WEBSTER ON THE CONSTITUTION COMMENTS.
PROF. NORTON. When I declined replying to your question, I preferred to wait until you got through with all you had to say or offer in reference to the action of the several States upon the adoption of the Constitution. My object was to reply to all together. This I will now endeavor to do, and as my opinions upon the whole subject have been so much better expressed by Mr. Webster, the great recognized Expounder of the Constitution, you will allow me to let him reply to you instead of my undertaking to do it myself. This whole subject was thoroughly and ably discussed in the United States Senate, in 1833, I think, upon a set of Resolutions presented to that body by Mr. Calhoun, in the days of Nullification. Have you these Resolutions and Mr. Webster's speech upon them?
MR. STEPHENS. Yes. Here are Mr. Calhoun's Resolutions you refer to. They were offered by him on the 22d January, 1833, the day after what was called the Force Bill, against South Carolina, was introduced into the Senate.* The Force Bill was taken up first. Mr. Calhoun spoke against that. But Mr. Webster, in rising to speak, when that measure was before the Senate, did not reply to Mr. Calhoun upon it, but called for the reading of these Resolutions, and directed his whole argument against them. This was on the 16th February, 1833.** Here is his speech. The Resolutions are in these words:
* Niles's Register, vol. xliii, Appendix, p. 170.
** Niles's Register, vol. xliii, Appendix, p. 170.
"Resolved, That the people of the several States, composing these United States, are united as Parties to a Constitutional Compact, to which the people of each State acceded as a separate Sovereign community, each binding itself by its own particular ratification; and that the Union, of which the said Compact is the bond, is a Union between the States ratifying the same.
"Resolved, That the people of the several States, thus united by the Constitutional Compact, in forming that instrument, and in creating a General Government to carry into effect the objects for which they were formed, delegated to that Government, for that purpose, certain definite powers, to be exercised jointly, reserving, at the same time, each State to itself, the residuary mass of powers, to be exercised by its own separate Government; and that whenever the General Government assumes the exercise of powers not delegated by the Compact, its acts are unauthorized, and are of no effect; and that the same Government is not made the final judge of the powers delegated to it, since that would make its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of Compact among Sovereign parties, without any common judge, each has an equal right to judge for itself, as well of the infraction as of the mode and measure of redress.
"Resolved, That the assertions, that the people of these United States, taken collectively as individuals, are now, or ever have been, united on the principle of the social Compact, and, as such, are now formed into one nation or people, or that they have ever been so united in any one stage of their political existence; that the people of the several States composing the Union have not, as members thereof, retained their Sovereignty; that the allegiance of their citizens has been transferred to the General Government; that they have parted with the right of punishing treason through their respective State Governments; and that they have not the right of judging in the, last resort as to the extent of the powers reserved, and of consequence of those delegated, are not only without foundation in truth, but are contrary to the most certain and plain historical facts, and the clearest deductions of reason; and that all exercise of power on the part of the General Government, or any of its departments, claiming authority from such erroneous assumptions, must of necessity be unconstitutional, must tend, directly and inevitably, to subvert the Sovereignty of the States, to destroy the Federal character of the Union, and to rear on its ruins a consolidated Government, without Constitutional check or limitation, and which must necessarily terminate in the loss of liberty itself."
PROF. NORTON. Yes, these are the Resolutions I refer to, and now let me read such parts of Mr. Webster's speech against them as I think utterly demolish them and the whole superstructure of your argument, which is but an attempt to sustain the principles set forth in these Resolutions.
MR. STEPHENS. Only so far as they maintain the proposition that the Constitution of the United States is a Compact between the States, and that the Government instituted by it is a Federal or Confederated Republic. This is the position which I maintain that I have established.
PROF. NORTON. Well, then, only to the extent of utterly demolishing that position will I read from Mr. Webster's speech. "The Resolutions," said Mr. Webster, "introduced by the gentleman, were apparently drawn up with care, and brought forward upon deliberation. I shall not be in danger, therefore, of misunderstanding him, or those who agree with him, if I proceed at once to these Resolutions, and consider them as an authentic statement of those opinions upon the great Constitutional question, by which the recent proceedings in South Carolina are attempted to be justified.
"These Resolutions are three in number.
"The third seems intended to enumerate, and to deny, the several opinions expressed in the President's proclamation, respecting the nature and powers of this Government. Of this third Resolution, I purpose, at present, to take no particular notice.
"The first two Resolutions of the honorable member affirm these propositions, viz.:
"1. That the political system under which we live, and under which Congress is now assembled, is a Compact, to which the people of the several States, as separate and Sovereign communities, are the parties.
"2. That these Sovereign parties have a right to judge, each for itself, of any alleged violation of the Constitution by Congress; and in case of such violation, to choose, each for itself, its own mode and measure of redress.
"It is true, sir, that the honorable member calls this a 'Constitutional' Compact; but still he affirms it to be a Compact between Sovereign States. What precise meaning, then, does he attach to the term Constitutional? When applied to Compacts between Sovereign States, the term Constitutional affixes to the word Compact no definite idea. Were we to hear of a Constitutional league or treaty between England and France, or a Constitutional Convention between Austria and Russia, we should not understand what could be intended by such a league, such a treaty, or such a Convention. In these connections, the word is void of all meaning; and yet, sir, it is easy, quite easy, to see why the honorable gentleman has used it in these Resolutions. He cannot open the book, and look upon our written frame of Government, without seeing that it is called a Constitution. This may well be appalling to him. It threatens his whole doctrine of Compact, and its darling derivatives, Nullification and Secession, with instant confutation. Because, if he admits our instrument of Government to be a Constitution, then, for that very reason, it is not a Compact between Sovereigns; a Constitution of Government and a Compact between Sovereign powers being things essentially unlike in their very natures, and incapable of ever being the same. Yet the word Constitution is on the very front of the instrument. He cannot overlook it. He seeks, therefore, to compromise the matter, and to sink all the substantial sense of the word, while he retains a resemblance of the sound. He introduces a new word of his own, viz., Compact, as importing the principal idea, and designed to play the principal part, and degrades Constitution into an insignificant, idle epithet, attached to Compact. The whole then stands as a 'Constitutional Compact!" And in this way he hopes to pass off a plausible gloss, as satisfying the words of the instrument. But he will find himself disappointed. Sir, I must say to the honorable gentleman, that, in our American political grammar. CONSTITUTION is a noun substantive; it imports a distinct and clear idea of itself; and it is not to lose its importance and dignity, it is not to be turned into a poor, ambiguous, senseless, unmeaning adjective, for the purpose of accommodating any new set of political notions. Sir, we reject his new rules of' syntax altogether. We will not give up our forms of political speech to the grammarians of the school of Nullification. By the Constitution, we mean, not a' Constitutional Compact,' but, simply and directly, the Constitution, the fundamental law; and if there be one word in the language which the people of the United States understand, this is that word.* We know no more of a Constitutional Compact between Sovereign powers, than we know of a Constitutional indenture of copartnership, a Constitutional deed of conveyance or a Constitutional bill of exchange. But we know what the Constitution is; we know what the plainly written, fundamental law is; we know what the bond of our Union and the security of our liberties is; and we mean to maintain and to defend it, in its plain sense and unsophisticated meaning.
"The sense of the gentleman's proposition, therefore, is not at all affected, one way or the other, by the use of this word. That proposition still is, that our system of Government is but a Compact between the people of separate and Sovereign States.
"Was it Mirabeau, Mr. President, or some other master of the human passions, who has told us that words are things? They are indeed, things. and things of mighty influence, not only in addresses to the passions and highwrought feelings of mankind, but in. the discussion of legal and political questions also; because a just conclusion is often avoided, or a false one reached, by the adroit substitution of one phrase, or one word, for another. Of this, we have, I think, another example in the Resolutions before us.
* Ante, p. 51, et. seq.
"The first Resolution declares that the people of the several States 'acceded' to the Constitution, or to the Constitutional Compact, as it is called. This word 'accede,' not found either in the Constitution itself, or in the ratification of it by any one of the States has been chosen for use here, doubtless, not without a well-considered purpose.
"The natural converse of accession is secession; and, therefore, when it is stated that the people of the States acceded to the Union, it may be more plausibly argued that they may secede from it. If, in adopting the Constitution, nothing was done but acceding to a Compact, nothing would seem necessary, to break it up, but to secede from the same Compact. But the term is wholly out of place.* Accession, as a word applied to political associations, implies coming into a league, treaty, or confederacy, by one hitherto a stranger to it; and secession implies departing from such league or confederacy. The people of the United States have used no such form of expression in establishing the present Government. They do not say that they accede to a league, but they declare that they ordain and establish a Constitution. Such are the very words of the instrument itself; and in all the States, without an exception, the language used by their Conventions was, that they 'ratified the Constitution;' some of them employing the additional words 'assented to' and: adopted,' but all of them ratifying.'
* Ante, p. 155, et. seq.
"There is more importance than may, at first sight, appear, in the introduction of this new word by the honorable mover of these resolutions. Its adoption and use are indispensable to maintain those premises from which his main conclusion is to be afterwards drawn. But before showing that, allow me to remark, that this phraseology tends to keep out of sight the just view of a previous political history, as well as to suggest wrong ideas as to what was actually done when the present Constitution was agreed to. In 1789, and before this Constitution was adopted, the United States had already been in a Union, more or less close, for fifteen years. At least as far back as the meeting of the first Congress, in 1774, they had been, in some measure, and for some National purposes, united together. Before the Confederation of 1781, they lad declared independence jointly, and had carried on the war jointly, both by sea and land; and this not as separate States, but as one people.* When, therefore, they formed that Con federation, and adopted its articles as articles of perpetual Union, they did not come together for the first time; and, therefore, they did not speak of the States as acceding to the Confederation, although it was a league, and rested on nothing but plighted faith for its performance. Yet, even then, the States were not strangers to each other; there was a bond of Union already subsisting between them; they were associated United States; and the object of the Confederation was to make a stronger and better bond of Union. Their representatives deliberated together on these proposed Articles of Confederation, and, being authorized by their respective States, finally 'ratified' and confirmed them. Inasmuch as they were already in Union, they did not speak of acceding to the new Articles of Confederation, but of ratifying and confirming them; and this language was not used inadvertently, because, in the same instrument, accession is used in its proper sense, when applied to Canada, which was altogether a stranger to the existing Union. 'Canada, says the eleventh article, 'acceding to this Confederation, and joining in the measures of the United States, shall be admitted into the Union.'
* Ante, p. 66, et. seq.
"Having thus used the terms ratify and confirm, even in regard to the old Confederation, it would have been strange, indeed, if the people of the United States, after its formation, and when they came to establish the present Constitution, had spoken of the States, or the people of the States, as acceding to this Constitution. Such language would have been ill suited to the occasion. It would have implied an existing separation, or disunion, among the States, such as had never existed since 1 774. No such language, therefore, was used. The language, actually employed, is adopt, ratify, ordain, establish.
"Therefore, sir, since any State, before she can prove her right to dissolve the Union, must show her authority to undo what has been done; no State is at liberty to secede, on the ground that she and other States have done nothing but accede. She must show that she has a fight to reverse what has been ordained, to unsettle and overthrow what has been established, to reject what the people have adopted, and to break up what they have ratified; because these are the terms which express the transactions which have actually taken place. In other words, she must show her right to make a revolution.
"If, Mr. President, in drawing these Resolutions, the honorable member had confined himself to the use of Constitutional language, there would have been a wide and awful hiatus between his premises and his conclusions. Leaving out the two words Compact and accession, which are not Constitutional modes of expression, and stating the matter precisely as the truth is, his first Resolution would have affirmed that the people of the several States ratified this Constitution, or form of Government. These are the very words of South Carolina herself, in her act of ratification. Let, then, his first Resolution tell the exact truth; let it state the fact precisely as it exists; let it say that the people of the several States ratified a Constitution, or form of Government, and then, sir, what will become of his inference in his second Resolution, which is in these words, viz.: 'That, as in all other cases of Compact among Sovereign parties, each has an equal right to judge for itself, as well of the infraction as of the mode and measure of redress?' It is obvious, is it not, sir? that this conclusion requires for its support quite other premises; it requires premises which speak of accession and of Compact between Sovereign powers;. and, without such premises, it is altogether unmeaning.
"Mr. President, if the honorable member will truly state what the people did in forming this Constitution, and then state what they must do if they would now undo what they then did, he will unavoidably state a case of revolution. Let us see if it be not so. He must state, in the first place, that the people of the several States adopted and ratified this Constitution, or form of Government; and, in the next place, the must state that they must have a right to undo this; that is to say, that they have a right to discard the from of Government which they have adopted, and to break up the Constitution which they have ratified. Now, sir, this is neither more nor less than saying that they have a right to make a revolution. To reject an established Government, to break up a political Constitution, is revolution.
"I deny that any man can state accurately what was done by the people, in establishing the present Constitution, and then state accurately what the people, or any part of them, must now do to get rid of its obligations, without stating an undeniable case of the overthrow of Government. I admit, of course, that the people may, if they choose, overthrow the Government. But, then, that is revolution. The doctrine now contended for is, that, by Nullification or Secession, the obligations and authority of the Government may be set aside or rejected, without revolution. But that is what I deny; and what I say is, that no man can state the case with historical accuracy, and in Constitutional language, without showing that the honorable gentleman's right, as asserted in his conclusion, is a revolutionary right merely; that it does not and cannot exist under the Constitution, or agreeably to the Constitution, but can come into existence only when the Constitution is overthrown. This is the reason, sir, which makes it necessary to abandon the use of Constitutional language for a new vocabulary, and to substitute, in the place of plain historical facts, a series of assumptions. This is the reason why it is necessary to give new names to things, to speak of the Constitution, not as a Constitution, but as a Compact, and of the ratifications by the people, not as ratifications, but as acts of accession.
"Sir, I intend to hold the gentleman to the written record. In the discussion of a Constitutional question, I intend to impose upon him the restraints of Constitutional language. The people have ordained a Constitution; can they reject it without revolution? They have established a form of Government; can they overthrow it without revolution? These are the true questions.
"Allow me, now, Mr. President, to inquire further into the extent of the propositions contained in the Resolutions, and their necessary consequences.
"Where Sovereign communities are parties, there is no essential difference between a Compact, a Confederation, and a League. They all equally rest on the plighted faith of the Sovereign party. A League, or Confederacy, is but a subsisting or continuing treaty.
"The gentleman's Resolutions, then, affirm, in effect, that these twenty-four United States are held together only by a subsisting treaty, resting for its fulfilment and continuance on no inherent power of its own, but on the plighted faith of each State; or, in other words, that our Union is but a league; and, as a consequence from this proposition, they further affirm that as Sovereigns are subject to no superior power, the States must judge, each for itself, of any alleged violation of the league; and if such violation be supposed to have occurred, each may adopt any mode or measure of redress which it shall think proper.
"Other consequences naturally follow, too, from the main proposition. If a league between Sovereign powers have no limitation as to the time of its duration, and contain nothing making it perpetual, it subsists only during the good pleasure of the parties, although no violation be complained of. If, in the opinion of either party, it be violated, such party may say that he will no longer fulfil its obligations on his part, but will consider the whole League or Compact at an end, although it might be one of its stipulations that it should be perpetual. Upon this principle, the Congress of the United States, in 1798, declared null and void the treaty of alliance between the United States and France, though it professed to be a perpetual alliance.
"If the violation of the League be accompanied with serious injuries the suffering party, being sole judge of his own mod and measure of redress, has a right to indemnify himself by reprisals on the offending members of the League; and reprisals, if the circumstances of the case require it, may be followed by direct, avowed, and public war.
"The necessary import of the Resolution, therefore, is, that the United States are connected only by a League; that it is in the good pleasure of every State to decide how long she will choose to remain a member of the League; that any State may determine the extent of her own obligations under it, and accept or reject what shall be decided by the whole; that she may also determine whether her rights have been violated, what is the extent of the injury done her, and what mode and measure of redress her wrongs may make it fit and expedient for her to adopt. The result of the whole is, that any State may secede at pleasure; that any State may resist a law which she herself may choose to say exceeds the power of Congress; and that, as a Sovereign power, she may redress her own grievances, by her own arm, at her own discretion. She may make reprisals; she may cruise against the property of other members of the League; she may authorize captures, and make open war.
"If, sir, this be our political condition, it is time the people of the United States understood it. Let us look for a moment to the practical consequences of these opinions. One State, holding an Embargo law unconstitutional, may declare, her opinion, and withdraw from the Union. She secedes. Another, forming and expressing the same judgment on a law laying duties on imports, may withdraw also. She secedes. And as, in her opinion, money has been taken out of the pockets of her citizens illegally, under pretence of this law, and as she has power to redress their wrongs, she may demand satisfaction; and, if refused, she may take it with a strong hand. The gentleman has himself pronounced the collection of duties, under existing laws, to be nothing but robbery. Robbers, of course, may be rightfully dispossessed of the fruits of their flagitious crimes; and, therefore, reprisals, impositions on the commerce of other States, foreign alliances against them, or open war, are all modes of redress justly open to the discretion and choice of South Carolina; for she is to judge of her own rights, and to seek satisfaction for her own wrongs, in her own way.
"But, sir, a third State is of opinion, not only that these laws of imposts are Constitutional, but that it is the absolute duty of Congress to pass and to maintain such laws; and that by omitting to pass and maintain them, its Constitutional obligations would be grossly disregarded. She, herself, relinquished the power of protection, she might allege, and allege truly, and gave it up to Congress, on the faith that Congress would exercise it; if Congress now refuse to exercise it, Congress does, as she may insist, break the condition of the grant, and thus manifestly violate the Constitution; and for this violation of the Constitution, she may threaten to secede also. Virginia may secede, and hold the fortresses in the Chesapeake. The Western States may secede, and take to their own use the public lands. Louisiana may secede, if she choose, form a foreign alliance, and hold the mouth of the Mississippi. If one State may secede, ten may do so, twenty may do so, twenty-three may do so. Sir, as these secessions go on, one after another, what is to constitute the United States? Whose will be the army? Whose the navy? Who will pay the debts? Who fulfil the public treaties? Who perform the Constitutional guaranties? Who govern this District and the Territories? Who retain the public property?
"Mr. President, every man must see that these are all questions which can arise only after a revolution. They presuppose the breaking up of the Government. While the Constitution lasts, they are repressed; they spring up to annoy and startle us only from its grave.
"The Constitution does not provide for events which must be preceded by its own destruction. SECESSION, therefore, since it must bring these consequences with it, is REVOLUTIONARY, and NULLIFICATION is equally REVOLUTIONARY. What is revolution? Why, sir, that is revolution which overturns, or controls, or successfully resists the existing public authority; that which arrests the exercise of the supreme power; that which introduces a new Paramount authority into the rule of the State. Now, sir, this is the precise object of Nullification. It attempts to supersede the supreme legislative authority. It arrests the arm of the executive magistrate. It interrupts the exercise of the accustomed judicial power. Under the name of an ordinance, it declares null and void, within the State, all the revenue laws of the United States. Is not this revolutionary? Sir, so soon as this ordinance shall be carried into effect, a revolution will have commenced in South Carolina. She will have thrown off the authority to which her citizens have heretofore been subject. She will have declared her own opinions and her own will, to be above the laws and above the power of those who are intrusted with their. administration. If she makes good these declarations, she is revolutionized. As to her, it is as distinctly a change of the supreme power, as the American Revolution of 1776. That revolution did not subvert Government in all its forms. It did not subvert local laws and municipal administrations. It only threw off the dominion of a power claiming to be superior, and to have a right, in many important respects, to exercise legislative authority. Thinking this authority to have been usurped or abused, the American Colonies, now the United States, bade it defiance, and freed themselves from it by means of a revolution. But that revolution left them with their own municipal laws still, and the forms of local Government. If Carolina now shall effectually resist the laws of Congress; if she shall be her own judge, take her remedy into her own hands, obey the laws of the Union when she pleases, and disobey them when she pleases, she will relieve herself from a Paramount power as distinctly as the American Colonies did the same thing in 1776. In other words, she will achieve, as to herself, a revolution.
"But, sir, while practical Nullification in South Carolina would be, as to herself, actual and distinct revolution, its necessary tendency must also be to spread revolution, and to break up the Constitution, as to all the other States. It strikes a deadly blow at the vital principle of the whole Union. To allow State resistance to the laws of Congress to be rightful and proper, to admit Nullification in some States, and yet not expect to see a dismemberment of the entire Government, appears to me the wildest illusion, and the most extravagant folly. The gentleman seems not conscious of the direction or the rapidity of his own course. The current of his opinions sweeps him along, he knows not whither. To begin with Nullification, with the avowed intent, nevertheless, not to proceed to secession, dismemberment, and general revolution, is as if one were to take the plunge of Niagara, and cry out that he would stop half-way down. In the one case, as in the other, the rash adventurer must go to the bottom of the dark.abyss below, were it not that the abyss has no discovered bottom.
"Nullification, if successful, arrests the power of the law, absolves citizens from their duty, subverts the foundation both of protection and obedience, dispenses with oaths and obligations of allegiance, and elevates another authority to supreme command. Is not this revolution? And it raises to supreme command four and twenty distinct powers, each professing to be under a General Government, and yet each setting its laws at defiance at pleasure. Is not this anarchy, as well as revolution? Sir, the Constitution of the United States was received as a whole, and for the whole country. If it cannot stand altogether, it cannot stand in parts; and if the laws cannot be executed everywhere, they cannot long be executed anywhere. The gentleman very well knows that all duties and imposts must be uniform throughout the country. He knows that we cannot have one rule or one law for South Carolina, and another for other States. He must see, therefore, and does see, and every man sees, that the only alternative is a repeal of the laws throughout the whole Union, or their execution in Carolina as well as elsewhere. And this repeal is demanded because a single State interposes her veto, and threatens resistance! The result of the gentleman's opinion, or rather the very text of his doctrine, is, that no act of Congress can bind all the States, the Constitutionality of which is not admitted by all; or, in other words, that no single State is bound, against its own dissent, by a law of imposts.'This is precisely the evil experienced under the old Confederation, and for remedy of which this Constitution was adopted. The leading object in establishing this Government, an object forced on the country by the condition of the times, and the absolute necessity of the law, was to give to Congress power to lay and collect imposts without the consent of particular States. The Revolutionary debt remained unpaid; the National treasury was bankrupt; the country was destitute of credit; Congress issued its requisitions on the States, and the States neglected them; there was no power of coercion but war; Congress could not lay imposts, or other taxes, by its own authority; the whole General Government, therefore, was little more than a name. The Articles of Confederation, as to purposes of revenue and finance, were nearly a dead letter. The country sought to escape from this condition, at once feeble and disgraceful, by constituting a Government which should have power, of itself, to lay duties and taxes, and to pay the public debt, and provide for the general welfare; and to lay these duties and taxes in all the States, without asking the consent of the State Governments. This was the very power on which the new Constitution was to depend for all its ability to do good; and without it, it can be no Government, now or at any time. Yet, sir, it is precisely against this power, so absolutely indispensable to the very being of the Government, that South Carolina directs her ordinance. She attacks the Government in its authority to raise revenue, the very mainspring of the whole system; and if she succeed, every movement of that system must Inevitably cease. It is of no avail that she declares that she does not resist the law as a revenue law, but as a law for protecting manufactures. It is a revenue law; it is the very law, by force of which the revenue is collected; if it be arrested in any State, the revenue ceases in that State; it is, in a word, the sole reliance of the Government for the means of maintaining itself and performing its duties.
"Mr. President, the alleged right of a State to decide Constitutional questions for herself, necessarily leads to force, because other States must have the same right, and because different States will decide differently; and when theta questions arise between States, if there be no superior power, they can be decided only by the law of force. On entering into the Union, the people of each State gave up a part of their own power to make laws for themselves, in consideration that, as to common objects, they should have a part in making laws for other States. In other words, the people of all the States agreed to create a common Government, to be conducted by common counsels. Pennsylvania, for example, yielded the right of laying imposts in her own ports, in consideration that the new Government, in which she was to have a share, should possess the power of laying imposts on all the States. If South Carolina now refuses to submit to this power, she breaks the condition on which other States entered into the Union. She partakes of the common counsels, and therein assists to bind others, while she refuses to be bound herself. It makes no difference in the case, whether she does all this without reason or pretext, or whether she sets up as a reason, that, in her judgment, the acts complained of are unconstitutional. In the judgment of other States, they are not so. It is nothing to them that she offers some reason, or some apology for her conduct, if it be one which they do not admit. It is not to be expected that any State will violate her duty without some plausible pretext. That would be too rash a defiance of the opinion of mankind. But if it be a pretext which lies in her own breast; if it be no more than an opinion which she says she has performed, how can other States be satisfied with this? How can they allow her to be judge of her own obligations? Or, if she may judge of her obligations, may they not judge of their rights also? May not the twenty-three entertain an opinion as well as the twenty-fourth? And if it be their right, in their own opinion, as expressed in the common council, to enforce the law against her, how is she to say that her right and her opinion are to be every thing, and their right and their opinion nothing?
"Mr. President, if we are to receive the Constitution as the text, and then to lay down in its margin the contradictory commentaries which have been, and which may be, made by different States, the whole page would be a polyglot indeed. It would speak with as many tongues as the builders of Babel, and in dialects as much confused, and mutually as unintelligible. The very instance now before us presents a practical illustration. The law of the last session is declared unconstitutional in South Carolina, and obedience to it is refused. In other States, it is admitted to be strictly Constitutional. You walk over the limits of its authority, therefore, when you pass a State line. On one side it is law, on the other side a nullity; and yet it is passed by a common Government, having the same authority in all the States.
"Such, sir, are the inevitable results of this doctrine. Beginning with the original error, that the Constitution of the United States is nothing but a Compact between Sovereign States; asserting, in the next step, that each State has a right to be its own sole judge of the extent of its own obligations, and, consequently, of the Constitutionality of laws of Congress; and, in the next, that it may oppose whatever it sees fit to declare unconstitutional, and that it decides, for itself, on the mode and measure of redress the argument arrives, at once, at the conclusion, that what a State dissents from, it may nullify; what it opposes, it may oppose by force; what it decides for itself, it may execute by its own power; and that, in short, it is, itself, supreme over the legislation of Congress, and supreme over the decisions of the national judicature; supreme over the Constitution of the country; supreme over the supreme law of the land. However it seeks to protect itself against these plain inferences, by saying that an unconstitutional law is no law, and that it only opposes such laws as are unconstitutional, yet, this does not, in the slightest degree, vary the result; since it insists on deciding this question for itself; and, in opposition to reason and argument, in opposition to practice and experience, in opposition to the judgment of others, having an equal right to judge, it says, only, 'Such is my opinion, and my opinion shall be my law, and I will support it by my own strong hand. I denounce the law; I declare it unconstitutional; that is enough; it shall not be executed. Men, in arms, are ready to resist its execution. An attempt to enforce it shall cover the land with blood. Elsewhere, it may be binding; but here it is trampled under foot.'
"This, sir, is practical Nullification.
"And now, sir, against all these theories and opinions, I maintain:
"1. That the Constitution of the United States is not a League, Confederacy or Compact, between the people of the several States in their Sovereign capacities; but a Government proper, founded on the adoption of the people, and creating direct relations between itself and individuals.
"2. That no State authority has power to dissolve these relations; that nothing can dissolve them but revolution; and that, consequently, there can be no such thing as Secession without revolution.
"3. That there is a supreme law, consisting of the Constitution of the United States, and Acts of Congress, passed in pursuance of it, and treaties; and that, in cases not capable of assuming the character of a suit in law or equity, Congress must judge of, and, finally, interpret, the supreme law, so often as it has occasion to pass acts of legislation; and, in cases capable of assuming, and actually assuming, the character of a suit, the Supreme Court of the United States is the final interpreter.
"4. That an attempt by a State to abrogate, annul, or nullify an Act of Congress, or to arrest its operation within her limits, on the ground that, in her opinion, such law is unconstitutional, is a direct usurpation on the just powers of the General Government, and on the equal rights of other States; a plain violation of the Constitution, and a proceeding essentially Revolutionary in its character and tendency.
"Whether the Constitution be a Compact between States in their Sovereign capacities, is a question which must be mainly argued from what is contained in the instrument itself. We all agree that it is an instrument which has in some way been clothed with power. We all admit that it speaks with authority. The first question then is, what does it say of itself? What does it purport to be? Does it style itself a League, Confederacy, or Compact between Sovereign States? It is to be remembered, sir, that the Constitution began to speak only after its adoption. Until it was ratified by nine States, it was but a proposal, the mere draught of an instrument. It was like a deed drawn, but not executed. The Convention had framed it; sent it to Congress, then sitting under the Confederation; Congress had transmitted it to the State Legislatures; and by these last it was laid before Conventions of the people in the several States. All this while it was inoperative paper. It had received no stamp of authority, no sanction; it spoke no language. But when ratified by the people in their respective Conventions, then it had a voice, and spoke authentically. Every word in it had then received the sanction of the popular will, and was to be received as the expression of that will. What the Constitution says of itself, therefore, is as conclusive as what it says on an.y other point. Does it call itself a 'Compact?' Certainly not. It uses the word Compact but once, and that is when it declares that the States shall enter into no Compact. Does it call itself a 'League,' a 'Confederacy,' a 'subsisting Treaty between the States?' Certainly not. There is not a particle of such language in all its pages. But it declares itself a CONSTITUTION. What is a Constitution? Certainly not a League, Compact, or Confederacy, but a fundamental law. That fundamental regulation which determines the manner in which the public authority is to be executed, is what forms the Constitution of a State. Those primary rules which concern the body itself, and the very being of the political society, the form of Government, and the manner in which power is to be exercised, all, in a word, which form together the Constitution of a State, these are the fundamental laws. This, sir, is the language of the public writers. But do we need to be informed, in this country, what a Constitution is? Is it not an idea perfectly familiar, definite, and well settled? We are at no loss to understand what is meant by the Constitution of one of the States; and the Constitution of the United States speaks of itself as being an instrument of the same nature. It says, this Constitution shall be the law of the land, any thing in ally State Constitution to the contrary, notwithstanding And it speaks of itself, too, in plain contradistinction from a Confederation; for it says that all debts contracted, and all engagements entered into, by the United States, shall be as valid under this Constitution as under the Confederation. It does not say, as valid under this Compact, or this League, or this Confederation, as under the former Confederation, but as valid under this Constitution.
"This, then, sir, is declared to be a Constitution. A Constitution is the fundamental law of the State; and this is expressly declared to be the supreme law. It is as if the people had said, 'We prescribe this fundamental law,' or 'this supreme law,' for they do say that they establish this Constitution, and that it shall be the supreme law. They say that they ordain and establish it. Now, sir, what is the common application of these words? We do not speak of ordaining Leagues and Compacts. If this was intended to be a Compact or League, and the States to be parties to it, why was it not so said? Why is there found no one expression, in the whole instrument, indicating such intent? The old Confederation was expressly called a League; and into this League it was declared that the States, as States, severally entered. Why was not similar language used in the Constitution, if a similar intention had existed? Why was it not said, 'the States enter into this new League,''the States form this new Confederation,' or 'the States agree to this new Compact?' Or why was it not said, in the language of the gentleman's Resolution, that the people of the several States acceded to this Compact in their Sovereign capacities? What reason is there for supposing that the framers of the Constitution rejected expressions appropriate to their own meaning, and adopted others wholly at war with that meaning?
"Again, sir, the Constitution speaks of that political system which is established as 'the Government of the United States.' Is it not doing a strange violence to language to call a League or a Compact between Sovereign powers a Government? The Government of a State is that organization in which the political power resides.. It is the political being created by the Constitution or fundamental law. The broad and clear difference between a Government and a League or Compact is, that a Government is a body politic; it has a will of its own; and it possesses powers and faculties to execute its own purposes. Every Compact looks to some power to enforce its stipulations. Even in a Compact between Sovereign,communities, there always exists this ultimate reference to a power to insure its execution; although, in such case, this power is but the force of one party against the force of another; that is to say, the power of war. But a Government executes its decisions by its own supreme authority. Its use of force in compelling obedience to its own enactments is not war. It contemplates no opposing party having a right of resistance. It rests on its power to enforce its own will; and when it ceases to possess this power, it is no longer a Government.
"Mr. President, I concur so generally in the very able speech of the gentleman from Virginia, near me (Mr. Rives), that it is not without diffidence and regret, that I venture to differ with him on any point. His opinions, sir, are redolent of the doctrines of a very distinguished school, for which I have the highest regard, of whose doctrines I can say, what I can also say of the gentleman's speech, that while I concur in the results, I must be permitted to hesitate about some of the premises. I do not agree that the Constitution is a Compact between States in their Sovereign capacities. I do not agree, that, in strictness of language, it is a Compact at all. But I do agree that it is founded on consent or agreement, or on Compact, if the gentleman prefers that word, and means no more by it than voluntary consent or agreement. The Constitution, sir, is not a contract, but the result of a contract; meaning by contract no more than assent. Founded on consent, it is a Government proper. Adopted by the agreement of the people of the United States, when adopted, it has become a Constitution. The people have agreed to make a Constitution; but, when made, that Constitution becomes what its name imports. It is no longer a mere agreement. Our laws, sir, have their foundation in the agreement or consent of the two Houses of Congress. We say, habitually, that one House proposes a bill, and the other agrees to it; but the result of this agreement is not a Compact, but a law. The law, the statute, is not the agreement, but something created by the agreement; and something which, when created, has a new character, and acts by its own authority. So the Constitution of the United States, founded in or on the consent of the people, may be said to rest on Compact or consent; but it is not itself the Compact, but its result. When the people agree to erect a Government, and actually erect it, the thing is done, and the agreement is at an end. The Compact is executed, and the end designed by it attained. Henceforth, the fruit of the agreement exists, but the agreement itself is merged in its own accomplishment; since there can be no longer a subsisting agreement or Compact to form a Constitution or Government, after that Constitution or Government has been actually formed and established.
"It appears to me, Mr. President, that the plainest account of the establishment of this Government presents the most just and philosophical view of its foundation. The people of the several States had their separate State Governments; and between the States there Iso existed a Confederation. With this condition of things the people were not satisfied, as the Confederation had been found not to fulfil its intended objects. I1 was proposed, therefore, to erect a new, common Government, which should possess certain definite powers, such as regarded the prosperity of the people of all the States and to be formed upon the general model of American Constitutions. This proposal was assented to, and an instrument was presented to the people of the several States for their consideration. They approved it, and agreed to adopt it, as a Constitution. They executed that agreement; they adopted the Constitution as a Constitution, and henceforth it must stand as a Constitution until it shall be altogether destroyed. Now, sir, is not this the truth of the whole matter? And is not all that we have heard of Compact between Sovereign States the mere theoretical and artificial mode of reasoning upon the subject? a mode of reasoning which disregards plain facts for the sake of hypothesis?
"Mr. President, the nature of Sovereignty, or Sovereign, power, has been extensively discussed by gentlemen on this occasion, as it generally is when the origin of our Government is debated. But I confess myself not entirely satisfied with arguments and illustrations drawn from that topic. The Sovereignty of Government is an idea belonging to the other side of the Atlantic. No such thing is known in North America. Our Governments are all limited. In Europe, Sovereignty is of feudal origin, and imports no more than the state of the Sovereign. It comprises his rights, duties, exemptions, prerogatives, and powers. But with us, all power is with the people. They alone are Sovereign; and they erect what Governments they please, and confer on them such powers as they please. None of these Governments is Sovereign, in the European sense of the word, all being restrained by Constitutions. It seems to me, therefore, that we only perplex ourselves when we attempt to explain the relations existing between the General Government and the several State Governments, according tin those ideas of Sovereignty which prevail under systems essentially different from our own.
"But, sir, to return to the Constitution itself, let us inquire what it relies upon for its continuance and support. I hear it often suggested, that the States, by refusing to appoint Senators and Electors, might bring this Government to an end. Perhaps that is true; but the same may be said of the State Governments themselves. Suppose the Legislature of a State, having the power to appoint the Governor and the Judges, should omit that duty, would not the State Government remain unorganized? No doubt, all elective Governments may be broken up by a general abandonment, on the part of those intrusted with political powers, of their appropriate duties. But one popular Government has, in this respect, as much security as another. The maintenance of this Constitution does not depend on the plighted faith of the States, as States, to support it; and this again shows that it is not a League. It relies on individual duty and obligation.
"The Constitution of the United States creates direct relations between this Government and individuals. This Government may punish individuals for treason, and all other crimes in the code, when committed against the United States. It has power, also, to tax individuals in any mode, and to any extent; and it possesses the further power of demanding from individuals military service. Nothing, certainly, can more clearly distinguish a Government from a Confederation of States than the possession of these powers. No closer relations can exist between individuals and any Government.
"On the other hand, the Government owes high and solemn duties to every citizen of the country. It is bound to protect him in his most important rights and interests. It makes war for his protection, and no other Government in the country can make war. It makes peace for his protection, and no other Government can make peace. It maintains armies and navies for his defence and security, and no other Government is allowed to maintain them. He goes abroad beneath its flag, and carries over all the earth a National character imparted to him by this Government, and which no other Government can impart. In whatever relates to war, to peace, to commerce, he knows no other Government. All these, sir, are connections as dear and as sacred as can bind individuals to any Government on earth. It is not, therefore, a Compact between States, but a Government proper, operating directly upon individuals, yielding to them protection on the one hand, and demanding from them obedience on the other.
"There is no language in the whole Constitution applicable to a Confederation of States. If the States be parties, as States, what are their rights, and what their respective covenants and stipulations? And where are their rights, covenants, and stipulations expressed? The States engage for nothing, they promise nothing. In the Articles of Confederation, they did make promises, and did enter into engagements, and did plight the faith of each State for their fulfilment; but in the Constitution there is nothing of that kind. The reason is, that, in the Constitution, it is the people who speak, and not the States. The people ordain the Constitution, and therein address themselves to the States, and to the Legislatures of the States, in the language of injunction and prohibition. The Constitution utters its behests in the name and by authority of the people, and it does not exact from States any plighted public faith to maintain it. On the contrary, it makes its own preservation depend on individual duty and individual obligation. Sir, the States cannot omit to appoint Senators and Electors. It is not a matter resting in State discretion or State pleasure. The Constitution Was taken better care of its own preservation. It lays its hand on individual conscience and individual duty. It incapacitates any man to sit in the Legislature of a State, who shall not first have taken his solemn oath to support the Constitution of the United States. From the obligation of this oath, no State power can discharge him. All the members of all the State Legislatures are as religiously bound to support the Constitution of the United States as they are to support their own State Constitution. Nay, sir, they are as solemnly sworn to support it as we ourselves are, who are members of Congress.
"No member of a State Legislature can refuse to proceed, at the proper time, to elect Senators to Congress, or to provide for the choice of Electors of President and Vice President, any more than the members of this Senate can refuse, when the appointed day arrives, to meet the members of the other House, to count the votes for those officers, and ascertain who are chosen. In both cases, the duty binds, and with equal strength, the conscience of the individual member, and it is imposed on all by an oath in the same words. Let it then never be said, sir, that it is a matter of discretion with the States whether they will continue the Government, or break it up by refiling to appoint Senators and to elect Electors. They have no discretion in the matter. The members of their Legislatures cannot avoid doing either, so often as the time arrives, without a direct violation of their duty and their oaths; such a violation as would break up any other Government.
"Looking still further to the provisions of the Constitution itself, in order to learn its true character, we find its great apparent purpose to be, to unite the people of all the States under one General Government, for certain definite objects, and, to the extent of this Union, to restrain the separate authority of the States. Congress only can declare war; therefore, when one State is at war with a foreign nation, all must be at war. The President and the Senate only can make peace; when peace is made for one State, therefore, it must be made for all.
"Can any thing be conceived more preposterous, than that any State should have power to nullify the proceedings of the General Government respecting peace and war? When war is declared by a law of Congress, can a single State nullify that law, and remain at peace? And yet she may nullify that law as well as any other. If the President and Senate make peace, may one State, nevertheless, continue the war? And yet, if she can nullify a law, she may quite as well nullify a treaty.
"The truth is, Mr. President, and no ingenuity of argument, no subtilty of distinction, can evade it, that, as to certain purposes, the people of the United States are one people. They are one in making war, and one in making peace; they are one in regulating commerce, and one in laying duties of imposts. The very end and purpose of the Constitution was to make them one people in these particulars; and it has effectually accomplished its object. All this is apparent on the face of the Constitution itself. I have already said, sir, that to obtain a power of direct legislation over the people, especially ill regard to imposts, was always prominent as a reason for getting rid of the Confederation, and forming a new Constitution. Among innumerable proofs of this, before the assembling of the Convention, allow me to refer only to the report of the Committee of the old Congress, July, 1785.
"But, sir, let us go to the actual formation of the Constitution; let us open the Journal of the Convention itself; and we shall see that the very first resolution which the Convention adopted, was, 'THAT A NATIONAL GOVERNMENT OUGHT TO BE ESTABLISHED, CONSISTING OF A SUPREME LEGISLATURE, JUDICIARY AND EXECUTIVE.'
"This, itself, completely negatives all idea of League, and Compact, and Confederation. Terms could not be chosen more fit to express an intention to establish a National Government, and to banish forever all notion of a Compact between Sovereign States.
"This resolution was adopted on the 30th of May, 1787. Afterwards, the style was altered; and, instead of being called a National Government, it was called the Government of the United States; but the substance of this resolution was retained, and was at the head of that list of resolutions which was afterwards sent to the Committee who were to frame the instrument.
"It is true, there were gentlemen in the Convention, who were for retaining the Confederation, and amending its Articles; but the majority was against this, and was for a National Government. Mr. Paterson's propositions, which were for continuing the Articles of Confederation, with additional powers, were submitted to the Convention, on the 15th of June, and referred to the Committee of the Whole. The resolutions forming the basis of a National Government, which had once been agreed to in the Committee of the Whole, and reported, were recommitted to the same Committee, on the same day. The Convention, then, in Committee of the Whole, on the 19th of June, had both these plans before them; that is to say, the plan of a Confederacy, or Compact, between the States, and the plan of a National Government. Both these plans were considered and debated, and the Committee reported, 'That they do not agree to the propositions offered by the Honorable Mr. Paterson, but that they again submit the resolutions formerly reported.' If, sir, any historical fact in the world be plain and undeniable, it is that the Convention deliberated on the expediency of continuing the Confederation, with some amendments, and rejected that scheme, and adopted the plan of a National Government, with a Legislature, an Executive and a Judiciary of its own. They were asked to preserve the League; they rejected the proposition. They were asked to continue the existing Compact between States; they rejected it. They rejected Compact, League, and Confederation, and set themselves about framing the Constitution of a National Government; and they accomplished what they undertook.
"If men will open their eyes fairly, to the lights of history, it is impossible to be deceived on this point. The great object was to supersede the Confederation, by a regular Government; because, under the Confederation, Congress had power only to make requisitions on States; and if States declined compliance, as they did, there was no remedy but war against such delinquent States. It would seem, from Mr. Jefferson's correspondence, in 1786 and 1787, that he was of opinion that even this remedy ought to be tried. 'There will be no money in the treasury,' said he, 'till the Confederacy shows its teeth;' and he suggests that a single frigate would soon levy, on the commerce of a delinquent State, the deficiency of its contribution. But this would be war; and it was evident that a Confederacy could not long hold together, which should be at war with its members. The Constitution was adopted to avoid this necessity. It was adopted that there might be a Government which should act directly on individuals, without borrowing aid from the State Governments. This is as clear as light itself, on the very face of the provisions of the Constitution, and its whole history tends to the same conclusion. Its framers gave this very reason for their work in the most distinct terms. Allow me to quote but one or two proofs, out of hundreds. That State, so small in territory, but so distinguished for learning and talent, Connecticut, had.sent to the General Convention, among other members, Samuel Johnston and Oliver Ellsworth. The Constitution having been framed, it was submitted to a Convention of the people of Connecticut for ratification on the part of that State; and Mr. Johnston and Mr. Ellsworth were also members of this Convention. On the first day of the debates, being called on to explain the reasons which led the Convention, at Philadelphia, to recommend such a Constitution, after showing the insufficiency of the existing Confederacy, inasmuch as it applied to States, as States, Mr. Johnston proceeded to say:
"'The Convention saw this imperfection in attempting to legislate for States in their political capacity, that the coercion of law can be exercised by nothing but a military force. They have, therefore, gone upon entirely new ground. They have formed one new nation out of the individual States. The Constitution vests in the General Legislature a power to make laws in matters of National concern; to appoint judges to decide upon these laws; and to appoint officers to carry them into execution. This excludes the idea of an armed force. The power which is to enforce these laws is to be a legal power, vested in proper magistrates. The force which is to be employed is the energy of law; and this force is to operate only upon individuals who fail in their duty to their country. This is the peculiar glory of the Constitution, that it depends upon the mild and equal energy of the magistracy for the execution of the laws.'
"In the further course of the debate, Mr. Ellsworth said,
"'In Republics, it is a fundamental principle, that the majority govern, and that the minority comply with the general voice. How contrary, then, to Republican principles, how humiliating, is our present situation! A single State can rise up, and put a veto upon the most important public measures. We have seen,this actually take place; a single State has controlled the general voice of the Union; a minority, a very small minority, has governed us. So far is this from being consistent with republican principles, that it is, in effect, the worst species of monarchy.
"'Hence we see how necessary for the Union is a coercive principle. No man pretends the contrary. We all see and feel this necessity. The only question is, shall it be a coercion of law, or a coercion of arms? There is no other possible alternative. Where will those who oppose a coercion of law come out? Where will they end? A necessary consequence of their principles is a war of the States one against another. I am for coercion by law; that coercion which acts only upon delinquent individuals. This Constitution does not attempt to coerce Sovereign bodies, States, in their political capacity. No coercion is applicable to such bodies, but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State, it would involve the good and bad, the innocent and guilty, in the same calamity. But this legal coercion singles out the guilty individual and punishes him for breaking the laws of the Union.'*
* See Ellsworth, ante, p. 153, and Speech, ante, pp. 229, 230
"Indeed, sir, if we look to all contemporary history, to the numbers of the Federalist, to the debates in' the Conventions, to the publications of friends and foes, they all agree, that a change had been made from a Confederacy of States to a different system; they all agree, that the Convention had formed a Constitution for a National Government. With this result some were satisfied, and some were dissatisfied; but all admitted that the thing had been done. In none of these varied productions and publications did any one intimate that the new Constitution was but another Compact between States in their Sovereign capacities. I do not find such an opinion advanced in a single instance. Everywhere, the people were told that the old Confederation was to be abandoned, and a new system to be tried; that a proper Government was proposed, to be founded in the name of the people, and to have a regular organization of its own. Everywhere, the people were told that it was to be a Government with direct powers to make laws over individuals, and to lay taxes and imposts without the consent of the States. Everywhere, it was understood to be a popular Constitution. It came to the people for their adoption, and was to rest on the same deep foundation as the State Constitutions themselves. Its most distinguished advocates, who had been themselves members of the Convention, declared that the very object of submitting the Constitution to the people was to preclude the possibility of its being regarded as a mere Compact. 'However gross a heresy,' say the writers of the Federalist, 'it may be to maintain that a party to a Compact has a right to revoke that Compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our National Government deeper than in the mere sanction' of delegated authority. The fabric of American Empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE.'*
* Ante, p. 155.
"Such is the language, sir, addressed to the people, while they yet had the Constitution under consideration. The powers conferred on the new Government were perfectly well understood to be conferred, not by any State, or the people of any State, but by the people of the United States. Virginia is more explicit, perhaps, in this particular, than any other State. Her Convention assembled to ratify the Constitution,'in the name and behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whenever the same shall be perverted to their injury or oppression.' * * *
Ante, p. 269.
"Is this language which describes the formation of a Compact between States? or language describing the grant of powers to a new Government, by the whole people of the United States?
"Among all the other ratifications, there is not one which speaks of the Constitution as a Compact between States. Those of New Hampshire and Massachusetts express the transaction, in my opinion, with sufficient accuracy. They recognize the Divine goodness in affording THE PEOPLE OF THE UNITED STATES an opportunity of entering into an explicit and solemn Compact with each other, by assenting to and ratifying a new Constitution.' You will observe, sir, that it is THE PEOPLE, and not he States, who have entered into this Compact; and it is the PEOPLE of all the United States. These Conventions, by this form of expression, meant merely to say, that the people of the United States had, by the blessing of Providence, enjoyed the opportunity of establishing a new Constitution, founded in the consent of the people. This consent of the people has been called, by European writers, the social Compact; and, in conformity to this common mode of expression, these Conventions speak of that assent, on which the new Constitution was to rest, as an explicit and solemn Compact, not which the States had entered into with each other, but which the people of the United States had entered into.
"Finally, sir, how can any man get over the words of the Constitution itself? 'WE, THE PEOPLE OF THE UNITED STATES, DO ORDAIN AND ESTABLISH THIS CONSTITUTION.'* These words must cease to be a part of the Constitution, they must be obliterated from the parchment on which they are written, before any human ingenuity or human argument can remove the popular basis on which that Constitution rests, and turn the instrument into a mere Compact between Sovereign States!"
* Ante, p. 140: "For the United States of America." The first words are not to be obliterated, neither are the last. All taken together show, that it was a Constitution for States and not the people in the aggregate.
PROF. NORTON. Now, sir, I think this speech is a complete answer to all that you have said or can say on the subject. I adopt it because it is so compact, so solid and conclusive. What can you say in reply to it? Whatever you may think of Story as a historian or a statesman, I feel quite assured, from your estimation of Mr. Webster, of which you have given so many of the high. est proofs, that his authority will, at least, have some weight with you. If I mistake not, you always regarded him as one of the ablest of our statesmen. His noble bust in the library there is a reminder of that estimate. Well do I remember how you and I strove to make him President in 1852.
MR. STEPHENS. Yes, I remember that contest well; and it is true that I ever regarded Mr. Webster as one of the ablest of our statesmen: this the bust and the picture in the hall fully attest. In many respects I considered him the first man in this country, and, indeed, the first man of the age in which he lived. In mental power, in grasp of thought, and in that force and manner of expression which constitute eloquence, he had no superior. Intellectually he was a man of huge proportions, and his patriotism was of the loftiest and purest character. Such was and is my estimation of him. I was exceedingly anxious to see him President, and what a President he would have made! You did well, therefore, in selecting his argument on this subject. It is the embodiment of all that can be said upon your side of the question. It was the characteristic of Mr. Webster to leave nothing unsaid, on his side of any subject he spoke on, that could be said to strengthen it, and all that could be said, he always said better than any body else. Hence, whether at the bar, on the hustings, or in the Senate, his speeches were always the best that were made on his side. It used to be a remark, often made by our Chief Justice Lumpkin, who was a man himself of wonderful genius, profound learning, and the first of orators in this State, that Webster was always foremost amongst those with whom he acted on any question, and that even in books of selected pieces, whenever selections were made from Webster, those were the best in the book. This, I think, was not too great a eulogium upon his transcendent powers and varied abilities. But it is not the lot of any man to be perfect. I am far from believing Mr. Webster free from political errors. And this speech of his, which, by many (his biographer included, I believe), is considered the greatest of his life, you will allow me to say, contains more errors of this sort than any he ever made. His premises being erroneous, his conclusions must be of the same character. The superstructure is grand. It is the work of a master genius. But the foundations are not solid. It was this speech, by the by, which gave him the appellation of the "Great Expounder of the Constitution," with the Consolidationists of that day. In it he did throw all the might of his Gigantic and Titan powers. But the subject was an overmatch for him; the undertaking was too great for even him. Facts were too stubborn. His whole soul was in the subject, and he strove to establish what he wished rather than what, actually existed. His effort was to make facts bend to theory. This could not be done. This speech, I readily admit, is the best and ablest that ever was made upon that side of the question. It stands as a monument of genius and eloquence. As such it may well take its place by, the side of the great argument of Hume in defence of the Prerogatives of the Crown, claimed by the 8tuarts, or of Sir Robert Filmer's famous productions in favor of the Divine Right of Kings, or Sir George McKenzie's "Jus Regum."
Much of the answer to this speech, you perceive, has been anticipated. For instance, what is said about "we, the people," etc., near the conclusion, has been sufficiently explained in our investigations. The broad assertion that all parties agreed that the Convention had formed a National Government and had not continued the Federal system, doubtless made a deep impression at the time upon those not conversant with the history of the facts, but it can have no effect upon us who have travelled so carefully through the records of those days. Equally unimpressively falls upon us the declaration that in "none of the productions and publications of those days did any one intimate that the new Constitution was but, another Compact between States." We have seen that such was the opinion of Washington, Madison, Hamilton, Rufus King, Ellsworth, Morris, and Randolph; that is, they all held that the Government established by it was Federal. This implies Compact; and we have seen that it was the opinion of all the advocates of the Constitution in every one of the Conventions of the States that ratified it, that the Federative character of the Union was preserved! No advocate of the Constitution in any State admitted that the Federal System was abandoned in it, and no writer in the Federalist admitted it.
What is said in this speech about Mr. Paterson's proposition in the Convention that formed the Constitution for continuing the Articles of Confederation, which was offered on the 15th of June and rejected on the 19th of the same month, needs this explanation, and this only. Mr. Paterson's proposition was for continuing requisitions on the States as States, and for leaving all Legislative powers in the Congress composed of but one body as before.
His proposition ignored the division of the Legislative body into two Houses, which was a leading object of a large majority of the States in the new organization. His proposition was rejected, not because it proposed to continue the Federal System, but because it did not propose to continue it under a proper organization. That the Convention, by the rejection of his plan, did not intend to abandon the Federal system, has been conclusively shown by the vote on the 20th of June. That vote ordered the word "National" to be stricken out of Governor Randolph's plan and "the Government of the United States" to be inserted in lieu of it.* It is also worthy of note in this connection, that this plan of Mr. Paterson, which Mr. Webster admits was nothing but a continuation of the Articles of Confederation, had in it these clauses:
* Journal of Convention, Elliot's Debates, vol. i, pp. 182, 183.
"6. Resolved, That the Legislative, Executive and Judicial powers within the several States ought to be bound on oath to support the Articles of Union.
"7. Resolved, That all Acts of the United States, in Congress assembled, made by virtue and in pursuance of the powers hereby vested in them and by the Articles of Confederation, and all treaties made and ratified under the authority of the United States, shall be the supreme law of th( respective ten as far as those acts or treaties shall relate to the said States or their citizens; and that the judiciaries of the several States shall be bound thereby in their decisions every thing in the respective laws of the individual States to the contrary notwithstanding."
Journal of Convention, Elliot's Debates, vol. i, p. 177.
This, you perceive, is the substance of the clause in the present Constitution which was afterwards offered by Mr. Martin, as has been seen, and upon which Mr. Webster relies so much in his argument to show that a National Government and not a Federal one was instituted by the Constitution. This fact I wish you to bear in mind at this point in connection with what has been before said on that subject, as it clearly shows that no person in the Convention put such construction upon these words as Mr. Webster puts upon them. This clause was not thought by Mr. Paterson or Mr. Martin, or any body else in the Convention, to be at all inconsistent with a continuation of the former Articles of Union, which Mr. Webster admits was but a bare League or Compact between States. We have seen that Mr. Hamilton and Mr. Madison, and Judge Chase, were of the same opinion. This much I say in passing.
Now, in full answer to the main points in this truly great argument of Mr. Webster, following your example, I will read the reply to it by Mr. Calhoun. Great as Mr. Webster's was in my judgment, this speech of Mr. Calhoun was a complete refutation of its principles and a clear vindication of the correctness of his Resolutions that Mr. Webster made such powerful assault upon.
Before taking it up, however, allow me to say, that I think Mr. Calhoun was greatly misunderstood in his day and time. He was generally regarded as an enemy to the Union. This was certainly a great mistake. He was, in my judgment, as ardent a friend of the Union as Mr. Webster was. Both were as true patriots as ever lived. They only differed as to the nature of the Union, and the principles upon which it should be maintained. Mr. Calhoun held that it could be maintained and perpetuated consistently with the preservation of Constitutional liberty only on the principle of the recognition of the ultimate Sovereign rights of the States. These doctrines he advocated with an earnestness which showed the profound convictions of his judgment as well as his fearful apprehensions from the ascendancy of opposite principles. By many he was regarded as an alarmist. Sergeant S. Prentiss is reported to have said of him that "he claims our confidence by his very fears, and like the needle he trembles into place." Whether Prentiss ever made the remark or not, the figure is no less characteristic of the reported author than of him to whom it is said to have been applied. Amongst the many great men with whom he was associated, Mr. Calhoun was by far the most philosophical statesman of them all. Indeed, with the exception of Mr. Jefferson, it may be questioned if in this respect the United States has ever produced his superior. Government he considered a science, and in its study his whole soul was absorbed. His Treatise on the Constitution of the United States is the best that was ever penned upon that subject, and his Disquisition on Government generally, is one of the few books of this age, that will outlive the language in which it was written. He studied the controlling principles of all systems, their organic laws, and the inevitable results of their action. Webster, Clay, and Jackson, all his rivals to some extent, were much more practical in their ideas as well as actions. He was regarded as too much of an abstractionist, dealing in incomprehensible metaphysical distinctions. But no better reply to this charge and no better introduction to the speech I propose to read can be made, than the reply he made himself, to this charge, a few days before, in the Senate.
"The Senator from Delaware" (Mr. Clayton), said Mr. Calhoun, "calls this metaphysical reasoning, which, he says, he cannot comprehend. If, by metaphysics, he means that scholastic refinement which makes distinctions without difference, no one can hold it in a more titter contempt than he (Mr. Calhoun); but if, on the contrary, he means the power of analysis and combination that power which reduces the most complex idea into its elements, which traces causes to their first principles, and by the power of generalization and combination, unites the whole into one harmonious system; then, so far from deserving contempt, it is the highest attribute of the human mind. It is the power which raises man above the brute which distinguishes his faculties from mere sagacity, which he holds in common with inferior animals. It is this power which has raised the astronomer, from being a mere gazer at the stars, to the high intellectual eminence of a Newton or a La Place; and astronomy itself, from a mere observation of insulated facts, into that noble science which displays to our admiration the system of the universe. And shall this high power of the mind, which has effected such wonders, when directed to the laws which control the material world, be forever prohibited, under a senseless cry of metaphysics, from being applied to the high purpose of political science and legislation. He held them to be subject to laws as fixed as matter itself, and to be as fit a subject for the application of the highest intellectual power. Denunciation may, indeed, fall upon the philosophical inquirer into these first principles, as it did upon Galileo and Bacon, when they first unfolded the great discoveries which have immortalized their names; but the time will come, when truth will prevail in spite of prejudice and denunciation; and when politics and legislation will be considered as much a science as astronomy and chemistry."*
* Niles's Register, vol. xliii, Sup., p. 163.
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