framed, the people of the United States were members of regularly organized governments, citizens of independent States; and, unless these State governments had been dissolved, it was impossible that the people could have entered into any compact but as citizens of these States. Suppose an assent to the Constitution had been given by all the people within a certain district of any State, but that the State, in its sovereign capacity, had refused its assent, would the people of that district have become citizens of the United States? Surely not. It is clear, then, that, in adopting the Constitution, the people did not act, and could not have acted in any other character than as citizens of their respective states. And if, on the adoption of the Constitution, they became citizens of the United States, it was only by virtue of that clause in the Constitution which declares “that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” In choosing members to the Convention, the States acted through their Legislatures, by whose authority the Constitution, when framed, was submitted for ratification to Conventions of the People, the usual and most appropriate organ of the sovereign will. I am not disposed to dwell longer on this point, which does appear to my mind to be too clear to admit of controversy. But I will quote from Mr. Madison’s report, which goes the whole length in support of the doctrines for which I have contended:
“The other position involved in this branch of the resolution, namely, ‘that the States are parties to the Constitution or compact,’ is, in the judgment of the committee, equally free from objection.” It is, indeed, true, that the term ‘States’ is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus, it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and, lastly, it means the people composing those political societies, in their highest sovereign capacity.” Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconvenience is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance, whatever different constructions of the term ‘States,’ in the resolution, may have been entertained, all will at least concur in that last mentioned; because, in that sense the Constitution was submitted to the ‘States;’ in that sense the ‘States’ ratified it; and in that sense of the term ‘States,’ they are consequently parties to the compact, from which the powers of the Federal Government result.”
Having now established the position that the Constitution was a compact between sovereign and independent States, having no common superior, “it follows of necessity,” (to borrow the language of Mr. Madison,) “that there can be no tribunal above their authority to decide in the last resort, whether the compact made by them be violated, and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
But, the gentleman insists that the tribunal provided by the Constitution, for the decision of controversies between the States and the Federal Government, is the Supreme Court. And here again I call for the authority on which the gentleman rests the assertion, that the Supreme Court has any jurisdiction whatever over questions of sovereignty between the States and the United States. When we look into the Constitution, we do not find it there. I put entirely out of view any act of Congress on the subject. We are not looking into the laws, but the Constitution.
It is clear that questions of sovereignty are not the proper subjects of judicial investigation. They are much too large, and of too delicate a nature, to be brought within the jurisdiction of a Court of justice. Courts, whether supreme or subordinate, are the mere creatures of the sovereign power, designed to expound and carry into effect its sovereign will. No independent state ever yet submitted to a Judge on the bench the true construction of a compact between itself and another sovereign. All Courts may incidentally take cognizance of treaties, where rights are claimed under them, but who ever heard of a Court making an inquiry into the authority of the agents of the high contracting parties to make the treaty,—whether its terms had been fulfilled, or whether it had become void, on account of a breach of its condition on either side? All these are political, and not judicial questions. Some reliance has been placed on those provisions of the Constitution which constitute “one Supreme Court,” which provide, “that the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties,” and which declare “that the Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties, &c. shall be the supreme law of the land,” &c. Now, as to the name of the Supreme Court, it is clear that the term has relation only to its supremacy over the inferior Courts provided for by the Constitution, and has no reference whatever to any supremacy over the sovereign States. The words are, “the judicial power of the United States shall be vested in one Supreme Court, and such inferior Courts as Congress may from time to time establish,” &c. Though jurisdiction is given “in cases arising under the Constitution,” yet it is expressly limited to “cases in law and equity,” shewing conclusively that this jurisdiction was incidental merely to the ordinary administration of justice, and not intended to touch high questions of conflicting sovereignty. When it is declared that the Constitution and the laws of the United States “made in pursuance thereof, shall be the supreme law of the land,” it is manifest that no indication is given either as to the power of the Supreme Court, to bind the States by its decisions, nor as to the course to be pursued in the event of laws being passed not in pursuance of the Constitution. And I beg leave to call gentlemen’s attention to the striking fact, that the powers of the Supreme Court in relation to questions arising under “the laws and the Constitution,” are co-extensive with those arising under treaties. In all of these cases the power is limited to questions arising “in law and equity,” that is to say, to cases where jurisdiction is incidentally acquired in the ordinary administration of justice. But as with regard to treaties, the Supreme Court has never assumed jurisdiction over questions arising between the sovereigns who are parties to it; so under the Constitution, they cannot assume jurisdiction over questions arising between the individual States and the United States.
If they should do so, they would be acting entirely out of their sphere. Umpires are indeed sometimes appointed by special agreement; but in the case before us, there can be no pretence that the Supreme Court have been specially constituted umpires. But if the Judiciary are, from their character and the peculiar scope of their duties, unfit for the high office of deciding questions of sovereignty, much more strongly is the Supreme Court disqualified from assuming the umpirage between the States and the United States, because it is created by, and is indeed merely one of the departments of the Federal Government. The United States have a Supreme Court; each State has also a Supreme Court. Both of them, in the ordinary administration of justice, must, of necessity, decide on the constitutionality of laws; but when it becomes a question of sovereignty between these two independent Governments, the subject matter is equally removed from the jurisdiction of both. If the Supreme Court of the United States can take cognizance of such a question, so can the Supreme Courts of the States. But, Sir, can it be supposed for a moment, that when the States proceeded to enter into the compact, called the Constitution of the United States, they could have designed, nay, that they could, under any circumstances, have consented to leave to a court to be created by the Federal Government the power to decide, finally, on the extent of the powers of the latter, and the limitations on the powers of the former. If it had been designed to do so, it would have been so declared, and assuredly some provision would have been made to secure, as umpires, a tribunal somewhat differently constituted from that whose appropriate duty is the ordinary administration of justice. But to prove, as I think, conclusively, that the Judiciary were not designed to act as umpires, it is only necessary to observe that, in a great majority of cases, that court could manifestly not take jurisdiction of the matters in dispute. Whenever it may be designed by the Federal Government to commit a violation of the Constitution, it can be done, and always will be done in such a manner as to deprive the court of all jurisdiction over the subject. Take the case of the Tariff and Internal Improvements, whether constitutional or unconstitutional, it is admitted that the Supreme Court have no jurisdiction. Suppose Congress should, for the acknowledged purpose of making an equal distribution of the property of the country, among States or individuals, proceed to lay taxes to the amount of $50,000,000 a year. Could the Supreme Court take cognizance of the act laying the tax, or making the distribution? Certainly not.
Take another case which is very likely to occur. Congress have the unlimited power of taxation. Suppose them also to assume an unlimited power of appropriation. Appropriations of money are made to establish presses, promote education, build and support churches, create an order of nobility, or for any other unconstitutional object; it is manifest that, in none of these cases, could the constitutionality of the laws making those grants be tested before the Supreme Court. It would be in vain, that a State should come before the Judges with an act appropriating money to any of these objects, and ask of the Court to decide whether these grants were constitutional. They could not even be heard; the Court would say, they had nothing to do with it; and they would say rightly. It is idle, therefore, to talk of the Supreme Court affording any security to the States, in cases where their rights may be violated by the exercise of unconstitutional powers on the part of the Federal Government. On this subject Mr. Madison, in his report says: “But it is objected, that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort; and it may be asked, for what reason, the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day, and in so solemn a manner.
“On this objection it might be observed, first: that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the Judicial Department: Secondly, that if the decision of the Judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other Departments, not carried by the forms of the Constitution before the Judiciary, must be equally authoritative and final with the decisions of that Department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other Departments, but that the Judicial Departments also, may exercise or sanction dangerous powers beyond the grant of the Constitution, and consequently, that the ultimate right of the parties to the Constitution to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another—by the Judiciary, as well as by the Executive or Legislative.
“However true, therefore, it may be, that the Judicial Department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other Departments of the Government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other Departments, hold their delegated trusts. On any other hypothesis, the delegation of Judicial power would annul the authority delegating it; and the concurrence of this Department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”
If, then, the Supreme Court are not, and from their organization, cannot be the umpires in questions of conflicting sovereignty, the next point to be considered is, whether Congress themselves possess the right of deciding conclusively on the extent of their own powers. This, I know, is a popular notion, and it is founded on the idea, that as all the States are represented here, nothing can prevail which is not in conformity with the will of the majority—and it is supposed to be a republican maxim “that the majority must govern.” Now, Sir, I admit that much care has been taken to secure the States and the People from rash and unadvised legislation. The organization of two houses, the one the representatives of the States, and the other of the people, manifest an anxiety to secure equality and justice in the operation of the Federal System. But all this has done no more than to secure us against any laws, but such as should be assented to by a majority of the representatives in the two Houses of Congress.
Now will any one contend that it is the true spirit of this Government, that the will of a majority of Congress should, in all cases, be the supremelaw? If no security was intended to be provided for the rights of the States, and the liberty of the citizen, beyond the mere organization of the Federal Government, we should have had no written Constitution, but Congress would have been authorized to legislate for us, in all cases whatsoever; and the acts of our State Legislatures, like those of the present legislative councils in the Territories, would have been subjected to the revision and control of Congress. If the will of a majority of Congress is to be the supreme law of the land, it is clear the Constitution is a dead letter, and has utterly failed of the very object for which it was designed—the protection of the rights of the minority. But when, by the very terms of the compact, strict limitations are imposed on every branch of the Federal Government, and it is, moreover, expressly declared, that all powers, not granted to them, “are reserved to the States or the People,” with what show of reason can it be contended, that the Federal Government is to be the exclusive judge of the extent of its own powers? A written Constitution was resorted to in this country, as a great experiment, for the purpose of ascertaining how far the rights of a minority could be secured against the encroachments of majorities—often acting under party excitement, and not unfrequently under the influence of strong interests. The moment that Constitution was formed, the will of the majority ceased to be the law, except in cases that should be acknowledged by the parties to it to be within the Constitution, and to have been thereby submitted to their will. But when Congress, (exercising a delegated and strictly limited authority) pass beyond these limits, their acts become null and void; and must be declared to be so by the Courts, in cases within their jurisdiction; and may be pronounced to be so, by the States themselves, in cases not within the jurisdiction of the Courts, or of sufficient importance to justify such an interference. I will put the case strongly. Suppose, in the language of Mr. Jefferson, the Federal Government, in its three ruling branches, should, (at some future day,) be found “to be in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all powers, foreign and domestic,” would there be no constitutional remedy against such an usurpation? If so, then Congress is supreme, and your Constitution is not worth the parchment on which it is written. What the gentleman calls the right of revolution would exist, and could be exerted as well without a Constitution as with it.
It is in vain to tell us, that all the States are represented here. Representation may, or may not, afford security to the people. The only practical security against oppression, in representative governments, is to be found in this, that those who impose the burthens, are compelled to share them. Where there are conflicting interests, however, and a majority are enabled to impose burthens on the minority, for their own advantage, it is obvious that representation, on the part of that minority, can have no other effect than to “furnish an apology for the injustice.” What security would a representation of the American colonies, in the British Parliament, have afforded to our ancestors? What would be the value of a West India representation there now? Of what value is our representation here, on questions connected with the “American system;” where, (to use the strong language of a distinguished statesman) the “imposition is laid, not by the representatives of those who pay the tax, but by the representatives of those who are to receive the bounty?” Sir, representation will afford us ample security if the Federal Government shall be strictly confined within the limits prescribed by the constitution, and if, limiting its action to matters in which all have a common interest, the system shall be made to operate equally over the whole country. But it will afford us none, if the will of an interested majority shall be the supreme law, and Congress shall undertake to legislate for us, in all cases whatsoever. Before I leave this branch of the subject, I must remark, that, while gentlemen admit, as they do, that the Courts may nullify an act of Congress, by declaring it to be unconstitutional, it is impossible for them to contend, that Congress are the final judges of the extent of their own powers.
I think I have now shown, that the right of a State to judge of infractions of the constitution, on the part of the Federal Government, results from the very nature of the compact; and that, neither by the express provisions of that instrument, nor by any fair implication, is such a power exclusively reserved to the Federal Government, or any of its departments— executive, legislative, or judicial. But I go farther, and contend, that the power in question may be fairly considered as reserved to the States, by that clause of the constitution before referred to, which provides, “that all powers not delegated to the United States, are reserved to the States, respectively, or to the people.”
No doubt can exist, that, before the States entered into the compact, they possessed the right to the fullest extent, of determining the limits of their own powers—it is incident to all sovereignty. Now, have they given away that right, or agreed to limit or restrict it in any respect? Assuredly not. They have agreed, that certain specific powers shall be exercised by the Federal Government; but the moment that Government steps beyond the limits of its charter, the right of the States “to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties, appertaining to them,” is as full and complete as it was before the Constitution was formed. It was plenary then, and never having been surrendered, must be plenary now. But what then? asks the gentleman. A State is brought into collision with the United States, in relation to the exercise of unconstitutional powers: who is to decide between them? Sir, it is the common case of difference of opinion between sovereigns, as to the true construction of a compact. Does such a difference of opinion necessarily produce war? No. And if not, among rival nations, why should it do so among friendly States? In all such cases, some mode must be devised by mutual agreement, for settling the difficulty; and most happily for us, that mode is clearly indicated in the Constitution itself, and results indeed from the very form and structure of the Government. The creating power is three fourths of the States. By their decision, the parties to the compact have agreed to be bound, even to the extent of changing the entire form of the Government itself; and it follows of necessity, that in case of a deliberate and settled difference of opinion between the parties to the compact, as to the extent of the powers of either, resort must be had to their common superior—(that power which may give any character to the Constitution they may think proper,) viz: three-fourths of the States. This is the view of the matter taken by Mr. Jefferson himself, who in 1821, expressed himself in this emphatic manner: “It is a fatal heresy to suppose, that either our State Governments are superior to the Federal, or the Federal to the State; neither is authorized literally to decide what belongs to itself, or its copartner in government, in differences of opinion between their different sets of public servants: the appeal is to neither, but to their employers, peaceably assembled by their representatives in convention.”
But it has been asked, Why not compel a State, objecting to the constitutionality of a law, to appeal to her sister States, by a proposition to amend the constitution? I answer, because, such a course would, in the first instance, admit the exercise of an unconstitutional authority, which the States are not bound to submit to, even for a day, and because it would be absurd to suppose that any redress would ever be obtained by such an appeal, even if a State were at liberty to make it. If a majority of both Houses of Congress should, from any motive, be induced deliberately, to exercise “powers not granted,” what prospect would there be of “arresting the progress of the evil,” by a vote of three fourths? But the constitution does not permit a minority to submit to the people a proposition for an amendment of the constitution. Such a proposition can only come from “two-thirds of the two Houses of Congress, or the Legislatures of two-thirds of the States.” It will be seen therefore, at once, that a minority, whose constitutional rights are violated, can have no redress by an amendment of the constitution. When any State is brought into direct collision with the Federal Government, in the case of an attempt, by the latter, to exercise unconstitutional powers, the appeal must be made by Congress, (the party proposing to exert the disputed power,) in order to have it expressly conferred, and, until so conferred, the exercise of such authority must be suspended. Even in cases of doubt, such an appeal is due to the peace and harmony of the Government. On this subject our present Chief Magistrate, in his opening message to Congress, says: “I regard an appeal to the source of power, in cases of real doubt, and where its exercise is deemed indispensable to the general welfare, as among the most sacred of all our obligations. Upon this country, more than any other, has, in the providence of God, been cast the special guardianship of the great principle of adherence to written constitutions. If it fail here all hope in regard to it will be extinguished. That this was intended to be a government of limited and specific, and not general powers, must be admitted by all; and it is our duty to preserve for it the character intended by its framers. The scheme has worked well. It has exceeded the hopes of those who devised it, and became an object of admiration to the world. Nothing is clearer, in my view, than that we are chiefly indebted for the success of the constitution under which we are now acting, to the watchful and auxiliary operation of the State authorities. This is not the reflection of a day, but belongs to the most deeply rooted convictions of my mind. I cannot, therefore, too strongly or too earnestly, for my own sense of its importance, warn you against all encroachments upon the legitimate sphere of State sovereignty. Sustained by its healthful and invigorating influence, the Federal system can never fail.”
But the gentleman apprehends that this will “make the Union a rope of sand.” Sir, I have shown that it is a power indispensably necessary to the preservation of the constitutional rights of the States, and of the people. I now proceed to show that it is perfectly safe, and will practically have no effect but to keep the Federal Government within the limits of the constitution, and prevent those unwarrantable assumptions of power, which cannot fail to impair the rights of the States, and finally destroy the Union itself. This is a government of checks and balances. All free governments must be so. The whole organization and regulation of every department of the Federal, as well as of the State Governments, establish, beyond a doubt, that it was the first object of the great fathers of our federal system to interpose effectual checks to prevent that over-action, which is the besetting sin of all governments, and which has been the great enemy to freedom over all the world. There is an obvious and wide distinction, between the power of acting, and of preventing action, a distinction running through the whole of our system. No one can question, that in all really doubtful cases, it would be extremely desirable to leave things as they are. And how happy would it be for mankind, and how greatly would it contribute to the peace and tranquillity of this country, and to that mutual harmony on which the preservation of the Union must depend, that the Federal Government (confining its operations to subjects clearly federal,) should only be felt in the blessings which it dispenses. Look, Sir, at our system of checks. The House of Representatives checks the Senate, the Senate checks the House, the Executive checks both, the Judiciary checks the whole; and it is in the true spirit of this system, that the States should check the Federal Government, at least so far as to preserve the constitution from “gross, palpable and deliberate violations,” and to compel an appeal to the amending power, in cases of real doubt and difficulty. That the States possess this right, seems to be acknowledged by Alexander Hamilton himself. In the 51st No. of the Federalist, he says, “that in a single republic all the powers surrendered by the people, are submitted to the administration of a single government, and usurpations are guarded against by a division of the government into separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each sub-divided into separate departments; hence a double security arises to the rights of the people. The different governments will control each other, at the same time each will be controlled by itself.”
I have already shown, that it has been fully recognized by the Virginia resolutions of ’ 98, and by Mr. Madison’s report on these resolutions, that it is not only “the right, but the duty of the States,” to “judge of infractions of the constitution,” and “to interpose for maintaining within their limits the authorities, rights, and liberties, appertaining to them.”
Mr. Jefferson, on various occasions, expressed himself in language equally strong. In the Kentucky resolutions of ’ 98, prepared by him, it is declared that the federal government “was not made the exclusive and final judge of the extent of the powers delegated to itself since that would have made its discretion, and not the Constitution the measure of its powers, but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as the mode and measure of redress.”
In the Kentucky resolutions of ’ 99, it is even more explicitly declared, “that the several States which formed the Constitution, being sovereign and independent, have the unquestionable right to judge of its infraction, and that a nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy.”
But the gentleman says, this right will be dangerous. Sir, I insist, that of all the checks that have been provided by the Constitution, this is by far the safest, and the least liable to abuse. It is admitted by the gentleman, that the Supreme Court may declare a law to be unconstitutional, and check your further progress. The Supreme Court consists of only seven judges: four are a quorum, three of whom are a majority, and may exercise this mighty power. Now, the Judges of this Court are without any direct responsibility, in matters of opinion, and may certainly be governed by any of the motives, which it is supposed will influence a State in opposing the acts of the Federal Government. Sir, it is not my desire to excite prejudice against the Supreme Court. I not only entertain the highest respect for the individuals who compose that tribunal, but I believe they have rendered important services to the country; and that, confined within their appropriate sphere, (the decision of questions “of law and equity,”) they will constitute a fountain from which will forever flow the streams of pure and undefiled justice, diffusing blessings throughout the land. I object only to the assumption of political power by the Supreme Court, a power which belongs not to them, and which they cannot safely exercise. But, surely, a power which the gentleman is willing to confide to three Judges of the Supreme Court, may safely be entrusted to a sovereign State. Sir, there are so many powerful motives to restrain a State from taking such high ground as to interpose her sovereign power to protect her citizens from unconstitutional laws, that the danger is not that this power will be wantonly exercised, but that she will fail to exert it, even on proper occasions.
A State will be restrained by a sincere love of the Union. The People of the United States cherish a devotion to the Union, so pure, so ardent, that nothing short of intolerable oppression, can ever tempt them to do any thing that may possibly endanger it. Sir, there exists, moreover, a deep and settled conviction of the benefits, which result from a close connexion of all the States, for purposes of mutual protection and defence. This will co-operate with the feelings of patriotism to induce a State to avoid any measures calculated to endanger that connexion. A State will always feel the necessity of consulting public opinion, both at home and abroad, before she resorts to any measures of such a character. She will know that if she acts rashly, she will be abandoned even by her own citizens, and will utterly fail in the object she has in view. If, as is asserted in the declaration of independence, all experience has proved that mankind are more disposed to suffer while evils are sufferable, than to resort to measures for redress, why should this case be an exception, where so many additional motives must always be found for forbearance? Look at our own experience on this subject. Virginia and Kentucky, so far back as ’ 98, avowed the principles for which I have been contending—principles which have never since been abandoned; and no instance has yet occurred, in which it has been found necessary, practically to exert the power asserted in those resolutions.
If the alien and sedition laws had not been yielded to the force of public opinion, there can be no doubt, that the State of Virginia would have interposed to protect her citizens from its operation. And if the apprehension of such an interposition by a State, should have the effect of restraining the Federal Government from acting, except in cases clearly within the limits of their authority, surely no one can doubt the beneficial operation of such a restraining influence. Mr. Jefferson assures us, that the embargo was actually yielded up, rather than force New England into open opposition to it. And it was right to yield it, Sir, to honest convictions of its unconstitutionality, entertained by so large a portion of our fellow citizens. If the knowledge that the States possess the Constitutional right to interpose, in the event “of gross, deliberate, and palpable violations of the Constitution,” should operate to prevent a perseverance in such violations, surely the effect would be greatly to be desired. But there is one point of view, in which this matter presents itself to my mind with irresistible force. The Supreme Court, it is admitted, may nullify an act of Congress, by declaring it to be unconstitutional. Can Congress, after such a nullification, proceed to enforce the law, even if they should differ in opinion from the Court? What then would be the effect of such a decision? And what would be the remedy in such a case? Congress would be arrested in the exercise of the disputed power, and the only remedy would be, an appeal to the creating power, three-fourths of the States, for an amendment of the Constitution. And by whom must such an appeal be made? It must be made by the party proposing to exercise the disputed power. Now I will ask, whether a sovereign State may not be safely entrusted with the exercise of a power, operating merely as a check, which is admitted to belong to the Supreme Court, and which may be exercised every day, by any three of its members? Sir, no ideas that can be formed of arbitrary power on the one hand, and abject dependence on the other, can be carried further, than to suppose, that three individuals, mere men, “subject to like passions with ourselves,” may be safely entrusted with the power to nullify an act of Congress, because they conceive it to be unconstitutional; but that a sovereign and independent State, even the great State of New York, is bound, implicitly, to submit to its operation, even where it violates, in the grossest manner, her own rights, or the liberties of her citizens. But we do not contend that a common case would justify the interposition.
This is “the extreme medicine of the State,” and cannot become our daily bread.
Mr. Madison, in his report, says, “It does not follow, however, that because the States, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole, every part being deemed a condition of every other part, and of the whole, it is always laid down, that the breach must be both wilful and material to justify an application of the rule. But in the case of an intimate and Constitutional Union, like that of the United States, it is evident, that the inter-position of the parties, in their sovereign capacity, can be called for by occasions only, deeply and essentially affecting the vital principles of their political system.
“The resolution has, accordingly, guarded against any misapprehension of its object, by expressly requiring, for such an interposition, ‘the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise of powers not granted by it.’ ‘It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was established.’ It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case, not resulting from a partial consideration, or hasty determination; but a case stamped with a final consideration, and deliberate adherence. It is not necessary, because the resolution does not require that the question should be discussed, how far the exercise of any particular power, un-granted by the Constitution, would justify the interposition of the parties to it. As cases might easily be stated, which none would contend ought to fall within that description; and cases, on the other hand, might, with equal ease, be stated, so flagrant and so fatal, as to unite every opinion in placing them within the description.
“But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition which it contemplates to be 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.”
No one can read this, without perceiving that Mr. Madison goes the whole length, in support of the principles for which I have been contending.
The gentleman has called upon us to carry out our scheme practically. Now, Sir, if I am correct in my view of this matter, then it follows, of course, that the right of a State being established, the Federal Government is bound to acquiesce in a solemn decision of a state, acting in its sovereign capacity, at least so far as to make an appeal to the People for an amendment of the Constitution. This solemn decision of a State, (made either through its Legislature or a Convention, as may be supposed to be the proper organ of its sovereign will—a point I do not propose now to discuss) binds the Federal Government under the highest constitutional obligation, not to resort to any means of coercion against the citizens of the dissenting State. How then can any collision ensue between the Federal and State Governments, unless indeed, the former should determine to enforce the law by unconstitutional means? What could the Federal Government do in such a case?—Resort, says the Gentleman, to the courts of justice. Now, can any man believe, that in the face of a solemn decision of a State, that an act of Congress is “a gross, palpable, and deliberate violation of the Constitution,” and the interposition of its sovereign authority, to protect its citizens from the usurpation, that juries could be found ready, merely to register the decrees of the Congress, wholly regardless of the unconstitutional character of their acts? Will the gentleman contend that juries are to be coerced to find verdicts at the point of the bayonet? And, if not, how are the United States to enforce an act, solemnly pronounced to be unconstitutional? But if the attempt should be made to carry such a law into effect, by force, in what would the case differ, from an attempt to carry into effect an act nullified by the Courts, or to do any other unlawful and unwarrantable act? Suppose Congress should pass an agrarian law, or a law emancipating our slaves, or should commit any other gross violation of our constitutional rights, will any gentleman contend that the decision of every branch of the Federal Government in favor of such laws could prevent the States from declaring them null and void, and protecting their citizens from their operation?
Sir, if Congress should ever attempt to enforce any such laws, they would put themselves so clearly in the wrong, that no one could doubt the right of the State to exert its protecting power.
Sir, the gentleman has alluded to that portion of the Militia of South Carolina with which I have the honor to be connected; and asked how they would act in the event of the nullification of the tariff law by the State of South Carolina? The tone of the gentleman on this subject did not seem to me as respectful as I could have desired. I hope, Sir, no imputation was intended.
[Mr. Webster —“Not at all; just the reverse.”]
Well, Sir, the gentleman asks what their leaders would be able to read to them out of Coke upon Littleton, or any other law book, to justify their enterprise? Sir, let me assure the gentleman, that when any attempt shall be made from any quarter, to enforce unconstitutional laws, clearly violating our essential rights, our leaders, (whoever they may be) will not be found reading black letter from the musty pages of old law books. They will look to the Constitution, and when called upon by the sovereign authority of the State to preserve and protect the rights secured to them by the charter of their liberties, they will succeed in defending them, or “perish in the last ditch.” Sir, I will put the case home to the gentleman. Is there any violation of the constitutional rights of the States, and the liberties of the citizen, (sanctioned by Congress and the Supreme Court,) which he would believe it to be the right and duty of a State to resist? Does he contend for the doctrine “of passive obedience and non-resistance”? Would he justify an open resistance to an act of Congress sanctioned by the Courts, which should abolish the trial by jury, or destroy the freedom of religion, or the freedom of the press? Yes, Sir, he would advocate resistance in such cases; and so would I, and so would all of us. But such resistance would, according to his doctrine, be revolution; it would be rebellion. According to my opinion it would be just, legal, and constitutional resistance. The whole difference between us, then, consists in this: The gentleman would make force the only arbiter in all cases of collision between the States and the Federal Government. I would resort to a peaceful remedy—the interposition of the State to “arrest the progress of the evil,” until such times as “a Convention, (assembled at the call of Congress or two-thirds of the States,) shall decide to which they mean to give an authority claimed by two of their organs.” Sir, I say with Mr. Jefferson, (whose words I have here borrowed) that “it is the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations,” (and I may add that of the gentleman) “is at once to force.”
The gentleman has made an eloquent appeal to our hearts in favor of union. Sir, I cordially respond to that appeal. I will yield to no gentleman here in sincere attachment to the Union,—but it is a Union founded on the Constitution, and not such a Union as that gentleman would give us, that is dear to my heart. If this is to become one great “consolidated government,” swallowing up the rights of the States, and the liberties of the citizen, “riding and ruling over the plundered ploughman, and beggared yeomanry,” the Union will not be worth preserving. Sir it is because South Carolina loves the Union, and would preserve it forever, that she is opposing now, while there is hope, those usurpations of the Federal Government, which, once established, will, sooner or later, tear this Union into fragments. The gentleman is for marching under a banner studded all over with stars, and bearing the inscription Liberty and Union. I had thought, sir, the gentleman would have borne a standard, displaying in its ample folds a brilliant sun, extending its golden rays from the centre to the extremities, in the brightness of whose beams, the “little stars hide their diminished heads.” Our’s, Sir, is the banner of the Constitution, the twenty-four stars are there in all their undiminished lustre, on it is inscribed, Liberty—the Constitution—Union. We offer up our fervent prayers to the Father of all mercies, that it may continue to wave for ages yet to come, over a free, a happy, and a united people.