- 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. Livingston,
[March 9, 1830]
The resolution of Mr. Foot, of Connecticut, relative to the public lands, being under consideration, Mr. Livingston addressed the Chair as follows:
Mr. President: The important topics that have been presented to our consideration, and the ability with which the questions arising out of them have been hitherto discussed, cannot but have excited a very considerable interest; which I regret exceedingly that I shall be obliged to interrupt, and greatly disappoint those who look for a continuance of “the popular harangue, the tart reply, the logic, and the wisdom, and the wit,” with which we have been entertained. For, sir, you can expect nothing from me but a very plain, and, I fear, a very dull exposition of my views on some of the subjects comprised in this excursive debate—unembellished by eloquence, unseasoned by the pungency of personal allusions. For I have no accusations to make of sectional hostility to the State I represent, and, of consequence, no recriminations to urge in its behalf, no personal animosity to indulge, and but one—yes, sir, I have one personal defence to make; a necessary defence against a grave accusation; but that will be as moderate as I know it will be complete, satisfactory, and, I had almost said, triumphant.
The multiplicity and nature of the subjects that have been considered in debating a resolution with which none of them seem to have the slightest connection, and the addition of new subjects which every speaker has thought it proper to increase the former stock, has given me, I confess, some uneasiness. I feared an irruption of the Cherokees, and was not without apprehensions that we should be called on to terminate the question of Sunday mails; or, if the Anti-Masonic Convention should take offence at the secrecy of our Executive session, or insist on the expulsion of all the initiated from our councils, that we should be obliged to contend with them for our seats. Indeed, I had myself serious thoughts of introducing the reformation of our National code, and a plan for the gradual increase of the Navy, and am not yet quite decided whether, before I sit down, I shall not urge the abolition of capital punishments. In truth, Mr. President, the whole brought forcibly to my recollection an anecdote told in one of the numerous memoirs written during the reign of Louis XIV, too trivial, perhaps, to be introduced into this grave debate, but which, perhaps, may be excused. A young lady had been educated in all the learning of the times, and her progress had been so much to the satisfaction of the princess who had directed her studies, that, on her first introduction, her patroness used to address her thus: “Come, miss! discourse with these ladies and gentlemen on the subject of theology; so, that will do. Now talk of geography; after that, you will converse on the subjects of astronomy and metaphysics, and then give your ideas on logic and belle lettres.” And thus the poor girl, to her great annoyance, and the greater of her auditors, was put through the whole circle of the sciences in which she had been instructed. Sir, might not a hearer of our debates for some days past, have concluded that we, too, had been directed in a similar way, and that you had said, to each of the speakers, “Sir, please to rise and speak on the disposition of the public lands; after that, you may talk to the tariff; let us know all you think on the subject of internal improvement; and, before you sit down, discuss the powers of the Senate in relation to appointments, and the right of a State to recede from the Union; and finish by letting us know whether you approve or oppose the measures of the present, or the six preceding administrations.” The approximation, Sir, of so many heterogeneous materials for discussion, must provoke a smile; and most of those who have addressed you, while they lamented that subjects, unconnected with the resolution, had been introduced into debate, rarely sat down without adding to the number. For my own part, I think the discussion may be turned to useful purposes. It may, by the interchange of opinion, increase our own information on all the important points which have been examined, while, not being called on for a vote, we may weigh them at leisure, and come to a conclusion, without being influenced by the warmth of debate.
The publication of what has been said, will spread useful information on topics highly proper to be understood in the community at large.
The recurrence which has necessarily been had to first principles is of incalculable use. The nature, form, history, and changes of our Government, imperceptible or disregarded at the time of their occurrence, are remarked; abuses are pointed out; and the people are brought to reflect on the past, and provide for the future.
It affords a favorable opportunity, by explanations that would not otherwise have been made, to remove prejudice and doubts as to political character and conduct. For instance, Sir, it has already produced one which has given me, individually, sincere pleasure. The Senator from Massachusetts, who so eloquently engaged the attention of his auditors in the beginning of the debate, took that occasion to disavow any connexion with the Hartford Convention; to declare, in unequivocal terms, that he “had nothing to do with the Hartford Convention.” Sir, I repeat, I heard this explicit declaration with great pleasure, because, on my arrival here as a member of the other House, in which I first had the satisfaction of being acquainted, and associating with that Senator, I received an impression (from whom, or how, or where, it would be impossible for me now to tell,) that, although not a member of that Convention, he had, in some sort, favored, promoted, or approved of its meeting; and, being only on such terms of social intercourse as one gentleman has with another, without that intimacy which would have justified my making a personal inquiry on the subject, I heard, and doubtless all who had received the same impressions, heard, with great satisfaction, a declaration which has so completely eradicated every suspicion that the Senator from Massachusetts lent his countenance to that injudicious, ill-timed, and dangerous measure, to which others have given stronger epithets of disapprobation. Sir, I happen to know something, not of the proceedings or views of that body, but of the effect its existence had in encouraging our enemy in exciting hopes of disunion, nay, of disgraceful adherence to their cause. While these worthy citizens were occupied in deliberating on the plans, whatever they were, which drew them together in the East; while they and others associated with them in party feeling, were devising means of putting an end to the war, by vilifying those who declared, and detracting from the merit of those who conducted it, by opposing every measure for prosecuting it with vigor, and obstructing our means of defence, by denouncing the war itself as unjust, and the gallant exploits of our Army and Navy as unfit subjects for rejoicing—while these men were thus employed at one extremity of the Union, others were differently engaged at the other. A small but gallant band, directed by their heroic leader, were striving also to put an end to the war, but by far different means; by means of brave, uncompromising, uncalculating resistance; their attacks were made upon the enemies of their country, not upon its Government; among them were militiamen, who, without any constitutional scruples about passing the boundary of their State, had marched more than a thousand miles beyond those boundaries in search of the enemy. They found him, and glorious victory at the same moment; joined to my brave constituents, they gave a most signal defeat to more than three times their number; and signalized the close of the war by an action in itself capable of putting an end to the contest. Immediately after this great event, I was sent on a mission to the British fleet. Circumstances protracted my stay on board the Admiral’s ship for several days; during which, having been formerly acquainted with an officer high in command, I discovered, not only from his conversation, but that of almost all the officers, that the utmost reliance was placed on the Hartford Convention, for effecting a dissolution of the Union, and the neutrality of New England. I have no evidence that these hopes and expectations were derived from any communication with any member of that body. But I know that the enemy were, as must naturally have been the case, encouraged by the appearance of division which that meeting was calculated to produce; it was made the topic of conversation as often as civility to me would allow. An assembly, on whose deliberations were founded such insolent expectations, so injurious to the patriotism and integrity of a part of my country, whose inhabitants I had always been taught to respect—such an assembly could not but have raised the most unfavorable impressions of its object; and the suspicion of having favored or promoted its meeting, necessarily derogated from the high opinion which might otherwise have been entertained of the discretion or patriotism of any one to whom it attached.
As this debate has offered an occasion of making a declaration which I am sure must have been heard with equal satisfaction by all who, like me, were under impressions which that declaration completely removed, so, if it should (as I sincerely hope it may) produce a similar disclaimer of that construction of the Constitution which gives all powers to Congress under the general expression of providing for the general welfare; if it should produce this effect, it will completely annihilate one of the most dangerous party dogmas, and verify what has been so frequently said, that federalism was extinct; and, on the other hand, an open avowal of that doctrine will have the effect of putting us on our guard against its operation, so that the frank interchange of sentiment that may be expected, must, in every view, be beneficial.
Yet, Sir, I should, notwithstanding these ideas of the utility of the debate, have taken no part in it but for these considerations:
The importance of the subject of the resolution to the State I represent; The appeals that have been made to my recollection, in the course of the discussion;
And the necessity of repelling a charge implicating me, and others with whom I acted, in a charge of hostility to the Father of his Country.
The original resolution, now completely abandoned, and only incidentally referred to, must form a prominent figure in the observation I shall address to the Senate. The subject it involves is one of deep interest to my State; and the policy of the General Government, with respect to its public land within our boundaries, shall be freely canvassed. Representing, with my worthy colleague, the interests of that State, I should betray those interests were I not to seize this favorable opportunity of making known the true state of our claims on the justice of the Union. I confine myself to my own State—the others are too ably represented to need my aid. Some of them have thought that they could trace the measures of which they complain to particular sections of the Union, and I must not be understood as censuring this course. Though I do not think it necessary for my State, other gentlemen, who undoubtedly understand this subject better than I do, think it is so for them. It is not for me to blame them. My friend from Missouri has, with his characteristic diligence, collected a mass of evidence on this subject, which is perhaps conclusive; but this it does not suit my purpose to examine; I will not attempt any such research. The measures of which I shall complain are those of the nation. I should bewilder myself, do injustice to others, and cause useless irritation, were I to seek, in old journals or forgotten documents, for the names of those who voted for or against the measures of which I am forced to complain, or try to discover what river or what geographical line divided them. All those votes I am bound to believe were given from proper motives, though from erroneous views. I feel no sectional or personal hostility, and will endeavor to excite none. In avowing this course, I am far from arraigning that which some of my friends have pursued; they are the best judges of their own griefs, and the best mode of redressing them. For my own part, I repeat, that all of which I shall complain are the acts and omissions of the whole Government; and I state them, because I hope and believe that, when they shall be fully known, compensation for injuries and injurious omissions will be offered, and all stipulations faithfully performed.
Louisiana was ceded by France to the United States in 1803. By the treaty of cession the United States acquired all the vacant lands within the province, and the sovereignty over it; but under the following conditions:
To maintain the inhabitants in the enjoyment of their property;
To admit them as soon as possible into the Union, according to the principles of the Federal Constitution.
Neither of these conditions have been faithfully performed, according to the spirit of the stipulation.
To maintain the inhabitants in the enjoyment of their property, it was essential that all disputed claims to it should be submitted to the decision of a court, whether such claims were made by individuals or the Government. Yet all the titles disallowed by the Government were directed to be decided by Commissioners of its own choosing, holding their offices at the will of the President. This was not only doing injustice to us, but was an infringement on the constitutional distribution of power, by which the judicial powers of the United States are vested in a Supreme and inferior Courts, of which the Judges are to hold their offices during good behavior, who are to take cognizance of all controversies to which the United States are parties, and from the decisions of the latter of which, an appeal lies to the former. Now, no one can deny that, to decide on the validity of a title to land, is a judicial function; that the United States are parties to all the controversies in relation to their titles to public lands; and that the Commissioners are not such judges as are intended by the Constitution. Yet, Sir, you refuse to give us the enjoyment of two millions, and more, of acres claimed by citizens of my State, under perfect grants, made by the former sovereigns of the province, because your Commissioners, under the instructions of an Executive Department, have refused to ratify them. Year after year, for more than twenty years, they have petitioned for their right under the treaty, or for a judicial inquiry into their title; year after year you have refused this just and reasonable demand. You have partially granted it to the adjoining States and Territory of Missouri, Alabama, and Arkansas, but have pertinaciously, unjustly, and cruelly refused it to us. We have, also, in common with the adjoining States of Missouri, Mississippi, and Alabama, (all in part or in the whole taken out of the territory ceded by treaty) been deprived of the benefits of the judiciary system of the United States. Lives and fortunes submitted to the legal decision of a single man. Lives without appeal—fortunes, under 2000 dollars, without appeal. Both, in my opinion, have been more than once illegally sacrificed to this cruel neglect of our rights.
To understand the next grievance of which I complain, the attention of the Senate must be drawn to the topographical features of the country, as well as its statistics and geographical position. In the short distance of four degrees of latitude, the extent of this State on one side of the Mississippi and two on the other, that river, by its meandering course, and the division of its waters in the Delta, presents banks of near 1500 miles on both its sides—the other rivers falling into it nearly as much more. All these are subject to annual inundation; and in the whole alluvial soil the banks of the river are the highest ground, which descends in an inclined plane to the level of the ocean. It follows from this configuration that the banks of the river must be secured by dikes, or that the whole of the alluvial country must be submerged during every annual rise of the river. The construction of these dikes was a duty imposed on the first settlers of the province, as a condition of their grants; and this mighty river, encased in high and solid embankments for near two hundred miles of its course, attests how faithfully this condition was fulfilled. A wonderful work, when compared with the slender population by which it was effected. By the terms of the cession, the United States became proprietor of all the vacant lands; but they have not considered themselves liable to any of the duties that would have attached to the property had it been in private hands: they expressly exempt themselves, and even those to whom they may sell, during five years, from taxes or any contribution to Government; and, practically, have refused to make any of the improvements necessary, not only for reclaiming their own lands, but for protecting their inhabitants from the effects of the inundation which has been described; and, in numerous instances, parishes have been obliged, in their own defence, to perform this expensive operation for you. Now, Sir, the State contains 36,000,000 of acres, of which your Commissioners have confirmed, and you have granted and sold, only 5,000,000; so that you now own six-sevenths of the whole State. That one-seventh, which is in private hands, supports a population of more than 200,000 souls, and raises an agricultural produce, beyond its own consumption, of 8,000,000 of dollars. Yet, with this evident advantage, resulting from a settlement of the old titles, and the sale of the lands in the State, which, at the same rate, would give a population of more than a million, and an export nearly equal to that of all the rest of the States, you have only sold 250,000 acres of the public land; you refuse to try or to allow just claims to the amount of two millions of acres, and, with the richest soil in the world, we are condemned to a scanty population, and to see the owners of six-sevenths of our soil refusing to contribute to the expenses of our Government, forcing us to defend their property, as well as ours, from destructive inundations and more destructive invasions, and for more than a quarter of a century, by delaying the disposition of the lands, breaking that which I shall prove was the most important condition on which they received the country.
That condition was not only security to property, but “that the inhabitants should be incorporated in the Union, as soon as possible, according to the principles of the Federal Constitution;” that is to say, that the country should be erected into a State, as soon as it could be done according to the principles of the Constitution; but there was no principle to oppose its being done instantly. Yet, notwithstanding the most spirited remonstrance made in the first year after the cession—a remonstrance now on your files, and which testifies not only the desire to enjoy the privilege, but the ability to exercise it, you kept them in the subordinate grade of a territory for more than eight years, and you lopped off the greater part of the province, out of which, without their consent, you have made an extensive territory, and a more extensive State. It is true, sir, that, at this late period, you brought Louisiana into the Union; you assigned their boundaries; you approved of their Constitution; and you admitted their Senators and Representatives in the councils of the nation. But is this all that is necessarily implied by the obligation of the treaty? Is an extent of territorial limit all that is required? In contracting to create a State, you promised to promote its population. In stipulating that it should become one of a confederacy of free republics, you promised the means of making that population worthy of the name, and capable of exercising the duties of freemen; you promised them the means of moral, religious, and scientific education; you promised such a disposition of the lands as would fill the space assigned the new member of the Union with independent freeholders, the product of whose labors, after supporting themselves in comfort, would contribute to the necessary expenses of the local Government, and increase, by their consumption, the revenues of yours. Unless you did this, you did nothing. Your assignment of boundaries, your statutory provisions, would have been a mockery, if we had not, by almost miraculous exertions, broke the shackles imposed on our progress, and supplied, by the energy of our scanty population, the want of numbers, which your laws denied us. You forgot that population, as well as soil, was necessary. You forgot the lesson taught by a Greek, and elegantly paraphrased by a British poet—
- “What constitutes a State?
- Not high raised battlement, nor labored mound,
- Thick wall or moated gate.
- Not cities fair with spires and turrets crown’d,
- Not bays and broad armed ports,
- Where, laughing at the storm, rich navies ride!
- Not starr’d and spangled courts,
- Where low bowed baseness wafts perfume to pride!
- No! men! high minded men!
- Men who their duties know;
- But know their rights, and, knowing, dare maintain,
- Prevent the long aimed blow.
- And crush the tyrant when they burst the chain—
- These constitute a State!”
These your policy would have refused; but these Heaven had provided, by inspiring the little band which our scanty population could afford, and their few associates, with the energy, patriotism, and self devotion, which the moment of danger required. Think you, sir, that, if my constituents, instead of the noble minded men who flew to the standard of the country the moment its soil was invaded—who heroically and successfully contended against odds in discipline and numbers, and braved dangers, before which even high courage might quail—who can boast of having gained for the State the honor of that resolution on your statute book, which records, in terms to which they and their posterity may look with pride, that “the brave Louisianians are entitled to the thanks, and deserve well of the whole people of the United States”—an honor which, as yet, no other State has attained; if, instead of the enlightened people who gave the first example to their sister States, of providing a written code of laws, and will be the last to give them an example of dishonor, or want of attachment to the Union; if, instead of these, they had been the degraded vassals of arbitrary power, hugging rather than bursting their chain, incapable of appreciating the advantages of liberty and self government, such as their calumniators in and out of Congress represented them to be; I ask, sir, whether all the laws you could have passed would have enabled them to become a State, unless those laws, by rendering the acquisition of lands easy, should have supplied us with a race of independent, well informed cultivators of the soil—the bone and sinew of every State?
You have left us for this, to our own resources; you have done worse; by denying the power of trying our titles, you have deprived us of those to which we are legally entitled, independently of your laws; and you have for twenty-five years forced the proprietors of grants to contribute to the support of the State Government according to the value of their lands, while you, by unfounded claims, prevent them making any use of them.
In these, as is the case in most unjust measures, the interest of those who adopt them has been most materially injured. If our titles had been confirmed; if the lands had been surveyed and disposed of at low prices to actual settlers; if large allowances had been made out of them for public education and other useful institutions; if, while the lands remained un-sold, the Government had subjected itself to the duties required of other land holders, it is no extravagant calculation to say that the State would have, at this day, contained a million of inhabitants, producing from the soil an excess above their own consumption of forty millions of dollars, and, if there be any truth in the calculations of political economy, paying annually, by the duties on their consumption, according to the present rates, more than ten times as much as the aggregate sales of all your lands have produced in any one year.
As I said, sir, I confine my remarks to my own State, and I consider the policy pursued with respect to the lands it contains as unjust, narrow, unwise, and in the highest degree injurious to the Union. If, twenty years ago, the lands had been parcelled out to actual settlers according to the policy pursued by the French and Spanish possessors of the province, without exacting any consideration, I have not the slightest doubt that, in a mere pecuniary point of view, it would have been the wisest measure, and that, through your Custom-house, you would, as long as you chose to continue your duties, receive more dollars and cents twenty fold than you will annually receive in the comparatively few years that your lands in the State will be on sale. It is because I think it not too late to change this policy that I have seized this occasion to expose it. Confirm all our just titles, submit those of which you doubt to the Judiciary, endow all our public institutions liberally, remember that you deprive us of laying taxes for this purpose by condemning to sterility six-sevenths of the land in the State. Supply this defect, rescue your own lands, and those of our citizens which adjoin yours, from the destructive effects of inundation, and connect us by canals and roads with the rest of the Union. Give, if you cannot sell, your lands to settlers, who will become consumers, and add to your revenue; who will be hardy and independent, and add to your strength; and who will form an iron frontier on your Southern and Western boundary, that will set invasion at defiance.
In asserting their rights, I address my just complaints to the Representatives of the people and the States. I trace our injuries to no section of country, to no party, to no particular men. I can make proper allowance for opinions that may have actuated all who advocated the different measures of which we complain, without imputing them to a marked and improper hostility. Constitutional scruples were entertained to our admission; they are removed. Doubts existed of our attachment to the Union, of our courage to defend it; they have been triumphantly destroyed. Our ability for self-government was made a question, but our legislation has long since solved it. Now, therefore, we look for justice, and I trust, Sir, that we shall not look in vain.
Having finished what I thought myself obliged to say on the policy pursued with respect to the State, I have tried to find some chain by which this subject might be connected with another, to which frequent allusions have been made—the existence of present, and the history of past parties in our Legislature. This I have found it difficult to do, unless from the consideration that, in popular governments, party connects itself with every thing;—nothing too high or too low, too grave or too trivial; from a construction of the Constitution to the merits of an actor; from the election of a president to that of a constable. It is not surprising, therefore, that party views may at times have mixed themselves with the measures pursued by the General Government towards the Western States. But I cannot willingly bring myself to believe that there is a party permanently, and on principle, hostile to the prosperity of those States. Allusions have been made to those which formerly divided us, and which are still, under other names, supposed to exist. It may be useful to examine their nature, and refer to their history. It is quite obvious that parties must exist in all popular governments, and not less so, that they are, when not carried to excess, useful, and even necessary; but we must carefully observe their different kinds. The first and most important is that which divides the supporters of general tenets on the construction of the powers of government, or of any of its branches, from the opposers of those tenets; these being from their nature permanent, and occurring in almost every operation of the Government, form, until their doctrines are fully established, or finally given up, a marked line of division between all who take any part in public affairs; there can be in the nature of things no neutrals; every man who has any opinion, or even acts on those of others, must be united with one or the other of these parties; and when they are thus arrayed, great sacrifices of individual opinion must be made in matters of minor importance, in order to secure strength in those which regard the great question. Hence we find, that, whenever the country is divided by a permanent party of this kind, it brings within its vortex every measure of government, and that useful laws are opposed by the one party, and injurious measures favored by the other, from the effect that the one or the other will have in gaining proselytes, or preserving friends.
Whenever such great party division ceases to exist, it is generally replaced by those which are formed for the elevation or depression of particular men, or the support or opposition to particular measures. These last having no permanent principle to rest upon, continually change with the men, and the operations which they purport to favor or oppose. Opposition in both these parties is extremely useful; the first, to preserve the Government pure in its organization, the other in its operations.
The establishment of our present happy Constitution (happy unless corrupted by false constructions, or torn by mad and ruinous resistance,) was preceded by the contest of two parties, whose names (not a common occurrence) designated their principles, and the object for which they respectively contended. It was general, and founded on principle; the one contending for a radical change in the confederation of the States—these were designated as federalists; the other, opposed to this change—who were styled anti-federalists. When the States had agreed to the Constitution, this party became extinct; the object on the one side having been completely established, and the opposition on the other generally abandoned. Coeval with the operations of the new government, arose a new party, of the same general permanent kind, because it was founded on a contrariety of opinion on the powers of the new government. Among those who had most zealously promoted its adoption, were men of high talents, who strove in its formation to give it a character of greater energy, and increase its powers at the expense of those of the States; being obliged to yield many of their ideas to those of others, who thought it too energetic as it was, they compromised with their opponents, and agreed to the Constitution as it is, or, rather, as it was before the amendments. It was natural that men entertaining those ideas, should put every construction on the words of the compact that would bring it nearer to, what they thought, the point of perfection. Men of equal eminence and abilities had co-operated as indefatigably in procuring the adoption, but from a conviction that the powers given to the Federal Government, strictly construed, were sufficient for all national purposes; that any extension of them would be injurious, if not ruinous; and that no construction or direct change should be permitted that would lessen the power or influence of the State Governments. These last description of federalists were naturally joined by the individuals who had formed the extinct party of anti-federalists; and, together, under the name of the republican party, they watched the movements, and opposed the suspicious measures of those whom I have first designated, and who retained the name of federalists.
The first and most dangerous principle, sometimes avowed by the federal party, but generally acted upon, was that under the construction of the words in the preamble, that the object of the Constitution was to promote the general welfare, and the use of the same phrase in the power to lay taxes on any object which promoted the general welfare of the United States, unless expressly inhibited, was included. The direct operation of this interpretation in consolidating the General Government, and annihilating the power of the States, was evident, and the avowal of it alarming. Besides this, there were many incidents which, to minds already excited by more important opinions and events, created suspicions of a design to change the forms, as well as the substance, of the new Government; and which, although by one party considered “trifles light as air,” were by the other thought to be “confirmation strong as proofs from holy writ.” The President having opened the session by a speech to both Houses, as was then, and for twelve years continued to be, the mode, one of the first subjects of deliberation in the Senate was the style by which he should be addressed in their answer. A committee was appointed to consider this subject, and they reported that the President should be styled His Highness. The democratic branch, however, insisted on calling him simply what the people had made him—the President of the United States; and the Senate, yielding to the necessity of the moment, came to the following resolution:
IN THE SENATE OF THE UNITED STATES, May 14, 1789.
The committee, appointed the 9th instant, “to consider and report under what title it will be proper for the Senate to address the President of the United States of America,” reported, that, in the opinion of the committee, it will be proper thus to address the President: His Highness the President of the United States of America, and Protector of their Liberties.
Which report was postponed, and the following resolve was agreed to, to wit:
From a decent respect for the opinion and practice of civilized nations, whether under monarchical or republican forms of government, whose custom is to annex titles of respectability to the office of their Chief Magistrates; and that, on intercourse with foreign nations, a due respect for the majesty of the people of the United States may not be hazarded by an appearance of singularity, the Senate have been induced to be of opinion, that it would be proper to annex a respectable title to the office of the President of the United States; but the Senate, desirous of preserving harmony with the House of Representatives, where the practice lately observed in presenting an address to the President was without the addition of titles, think it proper, for the present, to act in conformity with the practice of that House. Therefore,
Resolved, That the present address be “To the President of the United States,” without addition of title.
A motion was made to strike out the preamble as far as the words “but the Senate;” which passed in the negative; and, on motion for the main question, it passed in the affirmative.
By which you will perceive that, as the resolution has never been further acted upon, we may to-morrow confirm the report of the committee, and decorate our President with the princely title of Highness, and the ominous appellation of Protector. One other incident which I remember, took place in the gay world of which my youth then made me a denizen. The citizens of New York, among other marks of hospitality and desire to show a proper attention to the Great Man, who had just reluctantly given up his retirement at the unanimous voice of his fellow citizens, gave a grand inauguration ball; on the ceremonial of which it was said one, at least, of those who afterwards composed his cabinet, was consulted. But though he came from the Eastward, I do not mean to say that this was an Eastern measure. In a conspicuous part of the large ball room was erected a superb canopy, and under the canopy was placed what the ill-natured democrats called a throne; whether it was or not, not having had the honor to see one, I cannot tell. Napoleon said, a throne is a block of wood covered with velvet. This was a small sofa or a large chair, covered with some costly material, and on it they induced the President to sit; and when the music sounded for the dance, every couple, before they took their station in the long column of the country dances, then in fashion, were directed to go up and make a low obeisance, to the great annoyance of the President, who is said, when he quitted the seat, (in which he had thus reluctantly and by surprise been placed) thus to have addressed the contrivers of the ceremonial, with some warmth: “You have made a fool of me once; but I will take care you never do it again.” Such fooleries, Sir, are hardly worth relating, but they are characteristic of the views of parties—at least they were thought so then. Hae nugae, said the democrats, (or such of them as understood Latin) seria ducent, and many of the more apprehensive thought they saw royalty typified in these signs of the times. These imaginary fears soon gave way; but others of greater reality succeeded them. Circumstances of historical notoriety influenced the minds of both parties with foreign predilections and animosities; and the federal party, which had constantly been predominant in Congress, sealed their construction of the powers of the General Government by the passage of the alien law and the sedition law. Nothing could exceed the indignation which these practical applications of the federal doctrine excited in the minds of their opponents. An attack on the liberty of the press, not only unauthorized, but forbidden by the Constitution by the one act, the arbitrary power vested in the President by the other, opened the eyes of the people to the principles of the party by which they were passed, and, at the very next election, they were deprived of a power they had so grossly abused. Having mentioned the alien law, let me stop to perform an act of justice to deceased worth. In the first stages of that bill, for it was hurried through the House, I was absent from the seat with which I was then honored in the House of Representatives. I returned on the day set for its third reading. Before I went to the House, I met with a Senator from Virginia, who, notwithstanding the disparity of our years, honored me with his friendship, sometimes instructed me by his advice, and always stimulated me by his example. The conversation naturally turned on the measure depending before the House; and he detailed to me its provisions, spoke with his usual animation of its unconstitutional features, and inspired me with his own indignation against its attack on the liberty of the nation. Warmed with this conversation, I went to the House and made a speech in opposition to the bill, which was at the time spoken of with applause, and sometimes attracts attention even now; but whatever of merit it had, was owing to the circumstance I have related; and I might address him who urged me to declare my sentiments on the occasion, in the words of the poet to his muse—
Quod spiro et placeo (si placeo) tuum est.
The country has since been deprived of the services of that Senator, but she has the consolation to know that the mantle of his patriotism, talents, and virtues, has fallen on his son and successor in this body.
I have given you, Sir, so much of the history and state of parties as was necessary for the understanding of the refutation I must make of a charge brought against me, and those with whom it was my happiness to associate, and will always be my pride to have acted in those times. I repeat the charge, verbatim, from the printed speech of the Senator from Massachusetts (Mr. Webster.) Speaking of the merits of New England, which I, at least, have never attempted to lessen, he says he “will not rake into the rubbish of by-gone times to blot the escutcheon of any State, any party, or any part of the country;” yet, Sir, in the same page, he endeavors to fix a blot of the blackest ingratitude on a party, on men (I do not speak, Sir, of myself,) who have rendered most important services to the country, to one of whom it has given the highest mark of its confidence and esteem, and all of whom were, in the transaction alluded to, much more sinned against than sinning. The honorable gentleman goes on to say: “Gen. Washington’s administration was steadily and zealously maintained, as we all know, by New England. It was violently opposed elsewhere. We know in what quarter he had most earnest, constant, and persevering support in all his great and leading measures. We know where his private and personal character was held in the highest degree of attachment and veneration; and we know too where his measures were opposed, his services slighted, and his character vilified. We know, or we might know, if we turn to the journals, who expressed respect, gratitude, and regret, when he retired from the Chief Magistracy; and who refused to express respect, gratitude, or regret—I shall not open these journals.”
Sir, the honorable gentleman would have done well to open the journals, or not to have referred to them. If he had opened them, he would have found the name of the individual who addresses you arrayed with those of men more worthy of note, in the vote to which he alludes. If he had opened the debates which led to that vote, as I think he ought to have done, he would have seen how utterly void of foundation is the charge he has brought. I do not think the gentleman intended any personal allusion to me; the terms of civility on which we are, forbid it—the consciousness of having said nothing to provoke the attack forbids it; but, Sir, the individual, who cannot arrogate to himself sufficient importance to justify the supposition that he was the object intended, was, at that time, the representative, the sole representative, of the first commercial city in the Union. That individual is now one of the members of this body, representing a sovereign State. He owes it, therefore, to those who have offered him these marks of their confidence, to show that they were not unworthily bestowed; he owes it to himself to disprove the reflection which the allegation casts on his character. Suffer me, also, Mr. President, to remark, that this very charge was used during the late election; and that the refutation I am about to give was so widely diffused that it is somewhat singular it should never have come to the Senator’s knowledge, or that he should have forgotten it if it had. Yet one or the other must have been the case, or he would not now have repeated the tale, nor, by incorporating it in his eloquent harangue, have given new currency to a refuted calumny which had long before been nailed to the counter. Since the honorable gentleman believes the tale to be true, and surely he would not otherwise repeat it, hundreds of others must give it the like credit; and it increases the obligation I am under to explain all the circumstances attending it.
I have shown, Sir, what were the doctrines and measures of the federal party at that time; during the whole of the Presidency of Washington they were predominant in both Houses; and as Washington was the head of the Government, one of their greatest objects was, to cover all their proceedings with the popularity of his name; to represent all opposition to their measures, as personal hostility to him; and to force the republican party either to approve all their measures, or, by opposing them, incur the odium of being unfriendly to the Father of his Country. In this they were for the most part defeated. The universal confidence reposed in the high character of Washington, the gratitude felt for his services, the veneration for his name, had practically produced the effect, in our Government, which a constitutional maxim has in that of England. He could not, it was believed, do wrong—most certainly he never meant wrong—most certainly his ardent wishes were for the happiness of the country he had conducted through so many perils, and the preservation of that form of government which had been adopted under his auspices. Yet measures were adopted, during his Presidency, which a very large proportion of the country thought injurious to their interests, and, on one occasion, a majority of their Representatives deemed them to be an infringement on their privileges. None of these were ascribed to the President; a practice which he introduced, enabled us to ascribe to his administration (to which in truth they belonged) all the measures of which we disapproved. The practice alluded to, was that of assembling the Heads of Department in a Cabinet Council, and being guided, as was generally understood, by the opinion of a majority in all important concerns. Hence the official acts of the President came to be considered as those of his Cabinet, and were, in common parlance, called the acts of the administration, and they were opposed, when it was deemed necessary, and canvassed, and freely spoken of in debate, without any hostility being felt, or supposed to be felt, towards the President. Indeed, several of those most prominent in opposition to acts of the administration, were men for whom Washington had the highest esteem, and who were among those who most admired and revered him.
Of the acts to which the republican party were opposed, it may be necessary to specify some, in order to show that the opposition was not a frivolous or a personal one.
The Chief Justice of the United States was sent as a Minister Plenipotentiary to England, while he held his Judicial office, which he retained until after his return. Thus, in our opinion, blending the Executive and Judicial departments, directed by the Constitution to be separated, and setting an example which might create an undue influence on the bench, in favor of the Executive.
This minister negotiated a treaty which contained stipulations requiring the agency of the House of Representatives, in the exercise of their constitutional powers over the subject of them, to carry into effect. To enable them discreetly to exercise these powers, the House respectfully requested the communication of such papers, in relation to the treaty, as could, without injury to our foreign relations, be made public. This request, the President was advised to refuse; and the refusal was grounded on a denial of the constitutional right of the House to exercise any discretion in carrying the treaty into effect. On this refusal, the House of Representatives passed a resolution declaratory of the right which the President had denied. I will not trouble the Senate with adverting to any other measures which I, and those who acted with me, opposed. We opposed them, Sir, without, in any instance, forgetting the sentiments of respect, gratitude, and high admiration, which were due to the name and character of Washington. We believed that it would have been a dereliction of duty to give up the independent expression of that opinion, because it was contrary to measures falsely ascribed to a name they revered; and conscious of the weight of that name. I may, without vanity, say, there was some degree of merit in stemming the tide of popularity that was attached to it.
The mission of Mr. Jay took place after the second election of General Washington, and the discussion on the treaty, in the first session of the fourth Congress, the seventh year of his Presidency. In his speech on the opening of the second session of the same Congress, (I repeat, sir, what I formerly wrote on this occasion) he alluded in affecting terms to his approaching retirement from office. I can solemnly say for myself, that, on this occasion, so far from any ill feeling towards the President, none among those who arrogated to themselves the title of his exclusive friends, could feel more sincerely, or were more disposed to express every sentiment of gratitude for his services, admiration for his character, or wishes for his happiness, than I was. These were ideas that had grown up with me from childhood. I had never heard the name of Washington pronounced but with veneration by those near relatives who were engaged with him in the same perilous struggle. Independence, liberty, and victory, were associated with it in my mind; and the awful admiration with which, when yet a boy, I was first admitted to his presence, yielded only to the more rational sentiments of gratitude and national pride, when, at a maturer age, I could appreciate his services, and estimate the honor his virtues and character had conferred on the nation. I had seen him in the hour of peril, when the contest was doubtful, and when his life and reputation, as well as the liberties of the country, depended on the issue. I had seen him in the moment of triumph, when the surrender of a hostile army had secured that independence. My admiration followed him in his first retreat, and was not lessened by his quitting it to give the aid of his name and influence to the union of the States under an efficient government. In addition to this, he had received me with kindness in my youthful visits to his camp; and, without having it in my power to boast of any particular intimacy, circumstances had thrown me frequently in the way of receiving from him such attentions as indicated some degree of regard. With these motives for joining in the most energetic expressions of gratitude, with a heart filled with sentiments of veneration, and desirous of recording them, my concern can scarcely be expressed, when I found that I must be debarred from joining my voice with those of my fellow-citizens in expressing those feelings, unless, in the same breath, I should pronounce a recantation of principles which I then thought, and still think, were well founded, and declare that I approved measures which I had just solemnly declared I thought injurious to the country.
Thus, Sir, it was contrived. At that period, the President opened the session by a speech, (the more convenient mode of sending a message having been introduced five years afterwards by Mr. Jefferson,) and the House made an answer, which they presented in a body. The answer on this occasion was most artfully and most ably drawn. It was the work of a federal committee, and was supported by a federal majority. It contained, as it ought to have contained, every expression that gratitude, veneration, and affectionate regret, could suggest; and to the adoption of these there would not have been a dissenting voice; it would have been carried, not only unanimously, but by acclamation. But the dominant party had other views; it was to be made the instrument of degrading their opponents, if they could vote for it, or of holding them up to all posterity as opposers of the Saviour of his Country if they refused to pronounce their own condemnation. They preferred a paltry party triumph to the glory of the man they professed to honor, and deprived him of the expression of an unanimous vote, that they might have some pretence to stigmatize their opponents with ingratitude. The press, sir, the omnipotent press, and the publicity of our debates, have enabled me, even at this distant day, to defeat this unworthy end—unworthy of the honorable men who contrived and executed it, and which nothing but the madness of party would have suggested to them.
To understand this fully, Sir, I should read to you the whole of the address. Its general character I have stated. But I will confine myself to one or two passages, which show what was endeavored to be forced upon us, and the amendments offered will show what we were willing to say; and I will then ask who it was that refused a unanimous expression of gratitude, respect, and merit?
The debates of that period were very concisely taken down; but (in Carpenter’s debate, p. 62) we find enough for our purpose. It is there stated that Mr. Livingston expressed his sorrow “that the answer was not so drawn as to avoid this debate, and his sincere hope that parties would so unite as to make it agreeable to all. He moved some amendments, first, to correct an error in the phraseology, which were adopted; and, in the course of his remarks, used these expressions: ‘He hoped, notwithstanding the tenacity of adherence to words, that all might agree in the address; he would be extremely hurt, he said, could he conceive that we differed in sentiments of gratitude and admiration for that great man; but, while he was desirous to express this, he could not do it at the expense of his feelings and principles. The former he might sacrifice, but the latter he could not to any man.’”
I invite the particular attention of the Senate to the passage which I proposed to alter as it stood in the address; it was in these words:
“And while we entertain a grateful conviction that your wise, firm, and patriotic administration has been signally conducive to the success of the present form of government, we cannot forbear to express the deep sensations of regret with which we contemplate your intended retirement from office.” Now, sir, mark what were the words objected to in this sentence; bear in mind the distinctions that have been drawn between the character of the President, and that of his administration;—remember what was the sense in which that word was universally used at the day; recollect, too, what I have just said of the opposition to one of the leading measures of that administration, and you will then be enabled to judge whether I, and those with whom I acted, could give our assent to this passage as it stood. To show, however, that, while we could not, with consistency or truth, say, that the measures of the cabinet were wise and patriotic, but that we were perfectly willing to use these epithets as applied to the President, I moved to strike out the words “wise, firm, and patriotic administration,” and insert “your wisdom, firmness, and patriotism;” the sentence then would have read thus: “while we entertain a grateful conviction, that your wisdom, firmness, and patriotism, have been signally conducive to the success of the present form of Government, we cannot forbear to express the deep sensations of regret, with which we contemplate your intended retirement from office.” Now, sir, compare this clause, which we were all ready to vote for, and did vote for, with that which was supported by the majority; and say which of them expresses the greatest veneration for the person, and the personal character of Washington— that which ascribes wisdom, firmness, and patriotism, to the measures of his cabinet, or that which attaches them to himself. Say whether we refused to express regret at his retirement, when that word, accompanied by an epithet most expressive of its intensity, is readily adopted. Say who were the real friends to the glory of our great leader in war, and director in peace—those who, for a paltry party triumph, deprived him of an unanimous expression of thanks and admiration, who forced him to appear rather as the chief of a party, than in his true character of the man uniting all affections, regretted, beloved, venerated by all his fellow citizens; or those who intreated that, on this occasion at least, party considerations should be laid aside, and that they might be permitted to join their voice to that of their country, and of the world, in expressing the sentiments with which their hearts were filled. Say, finally, Sir, whether the Senator from Massachusetts is justified in the allegation, that we refused to express respect, gratitude, and regret, on the retirement of Washington; or what is more than insinuated, that we slighted his services and vilified his character. Sir, the register I have quoted shows, that I supported my amendment by expressing the very sentiments you have just heard; and I must add, that, shortly after this transaction, while my votes, speeches, and conduct, were fresh in the recollection of my constituents, my term of service expired, and I was re-elected by an increased majority. Would a man, entertaining the sentiments of Washington that have been ascribed to me, have received the votes of a city where his name was adored. Nay, more sir; one of the most conspicuous of those who have incurred the reproach of the Senator from Massachusetts, and for whose sole use it was perhaps designed—the President of the United States—was not long since selected, by the veteran reliques of the Revolutionary war; the chosen companions in arms of their venerated commander; the New York Society of Cincinnati—as one of the very few honorary members to whom that distinction has been bestowed. They have, since that, done me the same honor. Would the venerable remnant of the friends and companions of Washington, associated under his auspices for the purpose of cherishing the friendships contracted during the contest he so gloriously conducted, and watching over his fame, so inseparably connected with their own—would they have conferred this distinction on two men, who had, at any period of their lives, shown themselves his enemies or detractors? Me, sir, they knew from my childhood; my whole life was before them. At the time these votes were given, I was their immediate representative. Many of them were opposed to me in the politics of the day, but they knew my conduct to have been such as I have described, and they did justice to my motives; and most assuredly, would not have joined in my unanimous association to their honorable body, had they doubted the purity of either.
In the course of this defensive part of my address to the Senate, I have been obliged to refer, with some minuteness, to the state of parties at a remote period. I have done so with no desire to renew forgotten animosities, or impute injurious designs to the living or the dead. The latter consideration has induced me to stop short of the scenes which occurred in this place, in the first session that was held here; much of what I know, more of what I heard, would have this tendency if detailed. Designs of the most violent and disorganizing kind were ascribed to some of the Federal party, in a letter bearing the signature of one of its distinguished members; but which was attributed to mistake by another, a no less respectable leading man of the same party, both of them since deceased. It does not enter into my purpose to determine between them. I had a high respect for both, and an intimacy with one, which was never interrupted by our difference in political tenets; in truth, I had, during the whole course of those violent times, the good fortune to preserve the most friendly intercourse with most of my principal political opponents. I thought their political principles dangerous; and they thought my ideas of government inefficient; but we did justice to the purity of each other’s motives, and preserved social harmony amid party discord. It is far, therefore, I repeat, from my intention, to renew heats which are now allayed by a reference to the olden times of party; but I referred to them because they were necessary to my defence. Because, having left the Atlantic states soon after the triumph of the republican party in 1800, I thought, on my return to public life, after a retirement of more than twenty years—I thought I discovered some of the great dogmas of federalism prevailing in our public councils; and thinking them always dangerous, I felt it a duty to take this occasion to guard against their revival. Engaged during my absence in professional pursuits, and wholly absorbed by them, I had not marked the changes of political parties or events. I knew not even the appellations by which they were distinguished; but in whatever shape the old dangerous federal doctrine of assuming all power under the claim of providing for the general welfare, may have appeared; under whatever colors its partisans may enroll themselves, quocunque nomine gaudent, federalists, federal republican, or national federalists, I now do and ever will hold it a paramount duty to discover and oppose their doctrines. I know that many who belonged to the federal party, never did entertain this dangerous opinion; I believe that many who did entertain, have abjured it; I most sincerely hope they all have; and thinking this a favorable occasion to produce a disclaimer of them, I have seized it to submit the propriety of doing so. Should this doctrine be formally abandoned here, one great source of suspicion and ill feeling will be destroyed; and when that is done, enough will remain to satisfy the most zealous lover of party.
These, Mr. President, were some of my reasons for speaking of the history of party under our Government. I had another. It was to mark the difference between the necessary, and, if I may so express it, the legitimate parties existing in all free Governments, founded on differences of opinion in fundamental principles, or an attachment to, or dislike of, particular measures and particular men; between these and that spirit of dissension into which they are apt to degenerate: to throw the weight of my experience, and the little my opinions may have, in the scale, and lift up a warning voice against the indulgence of the passions which lead to them, the allusions that irritate, the personal reflections that embitter debate, and the altercations that debase it. The spirit of which I speak originates in the most trifling as well as the most important circumstances. The liberties of a nation or the color of a cockade are sufficient to excite it. It creates imaginary, and magnifies real causes of complaint; arrogates to itself every virtue—denies every merit to its opponents; secretly entertains the worst designs—publicly imputes them to its adversaries: poisons domestic happiness with its dissensions; assails the character of the living with calumny, and, invading the very secrets of the grave with its viperous slanders, destroys the reputations of the dead; harangues in the market place; disputes at the social board; distracts public councils with unprincipled propositions and intrigues; embitters their discussions with invective and recrimination, and degrades them by personalities and vulgar abuse; seats itself on the bench; clothes itself in the robes of justice; soils the purity of the ermine, and poisons the administration of justice in its source; mounts the pulpit, and, in the name of a God of mercy and peace, preaches discord and vengeance; invokes the worst scourges of Heaven, war, pestilence, and famine, as preferable alternatives to party defeat: blind, vindictive, cruel, remorseless, unprincipled, and at last frantic, it communicates its madness to friends as well as foes; respects nothing, fears nothing; rushes on the sword; braves the dangers of the ocean; and would not be turned from its mad career by the majesty of Heaven itself, armed with its tremendous thunders.
The tristes irae of the poet—
- ——Quas neque noricus
- Deterret ensis, nec mare naufragum,
- Nec saevus ignis, nec tremendo
- Jupiter ipse ruens tumultu.
And to which, with an elegance of expression and profundity of thought rarely united, he ascribes the ruin of republics—
- ——Et altis urbibus ultimae
- Stetere causae cur perirent
- Funditus, imprimeretque muris
- Hostile aratrum exercitus insolens.
Yes, sir, the poet tells us true. These few lines contain a most important lesson. Not long before he wrote them, there existed a confederacy of independent States, united, as ours are, by the same religion, language, manners, and laws. Fair cities, adorned with noble edifices, decorated by the miracles of the imitative arts, governed by wise magistrates, and defended by intrepid warriors—where sages gave lessons of morality and wisdom—poured forth their numerous inhabitants at stated seasons to assist at solemn games, where poets sung, and historians read their instructive pages, to admiring crowds; where the young contended for the prize of agility or strength, and the old recounted their former exploits; where the wisdom, and valor, and talent, and beauty, of each State, were the boast and pride of the whole. What followed? Civil dissension breathed its poisonous influence over them, and they met to contend, not for the peaceful prizes of dexterity or genius, but in the deadly strife of civil war. Where are their magnificent temples, their theatres, their statues of gods and heroes? They have vanished: they have been swept by the besom of destruction! The ploughshare of devastation has been driven over their walls, and their mighty ruins remain as monumental warnings to free States, of the danger of falling into the excess of party rage.
From these evils may Heaven, in its mercy, preserve our beloved country: but, that this prayer may be heard, we must begin by correcting in ourselves every approach of the passions which lead to them. Is there no danger? Have no symptoms appeared to justify a fear that too great an excitement has been already produced by no sufficient cause? I am no censor of the conduct of others: it is sufficient for me to watch over my own. The wisdom of gentlemen must be their guide in the sentiments they entertain, and their discretion in the language in which they utter them. No doubt they think the occasion calls for the warmth they have shown; but of this the people must judge; and, that they may judge with impartiality, let the facts which have drawn forth the invectives we have heard, be fairly submitted to them.
We have heard much of supposed lines of division in this body. “This side of the House” and “the other side,” “majority” and “minority,” “opposition” and “administration,” are as familiarly mentioned as if they were universally understood. Now, sir, I profess my ignorance. In what cause have the Senators of the United States arranged themselves into different bodies, and arrayed themselves under adverse banners? If the dangerous doctrine of undefined and undefinable powers in the General Government be assumed as the watchword; if the dormant—I had thought the extinct— principles of persecuting federalism are to be revived let it be declared; and I, for one, will not hesitate on which side of the party line I shall be found. As yet, sir, I see no constitutional question of a permanent nature to divide us. We undoubtedly think differently of particular measures, and have our preferences for particular men: these, surely, can not arrange us into any but temporary divisions, lasting no longer than while the election of the man is pending, or the debate on the measure continues. The election has been long decided. Do gentlemen understand that, because they preferred another candidate, they are to form an opposition to all measures he recommends, or to all appointments he has made? Do they imagine that those who supported him in his election are, in this House, to form a separate party for the indiscriminate approbation of all he may advise or do? Of their own intentions, gentlemen are the best judges: they must think for themselves, and draw what lines they choose for their own conduct; but, for one, sir, I inform them they cannot do so for me. I shall now, as I have always done, exercise my own judgment, guided by the instruction I receive from debate, on all important measures. I gave to the election of the present Chief Magistrate all the aid which my vote and little influence could give. My own knowledge of facts enabled me to refute many slanders: my intimate acquaintance with his character and services gave some weight to the testimony by which I cleared them from misrepresentation. I thought him entitled to the place, because he possessed talents which eminently qualified him to execute its duties; because he had rendered services such as but one man had ever before rendered to the country: because I had witnessed the energy, courage, prudence, and talent, by which he saved the State I represent from the worst of desolations. These were my inducements for his support during the first election when he was a candidate. The decision of that election, in favor of a man having a fewer number of votes, was calculated to embitter the minds of his friends, and make them hostile to the successful candidate. Yet, Sir, during his Presidency, I gave a practical proof of the profession I now make: a measure of great importance was proposed by his administration—I mean the Panama mission; I thought great good might result from it, and, although it was violently opposed by those with whom I had acted in the election, I not only voted for, but supported it by argument, I then thought, and I still think, that its nature and object were both of them misrepresented or misunderstood; and that, if the assembly had taken place as it was first proposed, our envoys attending in a diplomatic, not a representative character, might, by their influence and advice, have prevented many dissensions that have since distracted those republics; might have introduced stipulations favorable to commerce, social intercourse, and the great interests of humanity. My reasons for that vote are published. And the fact, that, although one of the warmest friends of the unsuccessful candidate, and one of those who felt the deepest regret when his opponent was declared to be elected, I yet supported such measures of his administration as I approved when they were opposed by my political friends, ought to be a sure pledge of my sincerity when I say, that I will support no important measure that I disapprove, merely because it is one of the present administration. I have not, however, the passions avowed by the honorable Senator from Maine, (Mr. Holmes) who told us, if I understood him, that he had always been and always wished to be, in a minority. [Mr. Holmes explained, he did not say he desired to be in a minority, but that he believed he always would be.] Mr. Livingston continued: It seems I have not repeated the words used by the honorable Senator, which I regret; but the sense is the same. If he has always been in a minority it must have been a matter of choice, otherwise, in the ups and downs of his congressional life, in the turns of the political wheel, it must have so happened, that, for a short time, at least, he must have been uppermost; if so, it struck me as a singular predilection. But there is no disputing about tastes; and the Senator has, at least, one great precedent for his:
Victrix causa diis placuit, sed victa Catoni.
and I am sure he cannot be offended by my classing him with the stern republican, who would not survive the liberties of his country, as a fitter associate than the nameless one offered to him by my friend from Tennessee. But, Sir, neither the example of Cato nor of the Senator tempt me. I am contented with the victrix causa; contending for what I think right, I like to see it succeed. On this occasion I have as yet had no cause to repent my choice; nor have the charges, urged with so much warmth against the measures of the President, changed the opinion I had formed of his talents to conduct the affairs of the nation with honor, advantage, and success. I listened to them attentively, resolved to weigh calmly, and determine impartially on all that could be urged. Sir, I expected a like disposition in those who have expressed their disapprobation; I expected a detail of facts supported by proof, and of calm and clear deductions from those facts; need I say that I have been mistaken? When I heard from the Senator from Maine, “that this administration had glutted its vengeance upon the purest patriots on earth; that no age, condition, or sex, had escaped; that the sins of the fathers had been visited upon the children to the third and fourth generation; that innocence, virtue, patriotism, had all, all been swept into the gulf of misery,” and listened to the impressive tone in which the eloquent Senator from Delaware reprobated the spirit of oriental despotism, which had displaced deputy postmasters, and recalled unoffending ministers from abroad, need I repeat that I was disappointed? Now I ask—will not the country ask—what is there to justify such exaggerated invective?—language that might be applied to the tyranny of Nero or Caracalla, but which is evidence of nothing but a heated imagination when used to express disapprobation of removals from, and appointments to, office. But let us, Sir, before we catch the infection of this fever, while our pulse still beats evenly, and our heads are cool, examine calmly into the oppressions of the Executive which have excited this patriotic fervor. The honourable Senator from Maine did not deign a single specification, except one, which I confess I cannot fully comprehend—this bloody administration which, in its savage warfare, spares neither men, women, nor children, has visited, in its vengeance, the sins of the fathers upon the third and fourth generation of their descendants. Now, Sir, I cannot comprehend what offence the great great grandfather of any one of the removed officers, who must have lived in the reign of Queen Ann, could have given to the President, or any one in his administration—this, I confess, puzzles me.
The Senator from Delaware has been more explicit: and from his address, to which I listened with great pleasure, I gathered that these were the grounds of complaint.
That the principles of the administration are destructive of the liberties of the country. Such were the words used, as I noted them, and not without much surprise.
That the public treasure has been extravagantly and illegally expended.
That the press has been subsidized for party purposes.
That persons have been removed from office without the advice and consent of the Senate; the President having no constitutional right to do so.
That if there be such a right, it is illegal to exercise it without giving to the Senate the reasons for which the removals were made.
That removals have been made for no other cause than to satisfy the vengeance of the President, or for the purpose of rewarding his friends.
That he has made appointments out of the two Houses of Congress, and particularly out of the Senate, for the purpose of rewarding his friends.
Of each of these grave charges in its order.
First, (says the Senator from Delaware) the principles of the administration are destructive of the liberties of the people. By administration the Senator must mean here, and on other occasions, where he uses the term, the President: for, as far as I have understood, there is now no cabinet in the sense in which that word has been usually taken. If my information be correct, the words of the Constitution, and what I have always believed to be its true intent on this subject, have been pursued, rather than the example of former Presidents. The Constitution, in enumerating the rights and duties of the President, says, “he may require the opinion in writing of the principal officers in each of the Executive Departments, upon any subject relating to the duties of their respective offices.” Instead of this, from the first organization of the Government, the Heads of Departments have been convened and converted into a cabinet council, not where, according to the Constitution, each was to give his opinion on the affairs of his own department, but where all were consulted on every difficult question relating to the affairs of each, or of the Government in general; and where, it has been generally understood, particularly during the presidency of Washington, that the President was guided by the voice of the majority and the responsibility of the Executive, so far as regarded public opinion, was, if not thrown on the cabinet, at least divided with them. Indeed, Sir, I know, that, at a long subsequent period, a most illegal and oppressive act, by which I was deeply injured, was justified as being done by the advice of the cabinet. Now, Sir, as I have said, there is no such cloak for Executive acts; the President performs the duties of his office and assumes the responsibility they incur. The Cabinet, a body unknown to the Constitution, does not exist. The chiefs of the Departments are consulted on the business of their respective offices; they are answerable to the President; and he, so far as he sanctions their acts, to the country. Of this, however, I have no further information than any other Senator has obtained, or may obtain.
In speaking of the administration of the Executive Department, therefore, it must be understood that gentlemen mean the acts of the President, or of his officers, sanctioned by him.
His principles, then, according to the charge, are subversive of the liberties of the people.
The only modes by which the principles of a man may be known, are either by his professions, or by a long course of action evincive of them. Submit the principles of the Executive to these tests. First, his professions. He has made two communications to us, and to the country—his inaugural address and his message at the opening of this session. Surely the gentleman does not mean to apply the epithet he has used to the principles avowed in either of these instruments; if he does, the voice of the whole people of the United States, re-echoed from foreign nations, will contradict him; the principles there announced, as those by which he will be guided, are, an adherence to the Constitution of the United States, a respect for those of the individual States, economy, justice, liberty, equal protection to industry, manufactures, and trade, and a strict enforcement of the laws at home, and the extension of commerce; the observance of treaties, the assertion of our rights, and the establishment of a good understanding with all nations abroad. Which of these principles, thus professed, are subversive of the liberties of the people? if any, let them be pointed out. The charge then is not justified by any principle openly professed. Examine the other source. Can those principles be discovered by his course of conduct? Observe, Sir, that this is a sweeping accusation of evincing dangerous principles; any single improper act, even if it could be substantiated, would not justify it; it may be in contradiction to his professions, it may be injurious, but, unless persevered in, or followed up by others, they can be accounted for only by supposing that they were dictated by such principles, it does not justify the charge.
The present Chief Magistrate has been in office a year. During that time, he has assumed no new power; he has evinced no desire to enlarge those confided to him by the Constitution; and if, in their exercise, he has not exactly followed the march which the Senator thinks the proper one; if he has selected for office those in whom he, and not the Senator, had confidence; if he has consulted his own, and not the Senator’s, discretion; surely he ought not to be denounced as entertaining principles destructive of the liberties of the people. In examining the Constitution for the rules which were to direct his duties, he certainly found nothing written there by which he was bound to conform his own opinion to that of any Senator or any party. Where discretion is given to him, he has used it on his responsibility to the people; and the exercise of this discretion, even if it be not conformable to that which would have been suggested by the superior wisdom of those who arraign his conduct, cannot authorize them to call his principles in question. Where no discretion was given him, he has confined himself, as far as I have heard or observed, to the strictest rule of the Constitution and law.
Enough, then, and more than enough, in refutation of this vague and general charge. Let us come to those that are more specific.
The public treasure has been extravagantly and illegally expended.
It is not, under this head, even pretended that any other or greater sum has been taken or paid to any individual, than that which was due by law for the service or salary for which it was given. But comparisons are made between the amount of expenditure made under the last, and that made under the present administration. As applied to our Government, there cannot be a more fallacious rule for measuring the true economy or wisdom of the exercise of Executive functions. What has the President to do with the extravagance of the general expenditure? These are directed by legislative wisdom. But he must approve all laws! True, he must approve them; but remember, that, if there was any extravagance in the expenditures of the last year, his predecessor, not he, is answerable for it. He has not approved a single law under which a dollar was disbursed in the year 1829; and all of the contracts for the service of that year were made before he came into office. But, Sir, there was no extravagance in the appropriations; (for the contracts I will not vouch, because I am uninformed,) on the contrary, there was a marked, I will not say a designed, reduction of a usual and necessary appropriation for the contingent expenses of the foreign missions. In former estimates, this had been put at $25,000: in the estimate for 1829, it will be found, by deducting the salaries and outfits provided for, it was only $11,000.
But although I protest against his mode of testing the economy or profusion of the Executive, yet, as it has been relied on, let it be looked into, and it will be found that the expenditure of the year 1828 exceeded that of 1829 by more than $400,000; it is true that near $700,000, properly chargeable to the year ’27, was expended in ’28, for awards under the Convention with England, but this was balanced again by a payment of nearly the same sum in 1829, for expenditures for objects of internal improvement directed in the year 1828, and properly chargeable to that year.
But, Sir, I have done with these irrelevant calculations. If the criterion contended for was the true one, it would make in favor of the present Executive; but, in truth, it shows neither extravagance or profusion in that Department. It shows what the united legislative wisdom of the Union thought necessary to be expended, and it shows nothing more; and the truest economy is frequently found in the largest expenditure. This depends altogether on the object for which it is incurred.
There is, however, one branch of expenditure more immediately under the President’s direction; which, indeed, like all other expenditures, must be provided for by law, but which, from its peculiar nature, demands a greater degree of confidence in the Executive than any other—I mean the expenses of our foreign intercourse. All negotiations with foreign Powers, being a part of Executive duty vested in the President, the nature of the service frequently forbids that previous disclosure, which is expected in every other case; and the estimates for this service, furnished by the Executive, are most generally followed by appropriations; in the estimates, the existing missions are enumerated, and if any new one is contemplated, which requires no secrecy, it is also mentioned, and, to provide for unforeseen cases, an appropriation for the contingent fund of missions abroad, made, and placed at the President’s order; besides this, if the interest of the country should require that there should be an expense which the contingent fund should not cover, it must be left, as in the case of all other excess of expenditure over the appropriation, to be provided for under the head of “deficiencies in the appropriations” of the preceding year—an item to be found very frequently in the estimates; and, if well founded, always provided for by an appropriation. Here, again, the same reasoning which I have used with respect to the general annual expenditure, will apply to this particular head. It may be large, and not extravagant. The occasion must determine whether it was judicious or not; and, therefore, though again the comparison is greatly in favor of the present administration, yet I am, in candor, obliged to admit that this circumstance alone will not decide the question in favor of its economy as compared with that of its predecessors. That depends on other circumstances, and other inquiries must be made to determine their weight. But it would seem that, if the same number of missions be kept up, and some of them of an increased rank and expense; if additional expenditures have been incurred by the necessary change of ministers; and yet the whole expenditure is less than under the preceding missions, it would seem to follow, that, if all this now is done at a less expense than formerly occurred, there must have been a saving in some part of the expenditure under the present that did not exist under former administrations. Figures cannot deceive us; let us bring the question to that test, and compare the years 1817 and 1818 the two first of Mr. Monroe’s administration; 1825 and 1826, the two first of Mr. Adams’, and the last and the present years, the two first of General Jackson’s. To the comparative view of the expenses of foreign intercourse, let us add that of the contingent expenses of the Department of State during the same years. From which it results that the expenditures for foreign intercourse in the year 1829, added to the whole appropriation asked for for the year 1830, supposing the whole to be expended, are less than those of the two first years of Mr. Monroe’s administration by $233,065.56, and less than the two first years of Mr. Adams’ presidency by $134,024.98. That the contingent expenses of the Department of State, in the last and present years, is less than the two corresponding years of Mr. Adams’ administration by $10,280.45, and exceeds that of Mr. Monroe’s only two hundred and nineteen dollars—an excess more than counterbalanced by the increased expense of printing the biennial calendar. But as a part of this excess consists of items of occasional and temporary occurrence only, we must bring the comparison to bear only on the permanent items, consisting of—
- The diplomatic department, strictly so called;
- The contingent expenses of foreign intercourse;
- And treaties with the Mediterranean Powers.
- On comparing these, the balances will stand thus:
The expenditure in the two first years of the present administration, falls short of that in the two first years of Mr. Monroe, by the sum of $38,258; and of that in the corresponding years of Mr. J. Q. Adams, by 5,302, notwithstanding the additional expense of outfits incurred in the last year.
[Mr. L. here read an abstract of the expenses of foreign intercourse for the several years above referred to—(see note A.) He then proceeded.]
For the full understanding of the accounts I have just referred to, it may be necessary to state, that previous to the year 1801, the accounts of our foreign relations were kept at the Treasury, under the head “Intercourse with Foreign Nations,” and included every charge in relation to our foreign relations—even the “contingent expenses of foreign intercourse,” commonly known by the appellation of the “Secret Service Fund.” In 1801, according to an arrangement made by Mr. Gallatin, the bankers of the United States in Europe were directed to open an account headed “the Diplomatic Department;” a correspondent account was of course opened at the Treasury, and, under this head, until the year 1814, were brought every item which had formerly been comprehended under the head of the intercourse with foreign nations; and this fund was provided, by general appropriation, in the same words. In 1814, the appropriations became more specific “for the salaries, allowances, and contingent expenses, of Ministers to foreign nations, and for Secretaries of Legation;” and in 1818, the present form of appropriation, designating the several missions, was first adopted. But, from the date I have mentioned, 1801, until the present day, the accounts have been kept in the Treasury, under the general head of the “diplomatic department.” And the course has been, to remit to our bankers in Europe, and charge to this fund, the moneys necessary for the payment of the salaries and allowed expenses of our foreign agents. These bankers are sometimes in advance to the United States, when unforeseen occurrences oblige the President, during the recess, to increase the expenses of our foreign intercourse, by new missions; and in those cases, appropriations are asked for, and made at the next session of Congress to reimburse them. This was the case in the year 1816, to the amount of $50,000; in the year 1818, to the amount of $20,000; and probably, other instances may be found by a more careful examination than I have been able to give to the subject.
In the last year, owing to the insufficiency of the contingent fund for the expenses of foreign missions, which must not be confounded with the contingent expenses of foreign intercourse, (the secret service fund) there was a deficiency of about $40,000, which was included in the estimates for the current year, and, as I stated in the debate on the appropriation, would have been more accordant with form; to have been asked for as a deficiency in the appropriations of the last year. But the effect is precisely the same; by appropriating for the salaries and outfits of foreign ministers, &c. as it stands in the bill, it is carried to the credit of the diplomatic fund, and will be remitted to our bankers to make good their advances.
After having shown that the sum expended for our foreign intercourse is actually much less than in former administrations, the statement I have just made of the mode of keeping the accounts, may be necessary, when we consider another charge, loudly made out of the House, and confidently and with a triumphant air repeated on this floor, that the laws which forbid a transfer of one appropriation to meet a deficiency on another, have been violated by the President. The Senator from Delaware, who most earnestly urged this charge, added, that the President had appropriated money for outfits contrary to law. Now, sir, the honorable Senator, in the charge of an illegal transfer, must have been ill informed, or he would not have hazarded it. No transfer whatever has been made. The balance in the Treasury to the credit of the “Diplomatic Department” was applied to outfits that have been paid; that balance was what remained unremitted to our bankers in Europe. If our Ministers there have drawn upon them for their quarter’s salaries, due on the first of January last, they of course are in advance; because, as I have stated, the appropriation of 1829 fell short of the expenditure about the sum of $40,000. The appropriation for the contingent expenses of missions abroad always formed part of the “Diplomatic Fund,” and without any exception has been made liable to the drafts on that fund; therefore, there was no illegal transfer. The other contingent fund (that for foreign intercourse, the secret service fund,) might consistently with former usage, have been applied to this use; but with a scrupulous regard to the directions of the law, the President suffered it to remain untouched, and to the amount of $13,900, it has been carried to the Surplus Fund, having been more than two years appropriated. There has been, therefore, no illegal transfer of appropriations—there has been no transfer whatever. And this charge also falls under the investigation, which the President should rejoice has been provoked here, where it must meet its final overthrow. Now to the one connected with it, and urged with equal warmth, (I will not say violence.) Outfits have been paid, for which there was no specific appropriations. Can the gentleman have calculated the consequences of the doctrine implied in this charge? Can he have reflected on the blot its establishment would fix on the characters of men whose memory I know he reveres? Surely not. But as to the consequences of the doctrine. If it be true, the President cannot, in time of war, send a Minister to make peace in the recess, when no previous appropriation has been made for an outfit. He must lose the most favorable opportunities for negotiation, and suffer the ravages of war to go on until he can call Congress, at the expense of more than $100,000, to get an appropriation of $9000. Observe, sir, that, if our bankers were ready to advance the sum— nay, if he were ready to advance it himself, the doctrine contended for would make it equally illegal. How comes it that gentlemen who agree with the Senator from Delaware in this doctrine, have ever voted an appropriation to supply the deficiencies of former years? Why have they not censured the Presidents under whose authority they were created? No, sir; they were silent under Madison, silent under Monroe, when deficiencies in this department were voted for without a word of dissatisfaction. They, and all our predecessors were silent; and it was reserved for the present occasion to discover that an outfit could not be legally paid until there was a specific appropriation. General Washington appointed Mr. Charles Cotesworth Pinckney to France; Mr. Jefferson appointed Mr. Charles Pinkney to Spain, Mr. Monroe to England, Mr. Armstrong to France, Mr. Monroe again to Spain, Mr. William Pinkney to England, and Mr. Erving to Denmark; Mr. Madison appointed Mr. Crawford to France, and Mr. Irving to Spain; Mr. Monroe appointed Mr. Rush to England, and Mr. Everett to the Netherlands; and Mr. J. Q. Adams appointed Mr. Tudor to Brazil. All these appointments were made in the recess, and without any specific appropriations. Their salaries and outfits were paid out of the Diplomatic fund generally, and when that fund was indebted to our bankers, provision, as we have seen, was made to reimburse them.
Now, Sir, let the gentleman, and those who join him in the crimination of the Executive, determine whether they are willing to incur the ruinous consequences attending the establishment of their doctrine, and the inculpation of every former President, the Father of his Country included, in their sweeping charge. And I pray the Senate also to remark, that, if these appointments and outfits in the recess, without a special appropriation, were proper by former Presidents, (as they undoubtedly were) even in the cases where the appropriations were specified for particular missions, without providing for outfits in the recess, the present case must be infinitely more justifiable: for the appropriation for 1828 gives a gross sum for salaries, outfits, and contingencies, without specifying how much was intended for each, thereby creating a general fund, applicable to all such objects; but, being inadequate to the exigencies of the year, an appropriation has been asked for to provide for the deficiency, as has been usual in this and in every other department of the Government. This deficiency was provided for in the House of Representatives without any opposition, and in the Senate with only, I think, three or four dissenting votes. And this, Sir, is the whole extent of the affair of the outfits, and the illegal appropriations and transfers, which has been made the ground of so much serious accusation against the President. I hope we shall hear no more of this groundless charge. Now, Sir, to another connected with it: the missions for which these outfits were expended were totally unnecessary. The men whose recall occasioned them were fit persons to be entrusted with the business they were charged with; they ought to have been left; their recall was not only unnecessary, but, in the opinion of the Senator, a proscription. Now, Sir, what means the Senator may have of judging on this point, I cannot tell; all I know is, that I have none that would justify me in believing that all these gentlemen possessed just such qualities and talents as ought to have induced the President to constitute them his agents in the important negotiations we have with foreign Powers. And if I had brought myself to this belief, there are certain considerations that would induce me to think that a man selected by the people of the nation to manage for them this very concern, might, possibly, have rather more information, and must be much better qualified than I was to form a proper opinion. I might say, as I do say, although these are very estimable men, in my opinion, yet the President, possibly, may have reasons to believe that others may succeed where they have failed. He may not unreasonably think that, in addition to a Minister’s being a man of ability and integrity, he ought to possess the perfect confidence of the First Magistrate, whose views he is to carry into effect. These reflections, Sir, would probably occur to me did I disapprove of the nominations which have been made, and would prevent my expressing any warm disapprobation of measures, of the propriety of which I had not the means of judging. Much more would this induce me to refrain from stigmatising them as illegal usurpations of power, and cruel proscriptions.
Do gentlemen really suppose that, by applying to the recall of a Minister a word which leads the mind to the murders and assassinations of Marius and Sylla, and the Triumvirate, they can identify the two cases? Sir, the attempt is not very complimentary to our understanding; and the approximation only tends to show the ridiculous disparity of the cases.
What are these proscriptions? Five Ministers Plenipotentiary, at one “fell swoop!” —incarcerated? banished? decapitated? No, Sir! Invited to return to their country, to their friends! Let us see, Sir, who were the sufferers, whose fate excites so much commiseration?
First, Sir, our late Minister to France. I can, fortunately, lessen the gentleman’s distress on his account, at least: for, having had the happiness to enjoy an intimate and uninterrupted friendship with him for many years, I know that he returned by his own desire, after having faithfully and ably represented his country, with honor to himself, and possessing the esteem and the confidence of the first Magistrate, who acceded to his request.
The Senator from Delaware will not find fault with the mission to the Netherlands, when he knows that it was provided for under the administration of Mr. Adams. And the Senators from Maine, I am sure, cannot object to the selection of the distinguished citizen from their State, who so thoroughly understood the important question submitted to the decision of the Court to which he has gone; a question so vitally interesting to their constituents.
Our Minister to Spain had been there for five years, the usual period for them to remain abroad; during that time, as far as has been made public, he had been able to effect nothing, and the important claims of our citizens remained unsettled; it was not extraordinary, therefore, in any view, (doing full justice to that gentleman’s assiduity and ability) that the efficacy of a new mission should be tried.
There remain our Ministers to England and Colombia, and their cases seem particularly to have excited the sympathy of the Senator from Delaware. He pathetically exclaims, What had General Harrison done? What had Mr. Barbour done? that they should be proscribed. Sir, I cannot answer this question; I know not what they have done. But I do not consider their recall as a punishment. As far as the individuals are concerned, I presume they do not think it any great hardship: each of them, for a year’s service, has received eighteen thousand dollars; and one of them has returned from a country which is, from all accounts, no very agreeable residence in its present unsettled state. I esteem both of these gentlemen; with the former I have an acquaintance of a very old date, and although I think highly of his character, and as highly of his military services as the Senator can, yet I scarcely expected from that quarter to hear these last insisted on as a qualification for diplomatic duties. But because I have this opinion, am I to join in the lamentations that are uttered over their recall, as if the act were an offence and the consequences of it a public calamity? The President, for aught I know, may have as high an opinion of them as the Senator has, and yet he may very properly have chosen others to replace them; and if we may judge from what we hear, his choice has not been injudicious or unsuccessful. Sir, I disavow any invidious comparisons, but it cannot escape observation, that, in one of these missions, so loudly reprobated, Mr. Moore has already completed an arrangement for compensation to our fellow citizens, which his predecessor was unable to obtain; and, in the other, under Mr. McLane, a gentleman well known to all of us, and highly esteemed wherever he is known—the important negotiations with which he was charged, and which had so long slumbered, were, from the moment of his arrival, revived. They were begun and have been continued with his characteristic activity, talent, and perseverance; they may fail, for there are some errors which it is a most difficult task to repair. But, whatever be the event, neither the honor of the country, nor the reputation of its minister, will have suffered by the change. But, Mr. President, I feel as if I had been led astray by the example of the gentleman, to whose argument I am replying, and were treading on unconstitutional ground. Both of us, Sir, have a right, as individuals, to form an opinion, and freely to express it, in such terms as our sense of propriety will permit, on appointments, removals, or any other measures of Government. As Senators, we have a duty to perform in relation to appointments; but, in our legislative capacity, I am at a loss to discover what duty requires, or what right permits us to pass upon the propriety of acts which the Constitution has vested exclusively in the Executive hands; and that, too, without knowing the reasons or circumstances which induced them. Whether we accuse or defend, it must be in the dark; to know whether a Minister has been properly recalled or appointed, we must know the precise object which the Executive had in view. We do not know it. We must know what particular talents or qualities were necessary to be employed. We do not know it. We must know what were the instructions of the recalled Minister, and whether he had obeyed them. We do not know it. We must peruse his correspondence and know the whole progress of the pending negotiation. These we have not perused, and this we do not know. We must know the difficulties which prevented his success, and whether his successor may be better enabled to overcome them; and of this too, we are ignorant, and must be ignorant, and ought to be so until the Constitution is changed, and the Executive power is taken from the President and placed in our hands; for without totally subverting it, we cannot arrogate to ourselves the rights claimed in this argument.
So much for the despotism, and oppression, and illegality, alleged in our foreign relations. Let us now come to the domestic corruption: for such is the charge. The public treasure has been employed in destroying the liberty of the press, and subsidizing its venal conductors; the interest of a million of dollars (I think that was the calculation) employed for this corrupt purpose. There are, I believe, on a moderate computation, above one thousand newspapers printed in the United States; of these seventy-two are employed to print the laws of the United States, and the advertisements and notices issued by the Departments, for which they receive, I believe, on an average, about one hundred and twenty dollars each. Now, Sir, suppose, instead of eight thousand dollars, the sum mentioned by the gentleman, or even a greater, for these necessary objects, were expended, would that incur the charge made? The printing must be executed. Who is to do it, the men designated by the proper officer, or those selected by the gentleman and his friend? One tenth or one twelfth of the printers in the United States are paid a very small price for doing a necessary duty, and this is called subsidizing the press for corrupt purposes. I have not inquired, but I take it for granted, that, at the expiration of the year, the Secretary of State has restored the public printing to those presses which were deprived of it for opposing the election of Mr. Adams; that he has not given, or continued it, to these who manufactured or published the vile slanders by which the present Chief Magistrate and his dearest connexions were assailed; and that, in making the selection, he has taken care to choose such papers as had a proper circulation. This is a business confided to the Secretary of State—not to us, or even to the President; a proposition was made some sessions ago to give it another destination, but it was violently opposed by the friends of the gentleman who then filled that office; a similar proposition is, I believe, now before the other House. The subsidies then are paid to seventy-two printers out of a thousand, and amount to one hundred and twenty dollars each, for which they perform a service of equal value. Those who make this grave accusation must go further, if they mean to support it; they must show that these presses are employed in some other service; that a part of the consideration is the promoting some object hostile to the interest or liberties of the country; that they are undermining the Constitution, or preparing the minds of the people for revolt; and that this condition was written in their bond. No, Sir, the sin is, that they do not join in the clamor which restless, disappointed men, out of doors, are raising against the Chief Magistrate of the People. While they are independent, those men will call them corrupt.
Having exhibited what I think must be an abundant refutation of the charge of extravagance, so perseveringly made against the present administration in the expenditure of the public moneys, let us now see whether there is not some evidence, not only that there is no illegal or extravagant expenditure, but of a system which has already effected some savings, and promises greater, by the application of greater vigilance, and the introduction of new checks in the administration of the revenue. I speak only facts that are notorious; but I have reason to believe that others of the same nature exist which will be developed when time is given to put the system in complete operation. One collector, whose accounts had been frequently examined under the late administration, without the detection of any fraud or error, was, in the course of the Summer, found to have abstracted the sum of $80,000; another, nearly under the same circumstances, was found in arrears to the amount of $30,000, and both have absconded; a minor defect was found in the accounts of the Patent Office, also undiscovered, from the want of official superintendence; and, by the introduction of a simple system of checks, losses can never again occur without detection before the amount becomes considerable.
In the office of the Treasurer a most material and highly important check has been provided. Heretofore, the Treasurer might, by his own draught on the banks, with no other guard than its registry, command all the moneys in the Treasury. The highly respectable character of the venerable officer who held that place from the first institution of the Government, rendered every check of his draughts unnecessary, and the integrity of his successors has secured the public against any loss, and forbid the suspicion of any. But the Senate will perceive how necessary it was to introduce a different system, as well to guard the reputation of the officers from unjust suspicions, as the Treasury of the Nation from embezzlement; one has been provided, which, by requiring the signatures of different officers and registers in their respective offices, effectually answers the end. The value of this single regulation can scarcely be too highly appreciated. Seeing these evidences of regularity and economy, and hearing of many others, that either have already taken place, or are projected, I cannot but consider the charge of extravagance as entirely undeserved. Whenever it shall be again made and supported by proof, I promise the gentleman that no one will go further to blame or to correct the evil than I will. But, if I dared to offer my advice to men who want it so little, I would say, reserve your invective against extravagance until you have clear proof of its existence; by making it without reason, now, you lessen the weight of your testimony hereafter, when, perhaps, it may exist.
My friend and worthy colleague seems to have transferred this charge from the President to those in this House who favored his election; he has taken up the report of a Committee of Retrenchment at a former session, and rebukes us for not following up the plan traced out in that report, some of which reforms he has honored with his approbation. If this is meant as a reproach upon the administration, it is hardly a fair one; for I know of no means, of no influence, by which they could induce the members of this body to pursue the course of reform, other than that which has been pursued; the President’s message, if acted on in the spirit which dictated it, will certainly satisfy the severest economist; and although I am not prepared to say that I should adopt all the measures he recommends, yet he sufficiently indicates a desire to advise and approve every plan for reforming abuses that the wisdom of the Legislature might devise. Let my colleague, therefore, give his aid in the work; let him select the measures he approves from the report of the committee, support them with the ability he is known to possess, and there is no doubt they will be adopted; in the mean time, a little patience will show perhaps that others are laboring in the same cause, and it is hoped their labors will be successful.
The remaining charges are so connected with the constitutional question of the right of removal from office, that it will be necessary to examine the several doctrines now resuscitated after having been at rest forty years. The first position (I do the Senator from Delaware the justice to say that this strange construction is not his) is, that the power of removal from office is annexed to the appointing power, from its very nature; and that the Constitution having vested the right of appointment in the President, by the advice and consent of the Senate, the same advice and consent is necessary to effect a removal. There is so much color for this argument, that, at the outset of the Constitution, men of much discernment were deceived by the fallacy it contains, and argued strenuously for the joint power; it was, however, differently, and, as I hope to show, rightfully decided in the year 1789; and from that time to this has not, as I hope also to show, been departed from.
One error of the argument lies in the first position assumed, that the power of removal, where there is no constitutional contrary provision, is inherent in that of appointment. It has no connexion whatever with it. The power of creating a vacancy might, certainly, not without great inconvenience, be vested in one Department, and that of filling it in another; but they are not inseparable. The Constitution has no express clause declaratory in terms that the President shall have the power of removal; but it gives it to him by a necessary inference, when it declares that he shall have the Executive power —the signification of which is amplified in the subsequent clause, declaring it to be his duty to “see that the laws are faithfully executed.” Here the power of removal is as fully granted as if it had been developed by the clearest paraphrase. No principle is clearer than that the grant of a power or the requisition of a duty, implies a grant of all those necessary for its execution; and it is equally clear that the power and the duty of causing the laws to be executed must carry with it that of selecting those persons necessary and proper to carry them into effect. But if, after having selected them, they are found unfit for the purpose, the same necessity exists of changing the selection which has been made; but this cannot be done in any other way than by removal; therefore, the power of removal is a power necessary for the due execution of the laws; and, being necessary, must be presumed to have been given with, and annexed to, the power of executing the laws; which is the Executive power of the President alone, and cannot be divided with the power associated with him in making appointments. If my mind be capable of appreciating the force of reasoning by deductions, this is conclusive against the participation claimed by the Senate in the right of removal. But this is not all. Supposing the position were true, that the power which appoints must, of necessity, remove: how would the case stand? Who is it appoints? The President: he alone appoints. But, because there is a restriction on the one branch of his power, by making the advice of the Senate necessary to an appointment, does it follow that he cannot execute the other branch without that assent also. He has two powers by the argument—to appoint and to remove: surely the Constitution might reasonably provide that the Senate should have a veto on the first, without having it necessarily implied that they gave it in the second. Let it be remembered that the Senate do not appoint: they can never select: they can only approve or disapprove: they can advise, or refuse to advise. But, independent of abstract reasoning, let us examine, from practical results, what the Constitution really intended. The wise framers of that instrument could not be ignorant of the great republican principle, that, to every grant of power, responsibility ought to be annexed—responsibility to the laws for its wilful abuse or neglect—responsibility to public opinion for its indiscreet or erroneous exercise. If there were then, even a doubt of the construction in this case, to what solution ought this principle to lead us? When the President removes, his act is known: should he act from corrupt motives, he is liable to impeachment. Should he act from indiscretion only, public opinion, from which there is no escape, will pass upon his conduct. But admit the cooperation of the Senate: what happens? First, the perfect irresponsibility of the President, both at the bar of this House and at that of the public. Having co-operated in the offence, by advising the removal, how could we punish it as a crime? And with the public, our confirmation of the act would be a complete cloak to cover the indiscretion, if there were one in the measure. There would then be no responsibility whatever attached to the President. Would it be shifted upon us? As little. Our sittings are secret: our opinions and votes must necessarily be so. The act of the Senate is known: a majority have advised the removal, or, by refusing to do so, have kept a negligent, or incapable, or unfaithful officer in his post. Who is chargeable with this? When our terms of service expire, will the Legislatures of our respective States know which of us have disappointed the expectations they had formed of the prudence, discretion, or judgment of their Senators, so that they may continue or withdraw their confidence? No, sir! the whole plan would present the anomaly of most important powers exercised in a free Government without any check from the fear of punishment or of popular disfavor.
If it were possible then for the Senate to participate in this power, it would be not only contrary to the true construction of the words of our social compact, but would be destructive of one of the most important principles on which it is founded. But it is totally impracticable, morally and physically impracticable, in its exercise, consistently with the existence of the Government. Take the case of a Minister to a foreign Court, charged with a negotiation of the most important kind, on the subject of which the commercial prosperity, perhaps the peace of the country depends; he becomes negligent in his correspondence, he addicts himself to play, to pleasure, to intemperance; he becomes unworthy of his trust from these or other causes; or from malady, mental or bodily, becomes incapable of performing his duties; or, he makes himself so obnoxious to the Court to which he is sent that it demands his recall. The knowledge of these facts is brought to the President, soon after the adjournment of Congress; he cannot recall this Minister, because he has been appointed by the advice and consent of the Senate, and, by this newly vamped doctrine, the same advice is necessary to displace him. The President must then convene the Senate: sixty days, at least, is necessary for this operation. All this while the unworthy, or inefficient, or obnoxious Minister must remain, to betray or disgrace his country, or irritate the Power which he was sent to conciliate. The Senate are at length convened, and the President communicates the information he has received. But here another new principle stands in the way of his recall. The Minister, like all other officers, (such is the doctrine of the day) has an interest in his office, which it is injustice, tyranny, and proscription, to deprive him of without cause. He ought not then to be deprived of this interest unheard; he must have a copy of the charges, the names of the witnesses, time to reply, and a right to examine his evidence in discharge. Gentlemen must acknowledge this, or they must give up their favorite cry of oriental despotism and cruel proscription. The examination of ex parte evidence here is quite as fatal to the vested interest they contend for, as any removal the President has made. These formalities are gone through, and at the end of three or four months the charges are substantiated, and the Minister is recalled or, the proof is not deemed satisfactory, and he remains, having lost the confidence of the President, who is forced, however, to retain him, and he himself irritated by the accusation, and endeavoring to defeat every negotiation that will reflect credit on the administration of his country. Ten days after this trial is concluded, before the members from the distant States have reached their homes, advice is received that a collector is speculating with the funds committed to his charge; the same operation is to be renewed, the same delay incurred, the same waste of public money, the same vexation to the members of this body, the same impossibility—let us come to the conclusion at once—the same utter impossibility of carrying on the operations of Government with such machinery.
This was seen, felt, and acknowledged, as I have said, in the outset of our Government, and, from that time to the present, it has never been made a serious question. Why is it raised now? Doubtless from conscientious motives by those who advocate it here. But out of this House it has been (in the total absence of better matters, for a reproach to the President) made a party cry, which will be hushed as soon as the matter is examined by an enlightened people. The gentleman from Delaware does not go this length; his doctrine is this:
The President has the right of removal for just causes. If he abuses it for corrupt or party purposes, he is liable to impeachment.
Whenever the Senate suspect that a removal has been made without cause, or from such improper or corrupt motives, they may ask for the reason of the removal.
The President is bound to communicate the cause whenever it may be demanded by the Senate.
The Senate, if he should refuse to give any, or give an unsatisfactory answer, may, and ought to reject, successively, all the nominations he may make.
And the conclusion to which the gentleman is brought by this series of positions, is, that the temporary appointment made by the President, being in force only until the end of the session, the vacancy that is thus created is not one occurring in the recess, and therefore cannot be filled by the President, but the office must remain vacant.
These are, as accurately as I could note them, the positions laid down by the Senator from Delaware.
Let us inquire whether they are more tenable than the general doctrine I have just examined.
The first position I accede to. The President has the right of removal, and he is liable to impeachment for corruption and malconduct in the exercise of this, as well as any other of his functions. But this true position is fatal to all the errors which the Senator has built upon it.
He admits the right of removal to be in the President, without the advice of the Senate. As it is no where in terms given by the Constitution, it must exist as a necessary means of executing some power which is expressly given. What is that power? Clearly the Executive; or, as more fully expressed, the duty of “seeing that the laws shall be faithfully executed.” He has it then, amply, completely, solely, and the second member of this proposition proves it; he is impeachable for corruption in its exercise; he has the power without participation, and must bear the responsibility, without any one to share in it.
Having seen that the President derives the power he is admitted to possess from a legitimate constitutional source, and that this gives it to him without any other limitation than that of his own responsibility, we must inquire from whence the Senate derives the control with which they are, gratuitously, I think, invested by the argument. They may call on the President for the reasons of the removal; and if they have the right, the obligation to comply with it follows of course. But in what part of the Constitution is this right given? It is not pretended that there is any express provision. From what part is it a necessary inference? To the execution of what power, vested in the Senate, is it the necessary means? Not to the power of advising on the fitness of a candidate proposed to fill the vacancy, because the vacancy must be created before that advisory power can be exercised, and the argument admits that the President has the right to create the vacancy by a removal. Of what power, then, I ask, vested in the Senate, is this the necessary appendage? Or where is it expressly given as a distinct power? If given neither expressly, nor by implication, it cannot exist.
But for what purpose should it exist? What is the advantage to be derived from it that should make us solicitous to give a construction that should admit it? Remember in this inquiry the first position which is assumed by the argument, and which I admit, that the President is impeachable for a corrupt removal, and remember also that we are the judges of fact and of law on an impeachment. The power, then, is one that makes us accusers as well as judges, and judges who have predetermined the guilt of the accused: for, if on the inquiry, the corruption appear, and we make it the ground of refusing to confirm the President’s nomination, do we not prejudge the question on the impeachment that must follow? This is an insuperable objection, which the doctrine of the Senator entirely overlooks in zeal to apply his remedy. And what is that remedy? One surely worse than the disease, although that should have all the bad symptoms ascribed to it. The evil complained of is, the removal of one good officer, to be replaced by another as good. Observe, Sir, that I grant the fact in dispute. I admit, for the sake of showing the weakness of the argument, that all the removals have been of men well qualified for their offices; and all I ask in return is, a similar admission that the Senate, for whose powers they contend, will consent to no nomination of a person not qualified. This is the evil. What is the remedy? It is contained in the Senator’s last position, that, if the President refuse to give his reasons, or the Senate are not satisfied with them, they may refuse to confirm his nominations, and suffer the appointment to expire by its limitation, at the end of the session: and then it is the opinion of the Senator that the office can no longer be filled; because, according to his reasoning, it is not one that accrues during the recess. This is his remedy: for this you are to suppose powers that are no where given. For this admirable result you are to strain the construction of the Constitution until it breaks. For this you are to add the accusing to your judicial power. For this you are to leave the laws unexecuted, and disjoint the whole machinery of Government. No matter whether the offices to be filled are the Commanders of your Army, or the Captains of your fleet in time of war, or the Heads of Departments, or Collectors of Revenue, or Marshals to execute the decrees of your courts in time of peace— all must remain vacant. This is the remedy. Apply it in the present case. A number of removals in every Department has been made. Suppose the Senate should have asked for the causes, and the President, as he most probably would, should have declined to comply with the request, what would have followed? All our diplomatic relations would have at once ceased: for all the Ministers appointed in the recess would cease their functions at the end of the session. The revenue in some of our largest ports would be uncollected. The administration of justice in most of the districts would be stopped for want of District Attorneys and Marshals. This is the remedy for an evil, perhaps of doubtful existence in any case, but certainly much aggravated in all.
But suppose this right in the Senate to call for the causes of removal, and an acknowledgment by the President of an obligation to comply. He sends us his reasons, and in one case they are that he has no confidence in the man he has dismissed. Confidence can not be commanded; it is the result of observation on character and conduct; on a thousand indescribable impressions. But a majority of the Senate say we have confidence in him. What is to be the result? Is he to be restored to office? No one pretends it. What then? The grand remedy to punish the President for his want of confidence in an officer whom he has not appointed, is to adopt the plan of the Senator from Delaware, and leave the office vacant. The whole reasoning on the general question of the right of the Senate to participate in removals, applies with the same force to this power of inquiring into the causes of removal; both are gratuitously assumed in argument; both are destitute of either express or implied authority in the Constitution; both lead to absurd consequences, and to impracticable results; ruinous, if they were practicable.
But I deny that the remedy proposed (ruinous and extraordinary as it is) could be applied. The offices would not, in my opinion, remain vacant. The President would have a right to fill them, and would certainly exercise that right; the expressions used in the Constitution are general: he shall have a right to “fill all vacancies that may happen during the recess of the Senate.” Now, Sir, in the case supposed, the vacancy arises when the commission expires—when is that? At the end of the session. When is the end of the session? Certainly not before the beginning of the recess; not at any moment while the session continues. An official act, done at the last instant of the session, would be well done. The vacancy then happens at the first instant of the recess: but the Constitution makes no distinction whatever; whether at the first moment, or the last day, is immaterial. When I use this argument, I am free to admit that I do not think the framers of the Constitution did intend to provide for so extraordinary a case as that which the ingenuity of the Senator from Delaware has imagined, of the Senate rejecting all the nominations of the President, successively, because they might be dissatisfied with a removal. But the words of the Constitution permit the exercise of his powers to fill all vacancies, whenever they should occur—with the advice of the Senate, if in session; without it, by a temporary appointment, when they are not. The exercise of the extraordinary and destructive power contended for, never certainly entered into their minds; it was left for the ingenuity of our times to discover. But, it has been said that this power is liable to abuse; the President may remove from caprice, prejudice, or a worse motive. No doubt, Sir, he may; he may do worse; he may embroil you with foreign nations, by his abuse of the treaty making power; he may cause your fortifications to be dismantled and your army to be dispersed in time of war; he may destroy your revenue by the appointment of corrupt men in the management of the treasury: but what argument can be drawn from this? That he has not the constitutional power? Certainly not. But if the President might abuse the power of removal, may not the Senate abuse the control with which it is attempted to invest them? If he has enemies to displace, may not they have friends to keep in? If he is liable to be actuated by political feelings, are bodies, constituted as this is, at all times free from their influence? The President has the power to remove, it is said, again, but only for just cause; but who is to judge of what is just cause—not the Senate, or if so, the power would be theirs, not the President’s; he must himself be the judge, or else it would be a solecism to say that he has the power; he must judge and he must act, as I have said, uncontrolled but by his responsibility to the laws for corrupt acts; to his country for those which are indiscreet or erroneous.
This, Sir, is my view of the Constitutional power of the President in relation to removals—a power, in my view of it, vested solely in him, and for the due exercise of which he must bear the sole responsibility. I will not consent to divide it with him. No terms seem sufficiently energetic for gentlemen to express their disapprobation of the manner in which the President has exercised this power. As it is their only subject for declamation and invective, it would be cruel to deprive them of it; but, by their own showing, are they not accusing without evidence? Why all these attempts to call on the President for his reasons of removal, if they already know that he has none? Why call for evidence if they already have it? If these proofs of corruption, of favoritism, of persecution, are sufficient, plead the cause before the people, or prefer accusations of impeachment in the other House; but do not render yourselves, by prejudging the cause, liable to be challenged for the favor, or, by bold accusation, endeavor to influence the minds of your fellow judges with your own prejudices. If their doctrine be true, as it undoubtedly is, that, for corruption in the exercise of this as well as any other function, the first magistrate is liable to impeachment; and if they believe, as they repeatedly allege, that there is evidence of it in the late removals; I put it to them, whether they are correct in showing a feeling inconsistent with the calm investigation that becomes a judge. If, on the contrary, as I am more inclined to believe, the warmth that has been expressed arises only from a feeling for political friends, who have lost their places, are not the expressions they have used highly exaggerated? and ought they not to have been suppressed? But if there has been, in their opinion, an indiscreet use of the power, let them plead the cause before the people, who have the power to apply the remedy. To them the President is responsible, and to them, I have little doubt, his conduct will appear, as on other occasions it has done, correct, upright, disinterested, and intended for their best advantage. Yet, Sir, if the contrary be proved, I shall, as a Senator and an individual, hold myself open to the conviction that evidence may produce.
I now approach a graver subject, one, on the true understanding of which the Union, and of course the happiness of our country, depends. The question presented is that of the true sense of that Constitution which it is made our first duty to preserve in its purity. Its true construction is put in doubt—not on a question of power between its several departments, but on the very basis upon which the whole rests; and which, if erroneously decided, must topple down the fabric, raised with so much pain, framed with so much wisdom, established with so much persevering labor, and for more than forty years the shelter and protection of our liberties, the proud monument of the patriotism and talent of those who devised it, and which, we fondly hoped, would remain to after ages as a model for the imitation of every nation that wished to be free. Is that, Sir, to be its destiny? The answer to that question may be influenced by this debate. How strong the motive, then, to conduct it calmly; when the mind is not heated by opposition, depressed by defeat, or elate with fancied victory, to discuss it with a sincere desire, not to obtain a paltry triumph in argument, to gain applause by tart reply, to carry away the victory by addressing the passions, or gain proselytes by specious fallacies, but, with a mind open to conviction, seriously to search after truth, earnestly, when found, to impress it on others. What we say on this subject will remain; it is not an every day question; it will remain for good or for evil. As our views are correct or erroneous; as they tend to promote the lasting welfare, or accelerate the dissolution of our Union; so will our opinions be cited as those which placed the Constitution on a firm basis, when it was shaken or deprecated, if they should have formed doctrines which led to its destruction.
With this temper, and these impressions of the importance of the subject, I have given it the most profound, the most anxious and painful attention; and differing, as I have the misfortune to do, in a greater or less degree, from all the Senators who have preceded me, I feel an obligation to give my views of the subject. Could I have coincided in the opinions given by my friends, I should most certainly have been silent; from a conviction, that neither my authority nor my expositions could add any weight to the arguments they have delivered.
My learned and honorable friend, the Senator near me, from South Carolina, (Mr. Hayne) comes, in the eloquent arguments he has made, to the conclusion, that whenever, in the language of the Virginia resolutions, (which he adopts) there is, in the opinion of any one State, “a palpable, deliberate, and dangerous violation of the Constitution by a law of Congress,” such State may, without ceasing to be a member of the Union, declare the law to be unconstitutional, and prevent its execution within the State; that this is a constitutional right, and that its exercise will produce a constitutional remedy, by obliging Congress either to repeal the law, or to obtain an explicit grant of the power which is denied by the State, by submitting an amendment to the several States; and that, by the decision of the requisite number, the State, as well as the Union, would be bound. It would be doing injustice, both to my friend and to his argument, if I did not add, that this resort to the nullifying power, as it has been termed, ought to be had only in the last resort, where the grievance was intolerable, and all other means of remonstrance and appeal to the other States had failed.
In this opinion I understand the honorable and learned chairman of the Judiciary Committee substantially to agree, particularly in the constitutional right of preventing the execution of the obnoxious law.
The Senator from Tennessee, in his speech, which was listened to with so much attention and pleasure, very justly denies the right of declaring the nullity of a law, and preventing its execution, to the ordinary Legislature, but erroneously, in my opinion, gives it to a Convention.
My friend from New Hampshire, of whose luminous argument I cannot speak too highly, and to the greatest part of which I accord, does not coincide in the assertion of a constitutional right of preventing the execution of a law believed to be unconstitutional, but refers opposition to the unalienable right of resistance to oppression.
All these Senators consider the Constitution as a compact between the States in their sovereign capacity; and one of them, (Mr. Rowan) has contended that sovereignty cannot be divided, from which it may be inferred that no part of the sovereign power has been transferred to the General Government.
The Senator from Massachusetts, in his very eloquent and justly admired address on this subject, considers the Federal Constitution as entirely popular, and not created by compact, and, from this position, very naturally shows, that there can be no constitutional right of actual resistance to a law of that Government, but that intolerable and illegal acts may justify it on first principles.
However these opinions may differ, there is one consolatory reflection, that none of them justify a violent opposition given to an unconstitutional law, until an extreme case of suffering has occurred. Still less do any of them suppose the actual existence of such a case.
But the danger of establishing on the one hand a constitutional veto in each of the States, upon any act of the whole, to be exercised whenever, in the opinion of the Legislature of such State, the act they complain of is contrary to the Constitution; and, on the other, the dangers which result to the State Governments by considering that of the Union as entirely popular, and denying the existence of any compact; seem both of them to be so great, as to justify, and indeed demand, an expression of my dissent from both.
The arguments on the one side, to show that the Constitution is the result of a compact between the States, cannot, I think, be controverted; and those which go to show that it is founded on the consent of the people, and in one sense of the word, a popular government, are equally incontrovertible. Both of the positions, seemingly so contradictory, are true, and both of them are false—true, as respects one feature in the Constitution; erroneous, if applied to the whole.
These States, during the short period of the contest with Great Britain, which preceded the Declaration of Independence, although colonies in name, were, in fact, independent States, and, even at that early period, their political existence partook of this mixed character.
By a popular or consolidated government, I understand one that is founded on the consent, express or implied, of the people of the whole nation; and which operates in all its departments directly upon the people.
By a federative government, as contradistinguished from the former, I mean one composed of several independent States, bound together for specific national purposes, and relying for the efficiency of its operations on its action upon the different States in their political capacity, not individually upon their citizens.
In the incipient state of our political existence, we find traces of both of these features. When the oppressive acts of the mother country had excited the spirit of resistance, we find the Colonies sending delegates to a General Congress; and, without any formal federative contract, that Congress assumed, by general consent, and exercised, powers which could strictly be classed only under the head of such as belong to a consolidated Government. In order to effect a non-importation of goods from Great Britain, instead of operating through the agency of the separate Colonies, and recommending that they should use their influence or authority to effect the object, the Congress address their recommendation to the merchants of all the United Colonies individually. It is true this was only in the shape of a recommendation, not an imperative order; but this makes no difference in the argument: it was still an action of the Government, addressed to individuals of the Colonies, not through the medium of the Colonial authority, as would have been the case under a strictly federative compact. This was on the 19th of September, 1774. On the 27th of the same month, they proceeded more directly, and resolved that there should be no goods imported after a certain day, and that those so imported should not be used or sold; and a few days after, a resolution of non-exportation was entered into; the negotiation of British bills was prohibited; and besides levying and equipping a naval and land force on the Continental establishment, they erected a Post Office Department, emitted money, and declared that persons refusing to receive the bills, on conviction, be deemed, published, and treated as enemies of the country. All these acts were, in a greater or less degree, direct operations of the general temporary Government upon the citizens, and, in that degree, were proofs of its character as a mixture of popular with a federative Government. After all these acts, and many more of the same nature, came the Declaration of Independence, in which they jointly declare themselves independent States, but still, it would seem, as one nation. In the preamble they assert the right, as “one people,” to take the station, not the stations, to which they are entitled. The whole instrument complains of illegal and oppressive acts against them jointly.
After this decisive act, for more than two years the States, thus declared free, remained connected by no other bond than their common love of liberty and common danger, under the same authority of a general Congress, which continued to exercise all the powers of a mixed kind, which, if they had been formally conferred, would have constituted a Government which could not properly be called either purely a federation of States, retaining all their sovereignty, or a consolidated Government to which it had been surrendered.
The Confederation was at length entered into. This was certainly a compact between the States; but, among a number of stipulations strictly federative, contained others which gave to the Congress powers which trenched upon the State sovereignties; to declare war and make peace; enter into treaties binding on the whole; to establish courts of admiralty, with power to bind the citizens of the States individually, in cases coming under that jurisdiction; to raise armies; equip fleets; coin money; emit bills of credit, and other similar powers. The defects of this bond of union are well known; among these the most prominent was the want of a power, acting directly on the citizens, to raise a revenue independent of the agency of the States. And it is a most instructive fact, that the common danger, though at times extremely imminent, during the continuance of the war, could never produce any kind of attention to the requisitions of Congress; yet there was no want of patriotism or attachment to the cause. Each State then possessed, in the subject of the requisition, the practical power of giving a veto to the operations they disliked, by refusing its quota, and the power was abused and will always be abused, whenever it is the interest of the State possessing it to exercise that right.
In the Federal Constitution this combination of the two characteristics of Government is more apparent. It was framed by delegates appointed by the States; it was ratified by conventions of the people of each State, convened according to the laws of the respective States. It guaranties the existence of the States, which are necessary to its own; the States are represented in one branch by Senators, chosen by the Legislatures; and in the other, by Representatives taken from the people, but chosen by a rule which may be made and varied by the States, not by Congress—the qualification of electors being different in different States. They may make amendments to the Constitution. In short, the Government had its inception with them; it depends on their political existence for its operation; and its duration cannot go beyond theirs. The States existed before the Constitution; they parted only with such powers as are specified in that instrument; they continue still to exist, with all the powers they have not ceded, and the present Government would never, itself, have gone into operation, had not the States, in their political capacity, have consented. That consent is a compact of each one with the whole, not, (as has been argued, in order to throw a kind of ridicule on this convincing part of the argument of my friend from South Carolina,) with the Government which was made by such compact. It is difficult, therefore, it would appear, with all these characters of a federative nature, to deny to the present Government the description of one founded on compacts to which each State was a party; and a conclusive proof, if any more were wanted, would be in the fact, that the States adopted the Constitution at different times, and many of them on conditions which were afterwards complied with by amendments. If it were strictly a popular Government, in the sense that is contended for, the moment a majority of the people of the United States had consented, it would have bound the rest; and yet, after all the others, except one, had adopted the Constitution, the smallest still held out; and if Rhode Island had not consented to enter into the confederacy, she would, perhaps, at this time, have been unconnected with us.
But with all these proofs (and I think them incontrovertible) that the Government could not have been brought into being without a compact, yet, I am far from admitting, that, because this entered so largely into its origin, therefore there are no characteristics of another kind, which impress on it strongly the marks of a more intimate union and amalgamation of the interests of the citizens of the different States, which gives to them the general character of citizens of the United Nation. This single fact would show, that the entire sovereignty of the States, individually, has not been retained: the relation of citizen and sovereign is reciprocal. To whatever power the citizen owes allegiance, that power is his sovereign. There cannot be a double, altho’ there may be a subordinate fealty. The Government, also, for the most part, (except in the election of Senators, Representatives, and President, and some others,) acts in the exercise of its legitimate powers directly upon individuals, and not through the medium of State authorities. This is an essential character of a popular Government.
I place little reliance on the argument which has been mostly depended on to show that this is a popular Government—I mean the preamble; which begins with the words, “We, the people.” It proves nothing more than the fact, that the people of the several States had been consulted and had given their consent to the instrument. To give these words any other construction, would be to make them an assertion directly contrary to the fact. We know, and it never has been imagined or asserted that the people of the United States collectively, as a whole people, gave their assent or were consulted in that capacity; the people of each State were consulted to know whether that State would form a part of the United States under the articles of the Constitution, and to that they gave their assent, simply as citizens of that State.
This Government, then, is neither such a federative one, founded on a compact, as leaves to all the parties their full sovereignty, nor such a consolidated popular government, as deprives them of the whole of that sovereign power. It is a compact by which the people of each State have consented to take from their own Legislatures some of the powers they had conferred upon them, and to transfer them, with other enumerated powers, to the Government of the United States, created by that compact; these powers, so conferred, are some of those exercised by the sovereign power of the country in which they reside. I do not mean here, the ultimate sovereign power residing under all governments, democratic or despotic, in the people—a sovereignty which must always in theory exist, however its exercise may by foreign or domestic power be repressed—but I mean that power to regulate the affairs of a nation, which resides in its government, whatever the form of that government may be; this may be, and generally is, distributed into several hands. As to all these attributes of sovereignty, which, by the federal compact, were transferred to the General Government, that Government is sovereign and supreme; the States have abandoned, and can never reclaim them.
As to all other sovereign powers, the States retain them.
But the States have not only given certain powers to the General Government, but they have expressly given the right of enforcing obedience to the exercise of those powers. They have declared that “the Constitution, and the laws which shall be made in pursuance thereof, shall be the supreme law of the land, any thing in the Constitution or laws of any State to the contrary notwithstanding.” And they have also expressly consented that the Judiciary of the United States shall have cognizance of all cases coming under those laws. Here the words of the compact provide for the means by which controversies coming under it are to be decided; but this must be taken with the understanding, that they are controversies arising not only under the laws of the United States, (including the Constitution and treaties) but they must be between parties over whom the Constitution has given jurisdiction to the courts. Every case, then, of this description, must be submitted to the Judiciary of the United States; and as in all cases, the Constitution of the United States is paramount in authority to a law of the United States, and as both of them are so to a law of the State, the Supreme Court of the United States must, of necessity, when a contrariety between these authorities is alleged, in any case legally before it, determine that question, and its determination must be final; the parties must be bound; the State to which they belong, must be bound; for they in this compact have agreed that their citizens shall be so. But it is asked, suppose the law of Congress is palpably contrary to the Constitution, and endangers the liberties of the country, must the State submit? If the question be whether the State can constitutionally resist, there is but one answer. She has by the Constitution consented that the Supreme Court shall finally decide whether this be constitutional or not. If the question be, of the right which all people have to resist ruinous oppression, the answer is as clear, and I should be the last man in the world to contravene the existence of that inalienable right. But that is not the question; it is of a constitutional right, whenever, in the opinion of the Legislature, (or as some think, of a convention of the people of any one State) a law of Congress is palpably unconstitutional, such State has a right, under the Constitution, not only to declare the act void, but to prevent its execution within the State, until Congress shall propose a declaratory amendment to the States, and their decision shall be obtained; and all this without quitting their place in the Union—without disturbing its peace it is said; but, on the contrary, it is contended, for the purpose of preserving the general compact inviolate. Now, Sir, independently of the argument drawn from the express consent of the people of the several States, that in all matters where the Supreme Court have jurisdiction between individuals, they should determine, and must determine, whether a law be unconstitutional—independently of this, and supposing no such powers given to the court, can it be supposed that so essential a feature in the Government, as a positive veto given to, or reserved by each State, upon the operations of the whole, would have been left not only unprovided for by express words, but without even an ambiguous phrase—a single doubtful word to hang the argument upon? It is derived solely from the rights attached to the sovereignty of the States, unimpaired by its accession to the Union, indivisible, according to the argument of my learned friend from Kentucky, and always alive and active, (not one of those which he expressively says will keep cold) and ready to go into operation whenever it is attacked.
I have called it a positive veto on the operations of the whole Government. Is it not so in effect? That the right, when exercised by a single State, can only prevent the execution of the obnoxious law in the State alone, which objects to it, does not take from the power the character I have given to it, is apparent from the double consideration that, if the General Government were under an obligation to desist from executing the law in the opposing State, they must, of necessity, refrain from putting it in force in the others; if it were a tax, because they must be equal; if any other subject of legislation, imposing a burthen or restriction, they could not, in justice, force the others to bear what one was relieved from, nor would the other States submit to so unequal an imposition. The argument, then, supposes a feature in the Constitution, which certainly is not expressed in it; which, most assuredly, would have been expressed, if it had been intended: for it totally alters its character; puts the power of the Union at the will of any one of its members; and allows it, without risque, to throw off all the burthens of Government at its pleasure. Remember, Sir, that I am speaking of a constitutional right, (for that is the one claimed)—a right under the Constitution, not over it—a power that may be exercised without incurring any risque or committing any offence— without forfeiting a place in the Union, or any right or privilege under it. The State has only to resolve, by its ordinary Legislature, or, according to others, in a convention of its citizens, that a law enacted by the General Government is palpably unconstitutional and dangerous, and that it shall cease to operate, and it must cease to operate; and as an inevitable consequence, it may be resisted by force; as another consequence, if death ensues, it is murder in those who act under the General Government— justifiable homicide in those who resist. Now, Sir, would not these serious consequences have presented themselves to the enlightened men who framed this Constitution? and, if they did, would not some provision have been made to prevent any illegal exertion of power by the Executive, fraught with such danger? If they had supposed that this was a right reserved, would they not have declared the correlative obligation in the General Government to respect it: for, Sir, it is needless to say that every right carries with it its correspondent obligation, and that there cannot be two conflicting rights. If, then, the States have a right to prevent the execution of a law, the General Government are under an obligation to refrain from enforcing it; yet, instead of declaring this obligation to respect this reserved right, not the slightest allusion is made to it. On the contrary, when a law is once passed, it is made the duty of the President to execute it. But by the argument, the law has been passed as constitutional by both Houses of Congress; it has been approved as such by the president; and a judgment has been given by the Supreme Court, declaring it to be constitutional, and directing that, in the particular case before them, it shall be executed. The State against whose citizen the judgment is given, declares it to be palpably and dangerously contrary to the Constitution, and that it is null and void, and shall not be executed. What is to be done? The right of the State, says the gentleman, must be respected; but, unfortunately for the argument, the Constitution does not say so; unfortunately, it says directly the contrary. The President is bound by his oath to cause every constitutional law to be executed. But he has approved this law, therefore he believes it to be constitutional: but both Houses have passed it, therefore they believed it so; but the judges have decreed that it shall be executed; therefore, they, too, have believed it to be constitutional. Must the President yield his own conviction, fortified as it is by these authorities, to the opinion of a majority—perhaps a small majority—in the Legislature of a single State? If he must, again I ask, show me the written authority? I cannot find it. I cannot conceive it. I am not asking for the expression of the reserved right; I know that they are not enumerated. But I ask for the obligation to obey that right; I ask for the written instruction to the Executive to respect it; I ask for a provision, that nothing but the grossest inattention, or the most consummate folly, could have omitted, if the doctrine contended for be true.
This might have been done by an article in these words: “Whenever, in the opinion of any one State, a law passed by the Congress shall be deemed unconstitutional and dangerous, such State may prevent its execution, and the President and the courts shall forbear to enforce the same; but Congress shall, in that case, if they persevere in thinking the law expedient, submit the question as an amendment to Conventions of the States, in the manner prescribed by the Constitution.” Now, Sir, the inquiry cannot be too often repeated, if such had been the intention of those who framed our form of Government, or of those who adopted it, and considered and amended it, would not some expression of this kind have been inserted? and, if inserted, would it have been recommended or adopted? and, if adopted, how long would it have continued in operation? how many vetos would have been interposed? how many Conventions would have been assembled? Not an embargo—not a restriction—not a declaration of war—not a measure for defence—not a tax or an impost, but would produce a stoppage in the wheels of the political machine; the most pressing operations of Government must be suspended until the amendments are proposed by Congress; until Conventions are called in all the States, and they have made their decisions. It is unfortunately no answer to say that this power would not be abused; that the argument supposes it to accrue only in palpable cases. Let the constitutional right be acknowledged, let it be known that it may be exercised without risk, and local interest will always be strong enough to suggest constitutional scruples; nor will common interest, the incalculable interest of our Union, be a sufficient argument. When was the interest of union more apparent than during the latter years of the Revolutionary war, and those which immediately succeeded the peace? Yet, when was the apathy of the States more apparent to the considerations of common good? When were local interests more consulted? When was it more difficult to procure the slender contributions which each State was bound to furnish to the common fund? It is a most important truth, that the existence of the General Government must depend on that feature which permits the exercise of all its legitimate powers directly upon the people, without the intervention of the States. Make that intervention necessary for the execution of those legitimate powers, or permit it to arrest them in cases which the States may deem illegal, and your Government is gone; it changes its character; it becomes, whatever other features you give to it, essentially an inefficient confederation, without union at home, without consideration abroad, and must soon fall a prey to domestic wars, in which foreign alliances will necessarily intervene to complete its ruin. No, Sir; adopt this as a part of our Constitution, and we need no prophet to predict its fall. The oldest of us may live long enough to weep over its ruins; to deplore the failure of the fairest experiment that was ever made, of securing public prosperity and private happiness, based on equal rights and fair representation; to die with the expiring liberties of our country, and transmit to our children, instead of the fair inheritance of freedom, received from our fathers, a legacy of war, slavery, and contention.
But it is asked, Will you deny to the States every portion of their former sovereignty? Will you call this, with the Senator from Massachusetts, a strictly popular Government? Will you deny them all right of intervention, and reduce them to the condition of mere corporations? Do you renounce the doctrines for which you contended in 1798, and consider the Supreme Court as the umpire provided in all cases to determine on the extent of State rights? God forbid that I should hold such doctrines. If my friends had stopped at the declaration that they adopted the resolutions of the Virginia Legislature, I should not, perhaps, have thought the difference between us of sufficient consequence to have troubled the Senate with my opinions. For the most part, I coincide in the sentiments of those resolutions; but my friends carried them out into their practical consequences further than, I think, they warrant; further, certainly, than I am willing to follow them.
As I understand them, they assert the right of a State, in the case of a law palpably unconstitutional and dangerous, to remonstrate against it, to call on the other States to co-operate in procuring its repeal, and, in doing this, they must, of necessity, call it unconstitutional, and, if so, in their opinion null and void. Thus far I agree entirely with the language and substance of the resolutions. This, I suppose, is meant by the expression interpose for arresting the progress of the evil. I see in those resolutions no assertion of the right contended for, as a constitutional and peaceable exercise of a veto, followed out by the doctrine that it is to continue until, on the application of Congress for an amendment, the States are to decide. If these are the true deductions from the Virginia resolutions, I cannot agree to them, much as I revere the authority of the great statesman whose production they are. I cannot assent to them; and it is because I revere him, and admire his talents, that I cannot believe he intended to go this length. I cannot believe it, also, for another reason. He thought, and he conclusively proved, the alien and sedition laws to be deliberate, unconstitutional, and dangerous acts; he declared them so in his resolutions. Yet, Sir, he never proposed that their execution should be resisted; he never uttered or wrote a word that looked like this doctrine, now contended for, of a constitutional right to arrest the execution of the law until amendments could be proposed. The right he asserted, when he alludes to resistance, was one that all acknowledge—that of opposition to intolerable and unconstitutional oppression. Mr. Jefferson, in the Kentucky resolutions, has used a word of equivocal authority, as well as signification; he asserts the right of a State to “nullify” an unconstitutional act. If he means by this any thing more than is contained in the Virginia resolutions, he must apply it to the extreme case of resistance, on the right of which, there can be no contrariety of opinion: for Mr. Jefferson does not, if I read him aright, avow, any more than Mr. Madison does, the right now contended for, of a State veto with its consequences. This, it appears to me, is a more modern invention, and, as I think I have proved, utterly incompatible with the nature of our Government. Was it ever conceived, before the present day, to form a part of it? If it was, why is it not alluded to in any of the debates of the Federal Convention which framed, or the State Conventions which adopted it? Surely it is of sufficient importance to have attracted attention, either as an advantage or an objection; yet not a word is said about it. Nay, more, if we refer to that luminous exposition of the whole character of the General Government, and of its expected operation, “The Federalist,” not a word can be found that favors this idea of a veto, now, for the first time, set up as a part of our Constitution. The Constitution, its advocates, its opposers, the great cotemporary exposition of its character, the practice under it for forty years, all silent on so important, so fundamental a doctrine. Is not this a fair, I might say a conclusive argument that it does not exist—that it is what I have indicated it to be, a modern invention. But this is not all: the case of a conflict of authority between the General and State authorities, under the new Government, was one that could not escape the foresight of the authors of “The Federalist.” A series of chapters on this, and subjects connected with it, are found in that collection, written by Mr. Madison. Here would have been the place, certainly, to have developed the character and operation of this legal veto, if, in his opinion, it had existed. He could not have been silent on the subject. It is impossible that he could then have held the doctrines which are erroneously, in my opinion, said to be those of his Virginia resolutions. In the 44th number, in arguing the necessity of the article which makes the laws of the United States, made in pursuance of the Constitution, paramount to the State Constitutions, he says, if the State sovereignty had been left complete in this particular, among other absurd and dangerous consequences, “The world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all governments; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.” And, as more immediately applicable to the present subject, in the 46th number, he gives expressly what he supposes the only remedy for an “unwarrantable,” by which he must mean unconstitutional, measure. “On the other hand, (he says) should an unwarrantable measure of the Federal Government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand.” Now, Sir, if the new doctrine were the true one, if the veto were a constitutional measure, now we should hear of it! What more powerful! What more at hand! What more effectual! Why look for any other? Yet this constitutional right, so clearly deducible from the very terms of our national compact, never occurred to the very man whose doctrines, in 1798, are said, erroneously, I again repeat, to embrace it. What are the remedies which he there points out? “The disquietude of the people, their repugnance, and, perhaps, refusal to co-operate with the officers of the Union, the frowns of the executive magistracy of the State, the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form in a large State very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the Federal Government would be hardly willing to encounter.” These were the sentiments of Mr. Madison in 1787. And such, I think, is the true construction of his language in 1798. For he goes on in the same paper to follow up the consequences of a perseverance of the Federal Government in unconstitutional measures, into the only result that all agree must, in extreme cases, happen—a resistance by force; and that he may not be misunderstood, makes it analogous to the case of the Colonial resistance to Great Britain.
Although, in my opinion, in every case which can lawfully be brought within the jurisdiction of the Supreme Court, that tribunal must judge of the constitutionality of laws on which the question before them depends, and its decrees must be final, whether they affect State rights or not; and, as a necessary consequence, that no State has any right to impede or prevent the execution of such sentence; yet, I am far from thinking that this Court is created an umpire to judge between the General and State Governments. I do not see it recorded in the instrument, but I see it recorded that every right not given is retained. In an extreme case that has been put, of the United States declaring that a particular State should have but one Senator, or should be deprived of its representation, I see nothing to oblige the State to submit this case to the Supreme Court; on the contrary, I see, by the enumeration of the cases and persons which may be brought within their jurisdiction, that this is not included; in this the injured State would have a right at once to declare that it would no longer be bound by a compact which had been thus grossly violated.
I consider the existence of the States, with that portion of their sovereignty which they have reserved, to be a most invaluable part of our Government; their rights should be most zealously watched over and preserved—preserved, but not enlarged. An organized body, ready to resist either Legislative or Executive encroachment, round which the people, whenever oppressed, may rally, will always keep oppression in awe; they are an intermediate corps between the people and the Federal Government; and, being a permanent one, they answer the same end in our Government that a hereditary aristocracy does in some others. They check the power of the federative head, while they themselves are kept within constitutional bounds by the direct operation of the general laws on their citizens through the Judiciary. Their agency and its effective utility were shown in 1798, in the stand which Virginia and some other States took against the obnoxious alien and sedition laws. They reasoned, they remonstrated, they appealed to the high feelings of patriotism and freedom, as well as to the understanding of the people; they demonstrated the usurpation of the power which had enacted these laws; they proved to conviction that they were void; and this had the desired effect. But they did not declare that the laws should not be executed; they did not array the force of the State against the decrees of the Judiciary; they did not interpose, or threaten to interpose, their constitutional veto.
But if the power contended for on the one side be dangerous, the doctrine by which it is opposed on the other seems no less so. If this be strictly a popular government, as contended for by the Senator from Massachusetts, that is to say, a government formed by the people of the United States, considered in one mass, without any consideration of the relation in which they stand to each other as citizens of different States, then the following important consequences follow. Not a denial of State rights, as has, I think, been incorrectly and unjustly, in and out of the House, charged to the Senator’s argument; he expressly, as I understand him, acknowledges that they retain all that are not given to the General Government. But, Sir, although his argument acknowledged the existence of the reserved rights, yet it took away the means of preserving them. If it be a popular Government in the sense I have described, then what a majority of the whole people will, must be executed, and rightfully executed. If this be the true construction of our fundamental compact, then, in any future changes that our situation may call for, the people of a few large States, making a majority of the whole number of voters, must give the law to the greater number of States, and may materially and injuriously alter, or totally destroy, the Union, which the argument supposes not to be a compact between the States, but the work of the people, that is to say, the whole people of the United States. It will be no answer to this to say, that alterations cannot be made in the Constitution but by the assent of the States, because, if there is no compact there is no injury to the States, any more than there would be by altering the boundaries, or the representation; or giving to or taking from a county, advantages which it enjoyed under a State constitution. The majority of the people in a State may do this at their pleasure, with regard to a county; so might a majority of the people of the United States do, with regard to a State, if the Government has the same popular character in the one instance that it has in the other. As to the impediments imposed by the Constitution to the power of making alterations, by the clause which designates the mode in which they are to be made, by the assent of a requisite number of States, it affords no insurmountable difficulty. If the Government was made by the People, the same people have the right to alter it, and a majority may alter that clause with the same ease and the same right that they change any other in the Constitution. It is plain, therefore, that this argument places three-fourths of the States at the mercy of one-fourth of their number. Six States having on an average a million of inhabitants each, form a majority of the population. In a popular Government, the will of the majority must be obeyed in making or altering constitutions as well as laws; therefore, if this be a popular Government, without any feature of compact in it, there is plainly no security for even the existence of the State governments under it. It is true, that the argument allows to them certain rights; but if those rights were the result of the will of the People, expressed by their adoption of a popular Government, is it not clear, that, whenever that will changes, and another kind of government is preferred by a majority, the rights are gone, and rightfully gone? In short, the doctrine puts the States precisely in the situation of counties, or any other political division of a consolidated government.
It is true, that, while the present form of government exists, States are necessary for its organization; but if it be simply popular—if no compact enters into its composition—the State agency may be easily dispensed with in the new changes that a majority may deem expedient.
Observe, Sir, that, by popular government, the Senator does not mean one adopted or made by the people of each State, acting separately in their State capacity; if he did, there would be no dispute: for it cannot be denied, that the Constitution was adopted by the people of each State in its separate convention. This would not contravene the idea of a compact, which his argument totally denies. He means, and so I understand him clearly to express, a government framed by the people of all the States, acting in their aggregate capacity; and this doctrine, for the reasons I have stated, I think dangerous in the highest degree. Even if no attempt be made under it, it will, if acknowledged, lessen the dignity and utility of the State Governments; they will be considered as mere tenants of their power at the will of the Federal head; which will be looked to as the source of all honor and all profit. State rights will be disregarded, when held by so precarious a tenure; encroachments will be submitted to that would not be otherwise hazarded, until, gradually, we are prepared for a consolidated government, which, on experiment, will be found to require more energy for its support over the extensive country which it must embrace; and then the dormant resolution on your Journals will be called up, and His Highness the President of the United States will be invested with dictatorial or protectorate powers, for an enlarged term, for life—and at last with reversion to his children. Sir, this is the natural consequence of the doctrine, should it be acquiesced in as correct, but not carried into effect in an immediate attempt against the State sovereignties. Suppose, however, the reverse should take place, and the citizens of a number of States, sufficient to constitute a large majority of the inhabitants of the Union, should become converts to the Senator’s doctrine, and determine to exercise the lawful right which a majority of every consolidated government has, to change the Constitution. The minority of numbers constituting, perhaps, two-thirds of the number of States, are incredulous, and entertain the heretical opinion that there were certain portions of their State sovereignty never surrendered, and which they deem it a duty to defend. Can no case be imagined that may, by a diversity of local interests, produce such a state of things? and can the consequences be calmly considered by any lover of his country?
The most dangerous of all errors are those which give false impressions of fundamental political rights. When firmly convinced that they are true, it is thought a duty to defend them at the risk of life—at the expense of fortune. The tranquillity of the country is sacrificed, its institutions destroyed, and its dearest interests disregarded by men, who, with the purest intentions, have adopted on trust the opinions of others, in whom they have confidence; and who are taught to believe, that disobedience to legitimate authority is resistance to oppression, or the exercise of an unauthorized power is the assertion of a constitutional right. This consideration alone, it appears to me, should make us most tremblingly apprehensive of inculcating any new doctrine of this character; and it has made me scan with greater attention those which have been offered in this important branch of the debate. But with a becoming distrust of my own judgment, and a proper respect for that of the Senators who have preceded me, I cannot but see, in the doctrines of all excepting only those of my friend from New Hampshire, (Mr. Woodbury) dangers of the gravest cast. Those I have endeavored respectfully but decidedly to point out, and to state what are my own views on the subject, that they may be weighed and compared. I resume them.
I think that the Constitution is the result of a compact entered into by the several States, by which they surrendered a part of their sovereignty to the Union, and vested the part so surrendered in a General Government.
That this Government is partly popular, acting directly on the citizens of the several States; partly federative, depending for its existence and action on the existence and action of the several States.
That, by the institution of this Government, the States have unequivocally surrendered every constitutional right of impeding or resisting the execution of any decree or judgment of the Supreme Court in any case of law or equity between persons or on matters of whom or on which, that court has jurisdiction, even if such decree or judgment should, in the opinion of the States, be unconstitutional.
That, in cases in which a law of the United States may infringe the constitutional right of a State, but which, in its operation, cannot be brought before the Supreme Court, under the terms of the jurisdiction expressly given to it over particular persons or matters, that court is not created the umpire between a State that may deem itself aggrieved and the General Government.
That, among the attributes of sovereignty retained by the States, is that of watching over the operations of the General Government, and protecting its citizens against their unconstitutional abuse; and that this can be legally done—
First, in the case of an act in the opinion of the State palpably unconstitutional, but affirmed in the Supreme Court in the legal exercise of its functions;
By remonstrating against it to Congress;
By an address to the People in their elective functions to charge or instruct their Representatives;
By a similar address to the other States, in which they will have a right to declare that they consider the act as unconstitutional and therefore void;
By proposing amendments to the Constitution in the manner pointed out by that instrument;
And finally, if the act be intolerably oppressive, and they find the General Government persevere in enforcing it, by a resort to the extreme right which every people have to resist oppression.
Secondly, if the act be one of those few which, in its operation, cannot be submitted to the Supreme Court, and be one that will, in the opinion of the State, justify the risque of a withdrawal from the Union, that this last extreme remedy may at once be resorted to.
That the right of resistance to the operation of an act of Congress, in the extreme cases above alluded to, is not a right derived from the Constitution, but whenever resorted to, can be justified only on the supposition that the Constitution has been broken, and the State absolved from its obligation.
That the alleged right of a State to put a veto on the execution of a law of the United States, which such State may declare to be unconstitutional, attended (as, if it exist, it must be) with a correlative obligation on the part of the General Government, to refrain from executing it; and the further alleged obligation on the part of that Government, to submit the question to the States, by proposing amendments, are not given by the Constitution, nor do they grow out of any of the reserved powers.
That the exercise of the powers last mentioned, would introduce a feature in our Government, not expressed in the Constitution, not implied from any right of sovereignty reserved to the States, not suspected to exist by the friends or enemies of the Constitution when it was framed or adopted, not warranted by practice or cotemporaneous exposition, nor implied by the true construction of the Virginia resolutions in ’ 98.
That the introduction of this feature in our Government would totally change its nature, make it inefficient, invite to dissension, and end, at no distant period, in separation; and that, if it had been proposed in the form of an explicit provision in the Constitution, it would have been unanimously rejected, both in the Convention which framed that instrument, and in those which adopted it.
That the theory of the Federal Government, being the result of the general will of the People of the United States in their aggregate capacity, and founded, in no degree, on compact between the States, would tend to the most disastrous practical results; that it would place three-fourths of the States at the mercy of one-fourth, and lead inevitably to a consolidated Government, and, finally to monarchy, if the doctrine were generally admitted; and if partially so, and opposed to civil dissension.
These being my deliberate opinions on the nature and consequences of the constructions hitherto given of the Federal compact, and the obligations and rights of the States under it; deeming those constructions erroneous, and in the highest degree dangerous to the Union, I felt it a duty to my place and to my country to say so. Having done this, I ought perhaps to stop. But, Sir, I dare not! I dare not stifle the expression of apprehensions, which have fastened upon my mind.
It would be useless affectation to pretend ignorance of the discontent that prevails in an important section of the Union; its language is too loud, too decisive, too menacing, not to have been heard, and heard with the deepest concern. It has already been more than once alluded to in this debate, in terms of severest censure. I shall not assume that tone, although I cannot but deprecate the light manner in which the greatest evil that can befall us is spoken of, as if it were an every day occurrence. Arguments for and against the dissolution of the Union are canvassed in the public papers; form the topic of dinner speeches; are condensed into toasts; and treated in every respect as if it were “a knot of policy that might be un-loosed familiar as a garter.” Sir, it is a Gordian knot, that can be severed only by the sword. The band cannot be unloosed until it is wet with the blood of brothers. I cannot, therefore, conscientiously, be silent; and, humbly as I think of my influence or powers of persuasion, I should feel myself guilty if they were not exerted in admonition to both parties in this eventful controversy. The tariff is the prominent grievance that excites the discontents in some of the Southern States, and particularly in South Carolina. It is denounced as unconstitutional, injurious to the whole country, ruinous to the South, and beneficial only to a particular interest in the North and East. My sentiments on this subject may be expressed in very few words. A decided convert to the free trade system, I think it may be departed from in the few cases in which restrictions may be used, with the hope of producing a relaxation of similar restrictions by a foreign Power. I therefore believe the present tariff unwise, unequal, and oppressive in its operations, but I cannot think it unconstitutional. And I consider one of its worst consequences to be, that, when it has been long persisted in, and considered as the settled policy of the nation, so much of the capital and population of the country may be employed, in the manufactures protected by it, as to make it a matter of serious calculation whether a sudden and total abandonment of the policy, may not produce greater evil to the whole nation than the benefit to be expected from throwing open the trade. With these opinions on the subject of the Southern discontents, I enter largely into their feelings, and join them in their lamenting a policy which operates so distressingly on their prosperity.
There is no doubt, that, for some years past, the pecuniary difficulties of that part of the country have increased; that the value of property has diminished; and that, from a state of affluence, many of the citizens are, without extravagance or individual misfortune, greatly reduced in circumstances. But, would it not be prudent, calmly to consider whether all this distress is to be attributed to this one cause—whether the low price of the staples of that district (the immediate cause) has been produced by that measure; whether the actual price of imported goods paying the duty, or the same kind of goods protected by it, have not, from other causes, been kept down nearly to their former value? And that, therefore, although they may lose the advantage which the fall of prices would have given, independent of the tariff, whether the actual expenditure is increased beyond that of former years; and, if this should be the result, whether the evil is not of such a nature as may be borne without recurring to extremities—in the hope, in the certain hope, that it will not be of long continuance?
For, Sir, let them also consider the powerful agents that are at work for their relief. First, in point of efficiency, is the press. It may spread errors, but it also diffuses truths; and, with an intelligent, an educated people, such as ours, these last will ultimately prevail. Political economy was but lately with us considered as a science; a false, but specious, and now exploded policy, usurped its place, under the imposing title of the American system. The true science was the subject of idle sneers and jests by those who found it easier to adopt an old error, than to study a new science; and to found political combinations upon sectional interest, than to acquire popularity on the broad basis of general interest. These doctrines are in a course of examination; they cannot stand the test of theory, still less of practice. Sir, the professor is in his chair, the press is at work, and a powerful but demoralizing agent is demonstrating the truth of their science. The smuggler is abroad—his boats and cutters are in all your bays, and inlets, and rivers, on the Atlantic; his canoes are on your lakes; he is lurking in the woods of your frontier; and presently, Sir, when your oppressive laws have become unpopular, he will come in at noon day, in defiance of them. You may seize, and sue, and prosecute; but when the feelings of the people, in such a Government as ours, are enlisted against the laws, you cannot execute them; and this is one of the worst consequences of the restrictive system—an unavoidable consequence. Oaths are disregarded, evasions of the law considered as proofs of genius, and the agent or captain who has most address in defeating the officers of the customs, is sure to be the most employed. Let any one who doubts this, look back to times of the non-intercourse and embargo. How many vessels, bound from Charleston or New Orleans to New York, blown by irresistible gales from Sandy Hook to Liverpool; how many false log books, how many perjured protests, how many acquittals against evidence; presenting a mass of perjury, fraud, and combination, to defeat the laws, perpetrated by men in every other view respectable, but who have become contaminated by the corrupt influence of these demoralizing laws. In every country in the world, high duties have been defeated by illicit trade; it is inevitable; no cause is more certain of producing its effect; it will be so forever. If the morals of the country are correct, it will corrupt them. If the frontier is small and guarded, the officers will be bribed; if it is extensive, their vigilance will be avoided. If France with 13,000 men, and England with a fleet of revenue cutters, cannot prevent it, what can be expected from our insignificant revenue force, on a coast of more than 2000 miles, and an inland frontier of the same extent? These causes will disgust those for whose exclusive use the system was intended, with its operation, and at the same time, convince the People of its injustice. It is possible, also, that the improvements in machinery, and the competition fostered by the protection, may reduce the price of some of the domestic articles, so as materially to lessen the evil.
But, if these should fail, I cannot but place great reliance on an address to the justice of the nation, and do not believe, when, in the confidence of private correspondence, the venerable Jefferson, in a moment of warmth and irritation, said of the Representatives of the nation, that “you might as well reason with the marble columns which surround them,” that he uttered the cool dictates of his judgment. No, Sir! he had a higher idea of the value of representation in Government. In a debate like this, on the importance of the Union, his genius would have drawn a different illustration from those objects which surround us and sustain the dome under which we deliberate. What were they originally? Worthless heaps of unconnected sand and pebbles; washed apart by every wave; blown asunder by every wind. What are they now? Bound together by an indissoluble cement of nature; fashioned by the hand of skill, they are changed into lofty columns, the component parts and the support of a noble edifice—symbols of the Union and strength on which alone our Government can rest—solid within, polished without; standing firm only by the rectitude of their position, they are emblems of what Senators of the United States should be, and teach us, that the slightest obliquity of position, would prostrate the structure, and draw with their own fall, that of all they support and protect, in one mighty ruin.
A distrust of the justice and good feeling of one part of the Union by another, is a most dangerous symptom; it ought not to be indulged even when occasional circumstances justify it. A distrust of the justice of the whole is still more fatal. How can we hope for ready obedience to our laws, if the people are taught to believe in a permanent hostility of one part of the Union towards another; and that every appeal made by reason and argument to their common head, is vain? Perseverance will do much; for even if the illustration which has been made, of party obduracy, were just, we should remember that the hardest marble is worn by a succession of drops; much more may we hope that prejudice, however strong, will yield to the claims of justice, frequently enforced by a repetition of sound arguments.
Menace is unwise, because it is generally ineffectual; and of all menaces, that which strikes at the existence of the Union is the most irritating. Have those who thus rashly use it, who endeavor to familiarize the people to the idea, have they, themselves, ever done what they recommend? Have they calculated, have they considered, what one, two, or three States would be disjointed from the rest? Are they sure they would not be disjointed themselves? That parts of any State, that might try the hazardous experiment, might not prefer their allegiance to the whole? Even if civil war should not be the consequence of such disunion—an exemption of which I cannot conceive the possibility. What must be the state of such detached parts of the mighty whole? Dependence on foreign alliances for protection against brothers and friends; degradation in the scale of nations; disposed of by the protocols of allied monarchs to one of their dependents, like the defenceless Greeks. But I will not enlarge on this topic, so fruitful of the most appalling apprehensions—Disunion! the thought itself—the means by which it may be effected—its frightful and degrading consequences— the idea, the very mention of it, ought to be banished from our debates— from our minds. God deliver us from this worst, this greatest evil. All others we can resist and overcome; encroachments on individual or State rights cannot, under our representative government, be long or oppressively persevered in. There are legitimate and effectual means to correct any palpable infraction of our Constitution. Try them all before recourse is had to the menace of this worst of evils. But when an honest difference of construction exists, surely such extreme means or arguments ought not to be resorted to. Let the cry of unconstitutional oppression be justly raised within these walls, and it will be heard abroad—it will be examined; the people are intelligent, the people are just, and in time these characteristics must have an effect on their Representatives. But let the cry of danger to the Union be heard, and it will be echoed from the White to the Rocky Mountains; every patriotic heart will beat high with indignation; every hand will draw a sword in its defence. Be assured, on both sides of this argument, that the people will not submit to consolidation, nor suffer disunion, and that their good sense will detect the fallacy of arguments which lead to either.
Sir, I have done. I have uttered the sincere dictates of my best judgment, on topics closely connected with our dearest interest. I have, because it was my duty, uttered them freely—without reserve, but I hope without offence; with the respect that was due to the opinion of others, and with a becoming diffidence of my own. It would be a cause of great regret if I should have misapprehended the tendency of any of the doctrines of which I have spoken. It would have been a greater, if, thinking of them as I do, I had omitted the animadversions which I thought their consequences required.
Gentlemen have spoken, with patriotic enthusiasm, of the consolation they would receive, at their last moments, in seeing the flag of their country displaying to their dying eyes its emblems of union and glory. The period when mine must be closed in night, is too near to refer to it the duration of my country’s happiness. But I can anticipate for it a continuance of freedom and prosperity long after the distant, I hope, the far distant day, when the last of those honorable men shall have finished his useful career. I can apprehend for it the worst of evils before one of them shall quit the stage.
- These hopes are founded on a continuance of the Union;
- These fears, on the madness of party that may destroy it.
Extracts from the printed Public Accounts, which are published, including 1828, since that date, from manuscript in Register’s Office, or in the Department of State.
For the first two years of James Monroe’s administration:
|1817,||“Foreign Intercourse,”||$ 281,995 97|
|1818,||“Foreign Intercourse,”||420,429 90|
|$ 702,425 87|
Abstracts of the above.
|1817,||Diplomatic Department,||107,738 38|
|1818,||Diplomatic Department,||103,652 04|
|1817,||Contingent expenses Foreign Intercourse,.||35,953 39|
|1818,||Contingent expenses Foreign Intercourse,.||98,856 09|
|1817,||Treaties with Mediterranean Powers,||28,721 57|
|1818,||Treaties with Mediterranean Powers,||51,412 21|
|$ 426,333 68|
|1817,||Contingent expenses Department of State, (excluding expenses of publishing laws)||9,784 85|
|1818,||Contingent expenses Department of State, (excluding expenses of publishing laws)||12,515 00|
|$ 22,299 85|
For the first two years of John Q. Adams’ administration.
|1825,||“Foreign Intercourse,”||$ 371,666 25|
|1826,||“Foreign Intercourse,”||232,719 08|
|$ 604,385 33|
Abstract of the above.
|1825,||Diplomatic Department,||159,603 82|
|1826,||Diplomatic Department,||152,476 90|
|1825,||Contingent expenses Foreign Intercourse,||25,474 95|
|1826,||Contingent expenses Foreign Intercourse,||18,627 07|
|1825,||Treaties with Mediterranean Powers,||26,108 67|
|1826,||Treaties with Mediterranean Powers,||2,086 08|
|1826,||Panama Mission,||9,000 00|
|$ 393,377 49|
|1825,||Contingent expenses Department of State, (excluding publishing of laws)||16,800 00|
|1826,||Contingent expenses Department of State, (excluding publishing of laws)||16,000 00|
|$ 32,800 00|
First two years of Andrew Jackson’s administration.
|1829,||“Foreign Intercourse,”||207,060 35|
|1830,||The whole estimate asked for the above,||263,300 00|
|$ 470,360 35|
Abstracts of the above.
|1829,||Diplomatic Department,||121,667 99|
|1830,||Whole estimate of the above,||180,000 00|
|1829,||Contingent expenses Foreign Intercourse,||14,469 12|
|1830,||Whole estimate of the above,||30,000 00|
|1829,||Treaties with Mediterranean Powers,||11,938 88|
|1830,||Whole estimate of the above,||30,000 00|
|$ 388,075 99|
|1829,||Contingent expenses Department of State, (excluding publishing of laws,) taken from manuscript in Department of State,||10,819 55|
|And Biennial Register||1,000|
|$ 22,519 55|
A Note on the Type
The typeface used in this book is Adobe Caslon, a modern interpretation of the classic faces cut in the 1720 s by the English typographer William Caslon (1692–1766). Caslon was trained as an engraver but turned increasingly to type design and cutting, setting up his own type foundry in 1720. Caslon’s design became the first major native English typeface to achieve wide popularity. It displays the small lowercase height and the relatively restrained contrast typical of what are now called “old style” fonts. Modern taste and technology have smoothed out many of the idiosyncrasies of William Caslon’s original cutting, but the modern version retains some of the warmth and much of the straightforward honesty that have made Caslon a good and dependable friend of the typographer for more than 250 years.
This book is printed on paper that is acid-free and meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials, z39.48-1992. (archival)
Book design by Martin Lubin Graphic Design, Jackson Heights, New York
Typography by Monotype Composition Company, Inc., Baltimore, Maryland
Printed and bound by Edwards Brothers, Inc., Ann Arbor, Michigan