SUBJECT CONTINUED WEBSTER'S SPEECH BEFORE THE SUPREME COURT HIS LETTER TO BARING BROTHERS & CO HIS CAPON SPRINGS SPEECH THE SUPREME COURT ON STATE SOVEREIGNTY INTERNATIONAL COMITY DIFFERENCE BETWEEN THE UNION OF THE STATES AND THE UNION OF ENGLAND AND SCOTLAND EXPOSITION OF THE CONSTITUTION BY THE SENATE IN 1838 CALHOUN'S PRINCIPLES OF 1833 SUSTAINED BY TWO THIRDS OF THE STATES IN 1838 EXPOSITION OF THE CONSTITUTION BY THE SENATE IN 1860 JEFFERSON DAVIS.
PROF. NORTON. Well, Mr. Stephens, we are all ready to resume the subject we were last upon. That was the modification of Mr. Webster's opinions upon the issue between him and Mr. Calhoun in their great debate which we have been reviewing.
MR. STEPHENS. Yes, I have just looked up the argument of Mr. Webster, before the Supreme Court of the United States, to which I referred. I will first call your attention to that, and then some other expressions of opinion by him, bearing on the same subject. The case the Court had under consideration was the The Bank of Augusta vs. Earle. In this case the nature of the General Government and the nature of the State Governments in their relations to each other; came up for adjudication. This was in January, 1839, six years after the discussion with Mr. Calhoun in the Senate. Here is what he then said:*
* 13 Peters's Reports, p. 559.
"But it is argued, that though this law of comity exists as between independent Nations, it does not exist between the States of this Union. That argument appears to have been the foundation of the judgment in the Court below.
"In respect to this law of comity, it is said, States are not Nations; they have no National Sovereignty; a sort of residuum of Sovereignty is all that remains to them. The National Sovereignty, it is said, is conferred on this Government, and part of the municipal Sovereignty. The rest of the municipal Sovereignty belongs to the States. Notwithstanding the respect which I entertain for the learned Judge, who presided in that Court, I cannot follow in the train of his argument. I can make no diagram, such as this, of the partition of National character between the State and General Governments. I cannot map it out, and say, so far is National, and so far municipal; and here is the exact line where the one begins and the other ends. We have no second La Place, and we never shall have, with his Mechanique Politique, able to define and describe the orbit of each sphere in our political system with such exact mathematical precision. There is no such thing as arranging these Governments of ours by the laws of gravitation, so that they will be sure to go on forever without impinging. These institutions are practical, admirable, glorious, blessed creations. Still they were, when created, experimental institutions; and if the Convention which framed the Constitution of the United States had set down in it certain general definitions of power, such as have been alleged in the argument of this case, and stopped there, I verily believe that in the course of the fifty years which have since elapsed, this Government would have never gone into operation.
"Suppose that this Constitution had said, in terms after the language of the Court below all National Sovereignty shall belong to the United States; all municipal Sovereignty to the several States. I will say, that however clear, however distinct, such a definition may appear to those who use it, the employment of it, in the Constitution, could only have led to utter confusion and uncertainty. I am not prepared to say that the States have no National Sovereignty. The laws of some of the States Maryland and Virginia, for instance provide punishment for treason. The power thus exercised is, certainly, not municipal. Virginia has a law of alienage; that is, a power exercised against a foreign nation. Does not the question necessarily arise, when a power is exercised concerning an alien enemy enemy to whom? The law of escheat, which exists in all the States, is also the exercise of a great Sovereign power.
"The term 'Sovereignty' does not occur in the Constitution at all. The Constitution treats States as States, and the United States as the United States; and, by a careful enumeration, declares all the powers that are granted to the United States, and all the rest are reserved to the States. If we pursue, to the extreme point, the powers granted, and the powers reserved, the powers of the General and State Governments will be found, it is to be feared, impinging, and in conflict. Our hope is, that the prudence and patriotism of the States, and the wisdom of this Government, will prevent that catastrophe. For myself, I will pursue the advice of the Court in Deveaux's case; I will avoid nice metaphysical subtilties, and all useless theories; I will keep my feet out of the traps of general definition; I will keep my feet out of all traps; I will keep to things as they are,. and go no further to inquire what they might be, if they were not what they are. The States of this Union, as States, are subject to all the voluntary and customary laws of Nations."
[Mr. Webster here referred to, and quoted a passage from Vattel (page 61), which, he said, clearly showed, that States connected together as are the States of this Union, must be considered as much component parts of the law of Nations as any others.]*
* See Vattel, here quoted, ante, p. 170.
"If, for the decision of any question, the proper rule is to be found in the law of Nations, that law adheres to the subject. It follows the subject through, no matter into what place, high or low. You cannot escape the law of Nations in a case where it is applicable. The air of every judicature is full of it. It pervades the Courts of law of the highest character, and the Court of pie poudre; aye, even the constable's Court. It is part of the universal law. It may share the glorious eulogy pronounced by Hooker upon law itself: that there is nothing so high as to be beyond the reach of its power, nothing so low as to be beneath its care. If any question be within the influence of the law of Nations, the law of Nations is there. If the law of comity does not exist between the States of this Union, how can it exist between a State and the subjects of any foreign Sovereignty?"
In this carefully prepared argument Mr. Webster significantly says: that in the Constitution nothing is said about "Sovereignty." This is all important. He admitted, in the debate with Mr. Calhoun, that the States were Sovereign before the Constitution was adopted. In this argument he holds the position that the powers delegated to the United States in the Constitution are specific and limited, and that all not delegated are reserved to the States. He states distinctly, that the Constitution treats the States as States. If the States, then, were Sovereign anterior to the Constitution, and Sovereignty was not delegated or parted with by them in it, as it could not have been, as the Constitution is silent upon the subject, then of course it is still reserved to the States. If the Sovereignty of the States was not delegated or parted with in the Constitution, was it not of necessity retained by them? He clearly so argues. This is the inevitable conclusion from the rules of inexorable logic. The decision of the Supreme Court in this case was on the line of his argument, and fully sustains his position. They say,
"It has, however, been supposed that the rules of comity between foreign Nations do not apply to the States of this Union; that they extend to one another no other rights than those which are given by the Constitution of the United States; and that the Courts of the General Government are not at liberty to presume, in the absence of all legislation on the subject, that a State has adopted the comity of Nations towards the other States, as a part of its jurisprudence; or that it acknowledges any rights, but those which are secured by the Constitution of the United States. The Court think otherwise. The intimate Union of these States, as members of the same great political family; the deep and vital interests which bind them so closely together; should lead us, in the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness towards one another, than we should be authorized to presume between foreign Nations. And when (as without doubt must occasionally happen) the interest or policy of any State requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end. But until this is done, upon what grounds could this Court refuse to administer the law of international comity between these States? They are Sovereign States; and the history of the past, and the events which are daily occurring, furnish the strongest evidence that they have adopted towards each other the laws of comity in their fullest extent. * *
"But it cannot be necessary to pursue the argument further. We think it is well settled, that by the law of comity among Nations, a corporation created by one Sovereignty is permitted to make contracts in another, and to sue in its Courts; and that the same law of comity prevails among the several Sovereignties of this Union."
I read this decision of the Court, not only to show that the Court sustained this view presented by Mr. Webster, in 1839, which was a great modification of the view expressed by him in 1833, that you have read, but to show that it has been decided, solemnly adjudicated by the highest Judicial tribunal in this country, that Sovereignty is still retained by the several States of the Union under the Constitution.
JUDGE BYNUM. The Court in that case barely held that the law of international comity obtained between the States of our Union, as the same doctrine is held by the British Courts between Scotland and England, and yet no one there holds that Scotland is separately Sovereign from England, or that Scotland could dissolve the Compact of their Union.
MR. STEPHENS. The cases are totally different. There is no analogy between them. The decision was not made on any such view. The Sovereignties of England and Scotland are not united by Compact at all. The separate Sovereignties of these countries became united by a union of the Crowns of both, by regular descent in the person of James VI, of Scotland, who became James I, of England, upon the death of Elizabeth. The declaratory Act of the Parliaments of both, setting forth the fact of the Union thus resulting, and the respective rights of each, under it, distinctly states that the two Kingdoms thereafter shall be created into one Kingdom by the name of Great Britain. This was but the declaration of a unity of Sovereignty, which had occurred by the union of Crowns by descent, and not one of Compact at all. This distinction is clearly drawn by Blackstone in his Commentaries.* That was what he called an "Incorporate Union," which was very different from a Federate alliance."
* Blackstone's Commentaries, vol. i, p. 97, note E
But the difference between the Union of the Sovereignties of England and Scotland and the Federal Union of these States, is fully set forth by Judge Washington, of the Supreme Court of the United States, in the Circuit Court of the Eastern District of Pennsylvania, in the case of Lonsdale vs. Brown. This decision was made In 1821. In delivering the opinion the judge says, "The Union between England and Scotland is, politically speaking, as intimate as between England and Wales, or between the different counties of either. They form one Kingdom; are subject to the same Government; and are represented in the same legislative body; and although the laws and customs of Scotland in force at the time of the Union were suffered to continue, yet they are alterable by the Parliament of Great Britain, even as they relate to private rights; if the alteration should be deemed for the evident utility of the people of Scotland.
"How different is the Union of these States? They are, in their separate political capacities, Sovereign and independent of each other, except so far as they have united for their common defence and for National purposes. They have each a Constitution and form of Government, with all the attributes of Sovereignty. As to matters of National concern they form one Government, are subject to the same laws, and may emphatically be denominated one people. In all other respects, they are as distinct as different forms of Government and different laws can render them. It is true, that the citizens of each State are entitled to all the privileges and immunities of citizens in every other State; that the Sovereignty of the States in relation to fugitives from justice, and from service, is limited; and that each State is bound to give full faith and credit to the public acts, records and judicial proceedings of her sister States. But these privileges and disabilities are mere creatures of the Constitution; and it is quite fair to argue that the framers of that instrument deemed it necessary to secure them by express provisions.
"In the case of Warder vs. Arrell, 2 Wash. Rep. 282, the
question, in part, was, whether the tender laws of Pennsylvania, where the
contract was made, ought to be regarded by the Courts of Virginia, where the
suit was brought? and throughout the opinions delivered by the judges,
Pennsylvania was treated as a foreign country. The president of the Court is
express upon this point. He observes that, in cases of contracts, the laws of a
foreign country where the contract is made must govern. The same principle
applies, though with no greater force, to the different States of America; for
though they form a Confederated Government, yet the several States retain their
Sovereignties, and with respect to their municipal laws, are to each other foreign."*
* Peters's Reports, vol. ii. App. pp. 689, 690.
But in further proof of the modification of the views of Mr. Webster on the subject, I refer to his celebrated letter to the Barings, in London, written the same year. Here it is. In it he uses this language:
"'Your first inquiry is, whether the Legislature of one of the States has legal and Constitutional power to contract loans at home and abroad?'
"To this I answer, 'that the Legislature of a State has such power'; and
how any doubt could have arisen on this point it is difficult for me to
conceive. Every State is an independent, Sovereign, political community, except
in so far as certain powers, which it might otherwise have exercised, have been
conferred on a General Government, established under a written Constitution,
and exerting its authority over the people of all the States. This General
Government is a limited Government. Its powers are specific and enumerated. All
powers not conferred upon it still remain with the States and with the people.
Legislatures, on the other hand, possess all usual and; extraordinary powers of Government, subject to any limitations which may be imposed by their own Constitutions, and, with the exception, as I have said, of the operation on those powers of the Constitution of the United States. The powers conferred on the General Government cannot of course be exercised by any individual State; nor can any State pass any law which is prohibited by the Constitution of the United States. * * *
"The security for State loans is the plighted faith of the State, as a political Community. It rests on the same basis as other contracts with established Governments the same basis, for example, as loans made in the United States under the authority of Congress; that is to say, the good faith of the Government making the loan, and its ability to fulfil its engagements. * * *
"It has been said that the States cannot be sued on these bonds. But neither could the United States be sued, nor, as I suppose, the Crown of England, in a like case. Nor would the power of suing; probably, give the creditor any substantial additional security. The solemn obligation of a Government, arising on its own acknowledged bond, would not be enhanced by a judgment rendered on such bond. If it either could not, or would not, make provision for paying the bond, it is not probable that it could or would make provision for satisfying the judgment."*
* Niles's National Register, vol. lvii, pp. 273-274.
He here distinctly states that every State is an Independent, Sovereign, political Community, except in so far as certain powers, which it might otherwise have exercised, have been conferred on a General Government by a written Constitution, containing certain specified powers. This language is substantially identical with the language of the first Article of the old Confederation.
An important fact in this connection, to be borne in mind, is that there was no vote taken on Mr. Calhoun's Resolutions, in the Senate, in 1833. The matter rested there with the discussion. The controversy that gave rise to it was amicably adjusted, as we shall see. The subject of the discussion, however, was taken up by the press, by public speakers, by the State Legislatures, and by the people generally. The great discussions of 1798, 1799 and 1800, were revived. Old landmarks of principles were traced. The rapid strides of the Federal Government towards consolidation were again stopped.
Mr. Calhoun had, on the 28th of December, 1837, renewed the subject in the Senate. He then brought forward another set of Resolutions on the same subject, covering the same ground, embodying the same principles, and pressed them to a vote. These Resolutions are as follows:
"I. Resolved, That in the adoption of the Federal Constitution, the States adopting the same acted, severally, as free, independent, and Sovereign States; and that each, for itself, beer its own voluntary assent, entered the Union with the view to its increased security against all dangers, domestic as well as foreign, and the more perfect and secure enjoyment of its advantages, natural, political, and social.
"II. Resolved, That, in delegating a portion of their powers to
be exercised by the Federal Government, the States retained, severally, the
exclusive and sole right over their own domestic institutions and police, to
the full extent to which those powers were not thus delegated; and are alone
responsible for them; and that any
intermeddling of any one or more States, or a combination of their citizens, with the domestic institutions and police of the others, on any ground, political, moral, or religious, or under any pretext whatever, with the view to their alteration or subversion, is not warranted by the Constitution, tending to endanger the domestic peace and tranquillity of the States interfered with, subversive of the objects for which the Constitution was formed, and, by necessary consequence, tending to weaken and destroy the Union itself.
"III. Resolved, That this Government was instituted and adopted by the several States of this Union as a common agent, in order to carry into effect the powers which they had delegated by the Constitution for their mutual security and prosperity; and that in fulfilment of this high and sacred trust, this Government is bound so to exercise its powers, as not to interfere with the stability and security of the domestic institutions of the States that compose this Union; and that it is the solemn duty of the Government to resist, to the extent of its Constitutional power, all attempts by one portion of the Union to use it as an instrument to attack the domestic institutions of another, or to weaken or destroy such institutions.
"IV. Resolved, That domestic slavery, as it exists in the Southern and Western States of this Union, composes an important part of their domestic institutions, inherited from their ancestors, and existing at the adoption of the Constitution, by which it is recognized as constituting an important element in the apportionment of powers among the States, and that no change of opinion or feeling, on the part of the other States of the Union in relation to it, can justify them or their citizens in open and systematic attacks thereon, with the view to its overthrow; and that all such attacks are in manifest violation of the mutual and solemn pledge to protect and defend each other, given by the States respectively, on entering into the Constitutional Compact which formed the Union, and as such are a manifest breach of faith, and a violation of the most solemn obligations.
"V. Resolved, That the interference by the citizens of any of the States, with the view to the abolition of slavery in this District, is endangering the rights and security of the people of the District; and that any act or measure of Congress designed to abolish slavery in this District, would be a violation of the faith implied in the cessions by the States of Virginia and Maryland, a just cause of alarm to the people of the slaveholding States, and have a direct and inevitable tendency to disturb and endanger the Union.
"And resolved, That any attempt of Congress to abolish slavery in any Territory of the United States in which it, exists, would create serious alarm, and just apprehension, in the States sustaining that domestic institution; would be a violation of good faith towards the inhabitants of any such territory who have been permitted to settle with, and hold slaves therein, because the people of any such Territory have not asked for the abolition of slavery therein; and because when any such Territory shall be admitted into the Union as a State, the people thereof will be entitled to decide that question exclusively for themselves."*
* Congressional Globe and Appendix, 2d S., 25th Congress, p. 98.
The first of these Resolutions, which distinctly affirms the great truth set forth in the first of his series in 1833, passed the Senate by the large majority of thirty-two to thirteen, on the third of January, 1838. Congressional Globe, Second Session, Twenty-fifth Congress, page 74. This was certainly the highest authoritative exposition of the subject that could be given. It was the amplest vindication of the merits of Mr. Calhoun's argument in 1833. His argument and Mr. Webster's had gone to the country, and this was the verdict of the States upon the issue presented by them. More than two to one of the Senate of the United States affirmed most positively and solemnly that the Union of the States was Federal, and that in entering into it under the Constitution, the States did so severally as free, independent, Sovereign Powers That the Union was one of States, formed by States, and not by the people in the aggregate as one nation.
But upon an analysis of the vote upon this Resolution, and the others of the series, this authoritative exposition derives increased importance. For if we look at the vote by States, it will be seen that eighteen States voted for this Resolution, while only six voted against it. One was divided, and one did not vote.* More than two thirds of the States give this construction to the character of the Government in 1838. It is true, Mr. Webster was then in the Senate, and did not vote for it. But he did not take up the gauntlet thrown down by Calhoun for another contest in debate on the principles thus re-announced. Mr. Clay, however, voted for it, which shows his understanding of the nature of the Government.
* Ayes, Alabama, Arkansas, Connecticut, Georgia, Illinois, Kentucky, Louisiana, Mississippi, Missouri, Michigan, Maine, North Carolina, New Hampshire, New York, South Carolina, Pennsylvania, Tennessee, Virginia, 18. Nays, Delaware, Indiana, Massachusetts, New Jersey, Rhode Island, Vermont, 6. Divided, Ohio, 1. Not voting, Maryland, 1.
On the second of these Resolutions, the vote stood thirty-one to nine on the per capita vote. By States the vote was twenty States for it, only four against, one divided, and one not voting.
Ayes. Alabama. Arkansas, Connecticut, Delaware, Georgia, Illinois, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, New Hampshire, North Carolina, New York, South Carolina, Tennessee, Virginia, Pennsylvania and Maryland, 20. Nays. Indiana, Massachusetts, New Jersey, Vermont, 4. Divided, Ohio, 1. Not voting, Rhode Island. 1.
Three fourths of the States voted for this Resolution, enough to have amended the Constitution according to its provision, if they had been in Convention for that purpose.
The vote on the third Resolution was thirty-one to eleven. By States the vote was sixteen in favor and only four against it; three were divided, and three not voting. A large majority of the States thus expressly affirmed that the Federal Government was nothing but a common agent of the States, and held all its powers by delegation and in trust.
On the fourth Resolution, the vote stood thirty-four for it, and only five against it. By States the vote was eighteen for it, and only two against it, while two were divided, and four not voting.
On the fifth Resolution, the vote was thirty-six to eight. This Resolution was slightly amended, on motion of Mr. Clay, from what it was when at first introduced. On the second clause of it, the vote by States was nineteen for it, three only against it; three divided, and one not voting.
These votes all show conclusively how the Constitution was then understood by the "ambassadors of the States," as Mr. Ames, in the Massachusetts Convention, had styled the Senators. This is the construction of it they put on perpetual record. Could any man desire an ampler vindication of the correctness of his position than Mr. Calhoun had of the truth of his principles, of 1833, thus declared by two thirds of the States themselves, through their ambassadors in the Senate, five years afterwards.
It was after these Resolutions had been passed, after the discussions that had ensued between 1833 and 1838, after the revival of the principles of 1798-99-1800, which had slumbered so long on these subjects, that Mr. Webster, in 1839, made the speech he did, before the Supreme Court of the United States, and wrote the letter he did to the Baring Brothers & Co., touching the nature of the Government, in both of which he fully admits that the States are Sovereign, except in so far as they have delegated specific Sovereign powers. But "Sovereignty" itself, as he says, not being mentioned in the Constitution, must, as a necessary result, remain with the States, or the people thereof.
But besides all this, as a further proof of Mr. Webster's change of views as to the Constitution being a Compact between the States, I cite you to a later speech made by him at Capon Springs, in Virginia, on the 28th June, 1851. Here it is.* In this he says:
* Pamphlet Copy.
"The leading sentiment in the toast from the Chair is the Union of the States. THE UNION OF THE STATES! What mind can comprehend the consequences of that Union, past, present, and to come? The Union of these States is the all-absorbing topic of the day; on it all men write, speak, think, and dilate, from the rising of the sun to the going down thereof. And yet, gentlemen, I fear its importance has been but insufficiently appreciated."
Further on he says:
"How absurd it is to suppose that when different parties enter into a Compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest! I intend, for one, to regard, and maintain, and carry out, to the fullest extent, the Constitution of the United States, which I have sworn to support in all its parts and all its provisions. It is written in the Constitution:
"'NO PERSON HELD TO SERVICE OR LABOR IN ONE STATE, UNDER THE LAWS THEREOF, ESCAPING INTO ANOTHER, SHALL, IN CONSEQUENCE OF ANY LAW OR REGULATION THEREIN, BE DISCHARGED FROM SUCH SERVICE OR LABOR, BUT SHALL BE DELIVERED UP ON CLAIM OF THE PARTY TO WHOM SUCH SERVICE OR LABOR MAY BE DUE.'
"That is as much a part of the Constitution as any other, and as equally binding and obligatory as any other on all men, public or private. And who denies this? None but the abolitionists of the North. And pray what is it they will not deny? They have but the one idea; and it would seem that these fanatics at the North and the secessionists at the South, are putting their beads together to derive means to defeat the good designs of honest and patriotic men. They act to the same end and the same object, and the Constitution has to take the fire from both sides.
"I have not hesitated to say, and I repeat, that if the Northern States refuse, wilfully and deliberately, to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the Compact. A bargain cannot be broken on one side and still bind the other side. I say to you, gentlemen, in Virginia, as I said on the shores of Lake Erie and in the city of Boston, as I may say again, in that city or elsewhere in the North, that you of the South have as much right to receive your fugitive slaves, as the North has to any of its rights and privileges of navigation and commerce."
Again, said he: "I am as ready to fight and to fall for the
Constitutional rights of Virginia, as I am for those of Massachusetts."
In this speech Mr. Webster distinctly held that the Union was a Union of States. That the Union was founded upon Compact. And that a Compact broken on one side could not continue to bind the other.
That this speech shows a modification of the opinions expressed in his speech of 1833, must be admitted by all. He had grown older and wiser. The speech of 1851, was in his maturer years, after the nature of the Government had been more fully discussed by the men of his own generation than it had been in 1830 and 1833. He was too great a man and had too great an intellect not to see the truth when it was presented, and he was too honest and too patriotic a man, not to proclaim a truth when he saw it, even to an unwilling people. In this quality of moral greatness I often thought Mr. Webster had the advantage of his great contemporaries, Messrs. Clay and Calhoun. Not that I would be understood as saying that they were not men of great moral courage, for both of them showed this high quality in many instances, but that they never gave the world such striking exhibitions of it as he did. It was the glory of his life that his was put to a test, in this particular, that theirs never was. On no occasion that I am aware of did Mr. Clay ever take a position which he did not know that he would be sustained in by the people of Kentucky. So with Mr. Calhoun, as to South Carolina. I do not say that they might not have done it if a sense of duty had required it, but they were either so fortunate or so unfortunate as never to have that issue presented to them.
Webster, on the contrary, often passed this ordeal, and that he passed it with unflinching firmness is one of the grandest features in the general grandeur of his character. Even his detractors have been constrained to render him unwilling homage in this respect.
Theodore Parker, in his tirade on his character, after his death, is an illustration of this. He graphically described, if you recollect, his position, in Faneuil Hall, when he returned to give an account of his stewardship to his constituents, in 1842. Webster, you know, had remained in President Tyler's cabinet after Mr. Tyler had come to an open breach with the Whig party. This was exceedingly displeasing to the Whigs of Massachusetts. His object in so remaining, however, was to preserve peace with England by effecting a settlement of the North Eastern Boundary question. This he saw a prospect of accomplishing, and this, by remaining, he had accomplished. But even this great act could not atone for his disregard of the wishes of his party. They were in the main disaffected, displeased, and indignant. The opposition had assumed a hostile attitude. The crisis in his affairs was gloomy enough. The political elements were gathering against him from every point. The storm had been brewing for some time. Denunciations opened from every quarter. All this Parker vividly described, on the occasion alluded to, and then said (I quote from memory): "The clouds had thickened into blackness all around, and over him, and hurled their thunders fearfully upon his devoted head! But there he stood in Faneuil Hall and thundered back again! It was the ground lightning from his Olympian brain!"
This figure was not too exaggerated for the occasion. It gave a truthful representation of the majesty of the man whom he was endeavoring to depreciate, disparage, and defame. In rendering this homage he was but reenacting the part of the Prophet of Aram, who went out to curse, but was constrained to honor instead.
This was not the only instance in which Mr. Webster exhibited this highest quality of human nature.
On this point you will excuse me for repeating what I said on another occasion:
"One of the highest exhibitions of the moral sublime the world ever witnessed, was that of Daniel Webster, when, in an open barouche in the streets of Boston, he proclaimed, in substance, to a vast assembly of his constituents unwilling hearers that 'they had conquered an uncongenial clime; they had conquered a sterile soil; they had conquered the winds and currents of the Ocean; they had conquered most of the elements of nature; but they must yet learn to conquer their prejudices!' I know of no mole fitting incident or scene in the life of that wonderful man, 'Clarus et vir Flortissimus,' for perpetuating the memory of the true greatness of his character, on canvas or in marble, than a representation of him as he then and there stood and spoke! It was an exhibition of moral grandeur surpassing that of Aristides when he said, 'O! Athenians, what Themistocles recommends would be greatly to your interests, but it would be unjust!'"
Such exhibitions of moral outrage his great rivals never gave never had occasion, perhaps, to give. But you see the estimation in which I hold Mr. Webster. I did entertain for him the highest esteem and admiration I did not agree with him in his exposition of the Constitution in 1833, but I did fully and cordially agree with him in his exposition in 1839, and 1851. According to that the Constitution was and is a Compact between the States.
But to return from this digression. Whether Mr. Webster ever did or did not modify the opinions expressed in the speech you have read is not the question before us. That is, what is the true construction of the Constitution on the point under immediate consideration. We have seen the exposition of the Supreme Court of the United States, which Mr. Webster maintained was the final arbiter, and we have seen the exposition of the United States Senate, that is the exposition of the States themselves by their ambassadors in 1839. Now, in addition to this, I wish to call your special attention to a like exposition by the same high authority, as late as 1860, not twelve months before the war began.
Mr. Jefferson Davis, of whom and about whom we shall have much to say as we proceed, submitted to the Senate, on the 29th of February, a series of resolutions, declaratory of the principles of the Government on the very subjects out of which the war sprung. He was then Senator from Mississippi. These Resolutions passed the Senate May 24, 1860. Here they are. I call your special attention to the first and second of these.
"1. Resolved, That, in the adoption of the Federal Constitution, the States adopting the same, acted severally as free and independent Sovereignties, delegating a portion of their powers to be exercised by the Federal Government for the increased security of each against dangers, domestic as well as foreign; and that any intermeddling by any one or more States, or by a combination of their citizens, with the domestic institutions of the others, on any pretext whatever, political, moral, or religious, with a view to their disturbance or subversion, is in violation of the Constitution, insulting to the States so interfered with, endangers their domestic peace and tranquillity objects for which the Constitution was formed and, by necessary consequence, tends to weaken and destroy the Union itself.
"2. Resolved. That negro Slavery, as it exists in fifteen States
of this Union, composes an important portion of their domestic
institutions, inherited from their ancestors, and existing at the adoption of the Constitution, by which it is recognized as constituting an important element in the apportionment of powers among the States, and that no change of opinion or feeling on the part of the
non-slaveholding States of the Union, in relation to this institution, can justify them or their citizens in open or covert attacks thereon, with a view to its overthrow; and that all such attacks are in manifest violation of the mutual and solemn pledge to protect and defend each other, given by the States respectively on entering into the Constitutional Compact which formed the Union, and are a manifest breach of faith, and a violation of the most solemn obligations.
"3. Resolved, That the Union of these States rests on the equality of rights and privileges among its members; and that it is especially the duty of the Senate, which represents the States in their Sovereign capacity, to resist all attempts to discriminate either in relation to persons or property in the Territories, which are the common possessions of the United States, so as to give advantages to the citizens of one State which are not equally assured to those of every other State.
"4. Resolved, That neither Congress nor a Territorial Legislature, whether by direct legislation or legislation of an indirect and unfriendly character, possesses power to annul or impair the Constitutional right of any citizen of the United States, to take his slave property into the, common Territories, and there hold and enjoy the same while the territorial condition remains.
"5. Resolved, That, if experience should at any time prove that the Judicial and Executive authority do not possess means to insure adequate protection to Constitutional rights in a Territory, and if the Territorial Government should fail or refuse to provide the necessary remedies for that purpose, it will be the duty of Congress to supply such deficiency.
"6. Resolved, That the inhabitants of a Territory of the United States, when they rightfully form a Constitution to be admitted as a State into the Union, may, then, for the first time, like the people of a State, when forming a new Constitution, decide for themselves whether slavery, as a domestic institution, shall be maintained or prohibited within their jurisdiction; and 'they shall be admitted into the Union, with or without slavery, as their Constitution may prescribe at the time of their admission.'
"7. Resolved, That the provision of the Constitution for the rendition of fugitives from service or labor, with out the adoption of which the Union could not have been formed, and the laws of 1793 and 1850, which were enacted to secure its execution, and the main features of which, being similar, bear the impress of nearly seventy years of sanction by the highest judicial authority, should be honestly and faithfully observed and maintained by all who enjoy the benefits of our Compact of Union, and that all acts of individuals or of State Legislatures to defeat the purpose or nullify the requirements of that provision, and the laws made in pursuance of it, are hostile in character, subversive of the Constitution, and revolutionary in their effect."
These Resolutions decidedly affirmed that the Constitution was formed by States independent Sovereignties that the Government established by it is a Federal Government one founded on Compact, and that any interference, openly or covertly, directly or indirectly, by any of the States or their citizens, with the black population in any other of the States, or with the domestic institutions of any of the States against their own internal. policy, would be a manifest breach of plighted faith and, further, that all acts of the individual citizens of any of the States, as well as of the Legislatures of any of the States, intended to defeat or nullify that clause of the Constitution requiring the rendition of fugitives from service, were hostile to and subversive of the Constitution itself.
JUDGE BYNUM. Though these Resolutions did pass the Senate, the vote on them was nothing but a party vote. Mr. Davis, in introducing them, was but paving the way for his subsequent course. This was but part of his scheme of Secession, which he and his associates had been concocting for years. Every Republican in the Senate, at the time, voted against these Resolutions, while every Democrat, in like manner, voted for them.
MR. STEPHENS. So you might say of Mr. Calhoun's motives and intentions, in 1838. Such motives, I know, have been attributed to him. Now, I think all accusations of this kind were exceedingly unjust to him, and so, I think in this case, you do great injustice to Mr. Davis.
You are mistaken in saying that the vote upon these Resolutions was a strict party vote. Here is the vote. There were thirty-six Senators in favor of the first Resolution and only nineteen against it;* nearly two to one on the per capita vote. Among the yeas I see James A. Pearce, Anthony Kennedy and John J. Crittenden. When were they ever considered or looked upon as Democrats in the sense in which you use that term? They certainly did not belong to the same political organization with Mr. Davis at that time, and had no sympathy with its bare party objects. While the per capita vote is so striking, if we look at it by States it will appear even more so. From a view of it, in this respect, it appears that nineteen States voted for the first Resolution, only ten voted against it, while two were divided, and two did not vote. Had the two absent States, Delaware and Illinois, been present, the vote would have been twenty for it, ten against it, and three divided; for Douglas, of Illinois, would have voted for it, and Trumbull of the same State would have voted against it. Would it not have been a strange spectacle to see twenty of the thirty-three States in Senatorial Council, taking the initiative step for a dismemberment of the Union? Is such a supposition reasonable? Can any one suppose that these States, acting through their Senators, could have had any such design? Does not the object of these Resolutions clearly appear to have been just the reverse? Was not this simply but earnestly to declare the nature of the Government, and the only way in which the Union, under it, could be preserved? The vote on the seventh Resolution, looking to the per capita vote, or the vote by States, is' equally striking. On the per capita the yeas were thirty-six, and nays six. By States the vote was twenty for the Resolution, and only four against it. One State divided, and eight not voting.**
* Yeas. Messrs. Benjamin, Bigler, Bragg, Bright, Brown, Chestnut, C. C. Clay, Clingman, Crittenden, Davis, Fitzpatrick, Green, Gwin, Hammond, Hemphill, Hunter, Iverson, Johnson, of Arkansas, Johnson, of Tennessee, Kennedy, Lane, of Oregon, Latham, Mallory, Mason, Nicholson, Pearce, Polk, Powell, Pugh, Rice, Sebastian, Slidell, Thompson, of New Jersey, Toombs, Wigfall and Yulee, 36. Nays, Messrs. Bingham, Chandler, Clark, Collamer, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Hale, Hamlin, Harlan, King, Simmons, Sumner, Ten Eyck, Wade, and Wilson, 19.
Vote by States on the first Resolution:
Yeas, Alabama, Arkansas, California, Florida, Georgia, Indiana, Kentucky, Louisiana, Missouri, Mississippi, Minnesota, Maryland, North Carolina, Oregon, Pennsylvania, South Carolina, Texas, Tennessee, and Virginia, 19. Nays, Connecticut, Iowa, Maine, Massachusetts, Michigan, New York, New Hampshire, Rhode Island, Vermont, and Wisconsin, 10. Divided, Ohio and New Jersey, 2. Not voting, Delaware and Illinois, 2.
** Vote on the seventh Resolution:
Yeas, Alabama, Arkansas, California, Florida, Georgia, Indiana, Kentucky, Louisiana, Missouri, Maryland, Minnesota, Mississippi, New Jersey, North Carolina, Oregon, Pennsylvania, South Carolina, Texas, Tennessee, and Virginia, 20. Nays, Massachusetts, Michigan, New Hampshire, and Vermont, 4. Divided, Ohio, 1. Not voting, Connecticut, Delaware, Iowa, Illinois, Maine, New York, Rhode Island and Wisconsin, 8.
An important fact, in connection with these Resolutions, should ever be borne in mind. That is that every one of these ten States, whose Senators voted against them, had, by their State Legislatures, as we shall see, openly and intentionally disregarded their obligations, under that clause of the Constitution, which required the rendition of fugitives from service, and which acts, on their part, a large majority of the States thus by their resolves declared to be a breach of their plighted faith. Indeed, all these ten States were then under the influence of those who held that the Constitution was but "a Covenant with Death and an agreement with Hell."* Is it just or fair to Mr. Davis to say that he was meditating or planning Secession at that time, any more than it was the design of the nineteen States which actually agreed with him in the sentiments of the Resolutions?
* Lunt's Origin of the War. p. 109.
Is it not more in accordance with strict justice, to say nothing of that charity which should ever be exercised in investigations of this sort, to suppose that his object was to preserve the Union by having all the members to conform their action to its plain and unmistakable provisions? If there were any dis-union sentiments then existing to whom should they be rightly attributed? Should they be attributed to those States and those Senators who were for maintaining the Union on the principles upon which it was formed, or those who were for maintaining a Government, barely, upon totally different principles? Three of these Resolutions of the series offered by Mr. Davis, and which passed the Senate, I am frank to say, I thought, at the time, though not then in public life, and still think, ought not to have been brought forward.
MAJOR HEISTER. Which ones are they?
MR. STEPHENS. The fourth, fifth, and sixth.
PROF. NORTON. These are the ones that relate to the doctrine of Popular or Squatter Sovereignty, as it was called. What objections had you to them?
MR. STEPHENS. My objections related solely to the policy of introducing
them. They presented questions which tended to divide and thus weaken the
Constitutional Party the State Rights, State Sovereignty Party
the great party throughout the country, everywhere, whatever cognomen its
various subdivisions bore, which was for maintaining the Constitution, and the
Union under it, as it was made and handed down to them from their ancestors. It
seemed to me to be exceedingly inexpedient and impolitic as a matter of
statesmanship to divide those thus cordially united on the more essential and
vital principles of the Government, upon questions of so little practical
importance, especially at such a crisis as that was in public affairs. The
Anti-Constitutional Party, as it might in my view very properly be styled, was then thoroughly organized under the old but misapplied name of Republican, and it should have been a matter of the utmost importance with the real friends of the Constitution, and Union under it, not to divide their ranks upon such questions as those embraced in these three Resolutions. This, in short, was my view of that subject. The only hope of the new party was in a division of its opponents. In case this division should become complete and irreconcileable I saw that a rupture of that party was an inevitable result, and with its rupture a rupture of the Union, upon the principles upon which it was formed, seemed to me to be equally inevitable. I am equally frank in stating that there were some amongst us who meant to use this question for no purpose whatever, but to produce such a rupture both of the party and of the Union. I did not, however, then or now, think that Mr. Davis belonged to that class. No man, in my opinion, which I give you candidly, is less understood at the North, and perhaps to a great extent, at the South, too, than Mr. Davis, on this question. I may be wrong, but I assure you I never regarded him as a Secessionist, properly speaking; that is, I always regarded him as a strong Union man in sentiment, so long as the Union was maintained on the principles upon which it was founded. He was, without doubt, a thorough State Rights, State Sovereignty man. He believed in the right of Secession; but what I mean to say is, that in my opinion, he was an ardent supporter of the Union on the principles, as he understood them, upon which, and for which, the Union was formed.. There were, as I have said, many public men amongst us who after these Resolutions passed the Senate, and after the Presidential canvass was opened upon them, and the various issues presented in the Party platforms of the day, as we shall see, who were openly for Secession in case Mr. Lincoln should be elected upon the principles on which he was nominated. But Mr. Davis, as far as I know or believe, did not belong even to this class. If he was in favor of Secession barely upon the grounds of Mr. Lincoln's election, I am not aware of it. He certainly made no speech nor wrote any letter for the public during that canvass that indicated such views or purposes. I never saw a word from him recommending Secession as the proper remedy against threatening dangers until he joined in the general letter of the Southern Senators and Representatives in Congress to their States, advising them to take that course.
This was in December, 1860, and not until after it was ascertained in the Committee of the Senate, on Mr. Crittenden's proposition for quieting the apprehensions and alarm of the Southern States from the accession of Mr. Lincoln to power, that the Republicans, his supporters, would not agree to that measure. It is well known that he and Mr. Toombs both declared their willingness to accept the adoption of Mr. Crittenden's measure as a final settlement of the controversy between the States and sections, if the party coming into power would agree to it in the same spirit and with the same assurance. It was after it was known that this party would not enter into any such settlement, or give any assurance for the future, that Mr. Davis joined other Southern Senators and Representatives advising the Southern States to secede, as the proper remedy for what he and they considered impending dangers to their rights, security, and future welfare. There is nothing in Mr. Davis's life, or public conduct, that I am aware of, that affords just grounds for believing that he ever desired a separation of the States, if the principles of the Union, under the Constitution, had been faithfully adhered to by all the Parties to it. These were the sentiments of all his speeches, in Congress and out of it, as far as I have ever seen, even down to his last most touching leave-taking address to the Senate!
But all this is digressing from the matter before us. We shall have enough of these questions hereafter. The point we are now considering is not the object or motive of Mr. Davis in offering these Resolutions. It is the exposition actually made by the Senate of the United States, nineteen States to ten States, of the real nature and character of the Government. Mr. Davis was but the instrument, the draftsman, through whom this overwhelming majority of the States announced for themselves the nature of the bonds of their Union! This exposition was as late as 1860, and substantially the same that had been given by the same August Body of ambassadors representing their Sovereignty in 1838, twenty-two years before! That exposition was that the Constitution is a Compact between Sovereign States.
So, after this very long talk, wandering the while far from the point, we finally return to the same place at which we had arrived before taking up Mr. Webster's speech. We now stand just where we did then. We have gone through with his great argument and Mr. Calhoun's reply, to which no rejoinder was ever made. We have seen that the Senate, by a nearly three fourths vote of the States, in 1838, and by a vote of nearly two to one, in 1860, sustained that construction of the Constitution which was set forth in the first of Mr. Calhoun's Resolutions in 1833, and which I maintain. The decisions of the Supreme Court referred to, sustain the same view also. We have seen further, that Mr. Webster himself, in his riper years, held that the Union was "a Union of States." That it was founded upon "Compact," and that "a bargain cannot be broken on one side and still bind the other side."
Does it not, therefore, clearly appear from these high authorities, and even upon the authority of Mr. Webster himself, that the Government of the United States is a Federal Government, or as Washington styled it, a Confederated Republic? What further, if any thing, have you to say against this as an indisputably established conclusion?
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