Chapter XLIV (2)

"The people, then, sir, erected this government. They gave it
a constitution; and in that constitution they have enumerated
the powers which they bestow on it. They have made it a
limited government. They have defined its authority. They have
restrained it to the exercise of such powers as are granted; and
all others, they declare, are reserved to the States or to the
people. But, sir, they have not stopped here. If they had, they
would have accomplished but half their work. No definition can
be so clear as to avoid possibility of doubt; no limitation so
precise as to exclude all uncertainty. Who then shall construe
this grant of the people? Who shall interpret their will, where
it may be supposed they have left it doubtful? With whom do
they repose this ultimate right of deciding on the powers of
the government? Sir, they have settled all this in the fullest
manner. They have left it with the government itself, in its
appropriate branches. Sir, the very chief end, the main design,
for which the whole constitution was framed and adopted was, to
establish a government that should not be obliged to act through
State agency, or depend on State opinion and State discretion.
The people had had quite enough of that kind of government
under the confederacy. Under that system, the legal action,
the application of law to individuals, belonged exclusively to
the States. Congress could only recommend; their acts were not
of binding force, till the States had adopted and sanctioned
them. Are we in that condition still? Are we yet at the mercy
of State discretion, and State construction? Sir, if we are,
then vain will be our attempt to maintain the constitution under
which we sit. But, sir, the people have wisely provided, in the
constitution itself, a proper, suitable mode and tribunal for
settling questions of constitutional law. There are, in the
constitution, grants of powers to Congress, and restrictions
on these powers. There are, also, prohibitions on the States.
Some authority must, therefore, necessarily exist, having the
ultimate jurisdiction to fix and ascertain the interpretation of
these grants, restrictions, and prohibitions. The constitution
has, itself, pointed out, ordained, and established, that
authority. How has it accomplished this great and essential end?
By declaring, sir, that 'the constitution, and the laws of the
United States made in pursuance thereof, shall be the supreme
law of the land, any thing in the constitution or laws of any
State to the contrary notwithstanding.'

"This, sir, was the first great step. By this, the supremacy
of the constitution and laws of the United States is declared.
The people so will it. No State law is to be valid which comes
in conflict with the constitution or any law of the United
States. But who shall decide this question of interference? To
whom lies the last appeal? This, sir, the constitution itself
decides also, by declaring 'that the judicial power shall
extend to all cases arising under the constitution and laws of
the United States.' These two provisions, sir, cover the whole
ground. They are, in truth, the key-stone of the arch. With
these, it is a constitution; without them it is a confederacy.
In pursuance of these clear and express provisions, Congress
established, at its very first session, in the Judicial Act, a
mode for carrying them into full effect, and for bringing all
questions of constitutional power to the final decision of the
Supreme Court. It then, sir, became a government. It then had
the means of self-protection; and, but for this, it would, in
all probability, have been now among things which are past.
Having constituted the government, and declared its powers,
the people have farther said, that, since somebody must decide
on the extent of these powers, the government shall itself
decide; subject, always, like other popular governments, to its
responsibility to the people. And now, sir, I repeat, how is
it that a State legislature acquires any power to interfere?
Who or what gives them the right to say to the people, 'we, who
are your agents and servants for one purpose, will undertake to
decide that your other agents and servants, appointed by you for
another purpose, have transcended the authority you gave them?'
The reply would be, I think, not impertinent: who made you judge
over another's servants? To their own masters they stand or
fall."

With respect to the Virginia resolutions, on which Mr. Hayne relied, Mr. Webster disputed the interpretation put upon them--claimed for them an innocent and justifiable meaning--and exempted Mr. Madison from the suspicion of having penned a resolution asserting the right of a State legislature to annul an act of Congress, and thereby putting it in the power of one State to destroy a form of government which he had just labored so hard to establish. To this effect he said:

"I wish now, sir, to make a remark upon the Virginia resolutions
of 1798. I cannot undertake to say how these resolutions were
understood by those who passed them. Their language is not a
little indefinite. In the case of the exercise, by Congress, of
a dangerous power, not granted to them, the resolutions assert
the right, on the part of the State, to interfere, and arrest
the progress of the evil. This is susceptible of more than one
interpretation. It may mean no more than that the States may
interfere by complaint and remonstrance; or by proposing to the
people an alteration of the federal constitution. This would all
be quite unobjectionable; or, it may be, that no more is meant
than to assert the general right of revolution, as against all
governments, in cases of intolerable oppression. This no one
doubts; and this, in my opinion, is all that he who framed the
resolutions could have meant by it: for I shall not readily
believe that he (Mr. Madison) was ever of opinion that a State,
under the constitution, and in conformity with it, could, upon
the ground of her own opinion of its unconstitutionality,
however clear and palpable she might think the case, annul a law
of Congress, so far as it should operate on herself, by her own
legislative power."

Mr. Hayne, on his part, disclaimed all imitation of the Hartford Convention; and gave (as the practical part of his doctrine) the pledge of forcible resistance to any attempt to enforce unconstitutional laws. He said:

"Sir, unkind as my allusion to the Hartford Convention has been
considered by its supporters, I apprehend that this disclaimer
of the gentleman will be regarded as 'the unkindest cut of
all.' When the gentleman spoke of the Carolina conventions of
Colleton and Abbeville, let me tell him that he spoke of that
which never had existence, except in his own imagination. There
have, indeed, been meetings of the people in those districts,
composed, sir, of as high-minded and patriotic men as any
country can boast; but we have had no 'convention' as yet; and
when South Carolina shall resort to such a measure for the
redress of her grievances, let me tell the gentleman that, of
all the assemblies that have ever been convened in this country,
the Hartford Convention is the very last we shall consent to
take as an example; nor will it find more favor in our eyes,
from being recommended to us by the senator from Massachusetts.
Sir, we would scorn to take advantage of difficulties created
by a foreign war, to wring from the federal government a
redress even of our grievances. We are standing up for our
constitutional rights, in a time of profound peace; but if the
country should, unhappily, be involved in a war to-morrow, we
should be found flying to the standard of our country--first
driving back the common enemy, and then insisting upon the
restoration of our rights.

"The gentleman has called upon us to carry out our scheme
practically. Now, sir, if I am correct in my view of this
matter, then it follows, of course, that the right of a State
being established, the federal government is bound to acquiesce
in a solemn decision of a State, acting in its sovereign
capacity, at least so far as to make an appeal to the people
for an amendment to the constitution. This solemn decision of
a State (made either through its legislature, or a convention,
as may be supposed to be the proper organ of its sovereign
will--a point I do not propose now to discuss) binds the federal
government, under the highest constitutional obligation, not
to resort to any means of coercion against the citizens of the
dissenting State. How, then, can any collision ensue between
the federal and State governments, unless, indeed, the former
should determine to enforce the law by unconstitutional means?
What could the federal government do, in such a case? Resort,
says the gentleman, to the courts of justice. Now, can any man
believe that, in the face of a solemn decision of a State,
that an act of Congress is 'a gross, palpable, and deliberate
violation of the constitution,' and the interposition of its
sovereign authority to protect its citizens from the usurpation,
that juries could be found ready merely to register the decrees
of the Congress, wholly regardless of the unconstitutional
character of their acts? Will the gentleman contend that juries
are to be coerced to find verdicts at the point of the bayonet?
And if not, how are the United States to enforce an act solemnly
pronounced to be unconstitutional? But, if the attempt should
be made to carry such a law into effect, by force, in what
would the case differ from an attempt to carry into effect an
act nullified by the courts, or to do any other unlawful and
unwarrantable act? Suppose Congress should pass an agrarian law,
or a law emancipating our slaves, or should commit any other
gross violation of our constitutional rights, will any gentleman
contend that the decision of every branch of the federal
government, in favor of such laws, could prevent the States from
declaring them null and void, and protecting their citizens from
their operation?

"Sir, if Congress should ever attempt to enforce any such laws,
they would put themselves so clearly in the wrong, that no one
could doubt the right of the State to exert its protecting power.

"Sir, the gentleman has alluded to that portion of the militia
of South Carolina with which I have the honor to be connected,
and asked how they would act in the event of the nullification
of the tariff law by the State of South Carolina? The tone of
the gentleman, on this subject, did not seem to me as respectful
as I could have desired. I hope, sir, no imputation was
intended."

[Mr. Webster: "Not at all; just the reverse."]

"Well, sir, the gentleman asks what their leaders would be
able to read to them out of Coke upon Littleton, or any other
law book, to justify their enterprise? Sir, let me assure the
gentleman that, whenever any attempt shall be made from any
quarter, to enforce unconstitutional laws, clearly violating our
essential rights, our leaders (whoever they may be) will not
be found reading black letter from the musty pages of old law
books. They will look to the constitution, and when called upon,
by the sovereign authority of the State, to preserve and protect
the rights secured to them by the charter of their liberties,
they will succeed in defending them, or 'perish in the last
ditch.'"

I do not pretend to give the arguments of the gentlemen, or even their substance, but merely to state their propositions and their conclusions. For myself, I did not believe in any thing serious in the new interpretation given to the Virginia resolutions--did not believe in any thing practical from nullification--did not believe in forcible resistance to the tariff laws from South Carolina--did not believe in any scheme of disunion--believed, and still believe, in the patriotism of Mr. Hayne: and as he came into the argument on my side in the article of the public lands, so my wishes were with him, and I helped him where I could. Of this desire to help, and disbelief in disunion, I gave proof, in ridiculing, as well as I could, Mr. Webster's fine peroration to liberty and union, and really thought it out of place--a fine piece of rhetoric misplaced, for want of circumstances to justify it. He had concluded thus:

"When my eyes shall be turned to behold, for the last time,
the sun in heaven, may I not see him shining on the broken
and dishonored fragments of a once glorious Union; on States
dissevered, discordant, belligerent; on a land rent with civil
feuds, or drenched, it may be, in fraternal blood! Let their
last feeble and lingering glance, rather, behold the gorgeous
ensign of the republic, now known and honored throughout the
earth, still full high advanced, its arms and trophies streaming
in their original lustre, not a stripe erased or polluted, nor
a single star obscured, bearing for its motto no such miserable
interrogatory as, What is all this worth? Nor those other words
of delusion and folly, Liberty first, and Union afterwards; but
every where, spread all over in characters of living light,
blazing on all its ample folds, as they float over the sea and
over the land, and in every wind under the whole heavens, that
other sentiment, dear to every true American heart--Liberty
_and_ Union, now and for ever, one and inseparable!"

These were noble sentiments, oratorically expressed, but too elaborately and too artistically composed for real grief in presence of a great calamity--of which calamity I saw no sign; and therefore deemed it a fit subject for gentle castigation: and essayed it thus:

"I proceed to a different theme. Among the novelties of
this debate, is that part of the speech of the senator from
Massachusetts which dwells with such elaboration of declamation
and ornament, upon the love and blessings of union--the hatred
and horror of disunion. It was a part of the senator's speech
which brought into full play the favorite Ciceronian figure of
amplification. It was up to the rule in that particular. But,
it seemed to me, that there was another rule, and a higher,
and a precedent one, which it violated. It was the rule of
propriety; that rule which requires the fitness of things to be
considered; which requires the time, the place, the subject, and
the audience, to be considered; and condemns the delivery of
the argument, and all its flowers, if it fails in congruence to
these particulars. I thought the essay upon union and disunion
had so failed. It came to us when we were not prepared for it;
when there was nothing in the Senate, nor in the country to
grace its introduction; nothing to give, or to receive, effect
to, or from, the impassioned scene that we witnessed. It may be,
it was the prophetic cry of the distracted daughter of Priam,
breaking into the council, and alarming its tranquil members
with vaticinations of the fall of Troy; but to me, it all
sounded like the sudden proclamation for an earthquake, when the
sun, the earth, the air, announced no such prodigy; when all the
elements of nature were at rest, and sweet repose pervading the
world. There was a time, and you, and I, and all of us, did see
it, sir, when such a speech would have found, in its delivery,
every attribute of a just and rigorous propriety! It was at a
time, when the five-striped banner was waving over the land of
the North! when the Hartford Convention was in session! when the
language in the capitol was, "Peaceably, if we can; forcibly,
if we must!" when the cry, out of doors, was, "the Potomac the
boundary; the negro States by themselves! The Alleghanies the
boundary; the Western savages by themselves! The Mississippi
the boundary, let Missouri be governed by a prefect, or given
up as a haunt for wild beasts!" That time was the fit occasion
for this speech; and if it had been delivered then, either in
the hall of the House of Representatives, or in the den of the
Hartford Convention, or in the highway among the bearers and
followers of the five-striped banner, what effects must it not
have produced! What terror and consternation among the plotters
of disunion! But, here, in this loyal and quiet assemblage, in
this season of general tranquillity and universal allegiance,
the whole performance has lost its effect for want of affinity,
connection, or relation, to any subject depending, or sentiment
expressed, in the Senate; for want of any application, or
reference, to any event impending in the country."

I do not quote this passage for any thing that I now see out of place in that peroration; but for a quite different purpose--for the purpose of showing that I was slow to believe in any design to subvert this Union--that at the time of this great debate (February and March, 1830) I positively discredited it, and publicly proclaimed my incredulity. I did not want to believe it. I repulsed the belief. I pushed aside every circumstance that Mr. Webster relied on, and softened every expression that Mr. Hayne used, and considered him as limiting (practically) his threatened resistance to the tariff act, to the kind of resistance which Virginia made to the alien and sedition laws--which was an appeal to the reason, judgment and feelings of the other States--and which had its effect in the speedy repeal of those laws. Mr. Calhoun had not then uncovered his position in relation to nullification. I knew that Mr. Webster was speaking at him in all that he said to Mr. Hayne: but I would believe nothing against him except upon his own showing, or undoubted evidence. Although not a favorite statesman with me, I felt admiration for his high intellectual endowments, and respect for the integrity and purity of his private life. Mr. Hayne I cordially loved; and believed, and still believe, in the loyalty of his intentions to the Union. They were both from the South--that sister Carolina, of which the other was my native State, and in both of which I have relatives and hereditary friends--and for which I still have the affections which none but the wicked ever lose for the land of their birth: and I felt as they did in all that relates to the tariff--except their remedy. But enough for the present. The occasion will come, when we arrive at the practical application of the modern nullification doctrine, to vindicate the constitution from the political solecism of containing within itself a suicidal principle, and to vindicate the Virginia resolutions, and their authors (and, in their own language), from the "_anarchical and preposterous_" interpretation which has been put upon their words.