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John Rowan

John Rowan was born in Pennsylvania in 1773. His family moved to Louisville, Kentucky, and he received a classical education in the school of James Priestly in Bardstown. He studied law in Lexington, was admitted to the bar in 1795, and became a successful criminal lawyer and well-known orator. A member of the Kentucky constitutional convention in 1799, he was Kentucky secretary of state from 1804 to 1806, when he was elected as a Republican to the United States House of Representatives for one term. On the grounds that he was a congressman-elect, he turned down a request for legal assistance from Aaron Burr in 1806. Rowan was a member of the Kentucky House of Representatives from 1813 to 1817, in 1822 and 1824, and was a judge on the state court of appeals from 1819 to 1821. In Kentucky politics, he was a supporter of debtor relief measures and a critic of judicial conservatism. He was appointed by the legislature to adjust a boundary dispute with Tennessee in 1820, and a land claims dispute with Virginia in 1823. Rowan was elected as a states’ rights Republican to the United States Senate in 1825. He served one term and was involved in efforts to reform the federal judicial system and abolish imprisonment for debt. In 1839 he was appointed commissioner for carrying out a treaty with Mexico. He was president of the Kentucky Historical Society from 1838 until his death in 1843.

Speech of Mr. Rowan,
of Kentucky

[February 4, 1830]

The resolution of Mr. Foot, of Connecticut, relative to the public lands, being under consideration, Mr. Rowan addressed the Chair as follows:

Mr. r. said that, in the share which he proposed to take in the debate, he should enter into no sectional comparisons. He should not attempt to detract from the just claims of any one of the States, nor would he disparage his own by any attempt to eulogize it. A State should be alike uninfluenced by eulogy and detraction. In his opinion, she could not be justly the subject of either. There existed, necessarily, among the States of the Union, very great diversities. It would be strange if there did not. The habits, manners, customs, and pursuits of people would be different, as they should be found to be differently situated, in reference to climate, soil, and various other causes, which exerted a powerful influence over their condition: for he held that we were more influenced by pride, than reason or philosophy, when we asserted that it was competent to any people to shape their condition according to their will. We were all more or less affected by the force of circumstances; and while we seemed to be under the direction of our will, were under the influence of the causes which, though they were imperceptible, were unceasing in their operation upon our inclinations. The fluids which sustain the life of man [said Mr. R.] are not less of atmospheric or solar concoction, than those which sustain life in other animals, and even in vegetables. Can any man say, upon any other hypothesis, why the tropical fruits do not grow in the New England States; why certain animal and vegetable growths are peculiar to certain climates, and found in no other; and why the stature and complexion of man is different in different climates; and why there is a corresponding difference in his temper and appetencies?

Now, would it not be as reasonable for men to taunt each other with these differences, which are obviously the effect of physical causes, as to indulge in the jeers and taunts which have characterized this debate? I would not ascribe to physical causes all the differences which are found to exist in the political, moral, and religious sentiments of people situated in different climates; but I would not deny to the heavens their legitimate influence upon people differently situated in reference to that influence. I suppose that an infinity of causes combine to diversify the human condition. The pursuits of a people possessing commercial facilities, will be very different from those of a people remote from the ocean, or any navigable stream. Their manners will take their hue from their pursuits; nor will their sentiments escape a tincture from the same cause. The truth is, that, with every people, their first and great object is their own happiness. To that object all their thoughts and all their exertions are directed. For those who inhabit a fertile country and a temperate or warm climate, nature has more than half accomplished this great object. The manners, habits, and notions, (to use a phrase of our Eastern brethren) of such a people will be very different from those of a people who have to win, by strenuous and unintermitted industry, a meagre subsistence from a sterile soil, in a rigorous climate. We all know that the soil of a southern is more prolific than that of a northern climate; that in the first the people are almost literally fed by the bounty of nature; while in the latter, a subsistence has to be conquered from her parsimony, by the most unceasing toil. The climate of the North imposes upon those who inhabit it the duty of obtaining, by much labor, a competent subsistence. It invigorates, by its rigors, the power of the muscular exertion, which it requires. That of the South inflicts languor, and with it an aversion from that labor which its prolific influence has rendered almost unnecessary. Frugality and economy, as the consequence of their necessary industry, characterize the Northern people: Those of the South are almost as profuse as their soil is prolific. In a Northern climate the labor of all is necessary to their sustenance and comfort. In the Southern the labor of a few will sustain all comfortably; and hence the labor of the South has fallen to the lot of slaves. Yes, sir, that slavery which the gentleman from Boston [Mr. Webster] has, in a spirit of implied rebuke, ascribed to Kentucky, in the contrasted view which he took of that State and the State of Ohio, has, if it be an evil, been thrown upon Kentucky by the destinies. That Kentucky has been somewhat retarded in its advances by the perplexity of its land titles, and its toleration of slavery, is, in his estimation, the misfortune of that State; and the exemption of Ohio from those evils has accelerated her march to the high destiny which awaits her. That she may be prosperous, great, and happy, is, I am sure, the wish of the people of Kentucky. They do not repine at their own condition, nor envy that of Ohio. The two States are neighbors, and have much intercourse, social and commercial. Nothing that can be said in relation to either of the States, by that or any other gentleman on this floor, can in the least effect the subsisting relations between them, or the internal police of either. The Senators from Ohio may have been gratified with the eulogy which he bestowed upon their State. Those of Kentucky were not in the least chagrined by his animadversions upon the condition of their State. They make no complaint that they were not assisted by the East in their wars with the savages. They feel a just pride in having triumphed over their savage enemies, without much assistance from that or any other quarter. Notwithstanding the imputed weakness of slavery, they were strong enough for their foes. Kentuckians never complain: complaint is the language of weakness—a language in which they never indulge. The Kentucky Senators perceived that the object of the Senator from Massachusetts, in complimenting Ohio so profusely, was really to compliment his own State: for, in the sequel, he ascribed all the fine attributes of character possessed by Ohio, and all their blissful effects, to the wisdom of New England statesmen.

It is true, that the people of Kentucky have been a good deal harassed by an unhappy perplexity in the titles to land in that State. The titles were derived mainly from Virginia, and the perplexity in them, to which allusion has been made, could not, at that time, and under the circumstances which then existed, have been avoided by any wisdom or foresight whatever. No blame attaches to Virginia or Kentucky on that account. A few years more and that perplexity will yield to the sacred force of proscription, the condition to which all titles to land must ultimately be reduced.

Yes, sir, perplexity of land titles and slavery have both existed in Kentucky; they both still exist. The former will, with the permission of the Supreme Court, soon cease to exist. But will those evils be at all mitigated by their introduction into this debate? Will the gratuitous mention made of them by the honorable Senator even alleviate them? Slavery must continue to exist in that State, whether for good or for evil, for years yet to come, notwithstanding his kind solicitude on the subject. And I have only to tell him that it is a subject which, so far as that State is concerned, belongs exclusively to herself, as a sovereign State. But, as the gentleman has mentioned that subject, (and it is one about which no gentleman from a non-slaveholding State can ever speak with any good effect, or for any good purpose) I must be permitted to talk a little about it. Sir, while I do not approve of slavery in the abstract, I cannot admire the morbid sensibility which seems to animate some gentlemen upon that subject.

It would appear, from the agony which the very mention of slavery seems to inflict upon the feelings of the two Senators who have discoursed about it, that it was a new thing in our land; that it had never been noticed or discussed before; or that those who had noticed and discussed it, were remarkable for the callosity of their feelings, or the obtuseness of their intellect. They seem not to be aware, that slavery has been not only tolerated, but advocated by the wisest and ablest jurists that ever lived; and that too upon first principles; upon the principles of natural justice.

The jurists deduce its justification from war; as a right which the captor has over the captive, whom he might have slain. From crime; that a life forfeited by crime may be justly commuted for, or rather transmuted into, slavery. From debt; that the debtor may justly enslave himself, in payment of a debt, which he cannot otherwise pay. From subsistence; that, in a state of population so dense as to reduce labor to its minimum price, that of mere subsistence, those individuals who cannot otherwise live, may justly enslave themselves for subsistence. In that state of things, the female who has thus enslaved herself becomes pregnant; during a portion of the period of gestation, she is unable, by reason of her pregnancy, to earn her subsistence by her labor; for subsistence during that period, both she and her offspring are hopeless debtors—the child, on account of the incapacity of the mother, during that time of gestation and parturition, of which it was the occasion—the mother on her own account; so that the infant was indebted before it was born, and becomes further indebted for its support during that period of its infancy in which it was incapable to earn its subsistence by its labor: and that thus, after laboring its whole life for its subsistence, it dies indebted for the support of itself and mother, during their respective incapacities.

Whether this reasoning be sound or fallacious, it is needless to inquire. It has the sanction of very high names. Without being able to refute it, my feelings have always been opposed to the conclusion to which it conducts my mind. But I have not been able, while I deprecated slavery, to perceive any practicable mode of weeding it out from among us. The condition of free people of color is infinitely worse than that of the slaves. Shunned by the whites, and not permitted to associate with the slaves, they are in a state of exile in the midst of society, and hasten through immorality and crime to extinction. I would ask the gentlemen if the States of New England would agree to receive into their society the emancipated slaves of the South and West? Sir, slavery has been reprobated throughout all time, but has never ceased to exist. It has prevailed through all time, and been tolerated by philosophers and Christians, of every sect and denomination, Jews, Gentiles, and Heathens. But if slavery be an evil, is there not some consolation in the reflection that it is not unmixed—that with a large portion of mankind it is connected with the very greatest good which they enjoy. It is a fact, verified by observation, that those who tolerate slavery are uniformly the most enthusiastic in their devotion to liberty. Montesquieu, whose name is, upon all subjects of this kind, very high authority, tells us that slavery is the natural state of man in warm, and liberty his natural state in cold climates. This sentiment is unhappily but too well supported by history.

The barrenness of the soil in high latitudes, the quantity of labor required of all, to produce a comfortable subsistence for all, and the rigors of the climate in which they live and toil, impress upon the people great vigor and hardihood of character, and qualify them to maintain and vindicate their liberty, whenever, and under whatever circumstances it may be assailed. Amid the severity and gloom of the climate, and the penury of nature, they find nothing so valuable, nothing which they estimate so highly, as their liberty. It is to them the greatest good, and compensates for the absence of all those bounties, which Nature has lavished upon the people of a warmer climate. They are necessarily free, and necessarily impressed with the value of their freedom, and possess the inclination, as well as the power to maintain it.

In Southern climates, nothing is so much dreaded as exposure to the fervid rays of the sun—and scarcely any thing is more enfeebling, and oppressive, than that exposure is to those who are not habituated to it. The special kindness of Heaven to man, is illustrated by holy writ, by reference to the refreshing influence of “the shadow of a great rock in a weary land.” In such a climate, none will labor constantly; but those who are forced to do so, and those who are constrained by the force of circumstances to labor, soon become reconciled to their condition. The languor inflicted by the climate, disqualifies them to conquer their condition, and fits them for it—and, owing to the bounty of nature, the labor of a comparatively small portion of the people, will support them all. Those who do not labor, while they enjoy the refreshing influence of the shade, are left in the possession of liberty, with leisure to cultivate its theory, and contemplate its charms, until they become enamored with it. Liberty is the beau ideal of the Southern and Western Slave holders—and indeed is more or less so, with all the white population.—Their devotion to it, partakes of the spirit of idolatry—and this sentiment is heightened by the constant presence of slavery, and is more and more strengthened by the contrast which every day exhibits, between their own condition and that of the slaves. So that if this reasoning be correct, the cause of civil liberty is gainer by the numerical amount of her votaries, thus rescued from the fervors of a Southern climate. But a few, instead of all the people in such a climate, are slaves; and our Northern brethren, if this theory be correct, have only to lament, in common with all the disciples of liberty, that nature exacts from the people of the South, the toleration of slavery, as the only condition upon which they can themselves be free.

Then, Sir, the toleration of slavery ought not to be imputed by our Northern, to their Southern brethren, as matter of reproach; for if, according to the jurists, it be justifiable upon the principles of natural justice, the people of each State are at liberty to tolerate it or not, as they may choose. It is, in the case, a mere question of policy. But if the writers on public law should, in this case, have erred, and slavery is not in accordance with the laws of nature, the slave-holders of the South are excusable, because they have been reduced by the climate which they occupy, to the necessity of submitting to it, as the least evil, and that at last is the alternative presented to man, in his progress through life, whether in his individual or aggregate capacity. His choice is, in no instance, perfect good. It is between a greater, and a less evil.

But is not the theory which I have been urging, affirmed and illustrated by the history of the condition of mankind in all ages? Of what instance to the contrary, does history furnish an account? Of what Southern country were the people ever free, who did not tolerate slavery? There are many instances of Southern people, who tolerated slavery without being free themselves. But I believe there is no instance on record, of a Southern people being, and continuing to be free, who did not tolerate slavery. The Jews—the Greeks—the Romans, were respectively the freest people of the periods in which they lived, and they each tolerated slavery in its most repulsive form. They, too, were greatly in advance of other nations, in civilization and all the arts which embellish life. They gave important lessons on the science of free government, to their cotemporaries, and to succeeding generations. They, who but for the slavery which they tolerated, would have been slaves themselves, taught mankind how to live free, and what was greatly more important, how to die for the maintenance of their liberty. I do not mean that the science of free government was thoroughly understood by either of them. They were greatly in advance of their com-peers, in that science, perhaps as much so, as we are in advance of them. And we, I regret to believe, are yet far short of perfection in it.

Whether the principles of free government will ever be so simplified, as to be comprehended and understood by the people generally, and whether it will be possible, even if such should be the fact, for them to resist successfully, the unceasing and almost imperceptible encroachments of aristocracy upon their rights, is a problem of the very deepest interest, and remains to be solved.

But I have been led away by this subject. It is one of great delicacy, and deep interest. It must not be meddled with from abroad. The Southern and Western States cannot agree that it shall be discussed by those, who can have no motives of even a philanthropic cast, to meddle with it at all. It is exclusively their own subject, and must be left to them, and the destinies.

The gentleman seemed to think that the Senator from South Carolina, (Mr. Hayne,) was looking out for Western allies—that his object was to conciliate the West. The sentiments uttered by the Senator from the South, (Mr. Hayne,) in relation to the public lands in some of the Western States, were elevated and just, and such as in my opinion might be expected from an enlightened statesman. There are no lands belonging to the United States in the State of Kentucky, and I thank heaven that such is the case. The slavery and perplexity of land titles, which have been imputed to Kentucky, may be very great evils, and the first of them has been felt as such by the people, to an afflicting extent. But in my judgment, both together are a very little matter, compared with the evil experienced by a State, whose territory belongs to the United States. In Kentucky, however perplexed the titles of her citizens to their lands were, the title of the State to all the territory within her limits, is unperplexed, simple, and sovereign. The Senator from South Carolina, therefore, could not, in all that he said in reference to the public lands, have expected to operate upon Kentucky, nor could he justly be suspected of an intention to propitiate the States in the valley of the Mississippi, because it was what they had a right to expect from him, and every other member of this body. And they ought not to be supposed to take as a favor, what they have just cause to demand as a right. No, Sir, if there was any indication given of illicit love, it was most obviously on the part of the Senator from Massachusetts, towards the State of Ohio. That he had no love towards Kentucky, was very obvious, and that his regards for Ohio were of the tenderest sort, was most obvious. Whether she will reciprocate his love, is, I think, somewhat problematical, but about that matter I have no concern. I can only say that whatever may be the inclination of the East, or the South, towards Kentucky, in regard to alliances, it may be abandoned. She is not in a wooable condition; she is wedded to the Union, and will not hear of any other alliance.

The Senator from Maine, too, [Mr. Sprague,] has given us a most glowing description, or rather depiction of New England. He does not, as the gentleman from Massachusetts did, speak of New England through Ohio. He speaks right at her, and directly of her. He has told us of the first colonists, of the manner of their landing, and of the place at which they landed. He has described them, not as hardy puritans, but as venerable pilgrims, landing upon the rock at Plymouth, with the bible in their hands—yes, sir, the holy bible in their pious hands!! He has told us too, that they extracted the model of their free and happy governments, from that sacred volume, and that they got from that same holy book, those pure principles of morality, and piety, and that love of order, which so signally characterize them at this day. And he has taken special care to inform us, that they were inspired with an emphatic abhorrence of slavery, by the divine injunction of that same sacred volume, “to do unto others as they would that others should do unto them.”

While the Bible furnishes the very best rules by which to regulate the conduct of individuals towards each other and their Maker, I must be allowed to say, that the pilgrims of Plymouth must have been very ingenious to have discovered in it either the model of a free Government, or the political principles upon which a free Government can be predicated—with the exception of what is called a theocracy—in which the priests ruled; all the Governments of which it treats, were those of Kings and Judges. At present, the representatives of the people of New England seem to have a very decided preference for the judges. No man can read in the Bible of a republic. Those pilgrims only took their government from the Bible, “until they found leisure to make a better,” and they did make, and do now enjoy, a much better government, than any of which that good book speaks.

Sir, I was so charmed with the eloquence of the gentleman, that I fancied for the while that New England was a very elysium—that its surface was gently undulating, carpeted with verdure of the deepest hue, interspersed with flowers of every tint and flavor: that the forests were composed of sacred growths—the palm, the cedar, the fir tree, and the olive—tenanted by birds of the most varied and vivid plumage, and of exquisite notes. That the music of the grove was rendered somewhat more solemn by the plaintive cooing of the dove, perched, not upon the withered limb of a thunder-scathed oak, but upon the verdant bough of its own olive—the tree from which it plucked the emblematic sprig, which it bore in its beak to the patriarchal voyager. That the venerable pilgrims sauntered upon the surface, or reclined in stately recumbency, upon the green banks of the pellucid streams, which meandered in every variety of curve, through the tall groves, and discoursed sweet music with the pebbles, except perhaps on Sundays. That in this posture of graceful recumbency, they inhaled the odoriferous breezes, which gently agitated the balmy air, and occasionally quaffed Nectar from the hand of the obsequious Ganymedes. But when the gentleman had closed his description, and the illusion produced on my fancy by his eloquence had subsided—or, in other words, Mr. President, when the poetry of his description was reduced to plain prose—I found it was all a notion. That he had been talking about the hardy New Englanders, and about the poor broken scrubby lands of New England, out of which the virtuous yeomanry of that country extract not only comfort, but wealth. That the fancied Nectar was neither more nor less, than plain New England rum; and that, in the generous use of it, each man was his own Ganymede, and helped himself with an alacrity proportioned to his thirst.

Now, Sir, I am willing to admit that the people of New England have many virtues; they are honest, industrious, enlightened, enterprising, and moderately pious. I admire their free school system, and have no doubt that it conduces greatly to the diffusion of much useful knowledge among the mass of the people. But, after all, they are no better than they should be—no better than their Southern or Western neighbors. The people of every State have their respective advantages and inconveniences; and are all of them more or less under the control of circumstances, over which they themselves have no control. They are all aiming at the same object, and all employ such means to promote it as their condition permits. To be happy is not less the aim of the other States, than of New England; and they perhaps have not been less successful than she. Let her not be so weak as to suppose, that none can enjoy it who do not conform to her standard. Let all the States unite in maintaining the freedom of each, and let each be free to pursue its own happiness in its own way. Comparisons, taunts, and reproaches, can produce no good effect, and may tend to disturb those good relations which ought to subsist among the people of our Union.

Let me not be understood as disparaging New England in any, the slightest degree. I rank her with her Sisters of the Union, neither more nor less fair or accomplished than either of them—they are all virtuous. The only freckle which I can discern of the face of New England, is, that she is sometimes a little too vain of her beauty, and too much disposed to trumpet it. I have never been in that region; but if I were to take their late representative in this body (Senator Lloyd,) as the criterion by which I should judge of them, I would certainly rate them very high. He would have filled the character of Senator in the proudest day of the Roman Republic—no man ever occupied a seat in the Senate of the United States, who was his superior, in all that constitutes excellence of character, in the Senator and the gentleman. I have no prejudices against, but rather partialities for, New England. Of one thing I am satisfied, and that is, that New England can, and will, take care of herself. My inclination is, that the other States should do the same; and that neither should unnecessarily, or wantonly, intermeddle with the concerns of the others.

But I did not rise, let me assure you, to discuss the subjects which I have cursorily noticed. I could not have been tempted by them, to encounter the embarrassment which speaking in this body has always inflicted upon me. I rose mainly to enter my solemn protest against some of the political doctrines advanced by the honorable gentleman from Massachusetts (Mr. Webster.) He has asserted, in the course of this debate, that the constitution of the United States was not formed by the States; that it is not a compact formed by the States, but a government formed by the people; that it is a popular government, formed by the people at large; and he adds, “that if the whole truth must be told, they brought it into existence, established it, and have hitherto supported it, for the very purpose, among others, of imposing certain salutary restraints on State sovereignties.”

He asserts further, that in forming the General Government, the people conferred upon the Supreme Court of the United States, the power of imposing these certain salutary restraints upon the sovereignty of the States. Now, Sir, believing as I do, most solemnly, that these doctrines strike at the root of all our free institutions, and lead directly to a consolidation of the Government, I cannot refrain from attempting, however feeble the attempt may be, to expose their fallacy, and their dangerous tendency. It is the first time they have been openly avowed, (so far as I have been informed,) in either House of Congress. They were thought to be fairly inferrible, from the tenor and import of the first message of the late President Adams, to the Congress; but they were left to inference, and were not explicitly avowed. The recommendation of Secretary Rush, that the industry of the people should be regulated by Congress, must have been predicated upon his belief, and that of Mr. Adams, in these doctrines. But still the friends of Mr. Adams, when these doctrines were imputed to him, and his message quoted in support of the imputation, resisted it with warmth, and ascribed the inferences from the message, and from the report of Secretary Rush, to unkind or party feelings. Now, the explicit avowal of the honorable Senator, (Mr. W.) removes all doubt from the subject. We can no longer doubt as to what was the political faith of Mr. Adams. His most zealous and most distinguished apostle has avowed it. The two parties are now clearly distinguishable, by their opposite political tenets; the one headed by our illustrious Chief Magistrate, who is the friend and advocate of the rights of the States; the other party is now headed by the honorable Senator from Massachusetts, (Mr. Webster,) and is, as I shall contend, and attempt to prove, in favor of a consolidation of the Government—of a splendid Empire. The doctrine avowed is neither more nor less than that the State sovereignties are merely nominal, and that the Government was consolidated in its formation. How it has happened, that this essential characteristic of the Government was so long kept a secret from the people of the States, is a matter of some mystery. Why was it not avowed at the time the Constitution was formed? Why was this disclosure reserved until this time, and for this occasion? Is there any thing in the message of the President, or in the political condition of the people of the States, which demands its promulgation at this time? Are the people prepared, think you, to receive an entire new version of their Constitution? Will they give up their dependence upon their States respectively, and rely upon the great Central Government for the protection of their lives, liberty, and property? Sir, I think not; they are not yet sufficiently tamed and subdued, by the aristocracy of the land, and the encroachments of the General Government upon the rights of the States, to submit just at once.

Mr. President, I would ask the honorable Senator how his doctrine can be correct, consistently with the known state of facts, at the time the Constitution was formed. What was the condition of the people at that time? Were they at large, and unconnected by any political ties whatever? Or were they in a state of self government under distinct political associations? It is known to every body, that the people consisted of, and constituted thirteen distinct, independent, and sovereign States. That those States were connected together by a compact of Union, and that the great object of the people of the States, informing the Constitution, was that declared in its preamble, to make the Union more perfect. What union, I would ask, or union of what? Most certainly of the States, already united, whose union was thought to be imperfect. To give more compaction, and render more perfect, the Union of the States, was the great desideratum. To consolidate the union of the States was the object of the constitutional compact.

But I desire to be informed, how the people could absolve themselves from their allegiance, to their respective States, so as to be in a condition to form a National Government? And what need could they have for a National Government, before they had formed themselves into a nation; and how they could form themselves into a nation, one nation, without abandoning, or throwing off their State costume, and even dissolving the compacts, by which they were formed into States?

We all know, that there are but two conditions of mankind. The one natural, the other artificial. And we know that in a state of nature, there is no government. That all are equal in that condition, and when all are equal, there can be no government. The laws of nature are the only rules of human conduct in that condition, and each individual is his own expounder of those laws. He is the arbiter of his own rights and the avenger of his own wrongs. Such was not the condition of the people when the Constitution was formed: They were not at large and at liberty to improve their condition, by their confluent voice or agency. And if they had been so situated, they would not have formed such a Constitution as they did, as I shall attempt hereafter to shew. The Constitution is not adapted to the People, in any condition, which as one People they could occupy, while it is admirably adapted for their use, in their State capacities—the purpose for which it was formed.

I desire further to know, in what sense the words, State and People are used by him, when he says, “The People brought it (the constitution) into existence, for the purpose, amongst others, of imposing certain salutary restraints upon State Sovereignties.” Indeed, I should like to know in what sense he uses the word sovereignties, in that connexion. Now, sir, I understand State to mean the people who compose it,—that it is but a name by which they, in their collective capacity, are designated. By the people of the United States, I understand, the distinct collective bodies of people, who compose the States that are united by the Federal Constitution. And by the United States, I understand, the distinct collective bodies of people of which the States are composed. But I shall make myself better understood by a short analysis of the process by which a State is formed.

The power which is exerted in governments, must either have been willingly conceded by the people, or taken from them against their will. If it could only be obtained in the latter mode, there could be no free governments. In a state of nature, there is no power, (I mean moral power,) in one man, to direct, control, or govern another; all are free. The evils inseparable from this condition need not be enumerated by me: they have been portrayed by all elementary writers on the science of politics. It suffices to say, that they are such as to induce those in that condition to hasten to escape from it. All political doctors agree in telling us, that the transition from a state of nature to a state of civil society, is effected by an agreement among all who are to compose the society—of each with all, and all with each, that each, and his concerns, shall be directed by the understanding, and protected by the force or power of all. The agreement is reciprocal of each with all, and of all with each. The right which each man possessed in a state of nature, to direct himself and his own concerns, by his own will, is voluntarily surrendered by him to the society; and he agrees that he and his concerns shall thereafter be subject to the direction and control of the understanding or will of the society. This contract is either express or implied—but most frequently implied, and is necessarily supposed to have been formed by every people, among whom laws and government are found to exist. I say necessarily: for the power to make a law, or to govern, can be obtained upon no other supposition. It is denominated the social compact. It is the charter by which civil society is incorporated—by which it acquires personality and unity—by which the action of all the people, by a majority, or in any other mode which they may designate in their constitutional compact, is considered as the action of a moral agent—of a single person. This moral agent is, in reference to its own condition and concerns, called a State—probably from the fixed and stable condition of the people, compared with the invariable and fluctuating condition in a state of nature. In reference to other States it is called a nation, and acts and holds intercourse with them, as an individual person. Much confusion has arisen from the indiscriminate application of the word State to different and distinct subjects. Sometimes it is used to mean the government of the State, instead of the people in their political capacity.

There is nothing more common than to hear men, who are even distinguished for their political knowledge, say that in forming government, men surrender a portion of their natural rights to secure the protection of the balance. Yet there is no error more palpable. If that notion were correct, the legitimate power of the State, (and throughout this argument I shall use that word to mean the people of the State) would be too limited for any beneficial purpose. Then, indeed, a State would not possess sovereign power. The State, in that case, could not protect either the citizen or his property. He would not even be a citizen: for it is in consequence of his having surrendered not a part, but the whole of his self-control, that he is a citizen—and it is only as a citizen, that a State can demand any public service from him, or control him in any way. Neither could his property be subject to the control of the State, even in reference to its protection, if the control of it all had not been surrendered in the social compact. Now this individuality of the people produced by the social compact, subsists while that compact lasts, and it confers upon the State which it has formed, the self-preserving power to the extent of the moral and physical energy of all. The motives which lead to the formation of a State can never cease to exist; a state of nature, is at all times equally infested with insecurity and wretchedness, and of course there will always be the same motives for shunning it, and it can only be avoided by remaining in a state of civil society. Hence we have no account in history of the voluntary dissolution of the social compact. Civil societies have been destroyed by earthquakes, by deluge, and by the exterminating ravages of war, but never by a voluntary dissolution of their social compact. They have, to be sure, been often subdued into vassalage, or reduced to the condition of provinces. Indeed, it is difficult to conceive how they could be dissolved by the will or agency of the people who compose them. The will of the whole is the will of one political body—of one corporate agent; and a self-destroying will, or purpose, would be as unnatural in a body corporate, as in a body natural.

Again, any attempt by any of the members of the society, to thwart or counteract the self-preserving will of the whole, would be highly criminal, would be treason, and subject those who made the attempt to the fate, which they meditated against the body politic.

The States, therefore, remained in full vigor, while the Constitution of the United States was forming. They were not even shorn of any of their sovereign power by that process, for the gentleman says, that that instrument was brought into existence, among other reasons, for the purpose of imposing certain salutary restraints upon State sovereignties.

Now that which does not exist, cannot be restrained. He, therefore, admits the existence of the sovereignties of the States, not only at the time, but ever since the formation of the Constitution. If the sovereignty of each State was separate and distinct, and consisted in the concentrated will of the people of each, by what authority could the people of the State of Georgia interfere in the reduction or modification of the sovereign power of the State of Virginia, and if they could not interfere in the regulation of the power of the State of Virginia, by what mode could the people of Virginia itself, other than their collective, their State capacity, diminish or modify the sovereign power of that State! The people of no one State could interfere with the rights of another, nor with its own, in any other capacity, than as the collective body which composed the State. But, upon the supposition, that the People of all the States, not in their State capacities, but at large, and by their confluent voice or agency, formed the Constitution. The difficulty still presents itself. By what authority did all unite in modifying the Constitution of each. They had not entered all into one general compact, and thereby conferred power upon the majority, to form the Constitution, by the adoption of the State machinery, which they had thrown off. This Government is not formed by the people at large, out of the exuviae of the States. But will the gentleman have the goodness to tell us, what is the power, and where does it reside, which is employed in altering the Constitution of a State? Does it not reside exclusively in the People of the State, and in their collective capacity, and must it not be exerted in that capacity, to produce any alteration in their Constitution? And must it not be exerted according to the mode prescribed in the Constitution? Can the People, pursuing that mode, be viewed in any other than their State capacities? The gentleman, I am sure, will answer these questions in the affirmative. Well, the State Constitutions were all affected, and seriously too, by the Constitution of the United States.

Now, if none but the people of a State, in their distinct State capacity, could affect its Constitution, then their action in forming the Constitution of the United States, must have been exerted in their State capacity. The States, whereby I mean the people of each, as a distinct political body, then must have formed the Constitution, and not the People at large. If these views are correct, how can the gentleman reconcile his idea, that the Constitution was formed by the People, and not by the States, with his other idea, that it was formed by the People to impose certain restraints upon State sovereignty. If the People acted in their distinct State capacities, then they could consistently impose restraints upon the exercise by the States of their sovereign power—but then they acted as States—and imposed the restraints by compact; and in no other capacity could they act, nor by any other mode than by compact, could they achieve that object. The social compact gives, as I have urged, unity and compaction to the People. It gives the power to the State, which it forms, of expressing its will by a majority. And thus it acts in forming its Constitutional compact, and in the exercise of its legislative power. This power of acting by majority, would be tyranny over the minority, if it had not been conceded by the social compact. Upon this ground it must be obvious, that the social, must precede the Constitutional compact, and that the power to form the latter must be derived from the former. But until there be a State, there can be neither need for a government, or the power to form it. So that, if the People had not, at the time the Constitution was formed, existed in distinct political bodies, they must all have existed in one political body, before they could either need a government, or possess the power to form one.

Sir, I know that the discussion of the elementary principles of government is dry and uninteresting—indeed all abstract discussion is so—but the Senator from Massachusetts has led the way. He has made it necessary for me, either to acquiesce in doctrines, which I consider dangerous to the liberties of the People, or to attempt to refute them. Indeed, I think it is greatly to be regretted, that the true principles of our free institutions have not been more frequently the subject of discussion. The clear comprehension and maintenance of them, is essential to the liberty of the People. To obliterate or obscure them, will always be, as it always has been, the purpose of those who would misrule, and oppress the People.

That the Constitution must, of necessity, have been formed by the States, and not by the people at large, I have attempted to prove by referring to natural principles, and to the existing state of things, at the time it was formed: I will refer you to that instrument itself for further proof of that fact. I have already called your attention to the preamble: It is in these words: “We, the People of the United States, in order to form a more perfect Union,” &c. Let me ask again, if the words “we, the People of the United States,” meant we the People not of the United States? Why were they termed People of the United States, if they considered themselves as absolved from their State relations, and at large? Can we construe the words “United States” in this connexion, to mean the People within the outer boundaries of the exterior States, without reference to the States and State institutions in any other sense? Are we not forbidden to give them this meaning by the words which follow, viz: “to form a more perfect Union?” The word Union can relate to nothing but the States. The object, as I have before stated, was to unite them, not the People, more perfectly: Besides, a more perfect union of the People cannot be produced by a constitutional, than by the social compact. It is not the object of a Constitution to unite the people. It pre-supposes their most perfect union under the social compact. It is owing alone to that pre-existing Union, that they can form a Constitution, or have any need for it. It would have been inappropriate, therefore, in the preamble to the Constitution, to have said, “in order to form a more perfect Union,” in reference to the People; besides, there was not then, nor had there existed, any political Union among the People—merely as People. The Union which existed under the articles of Confederation, was a Union of the States: To form a Union of the States more perfect than the one which then existed, was the object, I repeat, of the present Constitution.

That such was the intention of those who framed the Constitution, is obvious from the structure and phraseology of that instrument. In the 2 d section of the 1st article, we find this provision: “The House of Representatives shall be composed of members chosen every second year by the people of the several States.” And again, “Representatives and direct taxes shall be apportioned among the several States which may be included within this Union.” We see, from what I have read, that the members were to be chosen, not by the people at large, but by the people of the several States—and this shows what was meant in the preamble, by the words, “we, the people of the United States.” It shows that these words meant “the people of the several States.” The people who formed the Constitution were to elect their members in the same character in which they formed that instrument—as the people of the several States. This idea is confirmed by the provision “that representation and direct taxes, shall be apportioned among the several States.” What several States? The answer is given in the same sentence—those “which may be included within this Union.” Then the Union was of States: They were to be represented as States, and taxed as States; and only the States which might be included within the Union, were to pay tax and be entitled to be represented. Here, too, the word State most evidently means the people who compose it. They are to choose representatives and they are to be taxed as the collective bodies who constitute the State. Again, the same provision, farther on, reads thus: “The number of representatives shall not exceed one for thirty thousand: but each State shall have at least one representative, &c; and, until such enumeration shall be made, New Hampshire shall be entitled to choose three, Rhode Island one,” &c. Here it is very evident, that the word “State,” as used to mean the people of the State—population is made the basis of representation—the ratio is fixed at thirty thousand, but whether thirty thousand, or a smaller number of people, composed a State, it should have one Representative.

So, too, the provision that the State of New Hampshire should, until the next enumeration, be entitled to choose three representatives, means, that the people who composed that State should choose, and implies that their number was at least ninety thousand, and so of the other States. But hear this provision of the Constitution still further to the same effect: “When a vacancy happens in the representation from any State, the Executive authority thereof shall issue writs of election,” &c. Who can misunderstand this language? Who does not see, from the clauses of the Constitution which I have read, that that instrument was made by the people of the States, in their State capacity; that the States made it. In the last clause there is an evident distinction between the State and the government of the State, “to fill a vacancy happening in any of the States; the Executive authority thereof should issue writs of election,” &c. The States were to have the representatives one for every 30,000 composing it, and the Executive authority of the State was to issue writs to fill vacancies happening in the State. Now, the State is formed by the social compact; the Executive authority was formed by the constitutional compact; the Constitution, in all its references to the people, and in all its requisitions on them refers to them either by the term ‘State,’ or by the terms people of the State, as is evident from the clauses which I have read. But this distinction between the State and the Government thereof is obviously displayed in the third section of the first article: It relates to the creation of the Senate, the body which we now compose, and reads thus: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof.” Here the word State, as in the other instances which I have read, means the people incorporated by the social compact, and the Legislature which was created by the constitutional compact, must be referred to the Constitution, by which it was created.

The social compact created the State; the State created, by its constitutional compact, its government; and hence we say, the Government of the State, the Legislative, Executive, and Judicial authority of the State; the People of the State can speak or act only through their constitutional functionaries, or by convention.

The prevailing idea that, when the Constitution of a State is abolished, the people are thrown back into a state of nature, is erroneous, and one which, as used by aristocrats and office holders, does much harm. It is urged to deter the people, who are often duped by it, from that seasonable resort to first principles which is essential to the preservation of their liberty. Now, we all know, that the abolition by a State of its Constitution, no more affects the social compact, or the existence of the State, than the repeal of a statute affects it. The State made its Constitution, and enacted the statute. The same sovereign power was exerted in both instances, alike in the creation and the abolition of both, and exists in the unimpaired efficacy of the social compact.

Every State has its fixed and its variable attributes of character. The former is political, and identified with the social compact; the latter exists on the changeable qualities or habits of the people. Thus a nation is said to be brave or cowardly, sincere or faithless. The people of Spain were at one time remarkable for their fine chivalric spirit. Not so now. Punic faith is a lasting stigma upon Carthage. But that the compression of the people, by the social compact, into the unit called a State, remains, under all the changes of character which the people undergo, and all the changes of its government, which choice or accident may produce; or war or convulsion inflict, itself unchanged. If a republic becomes a monarchy, or if a monarchy becomes a republic, these are but changes of government; the civil society, or State, remains unaltered, and is sovereign, while ever it manages its own affairs by its own will. It is upon this principle that States are not absolved from their debts by revolution. The State, and not “the Government,” is the contracting party, and nothing but the dissolution of the social compact, and consequent extinction of the State, can absolve from its payment.

Now, Sir, unless I am wrong as to the formation and character of States, and unless I have read the Constitution wrong, that instrument not only was not formed by the people at large, but could not, as I have before said, have been formed by them. It could not have been formed by the people in any other capacity than as States. It was, we know, formed by representatives from the States, and it was adopted by the representatives of the States, severally: for the members of the conventions in the several States, were not less representatives of the States severally, than their legislative representatives.

I contend, therefore, that the States made the Constitution, and thereby rendered the Union greatly more perfect, than it was under the articles of confederation. I contend, also, that the individuality, and sovereign personality of the States, were not at all impaired by that instrument. That the States remain plenary sovereigns, as much so as they were before the formation of the Constitution. That they have not by that instrument parted with one jot of their sovereign power. You seem to startle; but hear me. I contend that the States, as plenary sovereigns, agreed by the Constitution, (which is but the compact of Union,)—that they would unite in exerting the powers therein specified and defined, for the purposes and objects therein designated, and through the agency of the machinery therein created. The power exercised by the functionaries of the General Government, is not inherent in them, but in the States, whose agents they are. The Constitution is their power of attorney, to do certain acts, and contains, connected with their authority to act, their letter of instructions, as to the manner on which they shall act. They are the servants. The power which gives validity to their acts, is in their masters, the States. Where, let me ask you, is the power of Congress during the recess of that body? Certainly not in the individual members—they do not carry it about with them. Suppose the Judges of the Supreme Court were by some fatality thrown out of existence, where would be the judicial power which they exercised, until others were appointed? Upon the death of the President, where is the supreme executive power of the Union? You may tell me in the Vice-President. But between the death of the President, and the induction of the Vice-President, where is it? The answer to these questions is most obvious. It is, that they possessed no sovereign power, that they were but the agents of the sovereign States—that the States retained all their sovereign power, and still retain it. That it is inherent in them—not in three-fourths of the States, but in all of them. In amending, or altering the Constitution they have agreed, that the voice of all, shall be expressed by three-fourths.

The sentiment that the States, by the formation of the Constitution, divested themselves of a large portion of their sovereign power, is in my humble opinion, as erroneous as it is unhappily prevalent. And this error will be advocated by all who are hostile to State sovereignty, and friendly to a consolidated government.

I have attempted to prove in a previous part of my argument, that a State could not, without dissolving its social compact, divest itself of its sovereign powers. To suppose that a State could be dependant, and sovereign, at the same time, would be to suppose it destitute of that unity, which is of the essence of its nature. It would be not only to misconceive the character of a State, but to ascribe to it two inconsistent modes of existence. Nor is it more admissable to suppose that a State is sovereign, and at the same time subject to certain salutary restraints upon the exercise of its sovereignty by any other power. For I lay it down as a truism in political science, that whenever a State is subject to the control of the will of any other power, it has ceased to be sovereign, and is the province of the power that may control it. I say, may control it, for its subjection does not consist in the actual exertion upon it, of the controlling power, but in its subjection to that control. Slaves are not always under the controlling action of their masters’ will. Indeed they are but seldom so. Yet they are not the less slaves when they are not, than when they are under his actual control, because their slavery consists in their subjection to his will, and not in their actual continuous conformity to it.

It is for that reason, that slaves cannot form, or enter into, a social compact. They lack that exemption from control, that freedom of will, of which the sovereign power of the State is created by the social compact. Then if it is essential that the component parts of sovereignty—that the will of each member of the social compact shall be free from subjection, does it not follow that the sovereignty itself should be alike free from subjection? The sovereign power of the State, (as I have before urged) consists in the free will of all the members of civil society, compacted by the social compact, into a corporate person. The elements of this power being free, the aggregate must be so. There is, therefore, no law obligatory upon a sovereign State, but that which was obligatory upon its constituent parts. The laws of nature were alone obligatory upon man in a state of nature, and no other laws are obligatory upon a sovereign State: for all the rights, powers, and privileges which were possessed in a state of nature, by the individuals who compose the State, are concentrated, by the social compact, in the State, and constitute its sovereignty. Control implies superiority on the part of the controlling, and inferiority on the part of the controlled. But sovereigns are equal; and it is of the essence of sovereignty that it cannot admit of salutary restraints aliunde. It is a governing and self-governed power. Besides, a State would be unfit, indeed disqualified, to protect its citizens according to its stipulation in the social compact, if it were, as the Senator supposes, subject to those salutary restraints, by the judicial functionaries of the General Government. It would indicate by its weakness, that instead of protecting, it needed protection. The reciprocal duties and obligations which now exist between the States, and their citizens, would vanish. But the gentleman is kind in subjecting the States to none but salutary restraints. The Supreme Court are to judge whether the restraints are or are not salutary, which they will, no doubt, seasonably impose upon State sovereignties. The sovereign State is not to form any opinion on this subject, and therein, and by its passive acquiescence display, according to his opinion, its sovereignty. I can form no idea of a sovereignty subject to such restraints. It is illusive, and but the precursor, as I fear of a declaration hereafter to be made, that the States are not sovereign. Indeed it is to my mind nothing short of a virtual declaration to that effect now: for there is no such thing as half, or three quarters, or seven-eighths sovereign. Every State being a unit, must be entirely of one character—must be either sovereign or vassal; and I repeat that a State, subject to be controlled by any other power, is the vassal of that power.

I admit that a sovereign State may forbear to exercise her sovereign power, in relation to given objects, or classes of objects. She may stipulate thus to forbear the exertion of her sovereign powers, or she may stipulate to exercise her sovereign powers in conjunction with other States, in relation to a certain class of subjects, and to forbear to exert them individually upon any of those subjects. But the very stipulation, instead of renouncing the powers which are to be jointly exercised, implies their retention. Such a stipulation I consider the Constitution to be. I view it as an agreement between the sovereign States to exert jointly their respective powers, through the agency of the General Government, for the purposes, and in the manner delineated in that instrument of compact. Each State exerts its plenary sovereign power jointly, for all the legitimate purposes of the Union; and separately, for all the purposes of domiciliary or State concerns. An individual citizen may stipulate to transact a portion of his business by agent, and the balance by himself; and that he will forbear to exert his moral faculties or physical energies upon that class of subjects, which, by his stipulation, are to be acted upon by his agent; has he, by his stipulation, lessened, impaired, or diminished his moral or physical powers? Certainly not. The validity of the agency depends upon his retaining those faculties: for if he shall become insane, or die, the agent cannot act, because the power of his principal has become extinct. So it is the power, the full subsisting sovereign power of the States, which gives validity to the acts of the General Government. The validity of those acts does not result from the exercise of a portion of the sovereign power of each State.

Sir, we cannot conceive of a sovereign act, without the consciousness that it must have been performed by a sovereign power. An atom is a very small part of a globe, and yet the creation of that, implies the exertion of as plenary sovereign power as the creation of the globe. The creation of the latter, may require a greater, or more protracted exertion of power, than the former; but the odds is in the degree, and not in the character of the power. It is alike sovereign in both instances. The power in the State, which is exerted in taking from a citizen an acre of his land for a public high-way, is not less sovereign, than that which is exerted in taking his life for a crime—nothing less than plenary sovereign power can effect either; and there are no degrees of comparison in sovereign power; there is not sovereign, more sovereign, and most sovereign power. The States were, before the formation of the constitution, equal, for they were sovereign; since that instrument was formed, they are not less equal; because they are still sovereign, as much so now as then; and because the powers which they stipulated in that compact to forbear to exercise separately, and to exercise jointly, were equal. So that, if the powers which they exercise jointly, under the constitution, be considered, they are equal, and equally exerted, by the joint action of all the States, through their agents; and the powers which each may, consistently with their constitutional compact, exert separately, are equal; and whether viewed in their joint or separate action, they are equal. And when a new State is admitted into the Union, it enjoys by constitutional stipulation, an equality with the other States of the Union.

And here, Mr. President, I would ask the honorable Senator, if the constitution was formed by the People, as he alleges, and not by the States, how it happened to be provided in that instrument, that the enlargement of the Union should be by the admission of the States, and not of People, as such; and why the stipulation as to equality, should have related to the States, and not to the People? And while on this point, I would ask him, why the provision in that instrument for its adoption, referred it to the States, and not to the People; and why, under that provision, the little State of Delaware had as much weight in its adoption as the great State of Virginia?

But, Sir, I fear that I am fatiguing you and this honorable Body; my object has been, to show that the constitution was not, could not, have been formed by the People; that it must have been formed by the States; that the States acted as plenary sovereigns in forming it; that their sovereign character and individuality, was not impaired by that instrument; that it is now administered by them, in the character in which they made it, that of full and perfect sovereigns; that the constitution is nothing more, nor less, than a compact between sovereign States, who are parties to it; that the union of the States produced by it, is more perfect than that which existed under the articles of confederation; and that its increased perfection consists mainly in the stipulation, that the States may exert their joint legislative, executive, and judicial power, upon the People of each. This is a stipulation of each with all the others, and of all the others with each; and this is the stipulation to which the illustrious Washington alluded, when he spoke of the consolidation of the Union. But still, in this stipulation, the People are regarded as citizens, as collective bodies, constituting the States respectively. The States, in the joint exercise of power, through the agency of the General Government, must confine themselves to the powers stipulated in the bond of union—to the constitution; and in doing that, they must consider the People as citizens of their respective States. Thus, the constitution provides, that all trials for crime shall be in the State where the crime is alleged to have been committed; and so in the exercise of the power which allowed to Congress, to provide for organizing, arming, and disciplining the militia, and for governing such part of them as shall be employed in the service of the United States, they are regarded as the militia of the States severally; and each State has the right to appoint the officers for its own militia. So also it is stipulated, that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.”

Now, Mr. President, if I have been correct in my sentiments as to the process of forming a State, and as to the relation which the people of a State bear to each other and their duties resulting from that relation to the State, and the obligation of the State to them, and as to the origin, extent, and character of the sovereign power of a State, I think it will follow, that the sovereign power of a State is an unfit subject to be disposed of by judicial decision; and that the Supreme Court is an unfit tribunal to dispose of the sovereignty of the States, or in the language of the Senator from Massachusetts, (Mr. Webster) “to impose certain salutary restraints upon State sovereignties.” It will follow too, that his views and mine are toto coelo apart. He thinks that this is a consolidated Government. His denial that it was formed by the States, and assertion that it was formed by the people at large, cannot, whatever he may say upon that subject be construed into any thing else, than that this was a consolidated Government in its very formation. And the assertion of power which he has made for the Supreme Court, if it be sustained, must lead to the consolidation of the Government, if it were not before consolidated—so that, according to his notions, if we have not now, we must have, a consolidated Government. If it was formed by people, it is so, if they did not make it so, the Judges will; and therefore, according to his propositions and arguments, there is no mode of escaping from a consolidation of the Government.

Mr. President, my hope is in the intelligence of the people of the States. I consider that they will never submit, that the sovereign power of the States shall be narrowed down, controlled, or disposed of, by a quorum of the Judges of the Supreme Court. They will discern the intrinsic unfitness of the sovereignty of their States, for either forensic discussion or judicial decision, and oppose it with their suffrages, with the force of public opinion, and in whatever other way they may—we would deride with scorn and indignation, any sovereign of Europe, who would agree to submit the sovereignty of his State to the arbitrament of even neighboring sovereigns. How infinitely more exalted is the sovereignty of a State composed of free citizens? And how degrading is the idea that sovereignty, the sovereignty of free States, must be subjected to certain salutary restraints? Sir, the history of the world does not furnish an instance in which the sovereignty of a State was ever subjected to judicial decision; or to any other power than the God of Battles, and the Lord of Hosts!

But allow me, Sir, to inquire into the fitness of this tribunal, for the exercise of the power asserted for it by the honorable Senator; and allow me to preface the inquiry by a few observations upon the nature of our Governments. I have thus far, spoken much more about the States than about their Governments. In the Republics of our country, the great, the leading principle is, that the responsibility of the rulers, or public agents, shall be commensurate with the character and extent of the power confined to them. Our Governments are contrivances, or devices, by which the people govern themselves—by which the governed govern; ours are Governments of law. Indeed all free governments are of that character; and the great difficulty has always been to guard against, and check efficiently the influence of the selfish principle (which is so deeply rooted in human nature,) over those, who are entrusted with making and administering the laws. Now when we regard the zeal and vigilance with which the States, in the formation of their respective constitutions, and in the formation of the General Government too, endeavored to check this selfish principle in their political agents, and render them responsible, we shall be slow to believe that it was their intention, when they formed the Constitution of the United States, to confer upon the Judicial Department, this transcendent and all absorbing power.

It is to secure against the influence of this selfish principle of our nature, that in almost all the Governments of the States, the members of the Legislative Department are elected for short periods—those of the Representative branch generally for one year, and those of the Senate for from two to four years, and the Governors for a like period. The election of the Representatives is annual, that they may be under the control of the People. The longer period allowed to the members of the Senate is that they may not be deterred from checking any popular ebullitions, which might be displayed on the part of the House of Representatives; while, in turn, the members of the latter, might check any aristocratic tendency on the part of the Senate. The Governor is invested with a qualified checking veto upon both branches, and is himself checked by allowing a defined concurrent power in both to overrule his veto; and he is further checked, and the better qualified to exercise his checking power, by being rendered ineligible after a given period, to the gubernatorial chair. I speak, Mr. President, of the checks provided by a majority of the States in their Constitutions. I do not pretend to accuracy or precision, as to the detailed provisions of any.

So, too, in the General Government, biennial elections were intended to secure the responsibility of the members of the House of Representatives, and thereby to check the influence of the selfish principle in the members. The members of the Senate are elected for six years, and by the Legislatures of the States, to check the tendency to consolidation which the gentleman advocates. The two Houses were so constituted as to check each other, and the President was to check and be checked by both. The States were reduced to the condition of perfect equipollence in the Senate, and thus the small were enabled to check the large States, in any attempts they might make to oppress the small.

Sir, on this part of the subject I do not pretend to minute exactness. It would be tedious and is not required for my object, which is only to exhibit an outline of the vigilance and solicitude displayed by the States, in their respective Governments, and in the General Government too, to guard against the influence of this selfish principle in those to whom political agency might be assigned. But I need but have referred you to the State and General Governments, without referring specially to any of their provisions on this subject. They exhibit abundant, almost redundant solicitude to guard the liberty of the People against misrule on the part of the Government. And think you, sir, that after all this elaborate provision against misrule, the States could have intended to subject their Governments, and their self governing power, together with the liberties of the people, to the discretion of an irresponsible & unchecked Judiciary. Who does not see that the only security the people have for their liberty, their lives, and their property, is in the protecting power of the sovereignty of their respective States? and that when that sovereignty is subjected to the will of the Supreme Court, the people are subjected to the same tribunal, and that, after all their vigilance and caution, in guarding by every conceivable check, against oppression from their rulers, they are, by this doctrine, to be subjected to the rule of a judicial aristocracy? to the rule of four men—a majority of that tribunal—who are unknown to them, except by the fame or the feeling of their encroachments upon State rights—whose tenure of power is for life, and irresponsible? And yet the Senator modestly tells us “that if the truth must be told,” such was the intention of the people who framed the Constitution.

Sir, if it be a truth, it had better not have been told. It is a truth worse than falsehood; or if told, it should have been told many years ago. The gentleman, by the manner of telling it, seems to admit that it had been concealed. He treats it as one of those precious truths, which nothing but necessity could drag from its concealment—“If the truth must be told;” must is a word which imports necessity. The necessity which produced this long concealed truth, will, no doubt, in due course of time, come out, as a truth that must be told. The sentiment, whether it be a truth or not, lurked in every part of the first message of Mr. Adams. He did not feel that he must tell it in the message, and yet he could not conceal it. Perhaps the design was only to make such an implied presentation of it, as might operate as an experiment upon the public feeling. If such was the design, they have mistaken the indications of public sentiment, unless I am greatly deceived; and yet it is announced with great confidence. The gentleman tells us, that the States must submit to the judicial restraints upon their sovereignty, or incur by resistance, the guilt of rebellion. That the decision of the Supreme Court, affirming a palpably unconstitutional law, which invades the sovereignty of a State, must be submitted to by the State, or it must incur the guilt of rebellion.

Mr. President, could the doctrine of passive obedience, and non-resistance, have been more explicitly urged; has it ever been more zealously advocated in any country? It is premature; the people of the States are not prepared for it yet. They are too well informed of their rights, and the principles upon which they depend, to be the dupes of that doctrine. There is scarcely a man in the community, who has participated at all in political discussion, that does not know, that rebellion consists in the resistance of lawful authority; that the resistance of lawless authority is not a crime, but a virtue. That the only mode of escaping from oppression, is by resisting the exercise of unlawful power. That patriotism requires such resistance. The citizens must, at their peril, distinguish between lawful and lawless power; and while they determine to retain their freedom, conform to the one, and oppose the other. It is a high duty, and full of peril, but, I repeat, it is the only condition on which liberty, the most precious gift of heaven to man, can be enjoyed and maintained. The alternative is a hard one. It presents slavery, to which passive obedience and non-resistance lead, and liberty, which requires from its votaries a prompt obedience to all lawful requirements, and a bold, and unfaltering resistance to lawless encroachments.

Sir, it is, I must repeat, too soon for those who rule, or hope to rule, to address their arguments to our credulity and our fears; to deny us the intelligence to discern our rights, and the right to maintain them. Will the gentleman say, that the States of Virginia and Kentucky, in the steps which they took to nullify the alien & sedition laws, were guilty of rebellion? Were their acts treasonable? If they were, then all the States were guilty of treason, at least, as accessaries after the fact, for they all sanctioned, by the moral force of their opinion, the proceedings of the resisting States. But against whom did those States, or can any State rebel? Rebellion means the resistance by an inferior of the lawful authority of a superior. It implies the violation of allegiance. To what power does a State owe allegiance! To what power is it subordinate? No one State owes allegiance to another, for if it did, that other would owe protection to it. Will the gentleman say, that any such relation exists between the States? Or, will he say, that a sovereign State can owe allegiance to any earthly power? I have attempted to prove that the States of this Union are equal, and have always been so, as well before, as since the formation of the Constitution. That the duties which they owe to each other under the Constitution, are pactional; and if I have succeeded, then it is impossible that they can commit rebellion, or incur the guilt of treason, by any violation of their covenant relations with each other. But, Sir, the idea that a sovereign State can commit treason, rebellion, or any crime whatever, is utterly inadmissible in the science of politics. The idea of crime cannot exist, where there is no conceivable or possible tribunal before which the culprit could be arraigned, and convicted.

Still less, Mr. President, can any State be supposed to incur the guilt of rebellion of treason, by resisting an unconstitutional law of the General Government, or an unconstitutional decision of the Supreme Court, upon a valid law of Congress. The General Government is the creature of the States; the offspring of their sovereign power; and will the gentleman say that the creator shall be governed by the lawless authority of the creature? Will he invert the rule of reason and of law upon that subject, and say that it is the superior that incurs guilt, by resisting the inferior, and not the inferior by resisting the superior?

But the threats which are brandished against States, or even individuals, who shall oppose the encroachment of the General Government upon the States, are uncalled for, and can only have the effect to provoke illegal resistance, or to awe into a degrading submission. If the States are true to themselves and faithful in the discharge of their high duties, they will move on in the majesty of their sovereign power, and maintain with a steady and equal hand both their governments, by restraining each, in the exercise of its legitimate powers, within its appropriate sphere. They will not encumber the Supreme Court with the exercise of this restraining power. In their hands it would not be a restraining, it would be an absorbing power.

Mr. President, this epithet of supremacy, which is so unceasingly applied to that Court, is calculated to swell the volume of their power in the minds of the unthinking. Its supremacy is entirely relative, and imports only that appellate and corrective jurisdiction, which it may exercise over the subordinate Courts of the General Government. The appellate court of every State is just as supreme as it is, and in the same way, and for the same reasons. It is not supreme in reference to the other departments of the Government, nor has it any supremacy in reference to the States; and yet the gentleman will have it that this Supreme Court, which derives its title of supremacy from its control over the proceedings of inferior judicial tribunals, shall control and restrain the Supreme Courts of the States, and the States themselves. That the mere modicum of judicial power which they are permitted by the States to exercise, shall be exerted to control them in the exercise of their sovereign power.

Sir, I deny that it was the intention of the States, in the formation of the Constitution, to invest that tribunal with the power of doing any political act whatever. The power accorded to that Court was purely judicial, and was intended to be so. If it had been intended that they should exercise the political power, which is now asserted for them, its exercise would have been subjected to some checks, to some responsibility. It cannot be reasonably supposed, that, after subjecting the exercise of political power by the other functionaries of the Government, to judicious and well devised checks, it was intended to subject all to the unchecked and irresponsible power of this Court; but, upon this point, I have given my opinions, in a previous part of my argument. I must, however, be permitted to say that the judges in the States, as well as in the General Government, even in reference to the exercise of their mere judicial powers, are left by the constitutions dangerously irresponsible. The independence of the Judiciary has, in my opinion, been greatly misconceived. Sir, the true independence of the Judges, consists in their dependence upon, and responsibility to the people. The surest exemption from dependence upon any, is dependence upon all. In free Governments we have nothing more stable than the will of the people. To be independent of that, is to rebel against the principles of free government. It is a dependence upon, and a conscious responsibility to, the will of the people, that will best secure the Judge from local, partial, and personal influences. But on what principle should those who administer the laws, be less responsible to the people, than those who make them? The laws operate as they are expounded, not as they are made. It is in the exposition of them, that they operate oppressively, and all responsibility is to secure against oppression; but there can be no oppression, or scarcely any, without the consent of the Judges. The Judges are irresponsible, and the people are every where oppressed. But I hold it to be universally true, that all power which may be irresponsibly exercised, will be exercised oppressively. It has always been so; it always will be so: for the Judges are but men.

But to return to the Judges of the Supreme Court. They are authorized to take jurisdiction of all causes in law and equity, arising under the Constitution, laws of Congress, and treaties; and that Constitution, together with the treaties, and the laws of Congress, made pursuant to it, are to be the supreme law of the land. This is their power, and this the character and force of the Constitution, laws of Congress, and treaties. Now, suppose there shall exist between two States, a dispute as to territorial boundary, and the Congress shall pass a law giving the disputed territory to one of the contending States; and suppose the Judges shall affirm the validity of this law. Must the State, whose territory has been thus invaded and taken from it by Congress, submit to the decision, or incur the guilt of rebellion? Is that to be the practical operation of the gentleman’s doctrine? Or suppose the territorial boundary of any one of the States shall be altered by treaty, and a portion of its territory transferred to a foreign power, and the Supreme Court were to decide that the treaty was constitutional, must the State, thus dismembered, acquiesce, or, by resisting, be denounced as a rebel; and would the gentleman assert, that this operation was merely imposing a salutary restraint upon State sovereignty?

Now, Sir, I deny that the power to declare a law of Congress, or of any of the States, unconstitutional, was ever conferred, or intended to be conferred, upon the Judiciary of any of the States, or of the General Government, as a direct substantive power. The exercise of this power is incidental to the exercise of the mere judicial power, which was conferred. The validity of a law involved by a case, may be incidentally decided, in deciding the law and justice of the case. But the decision must be made with an eye to the law and justice of the case, and not in reference to the just, or unjust, exercise of the legislative power which was exerted in making the law. Not in the view to check, control, or restrain the legislative power. It must be given in the exercise of merely judicial, and not of political power.

Thus exercising its jurisdiction, the Court would command the respect and confidence of the People, as a judicial tribunal. But when it merges its appropriate judicial, in an assumed political character—when it exchanges its ermine for the woolsack and the mace, and asserts its right to impose restraints upon the sovereignty of States, it should be treated as an usurper, and driven back by the States within its appropriate judicial sphere. It is due from the States to their own self-respect, and the just rights of their citizens, to assert that they are competent to decide upon every question involving their own sovereignty; and that to neglect to maintain it, would be to renounce the character in which they formed the constitutional compact of Union. That the maintenance of its own sovereignty unimpaired, by each of the States, is essential to the liberty of the people, and to the preservation of the Union. And that to submit their sovereignty to the control of the Judiciary, would be to substitute a judicial oligarchy for the free institutions employed for self government by the People.

All the purposes for which civil society were instituted would be defeated in the control of the States by the Judiciary. Nothing less than sovereign power is competent to the management of the concerns of a State, and nothing less was pledged by the States, in the social compact, for the protection of the people. The State cannot redeem this pledge if it shall be controlled by the Judiciary. The Judiciary will govern, and not the State: for that power that governs those who govern, governs those who are governed; and how can a State protect its citizens from oppression if it is itself liable to be oppressed by their oppressor? So that a State is under a political necessity to vindicate its sovereignty from any salutary restraints which the Supreme Court may attempt to inflict upon it by resistance, or whatever means it may.

Mr. President, for security against oppression from abroad, we look to the sovereign power of the United States, to be exerted according to the compact of union; for security against oppression from within, or domestic oppression, we look to the sovereign power of the State. Now, all sovereigns are equal: the sovereignty of the State is equal to that of the Union: for the sovereignty of each is but a moral person. That of the State and that of the Union are each a moral person, and in that respect precisely equal. In physical force, the latter greatly transcends the former, but in essential sovereignty, they are not only naturally but necessarily equal: just as the sovereignty of the State of Delaware is equal to that of New York, or of Russia, though the physical power of those sovereignties are vastly different.

The unrestrained exercise of the sovereign power of the Union is necessary to all the purposes of the Union; and is it not as necessary that the sovereign power of the State should be unrestrained, as to all domestic purposes; and can any reason be assigned why the latter, more than the former, should be restrained by the Supreme Court? No reason can exist for the restraint of the one that does not equally apply to the other. But, in truth, the idea of controlling a sovereign State is so inconceivable, that I do not know in what terms to combat it.

Mr. President, I must be indulged in some further inquiries in relation to the unfitness of the Judges of the Supreme Court for the exercise of this controlling power over the sovereignty of the States, which the Senator from Massachusetts has asserted for them. What is there belonging to that Court which can, in the contemplation of sober reason, entitle it to the exercise of that transcendent and all absorbing power! Are the Judges peculiarly gifted, and exempt from the frailties incident to human nature? Are they, and will they always be, pure and infallible? Will they always be free from the influence of the selfish principle against which all free States have so sedulously endeavored to guard in their constitutions? On the contrary, are they not, will they not always be, subject to those impulses of ambition, those prejudices, and partialities, which are uniformly displayed by those who are at all concerned in the discussion or decision of political questions? I have no reference to the present incumbents; they are, some of them, talented, and all respectable men. They have my respect, and if they possessed the power of controlling sovereigns, they ought to be worshipped, because their likeness has never existed beneath the sun. But I would ask again, if any reasonable man can suppose that there is more safety to the rights of the Union, or of the States, in the wisdom and patriotism of the seven men who compose that Court, than in the wisdom and patriotism of the million and a half of people who compose the State of New York, or of even the fifty or sixty thousand who compose the little State of Delaware? Must the saying of the wise man be reversed in favor of that Court? Is it no longer true “that there is safety in a multitude of counsel?”

Does the gentleman pretend to have discovered that the converse of the proposition is true? I am sure that he will prefer no such pretensions: for it has been long the known belief of aristocrats, of monarchs, and of despots. With them it has been, and always will be a cherished truth, a truth sustained by their votaries, and enforced by themselves, at all times, and every where. The monarch who proclaimed “that there was safety in a multitude of counsel” did not himself act upon the principle which he avowed. This principle, so dear to the Republic, was asserted under the inspiration of that wisdom which distinguished the monarch of Judea from all other men—of that wisdom which is from above. May I not conclude, then, that no argument in favor of the power asserted for that court can justly be drawn from the paucity of its numbers? and that every argument which can be drawn from the number of the Judges, is against confiding to them a control over the State? Sir, if we refer to what may always be supposed to be the wisdom, purity, and patriotism, of the Judges of that Court, we cannot suppose that there ever will be a time when even the smallest State in the Union will not have engaged in administering its government a much greater number of men, any of whom will, in these respects, be the equals of the Judges. They will not only be their equals in patriotism, intelligence, and integrity, but greatly their superiors in an intimate practical acquaintance with the condition of the people, their habits, manners, customs, wants, and enjoyments. And, in addition to these, there will always be in the State a great many citizens as enlightened and as pure as either of the Judges or the State functionaries, whose vigilance will be employed in checking the officials, and restraining them within the sphere of their duty.

And, let me ask, if the enlightened functionaries of the State, and its enlightened citizens, will not always be as much interested in the correct administration of the Governments, General and State, in the happiness of the People, and in the perpetuity and prosperity of the Union, as those same Judges can be supposed to be? By what reason then can it be supposed that the framers of the Constitution were influenced to have accorded such power to the Judges? It is not expressly given in the Constitution: It is presumed to have been given by implication. But how can we obtain the power by implication from that instrument, unless we can reasonably suppose that those who framed it, meant to confer it. But, when we consider that this Court forms one Department of the Government, which Government is supposed to have encroached upon the sovereignty of a State, can we believe that the States, in forming the Constitution, intended to arm the Court with the power of deciding upon the legitimacy of its own encroachments? With the power of consecrating its own usurpations by its own decisions? A law of Congress, made in pursuance of the Constitution, is admitted on all sides to be supreme, and will be acquiesced in, and conformed to, by the States. The question is, whether a law in violation of the Constitution is supreme, or can be made so by the Court? Whether a State cannot form an opinion as to its invalidity, and interpose its veto, where its operation goes to deprive the State of its sovereign power? I contend that neither weakness or idiocy can be ascribed to a sovereign State, and, therefore, that a State may both think and act in the maintenance of its sovereignty.

Who ever before thought that one of the parties to a contest, was a competent judge of the matters in dispute? For, although the General Government was no party to the constitutional compact of Union—that having been formed by the States, who are the only parties to it—yet the Government which was created by that compact, when it encroaches upon the sovereign power of a State, may justly be considered, quoad the dispute, as a party to the contest, with the State, and, therefore, unfit to decide the matter in controversy. The case, it would seem to me, need but be stated to secure, with all intelligent men, the reprobation of the doctrine contended for on the part of the Court. Even in a contest between school children about their toys, or their amusements, neither will agree to let the other decide the matter in dispute. Sir, who does not perceive that the specification of the powers to be exercised by the General Government was entirely useless, if it was intended that those who were to exercise them, were to be the exclusive and final judges of the extent and legitimacy of their exercise?

But the power asserted for the Court, by the Honorable Senator, is unreasonable in other views. If those who formed the Constitution had intended to invest this tribunal with the political power of checking and regulating the Legislative and Executive Departments of the General Government, and of imposing certain salutary restraints upon the sovereignties of the States, they would not only have expressed that intention, but would have adapted and suited the forms of the Constitution to the full and efficient exercise of that power. Have they done so? This question must be answered in the negative by all who have paid the slightest attention to the specification of the powers allowed to be exercised by the General Government, and to the powers reserved to be exercised by the States. Let us suppose that the House of Representatives were to refuse to permit the members, or a portion of them, from a particular State, to take their seats in the legislative Hall of Congress: and that the Senate were to do the like, in relation to the Senators from any one of the States; or that any one of the States, or even a majority of them, were to refuse to elect Senators to Congress, or that a State were to make a Treaty with a foreign Power, or were to coin money; or let us suppose, further, that a person charged in any one of the States with treason, felony, or other crime, were to flee to another, and that other were to refuse, upon the demand of the Executive authority of the State from which he fled, to deliver him up, to be removed for trial to the State having jurisdiction of the crime. By what forms of the Constitution can the judicial power of the United States interfere in any of these cases, or in a hundred others which might be named? Sir, this mighty State-conserving power will be found, when subjected to the scrutiny of reason, to consist more in the fancy of those, who are desirous to see one splendid central government supply the place of the sovereign States, than in the nature and genius of our Governments, or in the intention of the States in forming the constitutional compact of union. And the great error which lies at the root of this monstrous doctrine, is in the erroneous supposition that the States, when they formed the Constitution divested themselves of, and delegated to the General Government, all the sovereign power which may be rightly exercised by the latter, and that they are less sovereign by so much power as may be thus exercised. That this sovereign power so delegated by the Constitution, is mysteriously lodged in that instrument, and exercised by the General Government in virtue of that lodgement.—(Sir, let me just say that sovereign power is an article that will not keep cold)—others think that this power abides in the functionaries of the Government, and almost all believe, that, let it be lodged where it may, it is out of the States and belongs to the General Government: that those who formed the Constitutio

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John Rowan: Speech of Mr. Rowan , of Kentucky [February 4, 1830] - Daniel Webster, The Webster-Hayne Debate on the Nature of the Constitution: Selected Documents [1830]

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John Rowan

Speech of Mr. Rowan, of Kentucky[February 4, 1830]

Speech of Mr. Rowan,
of Kentucky

[February 4, 1830]