NULLIFICATION GENERAL JACKSON ON THE UNION JEFFERSON ON THE UNION KENTUCKY RESOLUTIONS OF 1798 SETTLEMENT OF THE NULLIFICATION ISSUE THE DEBATES IN THE SENATE WILKINS, CALHOUN, GRUNDY, BIBB AND CLAY THE COMPROMISE ON THE PROTECTIVE POLICY OF 1833 THE WORKINGS OF THE FEDERAL SYSTEM UNDER THE PRINCIPLES ON WHICH THAT COMPROMISE WAS MADE THE GREAT PROSPERITY THAT FOLLOWED NO PRESIDENT FROM JEFFERSON TO LINCOLN ELECTED, WHO DID NOT HOLD THE GOVERNMENT TO BE A COMPACT BETWEEN SOVEREIGN STATES MADISON, MONROE, JOHN QUINCY ADAMS, JACKSON, VAN BUREN, HARRISON, POLK, TAYLOR, PIERCE, AND BUCHANAN, ALL SO HELD IT TO BE THE SUPREME COURT NOT THE UMPIRE BETWEEN THE STATES AND THE GENERAL GOVERNMENT MADISON, BIBB, MARSHALL, AND LIVINGSTON ON THIS SUBJECT GENERAL JACKSON'S EXPLANATION OF THE DOCTRINES OF THE PROCLAMATION HE HELD THE CONSTITUTION TO BE A COMPACT BETWEEN SOVEREIGN STATES HIS FAREWELL ADDRESS.
MAJOR HEISTER. I have listened with interest to this discussion as it has progressed thus far. Several new views, I candidly confess, have been presented by you. But I am not prepared to assent to your conclusion as a truth indisputably established. I was never a disciple of the school of either Story, Webster, or Calhoun. I was born, bred, and brought up a Jeffersonian Democrat.
MR. STEPHENS. So was I.
MAJOR HEISTER. Well, then, Andrew Jackson was the embodiment of the principles in which I was reared I am, therefore, a disciple of the School of the Hero of New Orleans as well as of the Sage of Monticello! I have never devoted much time to the study of the questions and principles you have been discussing, and Lo not profess any very accurate acquaintance with or information upon them; but I have always understood very well, that General Jackson held, that the Union must be preserved. That he put down Nullification, and the whole theory of the Government attempted to be established by Mr. Calhoun. Now, I am a Union man upon the principles of General Jackson. His proclamation against Nullification is my political text-book. Have you got that Proclamation?
MR. STEPHENS: Yes, here it is, in the Statesman's Manual, vol. 2, page 794.
MAJOR HEISTER. Well, did not General Jackson, in it, denounce the proceedings in South Carolina as treason able, and did he not, by his Roman firmness and decision, at the time, promptly quell the Rebellion in its incipiency, then brewing in that State, and thus save the Union and maintain the Constitution?
What Story and Motley and Webster said about the Constitution has but little weight with me. If Webster did not answer Calhoun, General Jackson, at least, silenced him, and put an end to Nullification and all other attempts to overthrow the Government, for more than a quarter of a century. Here is the Proclamation, which is, as I have said, my text-book on this subject. It is too long for me to read the whole of it, nor is it necessary. I call your attention to only certain portions of it.
MR. STEPHENS. Before looking into the Proclamation I must set you right on some matters of fact.
MAJOR HEISTER. How so? What matters of fact?
MR. STEPHENS. The statement by you that General Jackson put down Nullification and silenced Mr. Calhoun.
MAJOR HEISTER. Are not these statements correct? Do you join issue on them?
MR. STEPHENS. I most certainly do: Nullification in South Carolina, whether it be considered as an incipient Rebellion, or as a proper and peaceable mode of obtaining a redress of grievances as its advocates contended, was never put down or quelled by General Jackson or any body else. Its further prosecution was abandoned by those who initiated it as a mode of redress, when the wrongs and grievances complained of were redressed by Congress, and not till then.
It is not my purpose to defend the doctrine of Nullification, or to say how far General Jackson as President was right in issuing a Proclamation declaring his purpose to execute the laws in that instance. It is proper, however, to state that the primary and leading object of its advocates was not Secession or Disunion. It was just the contrary. But so subtle were the principles upon which it was founded, that it was never understood by the country. South Carolina, as well as a number of the other States, held, that the power to levy duties upon imports, not with a view to revenue, but to protect and aid particular classes, was not delegated to the Congress. Nullification, without Secession, was a remedy she resorted to, to defeat the operation of' protective laws passed by the Congress. Many who believed in the perfect right of Secession, and looked upon that as the proper remedy in such cases of abuse of power as South Carolina complained of, were utterly opposed to Nullification. How a State could remain in the Union, with Senators and Representatives in Congress, and yet refuse obedience to the laws of Congress not set aside by the Judiciary as unconstitutional, was, to this class, utterly incomprehensible! But the merits of this doctrine are not now before us. Suffice it to say I was never an advocate of it. And all I mean now to say on this point is, that whether right or wrong in principle, it was never abandoned until the protective policy, which it was resorted to to change, was abandoned by the Government. The Proclamation did not either put it down or silence its advocates or defenders. Mr. Calhoun's speech, which we have read, was made after that. The giving way was on the part of the Federal Government and not the State Government.
A brief statement of the matter is this. The Nullification Ordinance of South Carolina, which was to test the question, was passed the latter part of November, 1832, to go into effect on the 1st of February, 1833. The Proclamation was issued on the 11th of December, 1832. Congress was in session: on the 21st of January, 1833, a Bill was introduced to meet the provisions of the Nullification Ordinance of the State, by counteracting Legislation and clothing the President with the necessary power to execute it, putting at his disposal the whole of,the land and naval forces. This was called the Force Bill. The Constitutionality of the provisions of this Bill was denied by many who did not hold to the doctrine Of Nullification. Unusual excitement prevailed. A great debate sprung up the greatest since the formation of the Government, for then principles were discussed. The speeches of Mr. Webster and Mr. Calhoun constitute part of this debate. Mr. Calhoun offered his Resolutions the day after the Force Bill was introduced. Serious fears were entertained that if the Bill should pass, and become a law, while South Carolina held the position she did, that a collision would take place between the United States forces and the forces of the State; and that war would ensue. For, though South Carolina did not, in her Ordinance, contemplate the use of any force in the modus operandi of her chosen remedy, yet she declared her intention to be, to repel force by force, in case the United States should resort to force.
We can get some glimpses as to the position of the parties from the debates in the Senate at this time. Here is the opening of the discussion by Mr. Wilkins, who introduced the Force Bill.*
* Niles's Register, vol. xliii. Supp. p. 53.
"Mr. Wilkins. All have agreed that on the first of next month, this solemn epoch will arrive. The ordinance of the State of South Carolina the test law that unprecedented law called the Replevin Act and the law for the protection of the citizens of South Carolina all looking to one object; all go into operation on that day. He had said all these pointed to one object. To what object did they point? The answer was simple. To nullification of existing laws: To violent resistance to the United States."
"Mr. Calhoun said he could not sit silent and permit such erroneous constructions to go forth. South Carolina had never contemplated violent resistance to the laws of the United States."
"Mr. Wilkins was at a loss to understand how any man could read the various acts of the State of South Carolina, and not say that they must lead, necessarily lead, in their consequences, to violent measures. He understood the Senator from South Carolina (Mr. Calhoun) the other day as acknowledging that there was military array in South Carolina, but contending that it followed and did not precede the array of force by the United States."
"Mr. Calhoun said he admitted that there was military preparation, not array."
"Mr. Wilkins. If we examine the measures taken by the Administration, in reference to the present crisis, it would be found that they were not at all of that military character to justify the measures of South Carolina which it was alleged had followed them."
"Mr. Calhoun said that South Carolina was undoubtedly preparing to resist force by force. But let the United States withdraw her forces from its borders, and lay this Bill upon the table, and her preparations would cease."
"Mr. Wilkins resumed: That is, sir, if we do not oppose any of her movements all will be right. If we fold our arms and exhibit a perfect indifference whether the laws of the Union are obeyed or not, all will be quiet!"
"Mr. Calhoun. Who relies upon force in this controversy? I have insisted upon it that South Carolina relied altogether upon civil process, and that, if the General Government resorts to force, then only will South Carolina rely upon force. If force be introduced by either party, upon that party will fall the responsibility."
"Mr. Wilkins. The General Government will not appeal, in the first instance, to force. It will appeal to the patriotism of South Carolina to that magnanimity of which she boasts so much."
"Mr. Calhoun. I am sorry that South Carolina cannot appeal to the sense of justice of the General Government."
"Mr. Wilkins. The Government will appeal to' that political sense which exhorts obedience to the laws of the country, as the first duty of the citizen. It will appeal to the moral force in the community. If that appeal be in vain, it will appeal to the judiciary. If the mild arm of the judiciary be not sufficient to execute the laws, it will call out the civil force to sustain the laws. If that be insufficient, God save and protect us from the last resort. But if the evil does come upon the country, who is responsible for it? If force be brought in to the aid If law, who, I ask of gentlemen, is responsible for it to the people of the United States? That is the question. Talk or it as you please, mystify matters as you will, theorize is you may, pile up abstract propositions to any extent, at last the question resolves itself into one of obedience or resistance of the laws in other words, of Union or dis-Union."
Mr. Grundy, of Tennessee, presented the case in these words:
"The true question before the Senate is, shall the State of South Carolina be permitted to put down the revenue laws of the Union, prevent their execution within her limits, and no effort be made by this Government to maintain the majesty of the laws, and to counteract the measures adopted by that State to defeat and evade them."*
* Niles's Register, vol. lxiii, Supp. page 214.
The debate so commenced became exceedingly interesting as it progressed. It furnishes a rich mine for exploration at this time. Let us dig a little further into it, and sample some other fragments of its strata.
In the Register (Niles), vol. xliii, Sup. pages 63 to 80, we have the following specimens, from Judge Bibb, of Kentucky:
"Mr. Bibb said it seemed to him that a false issue was presented. The question of war against South Carolina is presented as the only alternative. The issue was false. The first question is between justice and injustice. Shall we do justice to the States who have united with South Carolina in complaint and remonstrance against the injustice and oppression of the tariff? Shall we cancel the obligations of justice to five other States, because of the impetuosity and impatience of South Carolina under wrong and oppression? The question ought not to be whether we have the physical power to crush South Carolina, but whether it is not our duty to heal her discontents, to conciliate a member of the Union, to give peace and happiness to the adjoining States which have made common cause with South Carolina so far as complaint and remonstrance go. Are we to rush into a war with South Carolina to compel her to remain in the Union? Shall we keep her in the Union by force of arms, for the purpose of compelling her submission to the tariff laws of which she complains? How shall we do this? By the naval and military force of the United States, combined with the militia? Where will the militia come from? Will Virginia, will North Carolina, will Georgia, Mississippi, or Alabama, assist to enforce submission to the tariff laws, the justice and Constitutionality of which they have, by resolutions on your files, denied over and over again? Will those States assist to forge chains by which they themselves are to be bound? Is this to be expected, in the ordinary course of chance and probability? * * *
"My creed is that, by the Declaration of Independence, the States were declared to be free and independent States, thirteen in number, not one Nation that the old Articles of Confederation united them as distinct States, not as one people: that the treaty of peace, of 1783, acknowledged their independence as States, not as a single Nation; that the Federal Constitution was framed by States, submitted to the States, and adopted by the States, as distinct Nations or States, not as a single Nation or people.
"By canvassing these conflicting opinions, we shall the better understand how far South Carolina has transcended her reserved powers as a Sovereign State how far we can lawfully make war upon her and whether we, or South Carolina, are likely to transcend the barriers provided in the Constitution of the United States.
"I do not, said Mr. Bibb, wish to be misunderstood. In these times of political excitement, whatever is spoken or reported, may be misrepresented. He wished it to be understood, that he did not approve of the doctrines of Carolina, in their full extent. But, if we make war upon her, to put down her principles, we must be sure that those principles are bad and dangerous.
"What are her principles? That she has a right to judge, in the last resort, in all questions concerning her rights; or, to put it in still stronger language if Congress attempts to enforce the revenue laws, she will resume her independence and Sovereignty. lie did not approve of this course on the part of South Carolina, under all the circumstances. Still, he would like to know when and where South Carolina surrendered the right to secede from the Union, in case of a dangerous invasion of her rights by the Federal Government. In the solemn declaration of principles with which some of the States accompanied the adoption of the Constitution, this right it declared to be inalienable. There was too much truth in the axiom contained in many State Constitutions, that a frequent recurrence to first principles is necessary to the maintenance of liberty.' There Mr. Bibb read a passage from the Declaration of Independence: 'We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.' Now, if South Carolina has mistaken her injury and her remedy, shall we make war upon her, and put down the principles asserted by the Declaration of Independence. The ratification, by the several States, of the Constitution, adopted the same principles; and they were accepted as forming a part of the Constitution. Mr. Bibb here referred to the declaration accompanying the ratification of the Constitution by the State of New York that 'all power was derived from the people, and could be resumed by the people whenever it became necessary for their happiness.' They go on to say, 'under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution; and in confidence, that the amendments which shall have been proposed to the said Constitution, will receive an early and mature consideration, we, the said Delegates, in the name and in the behalf of the people of the State of New York, do, by these presents, assent to, and ratify the said Constitution,' etc.
"The reservations of the State of Rhode Island were of the same tenor; and he went on to read her declaration. * * * Mr. Bibb next adverted to the Articles of the old Confederation. They declared the Union should be perpetual, and that no alteration should be made in the Articles, but by consent of Congress, and of the Legislatures of each State of the Union. Here the Compact was declared to be perpetual, and yet we undertook to arrest it without the consent of any State. The Constitution provides that when nine States have ratified the Constitution, it shall go into operation. Why were the fundamental Articles of the old Confederation violated? How could nine States be supposed to combine, and throw the other four out of the Union? They claimed the right, under the principles adopted in the Declaration of Independence, to alter, reform, and amend their form of Government as much and as often as such change was necessary, in their opinion, to the right ends of Government, the interests of the people. The people have an unalienable, indefeasible right to make a Government which shall be adequate to their ends. Upon this principle it was that the old Compact was destroyed, and a new one made.
"We are now about to make war upon a State, which formed a part of the old Confederation, and became a party to the new Constitution, with an express reservation of powers not expressly delegated by her. * * *
"Mr. Bibb asked if it was possible that the people of the States. in adopting this Constitution, could have intended to surrender absolutely and forever the right which they had obtained by a Revolution? So well did they understand the difficulty of shaking off the powers which once enchained us, and so jealous were t1key of their newly acquired freedom, that they took care to say in the Constitution, that the powers not delegated by them, were reserved to themselves. * * * It stood on record, that one of the Roman provinces rebelled against the Government, again and again. The leaders were subdued, and many of the Senators of this party, and many of the people were taken or killed. The conquered province sent ambassadors to Rome, and when these ambassadors appeared, the consul asked of them, 'what punishment did they deserve?' The answer of the ambassador was, 'Such punishment as he deserves who contends for liberty'. It was demanded of them by the Senate, 'whether, if terms of peace were granted them, they would abide faithfully by them?' They replied emphatically, that 'if the terms were good and just, they would faithfully abide by them, and the peace should be perpetual; but if they were unjust, the peace could barely last until they could return to their homes to tell the people what they were.' The Roman Senate were pleased with the spirit which was thus exhibited, declared that 'they who thus contended for freedom, were worthy to be Roman citizens,' and gave them all which they demanded.
"He wished then an American Senate to imitate their noble example. It was a cause worthy of imitation. He invoked the Senate to sift the complaints of South Carolina, for they alone were worthy to be American citizens who contended zealously for the principles of civil liberty, and are not fit subjects to be denounced and accursed."
This is enough of the general debates to show the temper of the times, the contrariety of sentiments existing in various quarters, and the grounds for the apprehensions so universally prevailing that a collision might ensue and the peace of the country be disturbed.
Meantime hopes were entertained that Congress would abandon the protective policy, and strong efforts were made to get South Carolina to postpone the day of final action on her Ordinance, to give time for Congress to grant the relief sought. Mr. Verplanck, of New York, had introduced a Bill in the House of Representatives reducing the duties. This was on the 28th December, 1832. The State of Virginia, who sympathized thoroughly with South Carolina in her complaints against the injustice of the Tariff laws, but who did not agree with her as to the remedy she had adopted to get rid of them by, sent one of her most distinguished statesmen, Benjamin Watkins Leigh, as a Commissioner to intercede, and to urge South Carolina to rescind her Ordinance, or at least to postpone action on it until the close of the first session of of the next Congress. Mr. Leigh's high mission was successful in part. South Carolina agreed, in view of the prospect of Congress reducing the duties to a revenue standard, to postpone action on her Ordinance until the close of that session of Congress, which was on the 4th of March.*
* The following letter was addressed by Governor Hayne to Mr. Leigh, Niles's Register, vol.,lxiii, p. 435:
"EXECUTIVE DEPARTMENT, Charleston, 5th February, 1833.
"SIR: I have had the honor to receive your letter of the 5th instant, and in compliance with the request therein contained, communicated its contents, together with the Resolutions of the Legislature of Virginia, of which you are the bearer, to General James Hamilton, Jr., the President of the Convention. I have now the pleasure of inclosing you his answer, by which you will perceive, that in compliance with the request conveyed through you, he will promptly re-assemble the Convention, to whom the Resolutions adopted by the Legislature of Virginia will be submitted, and by whom they will doubtless receive the most friendly and respectful consideration. In giving you this information, it is due to the interest manifested by Virginia, in the existing controversy between South Carolina and the Federal Government, to state, that as soon as it came to be understood that the Legislature of Virginia had taken up the subject in a spirit of friendly interposition, and that a Bill for the modification of the tariff was actually before Congress, it was determined, by the common consent of our fellow citizens, that no case should be made under our Ordinance until after the adjournment of the present Congress. The propriety of a still further suspension, can of course only be determined by the Convention itself. With regard to the solicitude expressed by the Legislature of Virginia, that there should be 'no appeal to force' on 'the part of either the General Government or of the Government of South Carolina in the controversy now unhappily existing between them,' and that 'the General Government and the Government of South Carolina, and all persons acting under the authority of either, should carefully abstain from any and all acts whatever, which may be calculated to disturb the tranquillity of the country, or endanger the existence of the Union;' it is proper that I should distinctly and emphatically state, that no design now exists, or ever has existed, on the part of the Government of South Carolina, or any portion of the people, to 'appeal to force,' unless that measure should be rendered indispensable in repelling unlawful violence.
"I beg leave to assure you, and through you the people of Virginia, and our other sister States, that no acts have been done, or are contemplated by South Carolina, her constituted authorities, or citizens, in reference to the present crisis, but such as are deemed measures of precaution. Her preparations are altogether defensive in their character, and notwithstanding the concentration of large naval and military forces in this harbor, and the adoption of other measures on the part of the General Government, which may be considered as of a character threatening the peace and endangering the tranquillity and safety of the State, we shall continue to exercise the utmost possible forbearance, acting strictly on the defensive, firmly resolved to commit no act of violence, but prepared as far as our means may extend, to resist aggression. Nothing, you may be assured, would give me personally, and the people of South Carolina, more satisfaction than that the existing controversy should be happily adjusted, on just and liberal terms; and I beg you to be assured, that nothing can be further from our desire, than to disturb the tranquillity of the country or endanger the existence of the Union.
"Accept, sir, for yourself, the assurance of the high consideration of yours, respectfully and truly,
"ROBERT Y. HAYNE.
"To the HON. B. W. LEIGH."
It was at this stage of affairs that Mr. Clay, who was the author of the protective policy known as "the American system," brought forward his celebrated compromise of 1833, upon the subject of the Tariff laws. He gave notice of his intention to ask leave to introduce such a Bill on the 11th of February, and did bring it forward on the next day, the 12th.
His object was two-fold, as stated by him. One was to preserve the manufacturing interest from that ruin which would attend an immediate repeal of the protective duties; the other was by yielding the principle of protection to prevent that collision between the Federal and State Governments which was then so seriously apprehended.
He said, on introducing it (I read still from Niles's Register, vol. xliii, page 411):
"I yesterday, sir, gave notice that I should ask leave to introduce a bill to modify the various acts imposing duties on imports. I, at the same time, added, that I should, with the permission of the Senate, offer an explanation of the principle on which that bill is founded. I owe, sir, an apology to the Senate for this course of action, because, although strictly parliamentary, it is, nevertheless, out of the usual practice of this body; but it is a course which I trust that the Senate will deem to be justified by the interesting nature of the subject. I rise, sir, on this occasion, actuated by no motive of a private nature, by no personal feelings, and for no personal objects; but exclusively in obedience to a sense of the duty which I owe to my country. I trust, therefore, that no one will anticipate on my part any ambitious display of such humble powers as I may possess. It is sincerely my purpose to present a,.plain, unadorned, and naked statement of' facts connected with the measure which I shall have the honor to propose, and with the condition of the country. * * * In presenting the modification of the Tariff laws, which I am now about to submit, I have two great objects in view. My first object looks to the Tariff. I am compelled to express the opinion, formed after the most deliberate reflection, and on full survey of the whole country, that, whether rightfully or wrongfully, the Tariff stands in imminent danger. If it should even be preserved during this session, it must fall at the next session. By what circumstances, and through what cause, has arisen the necessity for this change in the policy of our country, I will not pretend now to elucidate. Others there are who may differ from the impressions which my mind has received upon this point. Owing, however, to a variety of concurrent causes, the Tariff, as it now exists, is in imminent danger, and if the system can be preserved beyond the next session, it must be by some means not now within the reach of human sagacity. The fall of that policy, sir, would be productive of consequences calamitous indeed. When I look to the variety of interests which are involved, to the number of individuals interested, the amount of capital invested, the value of the buildings erected, and the whole arrangement of the business for the prosecution of the various branches of the manufacturing art which have sprung up under the fostering care of this Government, I cannot contemplate any evil equal to the sudden overthrow of all those interests. History can produce no parallel to the extent of the mischief which would be produced by such a disaster. The repeal of the Edict of Nantes itself was nothing in comparison with it. That condemned to exile, and brought to ruin a great number of persons. The most respectable portion of the population of France were condemned to exile and ruin by that measure. But, in my opinion, sir, the sudden repeal of the Tariff policy would bring ruin and destruction on the whole people of this country. There is no evil, in my opinion, equal to the consequences which would result from such a catastrophe.
"What, sir, are the complaints which unhappily divide the people of this great country? On the one hand, it is said by those who are opposed to the Tariff, that it unjustly taxes a portion of the people and paralyzes their industry; that it is to be a perpetual operation; that there is to be no end to the system; which, right or wrong, is to be urged to their inevitable ruin. And what is the just complaint, on the other hand, of those who support the Tariff? It is, that the policy of the Government is vacillating and uncertain, and that there is no stability in our legislation. Before one set of books are fairly opened, it becomes necessary to close them, and to open a new set. Before a law can be tested by experiment, another is passed. Before the present law has gone into operation, before it is yet nine months old, passed as it was under circumstances of extraordinary deliberation, the fruit of nine months' labor, before we know any thing of its experimental effects, and even before it commences its operations, we are required to repeal it. On one side we are urged to repeal a system which is fraught with ruin: on the other side, the check now imposed on enterprise, and the state of alarm in which the public mind has been thrown, renders all prudent men desirous, looking ahead a little way, to adopt a state of things, on the stability of which they may have reason to count. Such is the state of feeling on the one side and on the other. I am anxious to find out some principle of mutual accommodation, to satisfy, as far as practicable, both parties to increase the stability of our legislation; and at some distant day but not too distant, while we take into view the magnitude of the interests which are involved to bring down the rate of duties to that revenue standard for which our opponents have so long contended. The basis on which I wish to found this modification, is one of time; and the several parts of the Bill to which I am about to call the attention of the Senate, are founded on this basis. I propose to give protection to our manufactured articles, adequate protection, for a length of time, which, compared with the length of human life, is very long, but which is short, in proportion to the legitimate discretion of every wise and parental system of Government securing the stability of legislation, and allowing time for a gradual reduction, on one side; and, on the other, proposing to reduce the duties to that revenue standard for which the opponents of the system have so long contended. I will now proceed to lay the provisions of this bill before the Senate, with it view to draw their attention to the true character of the bill."
The bill proposed a gradual reduction of the duties on all articles on which they were then over twenty per cent. for ten years, so that at the end of ten years no duties should be above twenty per cent., which was assumed to be about the revenue standard. After explaining the bill and stating his second object in offering it, he said:
"If there be any who want civil war who want to see the blood of any portion of our countrymen spilt, I am not one of them I wish to see war of no kind; but above all, I do not desire to see a civil war. When war begins. whether civil or foreign, no human sight is competent to foresee when, or how, or where, it is to terminate. But when a civil war shall be lighted up in the bosom of our own happy land, and armies are marching, and commanders winning their victories, and fleets are in motion on our coasts tell me, if you can, tell me if any human being can tell its duration? God alone knows where such a war will end. In what state will be left our institutions? In what state our liberties? I want no war; above all no war at home.
"Sir, I repeat, that I think South Carolina has been rash, intemperate, and greatly in the wrong; but I do not want to disgrace her, nor any other member of this Union. No: I do not desire to see the lustre of one single star dimmed of that glorious Confederacy, which constitutes our political sun; still less do I wish to see it blotted out, and its light obliterated forever. Has not the State of South Carolina been one of the members of this Union 'in days that tried men's souls?' Have not her ancestors fought alongside our ancestors? Have we not, conjointly, won together many a glorious battle? If we had to go into a civil war with such a State, how would it terminate? Whenever it should have terminated, what would be her condition? If she should ever return to the Union, what would be the condition of her feelings and affections what the state of the heart of her people? She has been with us before, when her ancestors mingled in the throng of battle, and as I hope our posterity will mingle with hers for ages and centuries to come in the united defence of liberty, and for the honor and glory of the Union. I do not wish to see her degraded or defaced as a member of this Confederacy.
"In conclusion, allow me to entreat and implore each individual member of this body to bring into tile consideration of this measure, which I have the honor of proposing, the same love of country which, if I know myself, has actuated me; and the same desire of restoring harmony to the Union, which has prompted this effort If we can forget for a moment but that would be asking too much of human nature if we could suffer, for one moment, party feelings and party causes and as.I stand here, before my God, I declare I have looked beyond those considerations, and regarded only the vast interests of this united people I should hope that, under such feelings and with such dispositions, we may advantageously proceed to the consideration of this bill, and heal, before they are yet bleeding, the wounds of our distracted country."
The introduction of this bill, by Mr. Clay, caused great sensation. It was, perhaps, the most trying period of his life. Public meetings had been held in various places, in the manufacturing States, denouncing any modification of the protective system, and charging a disposition to such legislation to intimidation from the threats of South Carolina.* The Legislatures of Massachusetts, Rhode Island, Vermont, New Jersey and Pennsylvania, had passed resolutions strongly opposed to any such legislation.** Mr. Clay, oil this occasion, had to break with his old political friends, while he was offering up the darling system of his heart upon the altar of his country.
* The following are some of a series of Resolutions adopted by a Tariff meeting at Boston, January 28, 1833:
"Resolved, That any legislation on the subject of the Tariff is highly injudicious at the present crisis.
"Resolved, That a surrender of the principle of protection, by a repeal of the Act of 1832, before the date of its operation, and by the same Congress which passed it, can be attributed to no cause but fear of the threats of South Carolina.
"Resolved, That when the threats of a single State can intimidate Congress into an abandonment of measures deliberately adopted for the good of the whole, the Union will be virtually dissolved.
"Resolved, That we earnestly hope and confidently trust in the wisdom and firmness of Congress, that they will reject a bill which threatens such disgrace and disaster to the country.
"Resolved, That the only proper and expedient manner of lessening the revenue, is to reduce the duties on articles not coming into competition with the products of the industry of this country, and to increase the duties upon such articles as can be supplied by our own labor, to such an extent as shall limit the importations from abroad, and thus,diminish the revenue to the amount required. Niles's Register.
** Statesman's Manual, vol. 3, p. 1010.
Whatever else may be said of him, no one can deny that Henry Clay was a patriot every inch of him a patriot of the highest standard. It is said, that when he was importuned not to take the course he had resolved upon, for the reason amongst others, that it would lessen his chances for the Presidency, his reply was, "I would rather be right than be President." This showed the material he was made of: It was worthy a Marcellus or Cato.
Just so soon as he got through with the speech announcing the introduction of the bill, Mr. Calhoun immediately arose. The scene was intensely interesting as described by those who witnessed it. It was just such a scene as occurred in the same 1all on the 17th day of June, 1850, seventeen years afterwards, when Mr. Webster arose to speak on the turning question of the great adjustment of that year, as we shall see hereafter. All eyes were instantly fixed upon tile Senator of South Carolina, as he addressed the Chair. The galleries.and lobbies and aisles of the Chamber were crowded. The record of what occurred is thus put up. I still read from the same authority, pages 416-417.
"Mr. Calhoun rose and said he would make but one of two observations. Entirely approving of the object for which this bill was introduced, he should give his vote in favor of the motion for leave to introduce it. He who loves the Union must desire to see this agitating question brought to a termination. Until it should be terminated, we could not expect the restoration of peace or harmony, or a sound condition of things, throughout the country. He believed that to the unhappy divisions which had kept the Northern and Southern States apart from each other, the present entirely degraded condition of the country, for entirely degraded he believed it to be, was solely attributable. The general principles of this bill received his approbation. He believed that if the present difficulties were to be adjusted, they must be adjusted on the principles embraced in the bill, of fixing ad valorem duties, except in the few cases in the bill to which specific duties were assigned.
"He said that it had been his fate to occupy a position as hostile as any one could in reference to the protecting policy; but, if it depended on his will, he would not give his vote for the prostration of the manufacturing interest. A very large capital had been invested in manufactures, which had been of great service to the country, and he would never give his vote to suddenly withdraw all those duties by which that capital was sustained in the channel into which it had been directed. But he would only vote for the ad valorem system of duties, which he deemed the most beneficial and the most equitable. At this time he did not rise to go into a consideration of any of the details of this bill, as such a course would be premature, and contrary to the practice of the Senate. There were some of the provisions which had his entire approbation, and there were some to which he objected. But he looked upon these minor points of difference, as points in the settlement of which no difficulty would occur, when gentlemen met together in that spirit of mutual compromise which, he doubted not, would be brought into their deliberations, without at all yielding the Constitutional question as to the right of protection. [Here there was a tumultuous approbation in the galleries, which induced the Chair to order the galleries to be cleared.]"*
* Niles's Register, vol. xliii, p 417.
This, sir, was the end of Nullification! The Euthanasia of what was looked upon by so many as another Polyphemus, a real "Monstrum horrendum, informe, ingens, cui lumen ademptum!" It was neither put down or up, nor was the theory of the Government, on which the doctrine was founded, ever put down or up. It simply was never put to a practical test. There were then no steam cars, much less telegraphic wires, to send the glad news of this adjustment, which was received by shouts at the Capital, throughout the country. Not on the wings of lightning, but as fast as it could be borne by lumbering stages, and puffing steamboats, it was received with rejoicing everywhere by the mass of the people, and by it new energy, new life, and new hope were inspired. At this result no one felt more relieved, or rejoiced, perhaps, than General Jackson himself.
Mr. Clay's bill became a law on the 2d of March, 1833. South Carolina soon after repealed her ordinance. In this way was peace preserved, harmony restored, the Union saved, and the Constitution maintained for further progress in that career of greatness on which the States, under it had so gloriously entered. So much on that point.
MAJOR HEISTER. I stand corrected. I had been under a different impression.
MR. STEPHENS. Well, then, we will proceed to another point. You say you were born, bred and brought up a Jeffersonian Democrat.
MAJOR HEISTER. Yes, my grandfather was one of the electors of Pennsylvania who cast his vote for Jefferson, in 1800. I was not then born, but I have often heard him speak of that fierce contest and the principles involved. I have never departed from these principles which he so thoroughly instilled into me. By them I have endeavored to live, and by them I hope to die.
MR. STEPHENS. Well, then, you will have to give it up as an indisputably established truth, I think, that the Constitution of the United States is a Compact between Sovereignties, because Mr. Jefferson was elected upon this very issue.
The administration of John Adams, who succeeded Washington in the Presidency, in 1797, bearing the popular name of Federal, had endeavored, as was believed and charged, by construction and implication, to give that effect to the Constitution which Patrick Henry thought would be done in its practical workings. The party still bearing this name, during Mr. Adams's term of office, claimed, virtually, it was said, for the Federal Government, general, absolute power, and maintained that the Supreme Court was the only arbiter between the General Government and State Governments, or the people, on all questions arising from the action of the General Government. They passed the Alien and Sedition laws, and acted generally upon the principle that the Federal Government was a consolidated Union of the people of all the States in one single, great Republic They still kept the Party name of Federal, because it was popular. This Party name, however, with their avowed principles, was nothing but a mask. It was but "the livery of Heaven," stolen "to serve the Devil in."
It was then that the true friends of a real Federal Government, and not a consolidated one, were aroused from one side of the Union to the other. Mr. Jefferson's opinions were well known. As early as 1798, he had drawn up a set of Resolutions for the Kentucky Legislature, setting forth the true nature of the Government. The first of these Resolutions is in these words:
"Resolved, That the several States composing the United States.of America, are not united on the principle of unlimited submission to their General Government; but that by Compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purpose, delegated to that Government certain definite powers, reserving, each State to itself, the residuary mass of right to their own Self-government; and, that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this Compact each State acceded as a State; and is an integral party, its co-States forming as to itself the other party; that this Government, created by this Compact, was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but, that as in all other cases of Compact, among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."*
* Randall's Life of Jefferson, vol. ii, p. 449. See, also, Appendix D.
This Resolution, and a whole series on the same subject drawn up by him, passed the Legislature of Kentucky, with some slight modifications.
Virginia also took her stand, not less decisive or unmistakable. She passed the Resolutions which we have seen quoted in Mr. Calhoun's speech. These Resolutions were se.nt to all the States. The party in most of the States, claiming to be Federal, replied to them, joining issue with the doctrines set forth in these Resolutions. Virginia. in 1799, took up the subject again and gave it a grave reconsideration. She re-affirmed her Resolutions of the year before with an elaborate report, drawn by Mr. Madison. These Resolutions, and this report of Mr. Madison, contain an exceedingly clear and able exposition of the nature of the Government which no student in our history ought to fail to read and study.* It was upon these that the,great contest, fierce it was, as you have said, was waged between the so-called Federalists and the Jeffersonian Party, in 1800. Mr. Jefferson, as the acknowledged leader of the State Sovereignty Party was chosen as the standard bearer of the principles set forth in his own Resolutions. The Party name assumed by the Anti-Centralists, under the lead of Mr. Jefferson, was generally that of Republican; but in some places it was Democratic. But the issue in every State was squarely made upon the issue presented in the Kentucky and Virginia Resolutions, and Mr. Madison's Report of 1799. That was the most memorable epoch in our history, from the adoption of the Constitution down to the breaking out of the war, in 1861. The question (as to a proper construction of the Constitution was submitted to the people of the several States, and by them it was decided in favor of Mr. Jefferson's construction, and by that decision it was held to be settled, for more than half a century, that the Government of the United States is a Compact between States. Upon these principles and construction of the Constitution, Mr. Jefferson was re-elected in 1805. Upon them Mr. Madison was elected in 1809, and 1813. Upon them Mr. Monroe was elected in 1817, and in 1821. Upon then Mr. John Quincy Adams (who had renounced the party which had made such a departure from principle during the Presidency of his father) was elected, in 1825. Upon these principles General Jackson was elected in 1829, and re-elected in 1833. Upon them Mr. Van Buren was elected in 1837. Indeed no President was elected, from Mr. Jefferson to Mr. Lincoln, who denied these principles. It is true that, in the election of General Harrison, other questions entered into the contest, but on these principles he was a Republican of the Jeffersonian school.
* See them in full in Appendix E.
JUDGE BYNUM. You do not mean to say that General Harrison was a Jeffersonian Democrat?
MR. STEPHENS. I mean to say that he was a Jeffersonian Republican that he believed in the principles of the Kentucky and Virginia Resolutions of 1798-99. And I mean to say, that no man was elected President of the United States, from 1800 to 1860, from Mr. Jefferson to Mr. Lincoln, who did not.
JUDGE BYNUM. I should like to see how you can show that General Harrison held these doctrines?
MR. STEPHENS. That is easily done. Here is his inaugural. From that I read as follows:
"Our Confederacy, fellow-citizens, can only be preserved by the same forbearance. Our citizens must be content with the exercise of the powers with which the Constitution clothes them. The attempt of those of one State to control the domestic institutions of another, usually result in feelings of distrust and jealousy, and are certain harbingers of disunion, violence, civil war, and the ultimate destruction of our free institutions. Our Confederacy is perfectly illustrated by the terms and principles governing as common co-partnership. There a fund of power is to be exercised under the direction of the joint counsels of the allied members, but that which has been reserved by the individuals is intangible by the common Government, or the individual members composing it. To attempt it finds no support in the principles of our Constitution. It should be our constant and earnest endeavor mutually to cultivate a spirit of concord and harmony among the various parts of our Confederacy. Experience has abundantly taught us that the agitation 1by citizens of one part of the Union of a subject not confided to the General Government, but exclusively under the guardianship of the local authorities, is productive of no other consequences than bitterness, alienation, discoid, and injury to the very cause which is intended to be advanced. Of all the great interests which appertain to our country, that of Union cordial, confiding, fraternal, Union is by far the most important, since it is the only true and sure guarantee of all others."*
* Statesman's Manual, vol. iii, p,. 1206.
Do you want more pointed or conclusive testimony than this?
Mr. Webster, I will here remark, was General Harrison's Secretary of State, and the presumption is that he must have approved, at that time (1841), the general principles of this inaugural, to whatever extent its doctrines may imply a modification of his views expressed in 1833. But I said, and maintain, that no man, from Mr. Jefferson to Mr. Lincoln, was elected to the Presidency, who held contrary principles.
The opinions of Mr. Van Buren, Mr. Polk, Mr. Pierce, and Mr. Buchanan, are well known. General Taylor, as General Harrison, was elected on other issues. No public expression of' opinion on these principles was ever made by him, that I am aware of, except that in the construer tion of the Constitution he should be governed "by the practice of the earlier Presidents, who had so large a share in its formation."* Washington, Jefferson, Madison, and Monroe must have been alluded to. He was well known, however, in early life> to have belonged to the Jefferson school of politics. Indeed, the very name of Federalist had become so odious to the popular mind throughout the United States, by the abuse of the word by those who applied it to themselves during the administration of the elder Adams, that no man openly professing the principles of that party could ever have been chosen President, from 1800 to 1860. This, I think, may be asserted as an uncontrovertible truth. Not only Mr. Jefferson, but every President elected, from him to Mr. Lincoln, held the Constitution to be a Compact between the States! On this point there can be no doubt or question.
* Inaugural Address, Statesman's Manual, vol. iv, p. 1861
Under this construction the Union, or Federal Republic formed by it, grew and flourished as no nation ever did before. Under this construction the States, in number, had increased from thirteen to thirty-three! The territory had been enlarged from less than a million of square miles to nearly three millions! The population had increased from less than four millions to over thirty-one millions! The exports had increased from less than forty millions to upwards of three hundred and sixty millions of dollars per annum! The great mass of internal productions and developments had grown in,n increased ratio!
Under this construction South Carolina had acted in 1832. Under this construction the peace of the country was then maintained and our unsurpassed progress was,lot only not checked or impeded by it, but received new impetus, and moved on with greatly increased momentum and brilliancy.
Under the principles of free trade then established, to go into full operation in 1843, the manufacturing interests were not crippled. The industry of the country in none of its departments was paralyzed. New life and new energy sprung up everywhere. The exports of domestic manufactures from 1843 to 1860 increased from about eleven to upwards of thirty millions of dollars per annum! The tonnage of shipping increased from a little over two millions to upwards of five millions! The miles of railroad, a system of internal improvement just commenced about the time of Nullification, increased from about five thousand to upwards of twenty-five thousand! The exports of domestic products, staples, etc., increased from less than one hundred to upwards of three hundred millions! The production of cotton alone increased from less than sixty millions to upwards of one hundred and sixty millions of dollars per annum!
More than twelve hundred thousand square miles of territory were acquired during this period, between 1843 and 1860, and seven new States, more than half the original number, were admitted into the Union! Within the same period, the genius of Morse had seized the idea of the magnetic telegraph, and had brought that wonderful discovery into practical operation by extending these iron nerves throughout the length and breadth of the country, connecting the most distant points and uniting all together, as if under the influence of a common sensorium! Was the material progress, to say nothing of the moral and intellectual, of any nation in the world, greater, in the same space of time than was that of this Confederated Republic, from 1843 to 1860? Under this construction of the Constitution all this prosperity and progress, anterior to and subsequent to Nullification, were achieved; and, I maintain, might have gone on, under the same construction, with like common prosperity and joint happiness, until the system covered the entire continent, to the wonder and amazement of all other peoples and nations of the earth! It was only when this great fundamental law of our political existence was violated, in 1860, by a different construction, the anti-Jeffersonian construction, that disorder, confusion, war, and all its disastrous results ensued. The vital laws of every organism must be obeyed and conformed to, if its health, vigor, and development, are preserved. The whole of our late troubles came from a violation of this essential and vital law of our political existence.
But this is anticipatory. I only meant to say, Major, that if you still hold to the doctrines of Mr. Jefferson, that you must admit that the Constitution is a Compact between States, and that the Government under it is strictly Federal in its character.
We will now take up the Proclamation of General Jackson, to which you referred as your political textbook, and see how it squares with the doctrine of Mr. Jefferson.
MAJOR HEISTER. Well, that is what I am now anxious to do. For what you have said has rather disturbed my equilibrium especially, about Jackson's holding the doctrine that the Constitution is a Compact between Sovereign States. Here is the Proclamation. It is, as I said, too long to read entire. In it he holds very different doctrines, according to my understanding. In it he distinctly affirms, as I suppose you will admit, that "the people of the United States formed the Constitution." That they constitute "one people," "one nation." That the allegiance of the people of the several States was, by it, transferred to the Government of the United States, and that they thereby became American citizens. That no State has any right to nullify a law of Congress, or to secede from the Union. That the Supreme Court of the United States had been instituted as an arbiter to decide in the last resort upon all Constitutional questions touching either the powers of the General Government or the reserved rights of the States; that States, as well as individuals, must be bound by the adjudications of that tribunal, and that any forcible resistance to the execution of the laws of Congress, thus expounded, would be treason.
These are the principles, in substance, of the Proclamation, as I understand them, on the questions you are discussing, and they seem, to me, to be utterly inconsistent with what you would claim as an indisputably established conclusion, utterly inconsistent with the principles upon which you say he was elected, and I must confess, also, that they seem to me to be utterly inconsistent, too, with the principles of Mr. Jefferson, embodied in the Kentucky resolution, you have read.
I should like to hear what you have to say to these principles, thus set forth in this Proclamation, and how you can reconcile them with the principles upon which you say he was elected?
MR. STEPHENS. I have several things to say in reference to them.
In the first place, what General Jackson said in this Proclamation, should be considered in connection with the exact state of public affairs at the time it was issued. South Carolina had not attempted to secede. Her policy was based upon the idea of remaining in the Union, and yet defeating the execution of the Federal laws upon the tariff within her limits. This was the state of things which called forth the Proclamation. A prominent feature in the Proclamation, which must be borne in mind, in construing all its parts, is this:
"The Ordinance (that is South Carolina's Ordinance of Nullification) is founded, not on the indefeasible right of resisting acts which are plainly unconstitutional, and too oppressive to be endured; but on the strange position that any one State may not only declare an act of Congress void, but prohibit its execution; that they may do this consistently with the Constitution; that the true construction of that instrument permits a State to retain its place in the Union, and yet be bound by no other of its laws than those it may choose to consider as Constitutional."
This was the statement by him of the case which prompted the Proclamation, and nothing in the Proclamation should be received as the authoritative exposition of the principles of General Jackson touching the nature of the Government, except such as bear directly upon the case then before him, and as stated by himself. Judges never hold themselves bound by any expressions that fall from them in delivering their opinions upon any matter, except those which bear directly upon the case at bar. These only are authoritative. All else are "obiter dicta."
Applying this rule to this Proclamation, there is in it much of that character. It was evidently hastily penned, and it has in it many not well guarded expressions. Under this character may be considered what was said on the subject of citizenship and allegiance, for we have seen what the Supreme Court, the very tribunal to which he refers as the final arbiter in the last resort, had held upon these subjects.* That it would have been treason
in any of the individual citizens of South Carolina, or any number of them, in their private character, to forcibly resist the laws of the United States, while the State was a member of the Union with her Sovereign powers unresumed, no one ever denied. South Carolina did not deny it. She did not contemplate any forcible resistance to these laws. There is nothing in that statement against my position. Upon reading this entire Proclamation by itself, however, I frankly admit that a disciple of the Jefferson school may well say of it as Peter said of some of Paul's epistles, that is, that there "Care some things" in it "hard to be understood, which they that are unlearned and unstable wrest, as they do also the other scriptures, unto their own destruction." But that General Jackson himself did not mean what some suppose his words in particular passages imply, will be made clearly to appear before I get through. Just now, in reply to the view given in the Proclamation, as you seem to understand it, but as General Jackson did not, touching the powers of the Supreme Court to decide between the States and the General Government, upon questions involving their respective powers, the answer of Madison, in his report referred to, is conclusive. This was quoted, as we have seen, by Mr. Calhoun.** But, in addition to this, the answer of Judge Bibb, of Kentucky, in the Senate at the time, was so much fuller and so perfectly exhaustive of the subject, you will pardon me for reading extensively from it. It is in the same speech of his I read from before. Niles's Register, vol. xliii, pages 62 to 80. Here it is. And in it he says:
* Ante, p. 76, et sequens.
** Ante, p. 377.
"That there are powers, authorities, and liberties, appertaining to the States, which belonged to them as States, and which they have not surrendered, but reserved, is undeniable. The general principle is clear, that in all Compacts, Leagues, Conventions, and Treaties between Sovereign States, Powers, and Potentates, each party has the right to judge whether a breach has been committed by the other party; and in case of a wilful, deliberate breach, to take such measures for redress as prudence and the discretion of the injured party shall dictate.
"Is the Compact between these States an exception to this general rule? If it is, then the States must, by some action of theirs, have surrendered this portion of their Sovereignty. What part of the Constitution declares such a surrender? There is no such express declaration of surrender. In the various enumerations of powers prohibited to the States, and agreed not to be exercised by them, there is no declaration that they shall not exercise the right, appertaining to them as parties to the Compact, to judge of an excessive, alarming, and dangerous stretch of power by the Federal Government. The abridgment of the powers of the States in this particular not being expressed, cannot be made out by implication, or by construction. The powers not delegated by the States to the United States, nor prohibited to the States by the Constitution, are reserved to the States. So says the Constitution. What clause in the Constitution delegates to the Federal Government the sole power of deciding the extent of the grant of powers to itself, as well as the extent of the powers reserved to the States?
"It is said that this power is vested by the Constitution in the Supreme Court of the United States. The provisions are:
"'The Judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.'
"'This Constitution, and the laws of the United States which shall be' made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the Judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary, notwithstanding.'
"These are the two provisions of the Constitution which are referred to as delegating the power to the Supreme Court, to be the sole judge of the extent of the powers granted, and of the powers reserved; and as denying to the States the Sovereign power of protecting themselves against the usurpation of their reserved powers, authorities, and privileges. If the delegation to the Supreme Court, and prohibition to the States, are not contained in these two clauses, then they are not to be found in the Federal Constitution.
"The latter clause cannot touch the question in debate; for that only declares the supremacy of the Constitution, and the treaties 'and laws made in pursuance thereof:' Powers exercised contrary to the Constitution, acts done contrary to the Constitution, by the exercise of authorities not under, but in violation of the Constitution, and by usurpation of State rights, State authorities, and State privileges, are the subjects under consideration.
"Let us examine the former clause: 'The Judicial power shall extend to all cases, in law and equity, arising under this Constitution.' The case must be of 'Judicial power;' it must be a case, 'in law or equity,' arising under the Constitution. The expression is not to all cases arising under the Constitution, treaties, and laws of the United States, but it is to all cases in law and equity.'
"'Use is the law and rule of speech.' By this law and this rule we must examine the language of the Constitution.
"A judicial power is one subject, a political power is another and a different subject. A case in law, or a case in equity is one subject, a political case is another and a different subject.
"Judicial cases in law and equity, arising under the regular exercise of Constitutional powers, by laws *and treaties made by authority, are different from political questions of usurpation, surmounting the Constitution, and involving the high prerogatives, authorities, and privileges of the Sovereign parties who made the Constitution.
"In judicial cases arising under a treaty, the Court may construe the treaty, and administer the rights arising under it, to the parties who submit themselves to the jurisdiction of the Court in that case. But the Court must confine itself within the pale of judicial authority. It cannot rightfully exercise the political power of the Government, in declaring the treaty null because the one or the other party to the treaty has broken this or that article; and, therefore, that the whole treaty is abrogated. To judge of the breach of the articles of the treaty, by the Sovereign contracting parties, and in case of breach to dissolve that treaty, and to declare it no longer obligatory, is a political power belonging not to the judiciary. It belongs to other departments of the Government, who will judge of the extent of the injury resulting from the violation, and whether the reparation shall be sought by amicable negotiation, or whether the treaty shall be declared no longer obligatory on the Government and the people of the injured party. Yet, by the law of Nations, the wilful and deliberate breach of one article is a breach of all the articles, each being the consideration of the others; and the injured party has the right so to treat it.
"By the Act approved on the 7th of July, 1798, the Congress of the United States declared themselves of right freed and exonerated from the stipulations of the treaties, and of the Consular Convention theretofore concluded between the United States and France, and that they should not thenceforth be regarded as legally obligatory on the Government or citizens of the United States because of the repeated violations on the part of the French Government, etc.
"Before this declaration, the Supreme Court of the United States was bound, in cases of judicial cognizance coming before them, to take the treaties as obligatory, and to administer the rights growing out of the treaties between France and the United States. After that declaration, the Court was bound to consider the treaties as abrogated. The Courts had no power, before the Act of July, 1798, to inquire into violations, and, therefore, to declare the treaties not obligatory. After that act they had no power to demand evidence of the violations recited and revise the political decision of the Government.
"To declare these treaties no longer obligatory was a political power, not a judicial power. Yet. the violations of these, committed under the authority of the French Government, and the consequent injuries to the citizens and Government of the United States, and the rights of the United States consequent therefrom, before the Act of July, 1798, were 'cases arising under the Constitution,' and treaties of the United States. But the judicial power did not extend to those cases of violation, so as to declare the treaties no longer obligatory. The question whether those violations should or should not abrogate the treaties, did not make a case in law or equity, for the decision of a judicial tribunal. Yet they were cases arising under the Constitution. The power to decide them belonged to the Government of the United States as a political Sovereign; but the judicial power did not extend to them; those cases belonged to the political powers, not to the judicial powers of the Government.
"The British Courts of Admiralty executed upon the commerce of the United States the British orders in council, disclaiming the power to decide whether those orders in council were conformable to the general law of Nations, which every nation is bound to respect and observe. In like manner, the French Courts of Admiralty executed upon the commerce of the United States the Berlin and Milan decrees.
The British and French Courts had not cognizance to judge the Sovereign powers of the Nations, and to declare those orders and decrees contrary to the law of Nations that was not a judicial power. So the Courts of the United States, even the Supreme Court, had not the power to declare the treaties between the United States and France, and Great Britain, no longer obligatory upon the citizens and Government of the United States, because of the multiplied wrongs and injuries committed upon the citizens of the United States, under color of those orders in council, and decrees, infracting the laws of Nations, and treaties, and hostile to the rights of the Government of the United States. Those cases, in their effects upon the treaties and amicable relations between the United States and those Governments, did not fall within the judicial power of the Courts of the United States. Those questions did not fall within the description of 'cases in law and equity,' as used in the Constitution of the United States, in conferring, vesting, and defining the powers of the judicial department. Those political powers belong to other departments of the Government. According to the law and rule of speech established by use, such powers are classed under the denomination of political powers, prerogative powers, not under the head of judicial powers.
"Before I proceed to illustrate, by other examples, the distinctions which I have taken, between political powers and judicial powers, between political questions and cases and judicial questions or cases, I will refer to the declaration of one, whose opinions on Constitutional questions I know will command respect; a man to whose opinions I willingly yield my respect, without, however, submitting with that implicit faith which belongs to fools. On the resolution of Mr. Livingston, touching the conduct of President Adams, in causing Thomas Nash, alias Jonathan Robbins, to be arrested and delivered over to a British naval officer, without any accusation, or trial, or investigation in a Court of Justice, Mr. Marshall, then a Representative of Virginia, now Chief Justice of the United States, in defending the conduct of the President, thus delivered his opinion in that debate (Appendix, 5 Wheat. p. 17.)
"'By extending the judicial power to all cases in law and equity, the Constitution had never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into Court, who can be reached by its process, and bound by its powers; whose rights admit of ultimate decision by a tribunal to which they are bound to submit. A case in law or equity may arise under a treaty; where rights of individuals acquired or secured by a treaty, are to be asserted or defended in Courts.'' But the judicial power cannot extend to political compacts.'*
* Judge Marshall's remarks, here quoted in part, may be very properly given more at large. They are as follows:
"This being established, the inquiry was, to what department was the power in question allotted?
"The gentleman from New York had relied on the second section of the third article of the Constitution, which enumerates the cases to which the judicial power of the United States extends, as expressly including that now under consideration. Before he examined that section, it would not be improper to notice a very material mis-statement of it, made in the Resolutions offered by the gentleman from New York. By the Constitution, the judicial power of the United States is extended to all cases in law and equity, arising under the Constitution, Laws, and Treaties of the United States; but the Resolutions declare that judicial power to extend to all questions arising under the Constitution, treaties, and laws of the United States. The difference between the Constitution and the Resolutions was material and apparent. A case in law or equity was a term well understood, and of limited signification. It was a controversy between parties, which had taken a shape for judicial decision. If the judicial power extended to every question under the Constitution, it would involve almost every subject proper for Legislative discussion and decision; if to every question under the laws and treaties of the United States, it would involve almost every subject on which the Executive could act. The division of power, which the gentleman had stated, could exist no longer, and the other departments would be swallowed up by the Judiciary. But it was apparent that the Resolutions had essentially misrepresented the Constitution. lie did not charge the gentleman from New York with intentional misrepresentation; he would not attribute to him such an artifice in any case, much less in a case where detection was so easy and so certain. Yet this substantial departure from the Constitution, in Resolutions affecting substantially to unite it, was not less worthy of remark for being unintentional. It manifested the course of reasoning by which the gentleman had himself been misled, and his judgment betrayed into the opinions those Resolutions expressed. By extending the judicial power to all cases in law and equity, the Constitution had never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into Court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.
"A case in law or equity, proper for judicial decision, may arise under a treaty, where the rights of individuals, acquired or secured by a treaty, are to be asserted or defended in Court. As under the fourth or sixth article of the Treaty of Peace with Great Britain, or under those articles of our late treaties with France, Prussia, and other nations, which secure to the subjects of those nations their property within the United States; or, as would be an article, which, instead of stipulating to deliver up an offender, should stipulate his punishment, provided the case was punishable by the laws and in the Courts of the United States. But the judicial power cannot extend to political compacts; as the establishment of the boundary line between the American and British Dominions; the case of the late guarantee in our treaty with France, or the case of the delivery of a murderer under the twenty-seventh article of our present treaty with Britain. Annals of Congress, Sixth Congress, page 606.
"This distinction between a political power and a judicial power, is recognized and acted upon by the Supreme Court of the United States, in the case of Williams vs. Armroyd, 7 Cranch, 423, 433.
"Again, in the case of Marbury vs. Madison (1 Cranch, 137; 1st Peters's Condensed Reports, 279), this distinction between the political powers of Government and the judicial power, is most explicitly avowed and recognized by the Supreme Court.
"The supremacy of that is a judicial supremacy only. It is supreme in reference to the other Courts in questions of a judicial character, brought within the sphere of judicial cognizance by controversies which shall have assumed a legal form for forensic litigation and judicial decision. There must be parties amenable to its process, bound by its power, whose rights admit of ultimate decision by a tribunal to which they are bound to submit. 'Questions in their nature political, or which are by the Constitution and laws submitted to the Executive, can never be made in this Court.'
"The decision of the Executive, upon political questions submitted to its discretion, is as supreme as the decision of the Court within its jurisdiction. Neither department ought to invade the jurisdiction of the other, so said the Supreme Court of the United States, in Marbury vs. Madison. * * *
"The twelfth amendment to the Constitution takes away the jurisdiction which had been given to the Supreme Court to hold jurisdiction of a suit against one of the United States by a citizen of another State, or by citizens or subjects of any foreign State; but leaves the jurisdiction conferred over controversies between two or more States. If two States, therefore, have a controversy, which, in its character, makes a case in law or equity proper for judicial cognizance, it may be brought before the Supreme Court. Controversies between two or more States, about territory or limits, may be litigated before the Supreme Court of the United States. But then each State must have an opportunity, as a party, to prosecute or defend her right before the decision can bind her. Those are questions of meum et tuum, rights of property which one State claims to the exclusion of the other; not political rights belonging to all the States respectively, where the rights and powers of one State does not exclude but establishes the rights of each and every other. Such rights claimed for all, as belonging equally to each and every of the States respectively, cannot make a controversy in law or equity between two States.
"Political powers not delegated to the Federal Government; political powers reserved to the States, constitute the subjects of the propositions which are affirmed on the one side and denied on the other. The propositions Affirmed are, that the powers of the Federal Government result from the Compact to which the States are parties, that these powers are limited by the plain sense and intention of the instrument constituting that Compact, and 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.'"*
* Niles's Register, vol. xliii. Supp. p. 2.
This argument of Judge Bibb, in the United States Senate, I have read so copiously from, was the overwhelming answer given at the time, to what were then supposed to be the doctrines of the Proclamation upon. the powers and jurisdiction of the Supreme Court, as an arbiter in the last resort between the General Government and the States as States. It is not only conclusive on these points, but it is completely exhaustive of the whole question of the general powers and jurisdiction of this Court, on which so much has been said and written. With it I conclude what I have to say, as I remarked, on the Proclamation in the first place.
Now, in the second place, I will let General Jackson's own authoritative explanation of those parts you particularly refer to speak for itself. General Jackson had been elected as a Jeffersonian Republican. Many parts of this Proclamation were not understood by his most devoted political friends. It. was thought to contain doctrines inconsistent with the teachings of the Fathers of that school. Many who agreed with him thoroughly in his position on Nullification thought that there were principles in that paper, not bearing directly on that question, however, which were inconsistent with the true principles of State fights and State Sovereignty, and which savored much of the doctrines of the Consolidationists of the elder Adams' times. This called forth from him, through the Washington Globe newspaper, an explanation. The explanation was editorial published not long after the great debate on his Proclamation and Force Bill. It was published, as stated, by authority. Now in this explanation will be found the best answer to your question, for it came from General Jackson himself. Here it is:
From the "Washington Globe."
"THE PRESIDENT'S PROCLAMATION.
"The editors of the Richmond Enquirer and of the Petersburg Intelligencer, in appealing to the fearless, honest, disinterested patriotism, which dictated the Proclamation, for an interpretation of those points in which it has suffered misconstruction, evince the just estimation in which they hold the character of the President. Oracular silence and mystery with regard to his official documents, or Executive acts, form no part of General Jackson's policy. As Chief Magistrate, he does not entertain a thought which he would hide from the American people. He, who, from youth to age, has borne his life in his hand, ready to offer it up at any moment in defence of his country, now carries his heart as openly towards those, in whose service it is, and has ever been, so affectionately devoted. With him, dignity of station is nothing. He does not allow the ceremonies of office the outworks which are everywhere thrown round the Chief Magistracy to separate him from his fellow-citizens. With a wise man of another age, he thinks that 'plain and round dealing is the HONOR of man's nature' and the charm of existence to him is the consciousness of doing his duty and the highest distinction is only valued, as it evinces the public confidence and a proper appreciation of his motives. Nothing, therefore, gives him more pain. than the misconstruction to which the opinions expressed in his Proclamation have been subjected, and nothing, we are sure, will give him more pleasure, than to find, when properly understood, that they meet the approbation of the enlightened Republicans, the friends of the Union and State Rights, upon whose principles he has uniformly acted, throughout his public life.
"With these preparatory remarks, we proceed to the reply, which we are authorized to give, to the inquiries of the editors of the Richmond Enquirer and Petersburg Intelligencer.
"The impression that the President had given evidence of a 'dereliction from his principles' in 'those passages which relate to the great question of the origin and character of our Federal Compact,' would be fully sustained, if those passages warranted the interpretation given by Dr. Cocke in the Resolution submitted by him to the Senate of Virginia. That Resolution assumed that it was 'SET FORTH IN THE LATE PROCLAMATION OF THE PRESIDENT OF THE UNITED STATES, THAT THE FEDERAL CONSTITUTION RESULTS FROM THE PEOPLE IN THE AGGREGATE, AND NOT FROM THE STATES,' etc., and from this assumption, the Resolution goes on to infer, that 'THIS THEORY OF OUR GOVERNMENT WOULD TEND, IN PRACTICE, TO THE MOST DISASTROUS CONSEQUENCES, GIVING A MINORITY OF STATES, HAVING A MAJORITY OF POPULATION, THE CONTROL OVER THE OTHER STATES,' etc. This is the interpretation of the expression of the President's Proclamation, amid the implication of consequences, which has given the alarm to many of the sincere friends of State Rights, who have considered the doctrine thus promulgated, as the doctrine of the old Federal Party. If the interpretation were true, we would not hesitate to admit the justice of the censure. * * But we assert, authoritatively, that the inferences made by Mr. Cocke are totally repugnant to the opinions of the President, and the views he meant to inculcate by the passage in the Proclamation, from which they are drawn; and these deductions were repelled, in this print, under the direction of the President, the instant he was apprized they had assumed the shape of a Resolution in the Senate of Virginia. The difficulty in the minds of the editors of the Richmond Enquirer and Petersburg Intelligencer, arises from the same passage in the Proclamation. We have, therefore, we hope, only to recur to them and give the sense in which they were intended by the President, to give perfect satisfaction in relation to the principles he entertains.
"The first passage, to which we are referred in the articles we quote from the Richmond Enquirer and Petersburg Intelligencer, is as follows:
"'The people of the United States formed the Constitution, acting through the State Legislatures in making the Compact, to meet and discuss its provisions, and acting in separate Conventions, where they ratified those provisions; but the terms used in its construction, show it to be a Government in which the people of all the States collectively are represented.'
"This is not theory, it is simple history, but the phraseology, like that of the Constitution itself, which it copies verbatim in the leading member of the sentence, has been subjected to various interpretations. But the President, in saying that 'The people of the United States formed the Constitution,' although he used the very language of the Constitution itself, did not leave it open to the construction, which the latitudinarian party have put upon its terms. He followed up the general declaration, by particularizing, that the Constitution originated in a Compact, that the Compact was the offspring of the people of the several States, acting through their respective State Legislatures, and further, that the Constitution or Government, founded in this Compact, received its sanction from the people of the several States, acting through independent separate State Conventions, to ratify its provisions. With such precise definite and positive ascription of the Constitution, in its origin, to a Compact among the several States, as the organized agents of several communities of people, and again making the obligatory sanction of the instrument, as derived from the same independent communities, depends on its ratification in separate Conventions, it would seem that the idea of its being the work of the whole people, in 'the aggregate' or united in one body, was absolutely precluded. Indeed, as we said before, in commenting on Dr. Cocke's Resolution, the simple language of the Constitution in proclaiming its origin in its first words, 'WE, THE PEOPLE OF THE UNITED STATES,' DO ORDAIN AND ESTABLISH THIS CONSTITUTION FOR THE UNITED STATES OF AMERICA,' does, of itself, imply, what is so precisely specified in the added explanation of the Proclamation. It excludes, by its terms, the idea of a people embodied in a Consolidated Government, by describing them as composing different 'States,' and by speaking of the 'States' as 'united,' it repels the idea that the Union intended, is that of 'the people in the aggregate,' but of States as forming separate communities. The close of the preamble to the Constitution (which we have quoted above, in connection with its first words) preserve the same idea. The Constitution is declared to be established, not for an aggregate people, but 'for the United States of America.'
"'The interpretation, forced by the Resolutions, to which we have referred, on the Proclamation, in spite of its explanations, is precisely that which the friends of a Consolidated Government have attempted to force on the Constitution itself. If this were admitted, the conclusion drawn from it, that it would give 'to a minority of States, having a majority of the population, a control over the other States,' would inevitably follow. * * * While the Proclamation thus recognizes the Constitution as the creature of the people of the States severally, and as only susceptible of change, through the agency of 'two thirds of the States,' in proposing 'amendments to be effectuated only by the ratification of three fourths of the States, it is difficult to conceive how any one could infer, from its doctrines, that it concedes to 'a minority of States having the majority of population,' absolute sway over the Constitution and Government.
"The only other difficulty to which we are referred as requiring explanation, by our friends of the Richmond Enquirer and Petersburg Intelligencer, will be found in the close of the following passage, which speaks of 'the unity of our political character.' * * * It would be sufficient here, again, to observe, that it is history which speaks in this passage, and not the President. The facts are indubitably as he states them. And it is only by confounding the unity, which is derived from a Confederacy among the States (making them, to a certain extent, 'one Nation'), with the idea of a consolidation of all power in the Federal Government, that an objection is created. 'The unity of our political character,' here spoken of, it is expressly said, is not intended to denote
'an undivided Sovereignty,' or authority in the General Government. On the contrary, the text shows that it only refers to that special delegated authority which is vested in the Constitution out of the powers belonging to the several State communities; united in one common Government for the purpose of establishing a National character, and National relations with the other Nations of the world. And as it was especially the scope of the Constitution, to give unity to our political character in its exterior aspect, and to confer upon the Government all the attributes of Nationality, in regard to Foreign powers, it is strange that jealousy should be excited by the use of terms pointing out this design, or by references to various periods of our history, to prove that, in this respect, a connection has always existed among the independent communities composing the Confederacy. * * * We were a Nation under the Articles of Confederation, however feeble the means of the National authority then to bring the energies of the several States to act in unison and we are, surely, not less a Nation, now that Government has been established to form a more perfect Union, endowed with all the faculties which can constitute us a Nation in our relations with Foreign powers. * * * The Proclamation, then, in the passage objected to, has merely spoken the facts of history the language of the constitution, and of the Declaration of Independence. There is no speculative opinion advanced no theory proposed. And we have endeavored to show, that nothing in these generalities tended, in the slightest degree, to justify the inferences drawn from them, and which have been substituted as the principles of the Proclamation. But we are authorized to be more explicit, and to say positively, that no part of the Proclamation was meant to countenance principles which have been ascribed to it. On the contrary, its doctrines, if construed in the sense they were intended, and carried out, inculcate that the Constitution of the United States is founded on Compact that this Compact derives its obligation from the agreement, entered into by the people of each of the States, in their political capacity, with the people of the other States that the Constitution, which is the offspring of this Compact, has its sanction in the ratification of the people of the several States, acting in the capacity of separate communities that the majority of the people of the United States, in the aggregate, have no power to alter the Constitution of the General Government, but that change, or amendment can only be proposed in the mode pointed out in the Constitution, and can never become obligatory unless ratified by the people of three fourths of the States through their respective Legislatures or State Conventions. * * * That in the case of a violation of the Constitution of the United States, and the usurpation of powers not granted by it on the part of the functionaries of the General Government, the State Governments have the right to interpose and arrest the evil, upon the principles which were set forth in the Virginia Resolutions of 1798, against the Alien and Sedition Laws and finally, that in extreme cases of oppression (every mode of Constitutional redress having been sought in vain), the right resides with the people of the several States to organize resistance against such oppression. confiding, in a good cause, the favor of heaven, and the spirit of freemen, to vindicate the right.
"We beg leave here to submit, in aid of our own, an exposition which touches the points involved in the controverted passages of the Proclamation, and which received the sanction of the President, at the threshold of the controversy that led to the promulgation of that paper. During the progress of the debate on Foot's Resolutions, the editor of this print (who was then connected with a press in Kentucky, which sustained the principles of the Republican party), received from the Postmaster General the speech delivered by Mr. Livingston, accompanied by a letter, saying, that the views contained in it were sanctioned by the President; and might be considered as exhibiting the light in which his administration considered the subject under debate. The following extracts from that speech will serve in illustrating the principles on which the President then took his stand, to explain the more condensed view given of them in his Proclamation."
Reference is made in this explanation to certain extracts from the speech of Mr. Livingston, in the Senate, in the debate on Foot's Resolutions, in 1830. The extracts, published by the Globe, I have never seen. The explanation I have read is a republication from the Globe, in the Augusta Constitutionalist, 11th Oct., 1833. The doctrines of that whole speech, however, it was said, met the approval of General Jackson, at the time it was delivered. Here is that speech, in Supplement to Niles's Register, vol. xxxviii. I call your special attention to these portions of it.
"I now approach," said Mr. Livingston, "a graver subject; one, on the true understanding of which the Union, and of course the happiness of our country, depends. The question presented is that of the true sense of that Constitution which it is made our first duty to p)reserve in its purity. Its true construction is put in doubt not on a question of power, between its several departments, but on the very basis upon which the whole rests; and which, if erroneously decided, must topple down the fabric, raised with so much pain, framed with so much wisdom, established with so much persevering labor, and for more than forty years the shelter and protection of our liberties, the proud monument of the patriotism and talent of those who devised it, and which, we fondly hoped, would remain to after ages as a model for the imitation of every nation that wished to be free. Is that, sir, to be its destiny? The answer to that question may be influenced by this debate. How strong the motive, then, to conduct it calmly; when the mind is not heated by opposition, depressed by defeat, or elate with fancied victory; to discuss it with a sincere desire, not to obtain a paltry triumph in argument, to gain applause by a tart reply, to carry away the victory by addressing the passions, or gain proselytes by specious fallacies, but, with a mind open to conviction, seriously to search after truth, earnestly, when found, to impress it on others. What N,, say on this subject will remain; it is not an every day question; it will remain for good or for evil. As our views are correct or erroneous; as they tend to promote the lasting welfare, or accelerate the dissolution of our Union; so will our opinions be cited, as those which placed the Constitution on a firm basis, when it was shaken; or deprecated, if they should have formed doctrines which led to its destruction. * * * The States existed before the Constitution: they parted only with such powers as are specified in that instrument,; they continue still to exist, with all the powers they have not ceded, and the present Government, itself, would never have gone into operation, had not the States, in their political capacity, consented. That consent is a Compact of each one with the whole, not (as has been argued in order to throw a kind of ridicule on this convincing part of the argument of my friend from South Carolina), with the Government which was made by such Compact. It is difficult, therefore, it would appear, with all there characters of a Federative nature, to deny to the present Government the description of one founded on Compact, to which each State was a party; and a conclusive proof; if any more were wanted, would be in the fact, that the States adopted the Constitution at different times, and many of them on conditions which were afterwards complied with by amendments. If it were strictly a popular Government, in the sense that is contended for, the moment a majority of the people of the United States had consented, it would have bound the rest; and yet, after all the others, except one, had adopted the Constitution, the smallest still held out, and if Rhode Island had not consented to enter into the Confederacy, she would, perhaps, at this time, have been unconnected with us. * * * I place little reliance on the argument, which has been mostly depended on, to show that this is a popular Government. I mean the preamble; which begins with the words,'We, the people.' It proves nothing more than the fact, that the people of the several States had been consulted, and had given their consent to the instrument. To give these words any other construction, would be to make them an assertion directly contrary to the fact; We know and it has never been imagined, or asserted, that the people of the United States, collectively, as a whole people, gave their assent, or were consulted in that capacity the people of each State were consulted to know whether that State would form a part of the United States, under the Articles of the Constitution, and to that they gave their assent, simply as citizens of that State.
"It is a Compact, by which the people of each State have consented to take from their own Legislatures some of the powers they had conferred upon them, and to transfer them, with other en7umerated powers, to the Government of the United States, created by that Compact. * * *
"Although, in my opinion, in every case which can lawfully be brought within the jurisdiction of the Supreme Court, that tribunal must judge of the Constitutionality of laws on which the question before them depends, and its decrees must be final, whether they affect State rights or not; and, as a necessary consequence, that no State has any right to impede or prevent the execution of such sentence; yet, I am far from thinking that this Court is created an umpire to judge between the General and State Governments. I do not see it recorded in the instrument, but I see it recorded that every right not given is retained. In an extreme case that has been put, of the United States declaring that a particular State should have but one Senator, or should be deprived of its representation, I see nothing to oblige the State to submit this case to the Supreme Court; on the contrary, I see, by the enumeration of the cases and persons which may be brought within their jurisdiction., that this is not included; in this, the injured State would have a right at once to declare that it would no longer be bound by a Compact which had been thus grossly violated."
The authoritative explanation, by General Jackson, of the doctrines of his Proclamation, which I have just read, and these parts of the speech of Mr. Livingston, which, it was asserted, as we have seen, met his entire approval, clearly and beyond doubt show that General Jackson held the Constitution to be a Compact between States, and that he adhered to the old Republican creed of 1798-99. He was express in his injunction that it should be made known that he held to the right of State interposition in certain cases, upon the principles of the Virginia Resolutions of 1799.
From this speech of Mr. Livingston it also appears that General Jackson did not mean, by any thing he said in the Proclamation about the Supreme Court of the United States, to be understood as holding, that that Court had any Constitutional jurisdiction over political questions, or such as involved the reserved rights of the States. Mr. Livingston is explicit on this point. He says that the Supreme Court is not an umpire between the States and General Government. In this, he agrees entirely with Judge Bibb. General Jackson, in his Proclamation on this subject, must have meant nothing more, therefore, than that the United States Judiciary was clothed with power to decide the Constitutionality of the Tariff laws, as between citizens, in cases made, so long as the State was a member of the Union. That was the case he was addressing the country upon. But Mr. Livingston expressly says, that, in case of a gross violation of the Constitution, where the matter cannot be brought before that Court, that the State would no longer be bound by the Compact. His position, in this respect, was the same as that of Mr. Webster, at Capon Springs, when he said, "a bargain cannot be broken on one side and still bind the other side."
Neither General Jackson, therefore, nor any thing in his Proclamation, can be brought up as authority against what I claimed as an indisputably established conclusion. That was, that the Government of the United States is founded upon Compact between States, and is therefore strictly Federal in its character, or, in other words, that it is what Washington styled it, a Confederated Republic.
No better or stronger proof need have been adduced to establish this conclusion than the Proclamation itself, with the explanation that was given afterwards. If with this alone more had been called for, so far as General Jackson's authority goes, the material could be easily and abundantly supplied. His whole administration furnishes it. His numerous vetoes, and the principles upon which he put them, show him to have been a Republican of the old school. His almost every message, from his inaugural to his Farewell Address, abounds with arguments to prove, if it were necessary, that this Government, in his opinion, is a Confederated Republic. In the very second paragraph of his first inaugural, he speaks of the Constitution as "the Federal Constitution." Further on in the same, he says: "In such measures as I may be called on to pursue, in regard to the rights of the separate States, I hope to be animated by a proper respect for those Sovereign members of our Union; taking care not to confound the powers they have reserved to themselves, with those they have granted to the Confederacy."*
* Statesman's Manual, vol. ii, p. 695.
The same sentiments pervade all his messages for the eight years of his ever memorable administration, and in his Farewell Address he is no less distinct and emphatic. Listen to his parting words to the people of the United States:
"It is well known," says he, "that there have always been those among us, who wish to enlarge the powers of the General Government; and experience would seem to indicate that there is a tendency on the part of this Government to over-step the boundaries marked out for it by the Constitution. Its legitimate authority is abundantly sufficient for all the purposes for which it was created; and its powers being expressly enumerated, there can be no justification for claiming any thing beyond them. Every attempt to exercise power beyond these limits should be promptly and firmly opposed. For one evil example will lead to other measures still more mischievous; and if the principle of constructive powers, or supposed advantages, or temporary circumstances, shall ever be permitted to justify the assumption of a power not given by the Constitution, the General Government will, before long, absorb all the powers of Legislation, and you will have, in effect, but one Consolidated Government. From the extent of our country, its diversified interests, different pursuits, and different habits, it is too obvious for argument, that a single Consolidated Government would be wholly inadequate to watch over and protect its interests; and every friend of our free institutions should be always prepared to maintain unimpaired, and ill full vigor, the rights and Sovereignty of the States, and to confine the action of the General Government strictly to the sphere of its appropriate duties."*
* Statesman's Manual, vol. ii, p. 952.
How wise, patriotic, and even prophetic, were these admonitions of the Hero of New Orleans, and the Sage of the Hermitage! He was, indeed, both hero and sage! In him was presented the rare combination of both. military and civic attainments of a very high order. Highest in eminence above all others of this class in the annals of the world stands Washington! Jackson approached as near this great unapproachable model of the general and statesman combined, as perhaps any ever will or can. He left the impress of his ideas deeply fixed upon the times in which he lived. And no more important admonition did he ever give his countrymen than that in the closing part of the extract from his Farewell Address I have just read. This, with all the solemnity of dying declarations, may be received as the strongest evidence of his opinions that ours is a Confederacy of Sovereign States, and that our liberties, as well as the preservation of the Union, which was so dear to him, depend upon their preservation as such! His last parting words to his countrymen were, to be prepared to maintain unimpaired, and in full vigor, the Sovereignty of the States!
May I not, then, upon his authority, again ask if the conclusion, before stated, that the Constitution is a Compact between Sovereign States, is not indisputably established?
MAJOR HEISTER. Waiving that point, I do not yet see that the right of a State to secede from the Union, in disregard of her obligations under the Compact, follows that conclusion.
MR. STEPHENS. That is another question. We must settle one thing at a time. Do you all now give it up that the Constitution is a Compact between Sovereign States? All being silent we will then take that to be an established truth, and proceed a step further.
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