CALHOUN ON THE CONSTITUTION COMMENTS.
MR. STEPHENS. Following your example, I said I would read Mr. Calhoun's speech in reply to the main and leading ideas of Mr. Webster in the speech made by him which you have just read.
Here is that reply of Mr. Calhoun, or so much as bears upon the points at issue between them. It was delivered in the Senate, on the 26th of February, 1833.*
* Niles's Register, vol. xliii, Sup., p. 229.
* * * * * *
"The Senator from Massachusetts," said Mr. Calhoun, "in his argument against the Resolutions, directed his attack almost exclusively against the first; on the ground, I suppose, that it was the basis of the other two, and that, unless the first could be demolished, the others would follow of course. In this he was right. As plain and as simple as the facts contained in the first are, they cannot be admitted to be true without admitting the doctrines for which I, and the State I represent, contend. He commenced his attack with a verbal criticism on the Resolution, in the course of which he objected strongly to two words, 'Constitutional' and 'accede.' To the former, on the ground that the word, as used (Constitutional Compact), was obscure that it conveyed no definite meaning and that Constitution was a noun-substantive, and not an adjective. I regret that I have exposed myself to the criticism of the Senator. I certainly did not intend to use any expression of doubtful sense, and if I have done so, the Senator must attribute it to the poverty of my language, and not to design I trust, however, that the Senator will excuse me, when the comes to hear my apology. In matters of criticism, authority is of the highest importance, and I have an authority of so high a character, in this case, for using the expression which he considers so obscure and so unconstitutional, as will justify me even in his eyes. It is no less than the authority of the Senator himself given on a solemn occasion (the discussion on Mr. Foote's Resolution), and doubtless with great deliberation, after having duly weighed the force of the expression."
[Here Mr. Calhoun read from Mr. Webster's speech, in the debate on the Foote Resolutions, in 1830.]
"'Nevertheless, I do not complain, nor would I countenance any movement to alter this arrangement of representation. It is the original bargain the Compact let it stand let the advantage of it be fully enjoyed. The Union itself is too fill of benefits to be hazarded in propositions for changing its original basis. I go for the Constitution, as it is, and for the Union, as it is. But I am resolved not to submit, in silence, to accusations, either against myself, individually, or against the North, wholly unfounded and unjust accusations which impute to us a disposition to evade the CONSTITUTIONAL COMPACT, and to extend the power of the Government over the internal laws and domestic condition of the States.'
"It will be seen by this extract," proceeded Mr. Calhoun, "that the Senator not only used the phrase 'Constitutional Compact,' which he now so much condemns, but, what is still more important, he calls the Constitution a Compact a bargain which contains important admissions, having a direct and powerful bearing on the main issue, involved in the discussion, as will appear in the sequel. But, strong as his objection is to the word 'Constitutional,' it is still stronger to the word 'accede,' which, he thinks, has been introduced into the Resolution with some deep design, as I suppose, to entrap the Senate into an admission of the doctrine of State Rights. Here, again, I must shelter myself under authority. But I suspect the Senator, by a sort of instinct (for our instincts often strangely run before our knowledge), had a prescience, which would account for his aversion for the word, that this authority was no less than Thomas Jefferson himself, the great apostle of the doctrines of State Rights. The word was borrowed from him. It was taken from the Kentucky Resolution, as well as the substance of the resolution itself. But I trust I may neutralize whatever aversion the authorship of this word may have excited in the mind of the Senator, by the introduction of another authority that of Washington, himself who, in his speech to Congress, speaking of the admission of North Carolina into the Union, uses this very term, which was repeated by the Senate in their reply. Yet, in order to narrow the ground between the Senator and myself as much as possible, I will accommodate myself to his strange antipathy against the two unfortunate words, by striking them out of the Resolution, and substituting, in their place, those very words which the Senator himself has designated as Constitutional phrases. In the place of that abhorred adjective 'Constitutional,' I will insert the very noun substantive 'Constitution;' and, in the place of the word 'accede,' I will insert the word 'ratify,' which he designates as the proper term to be used.
"As proposed to be amended, the Resolution would
"'Resolved, That the people of the several States composing these United States are united as parties to a Compact, under the title of the Constitution of the United States, which the people of each State ratified as a separate and 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.'
"Where, sir, I ask, is that plain case of revolution? Where that hiatus, as wide as the globe, between the premises and the conclusion, which the Senator proclaimed would be apparent, if the Resolution was reduced into Constitutional language? For my part, with my poor powers of conception, I cannot perceive the slightest difference between the Resolution, as first introduced, and as it is proposed to be amended in conformity to the views of the Senator. And, instead of that hiatus between the premises and conclusion, which seems to startle the imagination of the Senator, I can perceive nothing but a continuous and solid surface, sufficient to sustain the magnificent superstructure of State Rights. Indeed, it seems to me that the Senator's vision is distorted by the medium through which he views every thing connected with the subject; and that the same distortion which has presented to his imagination this hiatus, as wide as the globe, where not even a fissure exists, also presented that beautiful and classical image of a strong man struggling in a bog, without the power of extricating himself, and incapable of being aided by any friendly hand; while, instead of struggling in a bog, he stands on the everlasting rock of truth.
"Having now noticed the criticisms of the Senator, I shall proceed to meet and repel the main assault on the Resolution. He directed his attack against the strong point, the very horn of the citadel of State Rights. The Senator clearly perceived that, if the Constitution be a Compact, it was impossible to deny the assertions contained in the Resolutions, or to resist the consequences which I had drawn from them, and, accordingly, directed his whole fire against that point; but, after so vast an expenditure of ammunition, not the slightest impression, so far as I can perceive, has been made. But to drop the simile, after a careful examination of the notes which I took of what the Senator said, I am now at a loss to know whether, in the opinion of the Senator, our Constitution is a Compact or not, though the almost entire argument of the Senator was directed to that point. At one time he would seem to deny directly and positively that it was a Compact, while at another lie would appear, in language not less strong, to admit that it was.
"I have collated all that the Senator has said upon this point; and, that what I have stated may not appear exaggerated, I will read his remarks in juxtaposition. He said that:
"'The Constitution means a Government, not a Compact.' 'Not a Constitutional Compact, but a Government.' 'If Compact, it rests on plighted faith, and the mode of redress would be to declare the whole void.' 'States may secede, if a League or Compact.'
"I thank the Senator for these admissions, which I intend to use hereafter.
"'The States agreed that each should participate in the Sovereignty of the other.'
"Certainly, a very correct conception of the Constitution; but where did they make that agreement but by the Constitution, and how could they agree but by Compact?
"'The system, not a Compact between States in their Sovereign capacity, but a Government proper, founded on the adoption of the people, and creating individual relations between itself and the citizens.'
"This, the Senator lays down as a leading, fundamental principle to sustain his doctrine, and, I must say, with strange confusion and uncertainty of language; not, certainly, to be explained by any want of command of the most appropriate words on his part.
"'It does not call itself a Compact, but a Constitution. The Constitution rests on Compact, but it is no longer a Compact.'
"I would ask, to what Compact does the Senator refer, as that on which the Constitution rests? Before the adoption of the present Constitution, the States had formed but one Compact, and that was the old Confederation; and, certainly, the gentleman does not intend to assert that the present Constitution rests upon that. What, then, is his meaning? What can it be, but that the Constitution itself is a Compact? And how will his language read, when fairly interpreted, but that the Constitution was a Compact, but is no longer a Compact? It had, by some means or another, changed its nature, or become defunct.
"He next states that
"'A man is almost untrue to his country who calls the Constitution a Compact.'
"I fear the Senator, in calling it a Compact, a bargain, has called down this heavy denunciation on his own head. He finally states that
"'It is founded on Compact, but not a Compact.' 'It is the result of a Compact.'
"To what are we to attribute this strange confusion of words? The Senator has a mind of high order, and perfectly trained to the most exact use of language. No man knows better the precise import of the words he uses. The difficulty is not in him, but in his subject. He who undertakes to prove that this Constitution is not a Compact, undertakes a task which, be his strength ever so great, must oppress him by its weight. Taking the whole of the argument of the Senator together, I would say that it is his impression that the Constitution is not a Compact, and will now proceed to consider the reason which he has assigned for this opinion.
"He thinks there is an incompatibility between Constitution and Compact. To prove this, he adduces the words 'ordain and establish,' contained in the preamble of the Constitution. I confess I am not capable of perceiving in what manner these words are incompatible with the idea that the Constitution is a Compact. The Senator will admit that a single State may ordain a Constitution; and where is the difficulty, where the incompatibility, of two States concurring in ordaining and establishing a Constitution? As between the States themselves, the instrument would be a Compact; but in reference to the Government, and those on whom it operates, it would be ordained and established ordained and established by the joint authority of two, instead of the single authority of one.
"The next argument which the Senator advances to show that the language of the Constitution is irreconcilable with the idea of its being a Compact, is taken from that portion of the instrument which imposes prohibitions on the authority of the States. He said that the language used, in imposing the prohibitions, is the language of a superior to an inferior; and that, therefore, it was not the language of a Compact, which implies the equality of the parties. As a proof, the Senator cited. several clauses of the Constitution which provide that no State shall enter into treaties of alliance and confederation, lay imposts, etc., without the assent of Congress. If lie had turned to the Articles of the old Confederation, which he acknowledges to have been a Compact, he would have found that those very prohibitory Articles of the Constitution were borrowed from that instrument; that the language, which he now considers as implying superiority, was taken verbatim from it. If lie had extended his researches still further, he would have found that it is the habitual language used in treaties, whenever a stipulation is made against the performance of any act. Among many instances, which I could cite, if it were necessary, I refer the Senator to the celebrated treaty negotiated by Mr. Jay with Great Britain, in 1793, in which the very language used in the Constitution is employed.
"To prove that the Constitution is not a Compact, the Senator next observes that it stipulates nothing, and asks, with an air of triumph, 'Where are the evidences of the stipulations between the States?' I must express my surprise at this interrogatory, coming from so intelligent a source. Has the Senator never seen the ratifications of the Constitution by the several States? Did he not cite them on this very occasion? Do they contain no evidence of stipulations on the part of the States? Nor is the assertion less strange that the Constitution contains no stipulations.
"So far from regarding it in the light in which the Senator regards it, I consider the whole instrument but a mass of stipulations. What is that but a stipulation to which the Senator refers when he states, in the course of his argument, that each State had agreed to participate in the Sovereignty of the others.
"But the principal argument on which the Senator relied to show that the Constitution is not a Compact, rests on the provision, in that instrument, which declares that 'this Constitution, and laws made in pursuance thereof, and treaties made under their authority, are the supreme laws of the land:' He asked, with marked emphasis, 'Can a Compact be the supreme law of the land?' His argument, in fact, as conclusively proves that treaties are not Compacts as that the Constitution is not a Compact. I might rest the issue on this decisive answer; but, as I desire to leave not a shadow of doubt on this important point, I shall follow the gentleman in the course of his reasoning.
"He defines a Constitution to be a fundamental law, which organizes the Government, and points out the mode of its action. I will not object to the definition, though, in my opinion, a more appropriate one, or, at least, one better adapted to American ideas, could be given. My objection is not to the definition, but to the attempt to prove that the fundamental laws of a State cannot be a Compact, as the Senator seems to suppose. I hold the very reverse to be the case; and that, according to the most approved writers on the subject of Government, these very fundamental laws which are now stated not only not to be Compacts, but inconsistent with the, very idea of Compacts, are held invariably to be Compacts; and, in that character, are distinguished from the ordinary laws of the country. I will cite a single authority, which is full and explicit on this point, from a writer of the highest repute.
"Burlamaqui says, vol. ii, part 1, chap. i, sees. 35, 36, 37, 38:
"'It entirely depends upon a free people to invest the Sovereigns, whom they place over their heads, with an authority either absolute or limited by certain laws. These regulations, by which the supreme authority is kept within bounds, are called the fundamental laws of the State. The fundamental laws of a State, taken in their full extent, are not only the decrees by which the entire body of the nation determine the form of Government, and the manner of succeeding to the Crown, but are likewise covenants between the people and the person on whom they confer the Sovereignty, which regulate the manner of governing, and by which the supreme authority is limited.
"'These regulations are called fundamental laws, because they are the basis, as it were, and foundation of the State on which the structure of the Government is raised, and, because the people look upon these regulations as their principal strength and support.
"'The name of laws, however, has been given to these regulations in an improper and figurative sense, for, properly speaking, they are real covenants. But as these covenants are obligatory between the contracting parties, they have the force of laws themselves.'
"The same, vol. ii, part 2, ch. i, sees. 19 and 22, in part.
"'The whole body of the nation, in whom the supreme power originally resides, may regulate the Government by a fundamental law, in such manner, as to commit the exercise of the different parts of the supreme power to different persons or bodies, who may act independently of each other in regard to the rights committed to them, but still subordinate to the laws from which those rights are derived.
"'And these fundamental laws are real covenants, or what the civilians call pacta conventa, between the different orders of the republic, by which they stipulate that each shall have a particular part of the Sovereignty, and that this shall establish the form of Government. It is evident that, by these means, each of the contracting parties acquires a right, not only of exercising the power granted to it, but also of preserving that original right.'
"A reference to the Constitution of Great Britain, with which we are better acquainted than with that of any other European Government, will show that that is a Compact. Magna Charta may certainly be reckoned among the fundamental laws of that kingdom. Now, although it did not assume, originally, the form of a Compact, yet, before the breaking up of the meeting of the Barons which imposed it on King John, it was reduced into the form of a covenant, and duly signed by Robert Fitzwalter and others, on the one part, and the King on the other.
"But we have a more decisive proof that the Constitution of England is a Compact, in the resolution of the Lords and Commons, in 1688, which declared:
"'King James the Second, having endeavored to subvert the Constitution of the kingdom, by breaking the original contract between the King and people, and having, by the advice of Jesuits and other wicked persons, violated the fundamental law, and withdrawn himself out of the kingdom, hath abdicated the Government, and that the throne is thereby become vacant.'
"But why should I refer to writers upon the subject of Government, or inquire into the Constitution of foreign States, when there are such decisive proofs that our Constitution is a Compact? On this point the Senator is estopped. I borrow from the gentleman, and thank him for the word. His adopted State, which he so ably represents on this floor, and his native State, the States of Massachusetts and New Hampshire, both declared, in their ratification of the Constitution, that it was a Compact. The ratification of Massachusetts is in the following words:"
[Here Mr. Calhoun called special attention to the ratification of the State of Massachusetts, in which the Constitution is spoken of as a "SOLEMN COMPACT."]*
* Ante, p. 233.
"The ratification of New Hampshire is taken from that of Massachusetts, and almost in the same words. But proof, if possible, still more decisive, may be found in the celebrated resolutions of Virginia on the alien and sedition law, in 1798, and the responses of Massachusetts and the other States. These resolutions expressly assert that the Constitution is a Compact between the States, in the following language:
See Appendix E.
"'That this Assembly doth explicitly and peremptorily declare, that it VIEWS THE POWERS OF THE FEDERAL GOVERNMENT, AS RESULTING FROM THE COMPACT, TO WHICH THE STATES ARE PARTIES, AS LIMITED BY THE PLAIN SENSE AND INTENTION OF THE INSTRUMENT CONSTITUTING THAT COMPACT, AS NO FARTHER VALID THAN THEY ARE AUTHORIZED BY THE GRANTS ENUMERATED IN THAT COMPACT; AND THAT IN CASE OF A DELIBERATE, PALPABLE, AND DANGEROUS EXERCISE OF OTHER POWERS NOT GRANTED BY THE SAID COMPACT, THE STATES WHO ARE PARTIES THERETO HAVE THE RIGHT, AND ARE IN DUTY BOUND, TO INTERPOSE FOR ARRESTING THE PROGRESS OF THE EVIL, AND FOR MAINTAINING WITHIN THEIR RESPECTIVE LIMITS THE AUTHORITIES, RIGHTS, AND LIBERTIES APPERTAINING TO THEM.
"'That the General Assembly doth also express its deep regret that a spirit has, in sundry instances, been manifested by the Federal Government to enlarge its powers by forced constructions of the Constitutional Charter, which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were' the less liable to be misconstrued), so as to destroy the meaning and effect of the particular enumeration which necessarily explains and limits the general phrases, and so as to CONSOLIDATE THE STATES, BY DEGREES, INTO ONE SOVEREIGNTY, THE OBVIOUS TENDENCY AND INEVITABLE RESULT OF WHICH WOULD BE, TO TRANSFORM THE PRESENT REPUBLICAN SYSTEM OF THE UNITED STATES INTO AN ABSOLUTE, OR, AT BEST, A MIXED MONARCHY!'
"They were sent to the several States. We have the replies of Delaware, New York, Connecticut, New Hampshire, Vermont, and Massachusetts, not one of which contradicts this important assertion on the part of Virginia; and, by their silence, they all acquiesce in its truth. The case is still stronger against Massachusetts, which expressly recognizes the fact that the Constitution is a Compact."
[Here Mr. Calhoun read from the answer of Massachusetts, in which the Constitution is called a solemn Compact.]
"Now, I ask the Senator himself I put it to his candor to say, if South Carolina be estopped on the subject of the protective system, because Mr. Burke and Mr. Smith proposed a moderate duty on hemp, or some other article, I know not what, nor do I care, with a view of encouraging its production (of which motion, I venture to say, not one individual in a hundred in the State ever heard), whether he and Massachusetts, after this clear, full, and solemn recognition that the Constitution is a Compact (both on his part and that of his State), be not forever estopped or this important point?
"There remains one more of the Senator's arguments, to prove that the Constitution is not a Compact, to be considered. He says it is not a Compact, because it is a Government; which he. defines to be an organized body, possessed of the will and power to execute its purposes by its own proper authority; and which, he says, bears not the slightest resemblance to a Compact. But I would ask the Senator, Whoever considered a Government, when spoken of as the agent to execute the powers of the Constitution, and distinct from the Constitution itself, as a Compact? In that light it would be a perfect absurdity. It is true that, in general and loose language, it is often said that the Government is a Compact, meaning the Constitution which created it, and vested it with authority to execute the powers contained in the instrument; but when the distinction is drawn between the Constitution and the Government, as the Senator has done, it would be as ridiculous to call the Government a Compact, as to call an individual, appointed to execute the provisions of a contract, a contract; and not less so to suppose that there could be the slightest resemblance between them. In connection with this point, the Senator, to prove that the Constitution is not a Compact, asserts that it is wholly independent of the State, and pointedly declares that the States have not a right to touch a hair of its head; and this, with that provision in the Constitution that three-fourths of the States have a right to alter, change, amend, or even to abolish it, staring him in the face.
"I have examined all of the arguments of the Senator intended to prove that the Constitution is not a Compact; and I trust I have shown, by the clearest demonstration, that his arguments are perfectly inconclusive, and that his assertion is against the clearest and most solemn evidence evidence of record, and of such a character that it ought to close his lips forever.
"I turn now to consider the other, and, apparently. contradictory aspect in which the Senator presented this part of the subject: I mean that in which he states that the Government is founded in Compact, but is no longer. a Compact. I have already remarked, that no other interpretation could be given to this assertion, except that the Constitution was once a Compact, but is no longer so. There was a vagueness and indistinctness in this part of the Senator's argument, which left me altogether uncertain as to its real meaning. If he meant, as I presume he did, that the Compact is an executed, and not an executory one that its object was to create a Government, and to invest it with proper authority and that, having executed this office, it had performed its functions, and, with it, had ceased to exist, then we have the extraordinary avowal that, the Constitution is a dead letter that it had ceased to have any binding effect, or any practical influence or operation.
"It has, indeed, often been charged that the Constitution has become a dead letter; that it is continually violated, and has lost all its control over the Government; but no one has ever before been bold enough to advance a theory on the avowed basis that it was an executed, and, therefore, an extinct instrument. I will not seriously attempt to refute an argument, which, to me, appears so extravagant. I had thought that the Constitution.was to endure forever; and that, so far from its being an executed contract, it contained great trust powers for the benefit of those who created it, and of all future generations, which never could be finally executed during the existence of the world, if our Government should so long endure.
"I will now return to the first Resolution, to see how the issue stands between the Senator from Massachusetts and myself. It contains three propositions. First, that the Constitution is a Compact; second, that it was formed by the States, constituting distinct communities; and, lastly, that it is a, subsisting and binding Compact between the States. How do these three propositions now stand? The first, I trust, has been satisfactorily established; the second, the Senator has admitted, faintly, indeed, but still he has admitted it to be true. This admission is something. It is so much gained by discussion. Three years ago even this was a contested point. But I cannot say that I thank him for the admission; we owe it to the force of truth. The fact that these States were declared to be free and independent States at the time of their independence; that they were acknowledged to be so by Great Britain in the treaty which terminated the war of the Revolution, and secured their independence; that they were recognized in the same character in the old Articles of the Confederation; and, finally, that the present Constitution was formed by a Convention of the several States; afterwards submitted to them for their respective ratifications, and was ratified by them separately, each for itself, and each, by its own act, binding its citizens, formed a body of facts too clear to be denied, and too strong to be resisted.
"It now remains to consider the third and last proposition contained in the Resolution, that it is a binding and a subsisting Compact between the States. The Senator was not explicit on this point. I understood him, however, as asserting that, though formed by the States, the Constitution was not binding between the States as distinct communities, but between the American people in the aggregate; who, in consequence of the adoption of the Constitution, according to the opinion of the Senator, became one people, at least to the extent of the delegated powers. This would, indeed, be a great change. All acknowledge that, previous to the adoption of the Constitution, the States constituted distinct an independent communities, in full possession of their Sovereignty; and, surely, if the adoption of the Constitution was intended to effect the great and important change in their condition which the theory of the Senator supposes, some evidence of it ought to be found in the instrument itself. It professes to be a careful and full enumeration of all the powers which the States delegated, and of every modification of their political condition. The Senator said that he looked to the Constitution in order to ascertain its real character; and, surely, he ought to look to the same instrument in order to ascertain what changes were, in fact, made in the political condition of the States and the country. But, with the exception of 'we, the people of the United States,' in the preamble, he has not pointed out a single indication in the Constitution, of the great change which as he conceives, has been effected in this respect.
"Now, sir, I intend to prove, that the only argument on which the gentleman relies on this point, must utterly fail him. I do not intend to go into a critical examination of the expression of the preamble to which I have referred. I do not deem it necessary. But if it were, it might be easily shown that it is at least as applicable to my view of the Constitution as to that of the Senator; and that the whole of his argument on this point rests on the ambiguity of the term thirteen United States; which may mean certain territorial limits, comprehending within them the whole of the States and Territories of the Union. In this sense, the people of the United States may mean all the people living within these limits, without reference to the States or Territories in which they may reside, or of which they may be citizens; and it is in this sense only, that the expression gives the least countenance to the argument of the Senator.
"But it may also mean, the States united, which inversion alone, without further explanation, removes the ambiguity to which I have referred. The expression ill this sense, obviously means no more than to speak of the people of the several States in their united and confederated capacity; and, if it were requisite, it might be shown that it is only in this sense that the expression is used in the Constitution. But it is not necessary. A single argument will forever settle this point. Whatever may be the true meaning of the expression, it is not applicable to the condition of the States as they exist under the Constitution, but as it was under the old Confederation, before its adoption. The Constitution had not yet been adopted, and the States, in ordaining it, could only speak of themselves in the condition in which they then existed, and not in that in which they would exist under the Constitution. So that, if the argument of the Senator proves any thing, it proves, not (as he supposes) that the Constitution forms the American people into an aggregate mass of individuals, but that such was their political condition before its adoption, under the old Confederation, directly contrary to his argument in the previous part of this discussion.
"But I intend not to leave this important point, the last refuge of those who advocate consolidation, even on this conclusive argument. I have shown that the Constitution affords not the least evidence of the mighty change of the political condition of the States and the country, which the Senator supposed it effected; and I intend now, by the most decisive proof, drawn from the instrument itself, to show that no such change was in tended, and that the people of the States are united under it as States, and not as individuals. On this point there is a very important part of the Constitution entirely and strangely overlooked by the Senator in this debate, as it is expressed in the first Resolution, which furnishes conclusive evidence not only that the Constitution is a Compact, but a subsisting Compact, binding between the States. I allude to the seventh Article, which provides that the ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution 'between the States so ratifying the same.' Yes, 'between the States.' These little words mean a volume. Compacts, not laws, bind between States; and it here binds, not as between individuals, but between the States: the States ratifying; implying, as strong as language can make it, that the Constitution is what I have asserted it to be a Compact, ratified. by the States, and a subsisting Compact, binding the States ratifying it.
"But, sir, I will not leave this point, all-important in establishing the true theory of our Government, on this argument alone, as demonstrative and conclusive as I hold it to be. Another, not much less powerful, but of a different character, may be drawn from the tenth amended Article, which provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. The Article of Ratification, which I have just cited, informs us that the Constitution, which delegates powers, was ratified by the States, and is binding between them. This informs us to whom the powers are delegated, a most important fact in determining the point immediately at issue between the Senator and myself. According to his views, the Constitution created a union between individuals, if the solecism may be allowed, and that it formed, at least to the extent of the powers delegated, one people, and not a Federal Union of the States, as I contend; or, to express the same idea differently, that the delegation of powers was to the American people in the aggregate (for it is only by such delegation that they could be constituted one people), and not to the United States, directly contrary to the Article just cited, which declares that the powers are delegated to the United States. And here it is worthy of notice, that the Senator cannot shelter himself under the ambiguous phrase, 'to the people of the United States,' under which he would certainly have taken refuge, had the Constitution so expressed it; but fortunately for the cause of truth and the great principles of Constitutional liberty for which I am contending, 'people,' is omitted: thus making the delegation of power clear and unequivocal to the United States, as distinct political communities, and conclusively proving that all the powers delegated are reciprocally delegated by the States to each other, as distinct political communities.
"So much for the delegated powers. Now, as all admit, and as it is expressly provided for in the Constitution, the reserved powers are reserved 'to the States respectively, or to the people.' None will pretend that, as far as they are concerned, we are one people, though the argument to prove it, however absurd, would be far more plausible than that which goes to show that we are one people to the extent of the delegated powers. This reservation 'to the people' might, in the hands of subtle and trained logicians, be a peg to hang, a doubt upon; and had the expression 'to the people' been connected, as fortunately it is not, with the delegated instead of the reserved powers, we should not have heard of this in the present discussion.
"I have now established, I hope, beyond the power of controversy, every allegation contained in the first Resolution that the Constitution is a Compact formed by the people of the several States, as distinct political communities, and subsisting and binding between the States in the same character; which brings me to the consideration of the consequences which may be fairly deduced, in reference to the character of our political system, from these established facts.
"The first and most important is, they conclusively establish that ours is a Federal system a system of States arranged in a Federal Union, each retaining its distinct existence and Sovereignty. Ours has every attribute which belongs to a Federative System. It is founded on Compact; it is formed by Sovereign communities, and is binding between them in their Sovereign capacity. I might appeal, in confirmation of this assertion, to all elementary writers on the subject of Government, but will content myself with citing one only. Burlamaqui, quoted with approbation by Judge Tucker, in his Commentary on Blackstone, himself a high authority, says:"
[Here Mr. Calhoun quotes from Tucker's Blackstone as follows]:
"'Political bodies, whether great or small, if they are constituted by a people formerly independent, and under no civil subjection, or by those who justly claim independence from any civil power they were formerly subject to, have the civil supremacy in themselves, and are in a State of equal right and liberty with respect to all other States, whether great or small. No regard is to be had in this matter to names, whether the body-politic be called a kingdom, an empire, a principality, a dukedom, a country. a republic, or free town. If it can exercise justly all the essential parts of civil power within itself, independently of any other person or body-politic, and no other has any right to rescind or annul its acts, it has the civil supremacy, how small soever its territory may be, or the number of its people, and has all the rights of an independent State.*
* Vattel, B. I, c. i, § 4.
"'This independence of States, and their being distinct political bodies from each other, is not obstructed by any alliance or confederacies whatsoever, about exercising jointly any parts of the supreme powers, such as those of peace and war, in league offensive and defensive. Two States, notwithstanding such treaties, are separate bodies, and independent.
Vattel, B. I, c. i, § 10.
"'These are, then, only deemed politically united, when some one person or council is constituted with a right to exercise some essential powers for both, and to hinder either from exercising them separately. If any person or council is empowered to exercise all these essential powers for both, they are then one State: such is the State of England and Scotland, since the Act of Union made at the beginning of the eighteenth century, whereby the two kingdoms were incorporated into one, all parts of the supreme power of both kingdoms being thenceforward united, and vested in the three Estates of the realm of Great Britain; by which entire coalition, though both kingdoms retain their ancient laws and usages in many respects, they are as effectually united and incorporated, as the several petty kingdoms, which composed the heptarchy, were before that period.
Vattel, B. I, c. i, § 10.
"'But when only a portion of the supreme civil power is vested in one person or council for both, such as that of peace and war, or of deciding controversies between different States, or their subjects, while each, within itself, exercises other parts of the supreme power, independently of all the others in this case they are called Systems of States, which Burlamaqui defines to be an assemblage of perfect Governments, strictly united by some common bond, so that they seem to make but a single body with respect to those affairs which interest them in common, though each preserves its Sovereignty, full and entire, independently of all others. And in this case, he adds, the Confederate States engage to each other only to exercise, with common consent, certain parts of the Sovereignty, especially that which relates to their mutual defence against foreign enemies. But each of the Confederates retains an entire liberty of exercising, as it thinks proper, those parts of the Sovereignty which are not mentioned in the treaty of Union, as parts that ought to be exercised in common.* And of this nature is the American Confederacy, in which each State has resigned the exercise of certain parts of the supreme civil power which they possessed before (except in common with the other States included in the Confederacy), reserving to themselves all their former powers, which are not delegated to the United States by the common bond of Union.
* Burlamaqui, B. ii, Part ii, c. i, § 40-44.
"'A visible distinction, and not less important than obvious, occurs to our observation, in comparing these different kinds of Union. The kingdoms of England and Scotland are united into one kingdom; and the two contracting States, by such an incorporate Union, are, in the opinion of Judge Blackstone, totally annihilated, without any power of revival; and a third arises from their conjunction, in which all the rights of Sovereignty, and particularly that of Legislation, are vested. From whence he expresses a doubt, whether any infringements of the fundamental and essential conditions of the Union would, of itself, dissolve the Union of those kingdoms; though he readily admits that, in the case of a Federate alliance, such an infringement would certainly rescind the Compact between the Confederated States. In the United States of America, on the contrary, each State retains its own antecedent form of Government; its own laws, subject to the alteration and control of its own Legislature only; its own executive officers and council of State; its own courts of Judicature, its own judges, its own magistrates, civil officers, and officers of the militia; and, in short, its own civil State, or body politic, in every respect whatsoever. And by the express declaration of the 12th article of the amendments to the Constitution, the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. In Great Britain, a new civil State is created by the annihilation of two antecedent civil States; in the American States, a general Federal council and administration is provided, for the joint exercise of such of their several powers as can be more conveniently exercised in that mode than any other, leaving their civil State unaltered; and all the other powers, which the States antecedently possessed, to be exercised by them respectively, as if no Union or connection were established between them.
"'The ancient Achaia seems to have been a Confederacy founded upon a similar plan; each of those little States had its distinct possessions, territories, and boundaries; each had its Senate or Assembly, its magistrates and judges; and every State sent Deputies to the General Convention, and had equal weight in all determinations. And most of the neighboring States which, moved by fear of danger, acceded to this Confederacy, had reason to felicitate themselves.
"'These Confederacies, by which several States are united together by a perpetual league of alliance, are chiefly founded upon this circumstance, that each particular people choose to remain their own masters, and yet are not strong enough to make head against a common enemy. The purport of such an agreement usually is, that they shall not exercise some part of the Sovereignty, there specified, without the general consent of each other. For the leagues, to which these systems of States owe their rise, seem distinguished from others (so frequent among different States), chiefly by this consideration, that, in the latter, each confederate people determine themselves, by their own judgment, to certain mutual performances; yet so that, in all other respects, they design not, in the least, to make the exercise of that part of the Sovereignty, whence these performances proceed, dependent on the consent of their allies, or to retrench any thing from their full and unlimited power of governing their own States. Thus, we see that ordinary treaties propose, for the most part, as their aim, only some particular advantage of the States thus transacting their interests happening, at present, to fall in with each other but do not produce any lasting union as to the chief management of affairs. Such was the, treaty of alliance between America and France, in the, year 1778, by which, among other articles, it was agreed that neither of the two parties should conclude either truce or peace with Great Britain, without the formal consent of the other, first obtained, and whereby they mutually engaged not to lay down their arms until the independence of the United States should be formally or tacitly assured by the treaty or treaties which should terminate the war. Whereas, in these confederacies of which we are now speaking, the contrary is observable, they being established with this design, that the several States shall forever link their safety, one with another; and, in order to their mutual defence, shall engage themselves not to exercise certain parts of their Sovereign power, otherwise than by a common agreement and approbation. Such were the stipulations, among others, contained in the Articles of Confederation and perpetual Union between American States, by which it was agreed that no State should, without the consent of the United States, in Congress assembled, send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with, any king, prince or State; nor keep up any vessels of war, or body of forces, in time of peace; nor engage in any war, without the consent of the United States in Congress assembled, unless actually invaded; nor grant commissions to any ships of war, or letters of marque and reprisal, except after a declaration of war by the United States in Congress assembled, with several others; yet each State, respectively, retains its Sovereignty, freedom and independence, and every power, jurisdiction and right which is not expressly delegated to the United States in Congress assembled. The promises made in these two cases, here compared, run very differently; in the former, thus: I will join you, in this particular war, as a confederate, and the manner of our attacking the enemy shall be concerted by our common advice; nor will we desist from war, till the particular end thereof, the establishment of the independence of the United States, be obtained in the latter, thus: None of us who have entered into this alliance, will make use of our right as to the affairs of war and peace, except by the general consent of the whole confederacy. We observed before that these Unions submit only some certain parts of the Sovereignty to mutual direction; for it seems hardly possible that the affairs of different States should have so close a connection, as that all and each of. them should look on it as their interest to have no part of the chief Government exercised without the general concurrence. The most convenient method, therefore, seems to be, that the particular States reserve to themselves all those branches of the supreme authority, the management of which can have little or no influence in the affairs of the rest.'"
"'If we compare our present system," continued Mr. Calhoun, "with the
old Confederation, which all acknowledge to have been Federal in its
character, we shall find that it possesses all the attributes which belong to
that form of Government as fully and completely as that did. In fact, in
this particular, there is but a single difference, and that not essential,
as regards the point immediately under
consideration, though very important in other respects. The Confederation was the act of the State Governments, and formed a union of Governments. The present Constitution is the act of the States themselves, or, which is the same thing, of the people of the several States, and forms a union of them as Sovereign communities. The States, previous to the adoption of the Constitution, were as separate and distinct political bodies as the Governments which represent them, and there is nothing in the nature of things to prevent them from uniting under a Compact, in a Federal Union, without being blended in one mass, any more than uniting the Governments themselves, in like manner, without merging them in a single Government. To illustrate what I have stated by reference to ordinary transactions, the Confederation was a contract between agents the present Constitution a contract between the principals themselves; or, to take a more analogous case, one is a League made by ambassadors; the other, a League made by Sovereigns the latter no more tending to unite the parties into a single Sovereignty than the former. The only difference is in the solemnity of the act and the force of the obligation. * *
"We will now proceed to consider some of the conclusions which necessarily follow from the facts and positions already established. They enable us to decide a question of vital importance under our system: Where does Sovereignty reside? If I have succeeded in establishing the fact that ours is a Federal system, as I conceive I conclusively have, that fact of itself determines the question which I have proposed. It is of the very essence of such it system, that the Sovereignty is in the parts, and not in die whole; or, to use the language of Mr. Palgrave, 'The parts are the units in such a system, and the whole the multiple; and not the whole the unit and the parts the fractions.' Ours, then, is a Government of twenty-four Sovereignties, united by a Constitutional Compact, for the purpose of exercising certain powers through a common Government as their joint agent, and not a Union of the twenty-four Sovereignties into one, which, according to the language of the Virginia Resolutions, already cited, would form a Consolidation. And here I must express my surprise that the Senator from Virginia should avow himself the advocate of these very Resolutions, when he distinctly maintains the idea of a Union of the States in one Sovereignty, which is expressly condemned by these Resolutions as the essence of a Consolidated Government.
"Another consequence is equally clear, that, whatever modifications were, made in the condition of the States under the present Constitution, they extended only to the exercise of their powers by Compact, and not to the Sovereignty itself, and are such as Sovereigns are competent to make: it being a conceded point, that it is competent to them to stipulate to exercise their powers in a particular manner, or to abstain altogether from their exercise, or to delegate them to agents, without in any degree impairing Sovereignty itself. The plain state of:the facts, as regards our Government, is, that these States have agreed by Compact to exercise their Sovereign powers jointly,. as already stated; and that, for this purpose, they have ratified the Compact in their Sovereign capacity, thereby making it the Constitution of each State, in nowise distinguished from their own separate Constitutions, but in the super-added obligation of Compact of faith mutually [1ledged to each other. In this Compact, they have stipulated, among other things, that it may be amended by three fourths of the States: that is, they have conceded to each other by Compact the right to add new powers or to subtract old, by the consent of that proportion of the States,'without requiring, as otherwise would have been the case, the consent of all: a modification no more inconsistent, as has been supposed, with their Sovereignty, than any other contained in the Compact. In fact, the provision to which I allude furnishes strong evidence that the Sovereignty is, as I contend, in the States severally, as the amendments are effected, not by any one three fourths, but by any three fourths of the States, indicating that the Sovereignty is in each of the States.
"If these views be correct, it follows, as a matter of course, that the allegiance of the people is to their several States, and that treason consists in resistance to the joint authority of the States united, not, as has been absurdly contended, in resistance to the Government of the United States, which, by the provision of the Constitution, has only the right of punishing. * *
"Having now said what I intended in relation to my first Resolution, both in reply to the Senator from Massachusetts, and in vindication of its correctness, I will now proceed to consider the conclusions drawn from it in the second Resolution that the General Government is not the exclusive and final judge of the extent of the powers delegated to it, but that the States, as parties to the Compact, have a right to judge, in the last resort, of the infractions of the Compact, and of the mode and measure of redress.
"It can scarcely be necessary, before so enlightened at body, to premise that our system comprehends two distinct Governments the General and State Governments, which, properly considered, form but one the former representing the joint authority of the States in their Confederate capacity, and the latter that of each States separately. I have premised this fact simply with a view of presenting distinctly the answer to the argument offered by the Senator from Massachusetts to prove that the General Government has a final and exclusive right to judge, not only of delegated powers, but also of those reserved to the States. That gentleman relies for his main argumi.ent on the assertion that a Government, which he defines to be an organized body, endowed with both will, and power, and authority in proprio vigore to execute its purpose, has a right inherently to judge of its powers. It is not my intention to comment upon the definition of the Senator, though it would not be difficult to show that his ideas of Government are not very American. My object is to deal with the conclusion, and not the definition. Admit then, that the Government has the right of judging of its powers, for which he contends. Now, then, will he withhold, upon his own principle, the right of judging from the State Governments, which he has attributed to the General Government? If it belongs to me, on his principle, it belongs to both; and if to both, when they differ, the veto, so abhorred by the Senator, is the necessary result: as neither, if the right be possessed by both, can control the other.
"The Senator felt the force of this argument, and, in order to sustain his main position, he fell back on that clause of the Constitution which provides that 'this Constitution, and the laws made in pursuance thereof, shall be the supreme law of the land.'
"This is admitted; no one has ever denied that the Constitution, and the laws made in pursuance of it, are of Paramount authority. But it is equally undeniable that laws not made in pursuance are not only not of Paramount authority, but are of no authority whatever, being of themselves null and void; which presents the question, who are to judge whether the laws be or be not pursuant to the Constitution?* and thus the difficulty, instead of being taken away, is removed but one step further back. This the Senator also felt, and has attempted to overcome, by setting up, on the part of Congress and the judiciary, the final and exclusive right of judging, both for the Federal Government and the States, as to the extent of their respective powers. That I may do full justice to the gentleman, I will give his doctrine in his own words. He states,
* This, according to Martin's proposition was just what was refused to the General Government. See ante, p. 46.
"'That there is a supreme law, composed of the Constitution, the laws passed in pursuance of it, and the treaties; but in cases coming before Congress, not assuming the shape of cases in law and equity, so as to be subjects of judicial discussion, Congress must interpret the Constitution so often as it has occasion to pass laws; and in cases capable of assuming a judicial shape, the Supreme Court must be the final interpreter.'
"Now, passing over this vague and loose phraseology, I would ask the Senator upon what principle can he concede this extensive power to the Legislative and Judicial departments, and withhold it entirely from the Executive? If one has the right it cannot be withheld from the other. I would also ask him on what principle if the departments of the General Government are to possess the right of judging, finally and conclusively, of their respective powers on what principle can the same right be withheld from the State Governments, which, as well as the General Government, properly considered, are but departments of the same general system, and form together, properly speaking, but one Government? This was a favorite idea of Mr. Macon, for whose wisdom I have a respect increasing with my experience, and who I have frequently heard say, that most of the misconceptions and errors in relation to our system, originated in forgetting that they were but parts of the same system. I would further tell the Senator, that, if this right be withheld from the State Governments; if this restraining influence, by which the General Government is confined to its proper sphere, be withdrawn, then that department of the Government from which he has withheld the right of judging of its own powers (the Executive), will, so far from being excluded, become the sole interpreter of the powers of the Government. It is the armed interpreter, with powers to execute its own construction, and with out the aid of which the construction of the other departments will be impotent.
"But I contend that the States have a far clearer right to the sole construction of their powers than any of the departments of the Federal Government call have. This power is expressly reserved, as I have stated on another occasion, not only against the several departments of the General Government, but against the United States themselves. I will not repeat the arguments which I then offered on this point, and which remain unanswered, but I must be permitted to offer strong additional proof of the views then taken, and which, if I am not mistaken, are conclusive on this point. It is drawn from the ratification of the Constitution by Virginia, and is in the following words:
"'We, the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared, as well as the most mature deliberation hath enabled us, to decide thereon, do, in the name and in 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, whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them, and at their will; that, therefore, no right, of any denomination, can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience, and of the press, cannot be cancelled, abridged, restrained, or modified by any authority of the United States. With these impressions, with a solemn appeal to the Searcher of all hearts for the purity of our intentions, and under the conviction that whatsoever imperfections may exist in the Constitution ought rather to be examined in the mode prescribed therein, than to bring the Union in danger by a delay, with the hope of obtaining amendments previous to the ratifications, We, the said Delegates, in the name and in the behalf of the people of Virginia, do, by these presents, assent to and ratify the Constitution recommended, on the 17th day of September, 1787, by the Federal Convention for the Government of the United States, hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said people, according to an authentic copy hereto annexed, in the words following,' etc.
"It thus appears that this sagacious State (I fear, however, that her sagacity is not so sharp-sighted now as formerly) ratified the Constitution, with an explanation as to her reserved powers; that they were powers subject to her own will, and reserved against every department of the General Government Legislative, Executive, and Judicial as if she had a prophetic knowledge of the attempts now made to impair and destroy them: which explanation can be considered in no other light than as containing a condition on which she ratified, and, in fact, making part of the Constitution of the United States extending as well to the other States as herself. I am no lawyer, and it may appear to be presumption in me to lay down the rule of law which governs in such cases, in a controversy with so distinguished an advocate as the Senator from Massachusetts. But I shall venture to lay it down as a rule in such cases, which I have no fear that the gentleman will contradict, that, in case of a contract between several partners, if the entrance of one on condition be admitted, the condition enures to the benefit of all the partners. But I do not rest the argument simply upon this view Virginia proposed the tenth amended article, the one in question, and her ratification must be at least received as the highest evidence of its true meaning and interpretation.
"If these views be correct and I do not see how they can be resisted the rights of the States to judge of the extent of their reserved powers stands on the most solid foundation, and is good against every department of the General Government; and the judiciary is as much excluded from an interference with the reserved powers as the Legislative or Executive departments. To establish the opposite, the Senator relies upon the authority of Mr. Madison, in the Federalist, to prove that it was intended to invest the Court with the power in question. In reply, I will meet Mr. Madison with his own opinion, given on a most solemn occasion, and backed by the sagacious Commonwealth of Virginia. The opinion to which I allude will be found in the celebrated Report of 1799, of which Mr. Madison was the author. It says:
"'But it is objected, that the JUDICIAL AUTHORITY is to be regarded as the sole expositor of the Constitution in the last resort; and it may be asked for what reason the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day, and in so solemn a manner.
"'On this objection it might be observed, first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the Judicial department; secondly, that, if the decision of the judiciary be raised above the authority of the Sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final as the decisions of this department. But the proper answer to this objection is, that the Resolution of the General Assembly relates to those great and extraordinary cases in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The Resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the Judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution to judge whether the Compact was dangerously violated, must extend to violations by one delegated authority as well as by another; by the judiciary as well as by the executive or the Legislature.'"*
* See Appendix E.
"But why should I waste words in reply to these or any other authorities, when it has been so clearly established that the rights of the States are reserved against each and every department of the Government, and no authority in opposition can possibly shake a position so well established? Nor do I think it necessary to repeat the argument which I offered when the bill was under discussion, to show that the clause in the Constitution which provides that the judicial power shall extend to all cases in law or equity arising under this Constitution, and to the laws and treaties made under its authority, has no bearing on the point in controversy; and that even the boasted power of the Supreme Court to decide a law to be unconstitutional, so far from being derived from this or any other portion of the Constitution, results from the necessity of the case where two rules of unequal authority come in conflict and is a power belonging to all courts, superior and inferior, State and General, Domestic, and Foreign.
"I have now, I trust, shown satisfactorily, that there is no provision in the Constitution to authorize the General Government, through any of its departments, to control the action of a State within the sphere of its reserved powers; and that, of course, according to the principle laid down by the Senator from Massachusetts himself, the Government of the States, as well as the General Government, has the right to determine the extent of their respective powers, without the right on the part of either to control the other. The necessary result is the veto, to which he so much objects; and to get clear of which, he informed us, was the object for which the present Constitution was formed. I know not whence lie has derived his information, but my impression is very different, as to the immediate motives which led to the formation of that instrument. I have always understood that the principle was, to give to Congress the power to regulate commerce, to lay impost duties, and to raise a revenue for the payment of the public debt and the expenses of the Government; and to subject the action of the citizens, individually, to the operation of the laws, as a substitute for force. If the object had been to get clear of the veto of the States, as the Senator states, the Convention, certainly, performed their work in a most bungling manner. There was, unquestionably, a large party in that body, headed by men of distinguished talents and influence, who commenced early and worked earnestly to the last, to deprive the States not directly, for that would have been too bold an attempt, but indirectly of the veto. The good sense of the Convention, however, put down every effort, however disguised and perseveringly made. I do not deem it necessary to give, from the journals, the history of these various and unsuccessful attempts though it would afford a very instructive lesson. It is sufficient to say that it was attempted, by proposing to give to Congress power to annul the acts of the States which they might deem inconsistent with the Constitution; to give to the President the power of appointing the Governors of the States, with a view of vetoing State laws through his authority; and, finally, to give the judiciary the power to decide controversies between the States and the General Government; all of which failed fortunately for the liberty of the country utterly and entirely failed; and in this failure we have the strongest evidence, that it was not the intention of the Convention to deprive the States of the veto power. Had the attempt to deprive them of this power been directly made, and failed, every one would have seen and felt, that it would furnish conclusive evidence in favor of its existence. Now, I would ask, what possible difference can it make in what form this attempt was made? Whether by attempting to confer on the General Government a power incompatible with the exercise of the veto on the part of the States, or by attempting directly to deprive them of the right to exercise it? We have thus direct and strong proof that, in the opinion of the Convention, the States, unless deprived of it, possess the veto power or, what is another name for the same thing, the right of Nullification. I know that there is a diversity of opinion among the friends of State Rights in regard to this power, which I regret, as I cannot but consider it as a power essential to the protection of the minor and local interests of the community, and the liberty and the Union of the country. It is the very shield of State Rights, and the only power by which that system of injustice against which we have contended for more than thirteen years can be arrested: a system of hostile Legislation of plundering by law, which must necessarily lead to a conflict of arms, if not prevented.
"But I rest the right of a State to judge of the extent of its reserved powers, in the last resort, on higher grounds that the Constitution is a Compact, to which the States are parties in their Sovereign capacity; and that, as in all other cases of Compact between parties having no common umpire, each has a right to judge for itself. To the truth of this proposition, the Senator from Massachusetts has himself assented, if the Constitution itself be a Compact and that it is, I have shown, I trust, beyond the possibility of a doubt. Having established this point, I now claim, as I stated I would do, in the course of the discussion, the admissions of the Senator, and, among them, the right of Secession and Nullification, which he conceded would necessarily follow if the Constitution be, indeed, a Compact.
"I have now replied to the arguments of the Senator from Massachusetts so far as they directly apply to the Resolutions, and will, in conclusion, notice some of his general and detached remarks. To prove that ours is a consolidated Government, and that there is an immediate connection between the Government and the citizen, he relies on the fact that the laws act directly on individuals. That such is the case I will not deny; but I am very far from conceding the point that it affords the decisive proof, or even any proof at all, of the position which the Senator wishes to maintain. I hold it to be perfectly within the competency of two or more States to subject their citizens, in certain cases, to the direct action of each other, without surrendering or impairing their Sovereignty. I recollect, while I was a member of Mr. Monroe's cabinet, a proposition was submitted by the British Government to permit a mutual right of search and seizure, on the part of each Government, of the citizens of the other, on board of vessels engaged in the slave trade, and to establish a joint tribunal for their trial and punishment. The proposition was declined, not because it would impair the Sovereignty of either, but on the ground of general expediency, and because it would be incompatible with the provisions of the Constitution which establish the judicial power, and which provisions require the judges to be appointed by the President and Senate. If I am not mistaken, propositions of the same kind were made and acceded to by some of the Continental powers.
"With the same view the Senator cited the suability of the States as evidence of their want of Sovereignty; at which I must express my surprise, coming from the quarter it does. No one knows better than the Senator that it is perfectly within the competency of a Sovereign State. to permit itself to be sued. We have on the Statute-book a standing law, under which the United States may be sued in certain land cases. If the provision in the Constitution on this point proves any thing, it proves, by the extreme jealousy with which the right of suing a State is permitted, the very reverse of that for which the Senator contends.
"Among other objections to the views of the Constitution for which I contend, it is said that they are novel. I hold this to be a great mistake. The novelty is not on my side,, but on that of the Senator from Massachusetts. The doctrine of Consolidation which he maintains is of recent growth. It is not the doctrine of Hamilton, Ames, or any of the distinguished Federalists of the period, all of whom strenuously maintained the Federative character of the Constitution, though they were accused of supporting a system of policy which would necessarily lead to Consolidation. The first disclosure of that doctrine was in the case of M'Culloch; in which the Supreme Court held the doctrine, though wrapped up in language somewhat indistinct and ambiguous. The next, and more open avowal, was by the Senator of Massachusetts himself, about three years ago, in the debate on Foote's resolution. The first official annunciation of the doctrine was in the recent proclamation of the President, of which the bill that has recently passed this body is the bitter fruit.
"It is further objected by the Senator from Massachusetts, and others, against the doctrine of State Rights; as maintained in this debate, that, if it should prevail, the peace of the country would be destroyed. But what if it should not prevail? Would there be peace? Yes, the peace of despotism: that peace which is enforced by the bayonet and the sword; the peace of death, where all the vital functions of liberty have ceased. It is this peace which the doctrine of State Sovereignty may disturb by that conflict, which, in every tree State, if properly organized, necessarily exists between liberty and power; but which, if restrained within proper limits, gives a salutary exercise to our moral and intellectual, faculties. In the case of Carolina, which has caused all this discussion, who does not see. if the effusion of blood be prevented, that the excitement, the agitation, and the inquiry which it has caused, will be followed by the most beneficial consequences? The country had sunk into avarice, intrigue, and electioneering from which nothing but some such event could rouse it, or restore those honest and patriotic feelings which had almost disappeared under their baneful influence. What Government has ever attained power and distinction without such conflicts? Look at the degraded state of all those nations where they have been put down by the iron arm of the Government.
"I, for my part, have no fear of any dangerous conflict, under the fullest acknowledgment of State Sovereignty: the very fact that the States may interpose will produce moderation and justice. The General Government will abstain from the exercise of any power in which they may suppose three fourths of the States will not sustain them; while, on the other hand, the States will not interpose but on the conviction that they will be supported by one fourth of their co-States. Moderation and justice will produce confidence, attachment and patriotism; and these, in turn, will offer most powerful barriers against the excess of conflicts between the States and the General Government.
"'But we are told that, should the doctrine prevail, the present system would be as bad, if not worse, than the old Confederation. I regard the assertion only a.e evidence of that extravagance of declaration in which, from excitement of feeling, we so often indulge. Admit the power, and still the present system would be as far removed from the weakness of the old Confederation as it would be from the lawless and despotic violence of consolidation. So far from being the same, the difference between the Confederation and the present Constitution would still be most strongly marked. If there were no other distinction, the fact that the former required the concurrence of the States to execute its acts, and the latter, the act of a State to arrest them, would make a distinction as broad as the ocean. In the former, the vis inertiæ of our nature is in opposition to the action of the system. Not to act was to defeat. In the latter the same principle is on the opposite side action is required to defeat. He who understands human nature will see, in this fact alone, the difference between a feeble and illy-contrived Confederation, and the restrained energy of a Federal system. Of the. same character is the objection that the doctrine will be the source of weakness. If we look to mere organization and physical power as the. only source of strength, without taking into the estimate the operation of moral causes, such would appear to be the fact; but if we take into the estimate the latter, we shall find that those Governments have the greatest strength in which power has been most efficiently checked. The Government of Rome furnishes a memorable example. There, two independent and distinct powers existed the people acting by Tribes, in which the Plebeians prevailed, and by Centuries, in which the Patricians ruled. The Tribunes were the appointed representatives of the one power, and the Senate of the other; each possessed of the authority of checking and overruling one another, not as departments of the Government, as supposed by the Senator from Massachusetts, but as independent powers, as much so as the State and General Governments. A shallow observer would perceive, in such an organization, nothing but the perpetual source of anarchy, discord, and weakness; and yet experience has proved that it was the most powerful Government that ever existed; and reason teaches that this power was derived from the very circumstances which hasty reflection would consider the cause of weakness. I will venture an assertion, which may be considered extravagant, but in which history will fully bear me out, that we have no knowledge of any people where the power of arresting the improper acts of the Government, or what may be called the negative power of Government, was too strong, except Poland, where every freeman possessed a veto. But even there, although 'it existed in so extravagant a form, it was the source of the highest and most lofty attachment to liberty, and the most heroic courage: qualities that more than once saved Europe from the domination of the crescent and cimeter. It is worthy of remark, that the fate of Poland is not to be attributed so much to the excess of this negative power of itself, as to the facility which it afforded to foreign influence in controlling its political movements.
"I am not surprised that, with the idea of a perfect Government which the Senator from Massachusetts has formed a Government of an absolute majority, unchecked and unrestrained, operating through a representative body he should be so much shocked with what he is pleased to call the absurdity of the State veto. But let me tell him that his scheme of a perfect Government, as beautiful as he conceives it to be, though often tried, has invariably failed, has always run, whenever tried, through the same uniform process of faction, corruption, anarchy, and despotism. He considers the representative principle as the great modern improvement in legislation, and of itself sufficient to secure liberty. I cannot regard it in the light in which he does. Instead of modern, it is of remote origin, and has existed, in greater or less perfection, in every free State, from the remotest antiquity. Nor do I consider it as of itself sufficient to secure liberty, though I regard it as one of the indispensable means the means of securing the people against the tyranny and oppression of their rulers. To secure liberty, another means is still necessary the means of securing the different portions of society against the injustice and oppressions of each other, which can only be effected by veto, interposition, or Nullification, or by whatever name the restraining or negative power of Government may be called."
This is quite enough of Mr. Calhoun's reply. I have read all of it that bears directly upon the main points in issue between them. On these points never was a man more completely answered than Mr. Webster was. The argument is a crusher, an extinguisher, an annihilator!
PROF. NORTON. Where is Mr. Webster's rejoinder?
MR. STEPHENS. He made none. He followed with a few remarks only, disavowing any personal unkind feelings to Mr. Calhoun, explaining how he had used the term "Constitutional Compact," in 1830; and attempting to parry one or two of the blows, but he never made any regular set reply or rejoinder. He never came back at his opponent at all on the real questions at issue. Mr. Calhoun stood master of the arena. This speech of his was not answered then, it has not been answered since, and in my judgment never will be, or can be answered while truth has its legitimate influence, and reason controls the judgment of men!
The power and force of this speech must have been felt by Mr. Webster himself. He was a man of too much reason and logic not to have felt it. This opinion I am the more inclined to from the fact, that he not only did not attempt a general reply to it at the time, but from the further fact, that in after life he certainly, to say the least of it, greatly modified the opinions held by him in that debate.
PROF. NORTON. To what do you refer?
MR. STEPHENS. I refer specially to a speech made by him before the Supreme Court of the United States, in 1839, and to his speech at Capon Springs, in Virginia, in 1851, as well as some other matters. But, if it is agreeable to all, we will suspend the investigation for the present, take our evening's walk, and resume the subject to-morrow. Reading aloud is much more exhausting than talking, even with the same tone of voice.
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