This, Sir, is an abstract of the gentleman's history of Federalism. I

am not about to controvert it. It is not, at present, worth the pains

of refutation; because, Sir, if at this day any one feels the sin of

Federalism lying heavily on his conscience, he can easily procure

remission. He may even obtain an indulgence, if he be desirous of

repeating the same transgression. It is an affair of no difficulty to

get into this same right line of patriotic descent. A man now-a-days is

at liberty to choose his political parentage. He may elect his own

father. Federalist or not, he may, if he choose, claim to belong to the

favored stock, and his claim will be allowed. He may carry back his

pretensions just as far as the honorable gentleman himself; nay, he may

make himself out the honorable gentleman's cousin, and prove,

satisfactorily, that he is descended from the same political

great-grandfather. All this is allowable. We all know a process, Sir,

by which the whole Essex Junto [Footnote:20] could, in one hour, be all

washed white from their ancient Federalism, and come out, every one of

them, original Democrats, dyed in the wool! Some of them have actually

undergone the operation, and they say it is quite easy. The only

inconvenience it occasions, as they tell us, is a slight tendency of

the blood to the face, a soft suffusion, which, however, is very

transient, since nothing is said by those whom they join calculated to

deepen the red on the cheek, but a prudent silence is observed in

regard to all the past. Indeed, Sir, some smiles of approbation have

been bestowed, and some crumbs of comfort have fallen, not a thousand

miles from the door of the Hartford Convention itself. And if the

author of the Ordinance of 1787 possessed the other requisite

qualifications, there is no knowing, notwithstanding his Federalism, to

what heights of favor he might not yet attain.

Mr. President, in carrying his warfare, such as it is, into New

England, the honorable gentleman all along professes to be acting on

the defensive. He chooses to consider me as having assailed South

Carolina, and insists that he comes forth only as her champion, and in

her defence. Sir, I do not admit that I made any attack whatever on

South Carolina. Nothing like it. The honorable member, in his first

speech, expressed opinions, in regard to revenue and some other topics,

which I heard both with pain and with surprise. I told the gentleman I

was aware that such sentiments were entertained _out_ of the

government, but had not expected to find them advanced in it; that I

knew there were persons in the South who speak of our Union with

indifference or doubt, taking pains to magnify its evils, and to say

nothing of its benefits; that the honorable member himself, I was sure,

could never be one of these; and I regretted the expression of such

opinions as he had avowed, because I thought their obvious tendency was

to encourage feelings of disrespect to the Union, and to impair its

strength. This, Sir, is the sum and substance of all I said on the

subject. And this constitutes the attack which called on the chivalry

of the gentleman, in his own opinion, to harry us with such a foray

among the party pamphlets and party proceedings of Massachusetts! If he

means that I spoke with dissatisfaction or disrespect of the

ebullitions of individuals in South Carolina, it is true. But if he

means that I assailed the character of the State, her honor, or

patriotism, that I reflected on her history or her conduct, he has not

the slightest ground for any such assumption. I did not even refer, I

think, in my observations, to any collection of individuals. I said

nothing of the recent conventions. I spoke in the most guarded and

careful manner, and only expressed my regret for the publication of

opinions, which I presumed the honorable member disapproved as much as

myself. In this, it seems, I was mistaken. I do not remember that the

gentleman has disclaimed any sentiment, or any opinion, of a supposed

anti-union tendency, which on all or any of the recent occasions has

been expressed. [21] The whole drift of his speech has been rather to

prove, that, in divers times and manners, sentiments equally liable to

my objection have been avowed in New England. And one would suppose

that his object, in this reference to Massachusetts, was to find a

precedent to justify proceedings in the South, were it not for the

reproach and contumely with which he labors, all along, to load these

his own chosen precedents. By way of defending South Carolina from what

he chooses to think an attack on her, he first quotes the example of

Massachusetts, and then denounces that example in good set terms. This

twofold purpose, not very consistent, one would think, with itself, was

exhibited more than once in the course of his speech. He referred, for

instance, to the Hartford Convention. Did he do this for authority, or

for a topic of reproach? Apparently for both, for he told us that he

should find no fault with the mere fact of holding such a convention,

and considering and discussing such questions as he supposes were then

and there discussed; but what rendered it obnoxious was its being held

at the time, and under the circumstances of the country then existing.

We were in a war, he said, and the country needed all our aid; the hand

of government required to be strengthened, not weakened; and patriotism

should have postponed such proceedings to another day. The thing

itself, then, is a precedent; the time and manner of it only, a subject

of censure.

Now, Sir, I go much further, on this point, than the honorable member.

Supposing, as the gentleman seems to do, that the Hartford Convention

assembled for any such purpose as breaking up the Union, because they

thought unconstitutional laws had been passed, or to consult on that

subject, or _to calculate the value of the Union_; supposing this to be

their purpose, or any part of it, then I say the meeting itself was

disloyal, and was obnoxious to censure, whether held in time of peace

or time of war, or under whatever circumstances. The material question

is the _object_. Is dissolution the _object_? If it be, external

circumstances may make it a more or less aggravated case, but cannot

affect the principle. I do not hold, therefore, Sir, that the Hartford

Convention was pardonable, even to the extent of the gentleman's

admission, if its objects were really such as have been imputed to it.

Sir, there never was a time, under any degree of excitement, in which

the Hartford Convention, or any other convention, could have maintained

itself one moment in New England, if assembled for any such purpose as

the gentleman says would have been an allowable purpose. To hold

conventions to decide constitutional law! To try the binding validity

of statutes by votes in a convention! Sir, the Hartford Convention, I

presume, would not desire that the honorable gentleman should be their

defender or advocate, if he puts their case upon such untenable and

extravagant grounds.

Then, Sir, the gentleman has no fault to find with these recently

promulgated South Carolina opinions. And certainly he need have none;

for his own sentiments, as now advanced, and advanced on reflection, as

far as I have been able to comprehend them, go the full length of all

these opinions. I propose, Sir, to say something on these, and to

consider how far they are just and constitutional. Before doing that,

however, let me observe that the eulogium pronounced by the honorable

gentleman on the character of the State of South Carolina, for her

Revolutionary and other merits, meets my hearty concurrence. I shall

not acknowledge that the honorable member goes before me in regard for

whatever of distinguished talent, or distinguished character, South

Carolina has produced. I claim part of the honor, I partake in the

pride, of her great names. I claim them for countrymen, one and all,

the Laurenses, the Rutledges, the Pinckneys, the Sumpters, the Marions,

Americans all, whose fame is no more to be hemmed in by State lines,

than their talents and patriotism were capable of being circumscribed

within the same narrow limits. In their day and generation, they served

and honored the country, and the whole country; and their renown is of

the treasures of the whole country. Him whose honored name the

gentleman himself bears,--does he esteem me less capable of gratitude

for his patriotism, or sympathy for his sufferings, than if his eyes

had first opened upon the light of Massachusetts, instead of South

Carolina? Sir, does he suppose it in his power to exhibit a Carolina

name so bright as to produce envy in my bosom? No, Sir, increased

gratification and delight, rather. I thank God, that, if I am gifted

with little of the spirit which is able to raise mortals to the skies,

I have yet none, as I trust, of that other spirit, which would drag

angels down. When I shall be found, Sir, in my place here in the

Senate, or elsewhere, to sneer at public merit, because it happens to

spring up beyond the little limits of my own State or neighborhood;

when I refuse, for any such cause or for any cause, the homage due to

American talent, to elevated patriotism, to sincere devotion to liberty

and the country; or, if I see an uncommon endowment of Heaven, if I see

extraordinary capacity and virtue, in any son of the South, and if,

moved by local prejudice or gangrened by State jealousy, I get up here

to abate the tithe of a hair from his just character and just fame, may

my tongue cleave to the roof of my mouth!

Sir, let me recur to pleasing recollections; let me indulge in

refreshing remembrance of the past; let me remind you that, in early

times, no States cherished greater harmony, both of principle and

feeling, than Massachusetts and South Carolina. Would to God that

harmony might again return! Shoulder to shoulder they went through the

Revolution, hand in hand they stood round the administration of

Washington, and felt his own great arm lean on them for support. Unkind

feeling, if it exist, alienation, and distrust are the growth,

unnatural to such soils, of false principles since sown. They are

weeds, the seeds of which that same great arm never scattered.

Mr. President, I shall enter on no encomium upon Massachusetts; she

needs none. There she is. Behold her, and judge for yourselves. There

is her history; the world knows it by heart. The past, at least, is

secure. There is Boston, and Concord, and Lexington, and Bunker Hill;

and there they will remain for ever. The bones of her sons, falling in

the great struggle for Independence, now lie mingled with the soil of

every State from New England to Georgia; and there they will lie for

ever. And, Sir, where American Liberty raised its first voice, and

where its youth was nurtured and sustained, there it still lives, in

the strength of its manhood and full of its original spirit. If discord

and disunion shall wound it, if party strife and blind ambition shall

hawk at and tear it, if folly and madness, if uneasiness under salutary

and necessary restraint, shall succeed in separating it from that

Union, by which alone its existence is made sure, it will stand, in the

end, by the side of that cradle in which its infancy was rocked; it

will stretch forth its arm with whatever of vigor it may still retain

over the friends who gather round it; and it will fall at last, if fall

it must, amidst the proudest monuments of its own glory, and on the

very spot of its origin. [22]

There yet remains to be performed, Mr. President, by far the most grave

and important duty, which I feel to be devolved on me by this occasion.

It is to state, and to defend, what I conceive to be the true

principles of the Constitution under which we are here assembled. I

might well have desired that so weighty a task should have fallen into

other and abler hands. I could have wished that it should have been

executed by those whose character and experience give weight and

influence to their opinions, such as cannot possibly belong to mine.

But, Sir, I have met the occasion, not sought it; and I shall proceed

to state my own sentiments, without challenging for them any particular

regard, with studied plainness, and as much precision as possible.

I understand the honorable gentleman from South Carolina to maintain,

that it is a right of the State legislatures to interfere, whenever, in

their judgment, this government transcends its constitutional limits,

and to arrest the operation of its laws.

I understand him to maintain this right, as a right existing _under_

the Constitution, not as a right to overthrow it on the ground of

extreme necessity, such as would justify violent revolution.

I understand him to maintain an authority, on the part of the States,

thus to interfere, for the purpose of correcting the exercise of power

by the general government, of checking it, and of compelling it to

conform to their opinion of the extent of its powers.

I understand him to maintain, that the ultimate power of judging of the

constitutional extent of its own authority is not lodged exclusively in

the general government, or any branch of it; but that, on the contrary,

the States may lawfully decide for themselves, and each State for

itself, whether, in a given case, the act of the general government

transcends its power.

I understand him to insist, that, if the exigency of the case, in the

opinion of any State government, require it, such State government may,

by its own sovereign authority, annul an act of the general government

which it deems plainly and palpably unconstitutional.

This is the sum of what I understand from him to be the South Carolina

doctrine, and the doctrine which he maintains. I propose to consider

it, and compare it with the Constitution. Allow me to say, as a

preliminary remark, that I call this the South Carolina doctrine only

because the gentleman himself has so denominated it. I do not feel at

liberty to say that South Carolina, as a State, has ever advanced these

sentiments. I hope she has not, and never may. That a great majority of

her people are opposed to the tariff laws, is doubtless true. That a

majority, somewhat less than that just mentioned, conscientiously

believe these laws unconstitutional, may probably also be true. But

that any majority holds to the right of direct State interference at

State discretion, the right of nullifying acts of Congress by acts of

State legislation, is more than I know, and what I shall be slow to

believe.

That there are individuals besides the honorable gentleman who do

maintain these opinions, is quite certain. I recollect the recent

expression of a sentiment, which circumstances attending its utterance

and publication justify us in supposing was not unpremeditated. "The

sovereignty of the State,--never to be controlled, construed, or

decided on, but by her own feelings of honorable justice." [23]

We all know that civil institutions are established for the public

benefit, and that when they cease to answer the ends of their existence

they may be changed. But I do not understand the doctrine now contended

for to be that, which, for the sake of distinction, we may call the

right of revolution. I understand the gentleman to maintain, that it is

constitutional to interrupt the administration of the Constitution

itself, in the hands of those who are chosen and sworn to administer

it, by the direct interference, in form of law, of the States, in

virtue of their sovereign capacity. The inherent right in the people to

reform their government I do not deny; and they have another right, and

that is, to resist unconstitutional laws, without overturning the

government. It is no doctrine of mine that unconstitutional laws bind

the people. The great question is, Whose prerogative is it to decide on

the constitutionality or unconstitutionality of the laws? On that, the

main debate hinges. The proposition, that, in case of a supposed

violation of the Constitution by Congress, the States have a

constitutional right to interfere and annul the law of Congress, is the

proposition of the gentleman. I do not admit it. If the gentleman had

intended no more than to assert the right of revolution for justifiable

cause, he would have said only what all agree to. But I cannot conceive

that there can be a middle course, between submission to the laws, when

regularly pronounced constitutional, on the one hand, and open

resistance, which is revolution or rebellion, on the other.

This leads us to inquire into the origin of this government and the

source of its power. Whose agent is it? Is it the creature of the State

legislatures, or the creature of the people? If the government of the

United States be the agent of the State governments, then they may

control it, provided they can agree in the manner of controlling it; if

it be the agent of the people, then the people alone can control it,

restrain it, modify, or reform it. It is observable enough, that the

doctrine for which the honorable gentleman contends leads him to the

necessity of maintaining, not only that this general government is the

creature of the States, but that it is the creature of each of the

States severally, so that each may assert the power for itself of

determining whether it acts within the limits of its authority. It is

the servant of four-and-twenty masters, of different wills and

different purposes, and yet bound to obey all. This absurdity (for it

seems no less) arises from a misconception as to the origin of this

government and its true character. It is, Sir, the people's

Constitution, the people's government, made for the people, made by the

people, and answerable to the people. The people of the United States

have declared that this Constitution shall be the supreme law. We must

either admit the proposition, or dispute their authority. The States

are, unquestionably, sovereign, so far as their sovereignty is not

affected by the supreme law. But the State legislatures, as political

bodies, however sovereign, are yet not sovereign over the people. So

far as the people have given power to the general government, so far

the grant is unquestionably good, and the government holds of the

people, and not of the State governments. We are all agents of the same

supreme power, the people. The general government and the State

governments derive their authority from the same source. Neither can,

in relation to the other, be called primary, though one is definite and

restricted, and the other general and residuary. The national

government possesses those powers which it can be shown the people have

conferred on it, and no more. All the rest belongs to the State

governments, or to the people themselves. So far as the people have

restrained State sovereignty, by the expression of their will, in the

Constitution of the United States, so far, it must be admitted, State

sovereignty is effectually controlled. I do not contend that it is, or

ought to be, controlled farther. The sentiment to which I have referred

propounds that State sovereignty is only to be controlled by its own

"feeling of justice"; that is to say, it is not to be controlled at

all, for one who is to follow his own feelings is under no legal

control. Now, however men may think this ought to be, the fact is, that

the people of the United States have chosen to impose control on State

sovereignties. There are those, doubtless, who wish they had been left

without restraint; but the Constitution has ordered the matter

differently. To make war, for instance, is an exercise of sovereignty;

but the Constitution declares that no State shall make war. To coin

money is another exercise of sovereign power; but no State is at

liberty to coin money. Again, the Constitution says that no sovereign

State shall be so sovereign as to make a treaty. These prohibitions, it

must be confessed, are a control on the State sovereignty of South

Carolina, as well as of the other States, which does not arise "from

her own feelings of honorable justice." The opinion referred to,

therefore, is in defiance of the plainest provisions of the

Constitution.

There are other proceedings of public bodies which have already been

alluded to, and to which I refer again for the purpose of ascertaining

more fully what is the length and breadth of that doctrine, denominated

the Carolina doctrine, which the honorable member has now stood up on

this floor to maintain. In one of them I find it resolved, that "the

tariff of 1828, and every other tariff designed to promote one branch

of industry at the expense of others, is contrary to the meaning and

intention of the federal compact; and such a dangerous, palpable, and

deliberate usurpation of power, by a determined majority, wielding the

general government beyond the limits of its delegated powers, as calls

upon the States which compose the suffering minority, in their

sovereign capacity, to exercise the powers which, as sovereigns,

necessarily devolve upon them, when their compact is violated."

Observe, Sir, that this resolution holds the tariff of 1828, and every

other tariff designed to promote one branch of industry at the expense

of another, to be such a dangerous, palpable, and deliberate usurpation

of power, as calls upon the States, in their sovereign capacity, to

interfere by their own authority. This denunciation, Mr. President, you

will please to observe, includes our old tariff of 1816, as well as all

others; because that was established to promote the interest of the

manufacturers of cotton, to the manifest and admitted injury of the

Calcutta cotton trade. Observe, again, that all the qualifications are

here rehearsed and charged upon the tariff, which are necessary to

bring the case within the gentleman's proposition. The tariff is a

usurpation; it is a dangerous usurpation; it is a palpable usurpation;

it is a deliberate usurpation. It is such a usurpation, therefore, as

calls upon the States to exercise their right of interference. Here is

a case, then, within the gentleman's principles, and all his

qualifications of his principles. It is a case for action. The

Constitution is plainly, dangerously, palpably, and deliberately

violated; and the States must interpose their own authority to arrest

the law. Let us suppose the State of South Carolina to express this

same opinion, by the voice of her legislature. That would be very

imposing; but what then? Is the voice of one State conclusive? It so

happens that, at the very moment when South Carolina resolves that the

tariff laws are unconstitutional, Pennsylvania and Kentucky resolve

exactly the reverse. _They_ hold those laws to be both highly proper

and strictly constitutional. And now, Sir, how does the honorable

member propose to deal with this case? How does he relieve us from this

difficulty, upon any principle of his? His construction gets us into

it; how does he propose to get us out?

In Carolina, the tariff is a palpable, deliberate usurpation; Carolina,

therefore, may nullify it, and refuse to pay the duties. In

Pennsylvania, it is both clearly constitutional and highly expedient;

and there the duties are to be paid. And yet we live under a government

of uniform laws, and under a Constitution too, which contains an

express provision, as it happens, that all duties shall be equal in all

the States. Does not this approach absurdity?

If there be no power to settle such questions, independent of either of

the States, is not the whole Union a rope of sand? Are we not thrown

back again, precisely, upon the old Confederation?

It is too plain to be argued. Four-and-twenty interpreters of

constitutional law, each with a power to decide for itself, and none

with authority to bind anybody else, and this constitutional law the

only bond of their union! What is such a state of things but a mere

connection during pleasure, or, to use the phraseology of the times,

_during feeling_? And that feeling, too, not the feeling of the people,

who established the Constitution, but the feeling of the State

governments.

In another of the South Carolina addresses, having premised that the

crisis requires "all the concentrated energy of passion," an attitude

of open resistance to the laws of the Union is advised. Open resistance

to the laws, then, is the constitutional remedy, the conservative power

of the State, which the South Carolina doctrines teach for the redress

of political evils, real or imaginary. And its authors further say,

that, appealing with confidence to the Constitution itself, to justify

their opinions, they cannot consent to try their accuracy by the courts

of justice. In one sense, indeed, Sir, this is assuming an attitude of

open resistance in favor of liberty. But what sort of liberty? The

liberty of establishing their own opinions, in defiance of the opinions

of all others; the liberty of judging and of deciding exclusively

themselves, in a matter in which others have as much right to judge and

decide as they; the liberty of placing their own opinions above the

judgment of all others, above the laws, and above the Constitution.

This is their liberty, and this is the fair result of the proposition

contended for by the honorable gentleman. Or, it may be more properly

said, it is identical with it, rather than a result from it.

Resolutions, Sir, have been recently passed by the legislature of South

Carolina. I need not refer to them; they go no farther than the

honorable gentleman himself has gone, and I hope not so far. I content

myself, therefore, with debating the matter with him.

And now, Sir, what I have first to say on this subject is, that at no

time, and under no circumstances, has New England, or any State in New

England, or any respectable body of persons in New England, or any

public man of standing in New England, put forth such a doctrine as

this Carolina doctrine.

The gentleman has found no case, he can find none, to support his own

opinions by New England authority. New England has studied the

Constitution in other schools, and under other teachers. She looks upon

it with other regards, and deems more highly and reverently both of its

just authority and its utility and excellence. The history of her

legislative proceedings may be traced. The ephemeral effusions of

temporary bodies, called together by the excitement of the occasion,

may be hunted up; they have been hunted up. The opinions and votes of

her public men, in and out of Congress, may be explored. It will all be

in vain. The Carolina doctrine can derive from her neither countenance

nor support. She rejects it now; she always did reject it; and till she

loses her senses, she always will reject it. The honorable member has

referred to expressions on the subject of the embargo law, made in this

place, by an honorable and venerable gentleman, now favoring us with

his presence. [24] He quotes that distinguished Senator as saying,

that, in his judgment, the embargo law was unconstitutional, and that

therefore, in his opinion, the people were not bound to obey it. That,

Sir, is perfectly constitutional language. An unconstitutional law is

not binding; _but then it does not rest with a resolution or a law of a

State legislature to decide whether an act of Congress be or be not

constitutional_. An unconstitutional act of Congress would not bind the

people of this District, although they have no legislature to interfere

in their behalf; and, on the other hand, a constitutional law of

Congress does bind the citizens of every State, although all their

legislatures should undertake to annul it by act or resolution. The

venerable Connecticut Senator is a constitutional lawyer, of sound

principles and enlarged knowledge; a statesman practised and

experienced, bred in the company of Washington, and holding just views

upon the nature of our governments. He believed the embargo

unconstitutional, and so did others; but what then? Who did he suppose

was to decide that question? The State legislatures? Certainly not. No

such sentiment ever escaped his lips.

Let us follow up, Sir, this New England opposition to the embargo laws;

let us trace it, till we discern the principle which controlled and

governed New England throughout the whole course of that opposition. We

shall then see what similarity there is between the New England school

of constitutional opinions, and this modern Carolina school. The

gentleman, I think, read a petition from some single individual

addressed to the legislature of Massachusetts, asserting the Carolina

doctrine; that is, the right of State interference to arrest the laws

of the Union. The fate of that petition shows the sentiment of the

legislature. It met no favor. The opinions of Massachusetts were very

different. They had been expressed in 1798, in answer to the

resolutions of Virginia, and she did not depart from them, nor bend

them to the times. Misgoverned, wronged, oppressed, as she felt herself

to be, she still held fast her integrity to the Union. The gentleman

may find in her proceedings much evidence of dissatisfaction with the

measures of government, and great and deep dislike to the embargo; all

this makes the case so much the stronger for her; for, notwithstanding

all this dissatisfaction and dislike, she still claimed no right to

sever the bonds of the Union. There was heat, and there was anger in

her political feeling. Be it so; but neither her heat nor her anger

betrayed, her into infidelity to the government. The gentleman labors

to prove that she disliked the embargo as much as South Carolina

dislikes the tariff, and expressed her dislike as strongly. Be it so;

but did she propose the Carolina remedy? did she threaten to interfere,

by State authority, to annul the laws of the Union? That is the

question for the gentleman's consideration.

No doubt, Sir, a great majority of the people of New England

conscientiously believed the embargo law of 1807 unconstitutional; [25]

as conscientiously, certainly, as the people of South Carolina hold

that opinion of the tariff. They reasoned thus: Congress has power to

regulate commerce; but here is a law, they said, stopping all commerce,

and stopping it indefinitely. The law is perpetual; that is, it is not

limited in point of time, and must of course continue until it shall be

repealed by some other law. It is as perpetual, therefore, as the law

against treason or murder. Now, is this regulating commerce, or

destroying it? Is it guiding, controlling, giving the rule to commerce,

as a subsisting thing or is it putting an end to it altogether? Nothing

is more certain, than that a majority in New England deemed this law a

violation of the Constitution. The very case required by the gentleman

to justify State interference had then arisen. Massachusetts believed

this law to be "a deliberate, palpable, and dangerous exercise of a

power not granted by the Constitution." Deliberate it was, for it was

long continued; palpable she thought it, as no words in the

Constitution gave the power, and only a construction, in her opinion

most violent, raised it; dangerous it was, since it threatened utter

ruin to her most important interests. Here, then, was a Carolina case.

How did Massachusetts deal with it? It was, as she thought, a plain,

manifest, palpable violation of the Constitution, and it brought ruin

to her doors. Thousands of families, and hundreds of thousands of

individuals, were beggared by it. While she saw and felt all this, she

saw and felt also, that, as a measure of national policy, it was

perfectly futile; that the country was no way benefited by that which

caused so much individual distress; that it was efficient only for the

production of evil, and all that evil inflicted on ourselves. In such a

case, under such circumstances, how did Massachusetts demean herself?

Sir, she remonstrated, she memorialized, she addressed herself to the

general government, not exactly "with the concentrated energy of

passion," but with her own strong sense, and the energy of sober

conviction. But she did not interpose the arm of her own power to

arrest the law, and break the embargo. Far from it. Her principles

bound her to two things; and she followed her principles, lead where

they might. First, to submit to every constitutional law of Congress,

and secondly, if the constitutional validity of the law be doubted, to

refer that question to the decision of the proper tribunals. The first

principle is vain and ineffectual without the second. A majority of us

in New England believed the embargo law unconstitutional; but the great

question was, and always will be in such cases, Who is to decide this?

Who is to judge between the people and the government? And, Sir, it is

quite plain, that the Constitution of the United States confers on the

government itself, to be exercised by its appropriate department, and

under its own responsibility to the people, this power of deciding

ultimately and conclusively upon the just extent of its own authority.

If this had not been done, we should not have advanced a single step

beyond the old Confederation.

Being fully of the opinion that the embargo law was unconstitutional,

the people of New England were yet equally clear in the opinion, (it

was a matter they did doubt upon,) that the question, after all, must

be decided by the judicial tribunals of the United States. Before those

tribunals, therefore, they brought the question. Under the provisions

of the law, they had given bonds to millions in amount, and which were

alleged to be forfeited. They suffered the bonds to be sued, and thus

raised the question. In the old-fashioned way of settling disputes,

they went to law. The case came to hearing and solemn argument; and he

who espoused their cause, and stood up for them against the validity of

the embargo act, was none other than that great man, of whom the

gentleman has made honorable mention, Samuel Dexter. He was then, Sir,

in the fulness of his knowledge, and the maturity of his strength. He

had retired from long and distinguished public service here, to the

renewed pursuit of professional duties, carrying with him all that

enlargement and expansion, all the new strength and force, which an

acquaintance with the more general subjects discussed in the national

councils is capable of adding to professional attainment, in a mind of

true greatness and comprehension. He was a lawyer, and he was also a

statesman. He had studied the Constitution, when he filled public

station, that he might defend it; he had examined its principles that

he might maintain them. More than all men, or at least as much as any

man, he was attached to the general government and to the union of the

States. His feelings and opinions all ran in that direction. A question

of constitutional law, too, was, of all subjects, that one which was

best suited to his talents and learning. Aloof from technicality, and

unfettered by artificial rule, such a question gave opportunity for

that deep and clear analysis, that mighty grasp of principle, which so

much distinguished his higher efforts. His very statement was argument;

his inference seemed demonstration. The earnestness of his own

conviction wrought conviction in others. One was convinced, and

believed, and assented, because it was gratifying, delightful, to

think, and feel, and believe, in unison with an intellect of such

evident superiority.

Mr. Dexter, Sir, such as I have described him, argued the New England

cause. He put into his effort his whole heart, as well as all the

powers of his understanding; for he had avowed, in the most public

manner, his entire concurrence with his neighbors on the point in

dispute. He argued the cause; it was lost, and New England submitted.

The established tribunals pronounced the law constitutional, and New

England acquiesced. Now, Sir, is not this the exact opposite of the

doctrine of the gentleman from South Carolina? According to him,

instead of referring to the judicial tribunals, we should have broken

up the embargo by laws of our own; we should have repealed it, _quoad_

New England; for we had a strong, palpable, and oppressive case. Sir,

we believed the embargo unconstitutional; but still that was matter of

opinion, and who was to decide it? We thought it a clear case; but,

nevertheless, we did not take the law into our own hands, because we

did not wish to bring about a revolution, nor to break up the Union;

for I maintain, that between submission to the decision of the

constituted tribunals, and revolution, or disunion, there is no middle

ground; there is no ambiguous condition, half allegiance and half

rebellion. And, Sir, how futile, how very futile it is, to admit the

right of State interference, and then attempt to save it from the

character of unlawful resistance, by adding terms of qualification to

the causes and occasions, leaving all these qualifications, like the

case itself, in the discretion of the State governments. It must be a

clear case, it is said, a deliberate case, a palpable case, a dangerous

case. But then the State is still left at liberty to decide for herself

what is clear, what is deliberate, what is palpable, what is dangerous.

Do adjectives and epithets avail any thing?

Sir, the human mind is so constituted, that the merits of both sides of

a controversy appear very clear, and very palpable, to those who

respectively espouse them; and both sides usually grow clearer as the

controversy advances. South Carolina sees unconstitutionality in the

tariff; she sees oppression there also, and she sees danger.

Pennsylvania, with a vision not less sharp, looks at the same tariff,

and sees no such thing in it; she sees it all constitutional, all

useful, all safe. The faith of South Carolina is strengthened by

opposition, and she now not only sees, but _resolves_, that the tariff

is palpably unconstitutional, oppressive, and dangerous; but

Pennsylvania, not to be behind her neighbors, and equally willing to

strengthen her own faith by a confident asseveration, _resolves_, also,

and gives to every warm affirmative of South Carolina, a plain,

downright, Pennsylvania negative. South Carolina, to show the strength

and unity of her opinion, brings her assembly to a unanimity, within

seven voices; Pennsylvania, not to be outdone in this respect any more

than in others, reduces her dissentient fraction to a single vote. Now,

Sir, again, I ask the gentleman, What is to be done? Are these States

both right? Is he bound to consider them both right? If not, which is

in the wrong? or rather, which has the best right to decide? And if he,

and if I, are not to know what the Constitution means, and what it is,

till those two State legislatures, and the twenty-two others, shall

agree in its construction, what have we sworn to, when we have sworn to

maintain it? I was forcibly struck, Sir, with one reflection, as the

gentleman went on in his speech. He quoted Mr. Madison's resolutions,

to prove that a State may interfere, in a case of deliberate, palpable,

and dangerous exercise of a power not granted. The honorable member

supposes the tariff law to be such an exercise of power; and that

consequently a case has arisen in which the State may, if it see fit,

interfere by its own law. Now it so happens, nevertheless, that Mr.

Madison deems this same tariff law quite constitutional. Instead of a

clear and palpable violation, it is, in his judgment, no violation at

all. So that, while they use his authority for a hypothetical case,

they reject it in the very case before them. All this, Sir, shows the

inherent futility, I had almost used a stronger word, of conceding this

power of inference to the State, and then attempting to secure it from

abuse by imposing qualifications of which the States themselves are to

judge. One of two things is true; either the laws of the Union are

beyond the discretion and beyond the control of the States; or else we

have no constitution of general government, and are thrust back again

to the days of the Confederation.

Let me here say, Sir, that if the gentleman's doctrine had been

received and acted upon in New England, in the times of the embargo and

non-intercourse, we should probably not now have been here. The

government would very likely have gone to pieces, and crumbled into

dust. No stronger case can ever arise than existed under those laws; no

States can ever entertain a clearer conviction than the New England

States then entertained; and if they had been under the influence of

that heresy of opinion, as I must call it, which the honorable member

espouses, this Union would, in all probability, have been scattered to

the four winds. I ask the gentleman, therefore, to apply his principles

to that case; I ask him to come forth and declare, whether, in his

opinion, the New England States would have been justified in

interfering to break up the embargo system under the conscientious

opinions which they held upon it? Had they a right to annul that law?

Does he admit or deny? If what is thought palpably unconstitutional in

South Carolina justifies that State in arresting the progress of the

law, tell me whether that which was thought palpably unconstitutional

also in Massachusetts would have justified her in doing the same thing?

Sir, I deny the whole doctrine. It has not a foot of ground in the

Constitution to stand on. No public man of reputation ever advanced it

in Massachusetts in the warmest times, or could maintain himself upon

it there at any time.

I must now beg to ask, Sir, Whence is this supposed right of the States

derived? Where do they find the power to interfere with the laws of the

Union? Sir, the opinion which the honorable gentleman maintains is a

notion founded in a total misapprehension, in my judgment, of the

origin of this government, and of the foundation on which it stands. I

hold it to be a popular government, erected by the people; those who

administer it, responsible to the people; and itself capable of being

amended and modified, just as the people may choose it should be. It is

as popular, just as truly emanating from the people, as the State

governments. It is created for one purpose; the State governments for

another. It has its own powers; they have theirs. There is no more

authority with them to arrest the operation of a law of Congress, than

with Congress to arrest the operation of their laws. We are here to

administer a Constitution emanating immediately from the people, and

trusted by them to our administration. It is not the creature of the

State governments. It is of no moment to the argument, that certain

acts of the State legislatures are necessary to fill our seats in this

body. That is not one of their original State powers, a part of the

sovereignty of the State. It is a duty which the people, by the

Constitution itself, have imposed on the State legislatures; and which

they might have left to be performed elsewhere, if they had seen fit.

So they have left the choice of President with electors; but all this

does not affect the proposition that this whole government, President,

Senate, and House of Representatives, is a popular government. It

leaves it still all its popular character. The governor of a State (in

some of the States) is chosen, not directly by the people, but by those

who are chosen by the people, for the purpose of performing, among

other duties, that of electing a governor. Is the government of the

State, on that account, not a popular government? This government, Sir,

is the independent offspring of the popular will. It is not the

creature of State legislatures; nay, more, if the whole truth must be

told, the people brought it into existence, established it, and have

hitherto supported it, for the very purpose, amongst others, of

imposing certain salutary restraints on State sovereignties. The States

cannot now make war; they cannot contract alliances; they cannot make,

each for itself, separate regulations of commerce; they cannot lay

imposts; they cannot coin money. If this Constitution, Sir, be the

creature of State legislatures, it must be admitted that it has

obtained a strange control over the volitions of its creators.

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 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 Confederation. 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,

anything 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 passed in pursuance of

it. But who shall decide this question of interference? To whom lies

the last appeal? This, Sir, the Constitution itself decides also, 25 by

declaring, "_that the judicial power shall extend to all cases arising

under the Constitution and laws of the United States_." These two

provisions cover the whole ground. They are, in truth, the keystone of

the arch! With these it is a government; without them it is a

confederation. 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 further 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 a judge over

another's servants? To their own masters they stand or fall."

Sir, I deny this power of State legislatures altogether. It cannot

stand the test of examination. Gentlemen may say, that, in an extreme

case, a State government might protect the people from intolerable

oppression. Sir, in such a case, the people might protect themselves,

without the aid of the State governments. Such a case warrants

revolution. It must make, when it comes, a law for itself. A nullifying

act of a State legislature cannot alter the case, nor make resistance

any more lawful. In maintaining these sentiments, Sir, I am but

asserting the rights of the people. I state what they have declared,

and insist on their right to declare it. They have chosen to repose

this power in the general government, and I think it my duty to support

it, like other constitutional powers.

For myself, Sir, I do not admit the competency of South Carolina, or

any other State, to prescribe my constitutional duty; or to settle,

between me and the people, the validity of laws of Congress for which I

have voted. I decline her umpirage. I have not sworn to support the

Constitution according to her construction of its clauses. I have not

stipulated, by my oath of office or otherwise, to come under any

responsibility, except to the people, and those whom they have

appointed to pass upon the question, whether laws, supported by my

votes, conform to the Constitution of the country. And, Sir, if we look

to the general nature of the case, could anything have been more

preposterous, than to make a government for the whole Union, and yet

leave its powers subject, not to one interpretation, but to thirteen or

twenty-four interpretations? Instead of one tribunal, established by

all, responsible to all, with power to decide for all, shall

constitutional questions be left to four-and-twenty popular bodies,

each at liberty to decide for itself, and none bound to respect the

decisions of others,--and each at liberty, too, to give a new

construction on every new election of its own members? Would anything,

with such a principle in it, or rather with such a destitution of all

principle, be fit to be called a government? No, Sir. It should not be

denominated a Constitution. It should be called, rather, a collection

of topics for everlasting controversy; heads of debate for a

disputatious people. It would not be a government. It would not be

adequate to any practical good, or fit for any country to live under.

To avoid all possibility of being misunderstood, allow me to repeat

again, in the fullest manner, that I claim no powers for the government

by forced or unfair construction. I admit that it is a government of

strictly limited powers; of enumerated, specified, and particularized

powers; and that whatsoever is not granted, is withheld. But

notwithstanding all this, and however the grant of powers may be

expressed, its limit and extent may yet, in some cases, admit of doubt;

and the general government would be good for nothing, it would be

incapable of long existing, if some mode had not been provided in which

those doubts, as they should arise, might be peaceably, but

authoritatively, solved.

And now, Mr. President, let me run the honorable gentleman's doctrine a

little into its practical application. Let us look at his probable

_modus operandi_. If a thing can be done, an ingenious man can tell how

it is to be done, and I wish to be informed how this State interference

is to be put in practice, without violence, bloodshed, and rebellion.

We will take the existing case of the tariff law. South Carolina is

said to have made up her opinion upon it. If we do not repeal it, (as

we probably shall not,) she will then apply to the case the remedy of

her doctrine. She will, we must suppose, pass a law of her legislature,

declaring the several acts of Congress usually called the tariff laws

null and void, so far as they respect South Carolina, or the citizens

thereof. So far, all is a paper transaction, and easy enough. But the

collector at Charleston is collecting the duties imposed by these

tariff laws. He, therefore, must be stopped. The collector will seize

the goods if the tariff duties are not paid. The State authorities will

undertake their rescue, the marshal, with his posse, will come to the

collector's aid, and here the contest begins. The militia of the State

will be called out to sustain the nullifying act. They will march, Sir,

under a very gallant leader; for I believe the honorable member himself

commands the militia of that part of the State. He will raise the

NULLIFYING ACT on his standard, and spread it out as his banner! It

will have a preamble, setting forth that the tariff laws are palpable,

deliberate, and dangerous violations of the Constitution! He will

proceed, with this banner flying, to the custom-house in Charleston,

"All the while

Sonorous metal blowing martial sounds." [26]

Arrived at the custom-house, he will tell the collector that he must

collect no more duties under any of the tariff laws. This he will be

somewhat puzzled to say, by the way, with a grave countenance,

considering what hand South Carolina herself had in that of 1816. But,

Sir, the collector would not, probably, desist, at his bidding. He

would show him the law of Congress, the treasury instruction, and his

own oath of office. He would say, he should perform his duty, come what

come might.

Here would ensue a pause; for they say that a certain stillness

precedes the tempest. The trumpeter would hold his breath awhile, and

before all this military array should fall on the custom-house,

collector, clerks, and all, it is very probable some of those composing

it would request of their gallant commander-in-chief to be informed a

little upon the point of law; for they have, doubtless, a just respect

for his opinions as a lawyer, as well as for his bravery as a soldier.

They know he has read Blackstone and the Constitution, as well as

Turenne and Vauban. They would ask him, therefore, something concerning

their rights in this matter. They would inquire, whether it was not

somewhat dangerous to resist a law of the United States. What would be

the nature of their offence, they would wish to learn, if they, by

military force and array, resisted the execution in Carolina of a law

of the United States, and it should turn out, after all, that the law

_was constitutional_? He would answer, of course, Treason. No lawyer

could give any other answer. John Fries,[27] he would tell them, had

learned that, some years ago. How, then, they would ask, do you propose

to defend us? We are not afraid of bullets, but treason has a way of

taking people off that we do not much relish. How do you propose to

defend us? "Look at my floating banner," he would reply; "see there the

_nullifying law!_" Is it your opinion, gallant commander, they would

then say, that, if we should be indicted for treason, that same

floating banner of yours would make a good plea in bar? "South Carolina

is a sovereign state," he would reply. That is true; but would the

judge admit our plea? "These tariff laws," he would repeat, "are

unconstitutional, palpably, deliberately, dangerously." That may all be

so; but if the tribunal should not happen to be of that opinion, shall

we swing for it? We are ready to die for our country, but it is rather

an awkward business, this dying without touching the ground! After all,

that is a sort of hemp tax worse than any part of the tariff.

Mr. President, the honorable gentleman would be in a dilemma, like that

of another great general. He would have a knot before him which he

could not untie. He must cut it with his sword. He must say to his

followers, "Defend yourselves with your bayonets"; and this is

war,--civil war.

Direct collision, therefore, between force and force, is the

unavoidable result of that remedy for the revision of unconstitutional

laws which the gentleman contends for. It must happen in the very first

case to which it is applied. Is not this the plain result? To resist by

force the execution of a law, generally, is treason. Can the courts of

the United States take notice of the indulgence of a State to commit

treason? The common saying, that a State cannot commit treason herself,

is nothing to the purpose. Can she authorize others to do it? If John

Fries had produced an act of Pennsylvania, annulling the law of

Congress, would it have helped his case? Talk about it as we will,

these doctrines go the length of revolution. They are incompatible with

any peaceable administration of the government. They lead directly to

disunion and civil commotion; and therefore it is, that at their

commencement, when they are first found to be maintained by respectable

men, and in a tangible form, I enter my public protest against them all.

The honorable gentleman argues, that, if this government be the sole

judge of the extent of its own powers, whether that right of judging be

in Congress or the Supreme Court, it equally subverts State

sovereignty. This the gentleman sees, or thinks he sees, although he

cannot perceive how the right of judging, in this matter, if left to

the exercise of State legislatures, has any tendency to subvert the

government of the Union. The gentleman's opinion may be, that the right

ought not to have been lodged with the general government; he may like

better such a constitution as we should have under the right of State

interference; but I ask him to meet me on the plain matter of fact. I

ask him to meet me on the Constitution itself. I ask him if the power

is not found there, clearly and visibly found there? But, Sir, what is

this danger, and what are the grounds of it? Let it be remembered, that

the Constitution of the United States is not unalterable. It is to

continue in its present form no longer than the people who established

it shall choose to continue it. If they shall become convinced that

they have made an injudicious or inexpedient partition and distribution

of power between the State governments and the general government, they

can alter that distribution at will.

If anything be found in the national Constitution, either by original

provision or subsequent interpretation, which ought not to be in it,

the people know how to get rid of it. If any construction, unacceptable

to them, be established, so as to become practically a part of the

Constitution, they will amend it at their own sovereign pleasure. But

while the people choose to maintain it as it is, while they are

satisfied with it, and refuse to change it, who has given, or who can

give, to the State legislatures a right to alter it, either by

interference, construction, or otherwise? Gentlemen do not seem to

recollect that the people have any power to do anything for themselves.

They imagine there is no safety for them, any longer than they are

under the close guardianship of the State legislatures. Sir, the people

have not trusted their safety in regard to the general Constitution to

these hands. They have required other security, and taken other bonds.

They have chosen to trust themselves, first, to the plain words of the

instrument, and to such construction as the government themselves, in

doubtful cases, should put on their own powers, under their oaths of

office, and subject to their responsibility to them; just as the people

of a State trust their own State governments with a similar power.

Secondly, they have reposed their trust in the efficacy of frequent

elections, and in their own power to remove their own servants and

agents whenever they see cause. Thirdly, they have reposed trust in the

judicial power, which, in order that it might be trustworthy, they have

made as respectable, as disinterested, and as independent as was

practicable. Fourthly, they have seen fit to rely, in case of

necessity, or high expediency, on their known and admitted power to

alter or amend the Constitution, peaceably and quietly, whenever

experience shall point out defects or imperfections. And, finally, the

people of the United States have at no time, in no way, directly or

indirectly, authorized any State legislature to construe or interpret

_their_ high instrument of government; much less to interfere, by their

own power, to arrest its course and operation.

If, Sir, the people in these respects had done otherwise than they have

done, their Constitution could neither have been preserved, nor would

it have been worth preserving. And if its plain provisions shall now be

disregarded, and these new doctrines interpolated in it, it will become

as feeble and helpless a being as its enemies, whether early or more

recent, could possibly desire. It will exist in every State but as a

poor dependent on State permission. It must borrow leave to be; and

will be, no longer than State pleasure, or State discretion, sees fit

to grant the indulgence, and to prolong its poor existence.

But, Sir, although there are fears, there are hopes also. The people

have preserved this, their own chosen Constitution, for forty years,

and have seen their happiness, prosperity, and renown grow with its

growth, and strengthen with its strength. They are now, generally,

strongly attached to it. Overthrown by direct assault, it cannot be;

evaded, undermined, NULLIFIED, it will not be, if we and those who

shall succeed us here as agents and representatives of the people shall

conscientiously and vigilantly discharge the two great branches of our

public trust, faithfully to preserve, and wisely to administer it.

Mr. President, I have thus stated the reasons of my dissent to the

doctrines which have been advanced and maintained. I am conscious of

having detained you and the Senate much too long. I was drawn into the

debate with no previous deliberation, such as is suited to the

discussion of so grave and important a subject. But it is a subject of

which my heart is full, and I have not been willing to suppress the

utterance of its spontaneous sentiments. I cannot, even now, persuade

myself to relinquish it, without expressing once more my deep

conviction, that, since it respects nothing less than the Union of the

States, it is of most vital and essential importance to the public

happiness. I profess, Sir, in my career hitherto, to have kept steadily

in view the prosperity and honor of the whole country, and the

preservation of our Federal Union. It is to that Union we owe our

safety at home, and our consideration and dignity abroad. It is to that

Union that we are chiefly indebted for whatever makes us most proud of

our country. That Union we reached only by the discipline of our

virtues in the severe school of adversity. It had its origin in the

necessities of disordered finance, prostrate commerce, and ruined

credit. Under its benign influences, these great interests immediately

awoke, as from the dead, and sprang forth with newness of life. Every

year of its duration has teemed with fresh proofs of its utility and

its blessings; and although our territory has stretched out wider and

wider, and our population spread farther and farther, they have not

outrun its protection or its benefits. It has been to us all a copious

fountain of national, social, and personal happiness.

I have not allowed myself, Sir, to look beyond the Union, to see what

might lie hidden in the dark recess behind. I have not coolly weighed

the chances of preserving liberty when the bonds that unite us together

shall be broken asunder. I have not accustomed myself to hang over the

precipice of disunion, to see whether, with my short sight, I can

fathom the depth of the abyss below; nor could I regard him as a safe

counsellor in the affairs of this government, whose thoughts should be

mainly bent on considering, not how the Union may be best preserved,

but how tolerable might be the condition of the people when it should

be broken up and destroyed. While the Union lasts, we have high,

exciting, gratifying prospects spread out before us, for us and our

children. Beyond that I seek not to penetrate the veil. God grant that,

in my day, at least, that curtain may not rise! God grant that on my

vision never may be opened what lies behind! 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 everywhere, 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! [28]

The Murder of Captain Joseph White.

I am little accustomed, Gentlemen, to the part which I am now

attempting to perform. Hardly more than once or twice has it happened

to me to be concerned on the side of the government in any criminal

prosecution whatever; and never, until the present occasion, in any

case affecting life.

But I very much regret that it should have been thought necessary to

suggest to you that I am brought here to "hurry you against the law and

beyond the evidence." I hope I have too much regard for justice, and

too much respect for my own character, to attempt either; and 10 were I

to make such attempt, I am sure that in this court nothing can be

carried against the law, and that gentlemen, intelligent and just as

you are, are not, by any power, to be hurried beyond the evidence.

Though I could well have wished to shun this occasion, I have not felt

at liberty to withhold my professional assistance, when it is supposed

that I may be in some degree useful in investigating and discovering

the truth respecting this most extraordinary murder. It has seemed to

be a duty incumbent on me, as on every other citizen, to do my best and

my utmost to bring to light the perpetrators of this crime. Against the

prisoner at the bar, as an individual, I cannot have the slightest

prejudice. I would not do him the smallest injury or injustice. But I

do not affect to be indifferent to the discovery and the punishment of

this deep guilt. I cheerfully share in the opprobrium, how great soever

it may be, which is cast on those who feel and manifest an anxious

concern that all who had a part in planning, or a hand in executing,

this deed of midnight assassination, may be brought to answer for their

enormous crime at the bar of public justice.

Gentlemen, it is a most extraordinary case. In some respects, it has

hardly a precedent anywhere; certainly none in our New England history.

This bloody drama exhibited no suddenly excited, ungovernable rage. The

actors in it were not surprised by any lion-like temptation springing

upon their virtue, and overcoming it, before resistance could begin.

Nor did they do the deed to glut savage vengeance, or satiate

long-settled and deadly hate. It was a cool, calculating, money-making

murder. It was all "hire and salary, not revenge." It was the weighing

of money against life; the counting out of so many pieces of silver

against so many ounces of blood.

An aged man, without an enemy in the world, in his own house, and in

his own bed, is made the victim of a butcherly murder, for mere pay.

Truly, here is a new lesson for painters and poets. Whoever shall

hereafter draw the portrait of murder, if he will show it as it has

been exhibited, where such example was last to have been looked for, in

the very bosom of our New England society, let him not give it the grim

visage of Moloch, the brow knitted by revenge, the face black with

settled hate, and the bloodshot eye emitting livid fires of malice. Let

him draw, rather, a decorous, smooth-faced, bloodless demon; a picture

in repose, rather than in action; not so much an example of human

nature in its depravity, and in its paroxysms of crime, as an infernal

being, a fiend, in the ordinary display and development of his

character.

The deed was executed with a degree of self-possession and steadiness

equal to the wickedness with which it was planned. The circumstances

now clearly in evidence spread out the whole scene before us. Deep

sleep had fallen on the destined victim, and on all beneath his roof. A

healthful old man, to whom sleep was sweet, the first sound slumbers of

the night held him in their soft but strong embrace. The assassin

enters, through the window already prepared, into an unoccupied

apartment. With noiseless foot he paces the lonely hall, half lighted

by the moon; he winds up the ascent of the stairs, and reaches the door

of the chamber. Of this, he moves the lock, by soft and continued

pressure, till it turns on its hinges without noise; and he enters, and

beholds his victim before him. The room is uncommonly open to the

admission of light. The face of the innocent sleeper is turned from the

murderer, and the beams of the moon, resting on the gray locks of his

aged temple, show him where to strike. The fatal blow is given! and the

victim passes, without a struggle or a motion, from the repose of sleep

to the repose of death! It is the assassin's purpose to make sure work;

and he plies the dagger, though it is obvious that life has been

destroyed by the blow of the bludgeon. He even raises the aged arm,

that he may not fail in his aim at the heart, and replaces it again

over the wounds of the poinard! To finish the picture, he explores the

wrist for the pulse! He feels for it, and ascertains that it beats no

longer! It is accomplished. The deed is done. He retreats, retraces his

steps to the window, passes out through it as he came in, and escapes.

He has done the murder. No eye has seen him, no ear has heard him. The

secret is his own, and it is safe!

Ah! Gentlemen, that was a dreadful mistake. Such a secret can be safe

nowhere. The whole creation of God has neither nook nor corner where

the guilty can bestow it, and say it is safe. Not to speak of that eye

which pierces all disguises, and beholds every thing as in the splendor

of noon, such secrets of guilt are never safe from detection, even by

men. True it is, generally speaking, that "murder will out." True it

is, that Providence hath so ordained, and doth so govern things, that

those who break the great law of Heaven by shedding man's blood seldom

succeed in avoiding discovery. Especially, in a case exciting so much

attention as this, discovery must come, and will come, sooner or later.

A thousand eyes turn at once to explore every man, every thing, every

circumstance, connected with the time and place; a thousand ears catch

every whisper; a thousand excited minds intensely dwell on the scene,

shedding all their light, and ready to kindle the slightest

circumstance into a blaze of discovery. Meantime the guilty soul cannot

keep its own secret. It is false to itself; or rather it feels an

irresistible impulse of conscience to be true to itself. It labors

under its guilty possession, and knows not what to do with it. The

human heart was not made for the residence of such an inhabitant. It

finds itself preyed on by a torment, which it dares not acknowledge to

God or man. A vulture is devouring it, and it can ask no sympathy or

assistance, either from heaven or earth. The secret which the murderer

possesses soon comes to possess him; and, like the evil spirits of

which we read, it overcomes him, and leads him whithersoever it will.

He feels it beating at his heart, rising to his throat, and demanding

disclosure. He thinks the whole world sees it in his face, reads it in

his eyes, and almost hears its workings in the very silence of his

thoughts. It has become his master. It betrays his discretion, it

breaks down his courage, it conquers his prudence. When suspicions from

without begin to embarrass him, and the net of circumstances to

entangle him, the fatal secret struggles with still greater violence to

burst forth. It must be confessed, it will be confessed; there is no

refuge from confession but suicide, and suicide is confession.[1]

Much has been said, on this occasion, of the excitement which has

existed, and still exists, and of the extraordinary measures taken to

discover and punish the guilty. No doubt there has been, and is, much

excitement, and strange indeed it would be had it been otherwise.

Should not all the peaceable and well-disposed naturally feel

concerned, and naturally exert themselves to bring to punishment the

authors of this secret assassination? Was it a thing to be slept upon

or forgotten? Did you, Gentlemen, sleep quite as quietly in your beds

after this murder as before? Was it not a case for rewards, for

meetings, for committees, for the united efforts of all the good, to

find out a band of murderous conspirators, of midnight ruffians, and to

bring them to the bar of justice and law? If this be excitement, is it

an unnatural or an improper excitement?

It seems to me, Gentlemen, that there are appearances of another

feeling, of a very different nature and character; not very extensive,

I would hope, but still there is too much evidence of its existence.

Such is human nature, that some persons lose their abhorrence of crime

in their admiration of its magnificent exhibitions. Ordinary vice is

reprobated by them, but extraordinary guilt, exquisite wickedness, the

high flights and poetry of crime, seize on the imagination, and lead

them to forget the depths of the guilt, in admiration of the excellence

of the performance, or the unequalled atrocity of the purpose. There

are those in our day who have made great use of this infirmity of our

nature, and by means of it done infinite injury to the cause of good

morals. They have affected not only the taste, but I fear also the

principles, of the young, the heedless, and the imaginative, by the

exhibition of interesting and beautiful monsters. They render depravity

attractive, sometimes by the polish of its manners, and sometimes by

its very extravagance; and study to show off crime under all the

advantages of cleverness and dexterity. Gentlemen, this is an

extraordinary murder, but it is still a murder. We are not to lose

ourselves in wonder at its origin, or in gazing on its cool and skilful

execution. We are to detect and to punish it; and while we proceed with

caution against the prisoner, and are to be sure that we do not visit

on his head the offences of others, we are yet to consider that we are

dealing with a case of most atrocious crime, which has not the

slightest circumstance about it to soften its enormity. It is murder;

deliberate, concerted, malicious murder.

Although the interest of this case may have diminished by the repeated

investigation of the facts; still, the additional labor which it

imposes upon all concerned is not to be regretted, if it should result

in removing all doubts of the guilt of the prisoner.

The learned counsel for the prisoner has said truly, that it is your

individual duty to judge the prisoner; that it is your individual duty

to determine his guilt or innocence; and that you are to weigh the

testimony with candor and fairness. But much at the same time has been

said, which, though it would seem to have no distinct bearing on the

trial, cannot be passed over without some notice.

A tone of complaint so peculiar has been indulged, as would almost lead

us to doubt whether the prisoner at the bar, or the managers of this

prosecution, are now on trial. Great pains have been taken to complain

of the manner of the prosecution. We hear of getting up a case; of

setting in motion trains of machinery; of foul testimony; of

combinations to overwhelm the prisoner; of private prosecutors; that

the prisoner is hunted, persecuted, driven to his trial; that everybody

is against him; and various other complaints, as if those who would

bring to punishment the authors of this murder were almost as bad as

they who committed it.

In the course of my whole life, I have never heard before so much said

about the particular counsel who happen to be employed; as if it were

extraordinary that other counsel than the usual officers of the

government should assist in the management of a case on the part of the

government.[2] In one of the last criminal trials in this county, that

of Jackman for the "Goodridge robbery" (so called), I remember that the

learned head of the Suffolk Bar, Mr. Prescott, came down in aid of the

officers of the government. This was regarded as neither strange nor

improper. The counsel for the prisoner, in that case, contented

themselves with answering his arguments, as far as they were able,

instead of carping at his presence.

Complaint is made that rewards were offered, in this case, and

temptations held out to obtain testimony. Are not rewards always

offered, when great and secret offences are committed? Rewards were

offered in the case to which I have alluded; and every other means

taken to discover the offenders, that ingenuity or the most persevering

vigilance could suggest. The learned counsel have suffered their zeal

to lead them into a strain of complaint at the manner in which the

perpetrators of this crime were detected, almost indicating that they

regard it as a positive injury to them to have found but their guilt.

Since no man witnessed it, since they do not now confess it, attempts

to discover it are half esteemed as officious intermeddling and

impertinent inquiry.

It is said, that here even a Committee of Vigilance was appointed. This

is a subject of reiterated remark. This committee are pointed at, as

though they had been officiously intermeddling with the administration

of justice. They are said to have been "laboring for months" against

the prisoner. Gentlemen, what must we do in such a case? Are people to

be dumb and still, through fear of overdoing? Is it come to this, that

an effort cannot be made, a hand cannot be lifted, to discover the

guilty, without its being said there is a combination to overwhelm

innocence? Has the community lost all moral sense? Certainly, a

community that would not be roused to action upon an occasion such as

this was, a community which should not deny sleep to their eyes, and

slumber to their eyelids, till they had exhausted all the means of

discovery and detection, must indeed be lost to all moral sense, and

would scarcely deserve protection from the laws. The learned counsel

have endeavored to persuade you, that there exists a prejudice against

the persons accused of this murder. They would have you understand that

it is not confined to this vicinity alone; but that even the

legislature have caught this spirit. That through the procurement of

the gentleman here styled private prosecutor, who is a member of the

Senate, a special session of this court was appointed for the trial of

these offenders. That the ordinary movements of the wheels of justice

were too slow for the purposes devised. But does not everybody see and

know, that it was matter of absolute necessity to have a special

session of the court? When or how could the prisoners have been tried

without a special session? In the ordinary arrangement of the courts,

but one week in a year is allotted for the whole court to sit in this

county. In the trial of all capital offences a majority of the court,

at least, is required to be present. In the trial of the present case

alone, three weeks have already been taken up. Without such special

session, then, three years would not have been sufficient for the

purpose. It is answer sufficient to all complaints on this subject to

say, that the law was drawn by the late Chief Justice [3] himself, to

enable the court to accomplish its duties, and to afford the persons

accused an opportunity for trial without delay.

Again, it is said that it was not thought of making Francis Knapp, the

prisoner at the bar, a PRINCIPAL till after the death of Richard

Crowningshield, Jr.; that the present indictment is an afterthought;

that "testimony was got up" for the occasion. It is not so. There is no

authority for this suggestion. The case of the Knapps had not then been

before the grand jury. The officers of the government did not know what

the testimony would be against them. They could not, therefore, have

determined what course they should pursue. They intended to arraign all

as principals who should appear to have been principals, and all as

accessories who should appear to have been accessories. All this could

be known only when the evidence should be produced. But the learned

counsel for the defendant take a somewhat loftier flight still. They

are more concerned, they assure us, for the law itself, than even for

their client. Your decision in this case, they say, will stand as a

precedent. Gentlemen, we hope it will. We hope it will be a precedent

both of candor and intelligence, of fairness and of firmness; a

precedent of good sense and honest purpose pursuing their investigation

discreetly, rejecting loose generalities, exploring all the

circumstances, weighing each, in search of truth, and embracing and

declaring the truth when found.

It is said, that "laws are made, not for the punishment of the guilty,

but for the protection of the innocent." This is not quite accurate,

perhaps, but if so, we hope they will be so administered as to give

that protection. But who are the innocent whom the law would protect?

Gentlemen, Joseph White was innocent. They are innocent who, having

lived in the fear of God through the day, wish to sleep in his peace

through the night, in their own beds. The law is established that those

who live quietly may sleep quietly; that they who do no harm may feel

none. The gentleman can think of none that are innocent except the

prisoner at the bar, not yet convicted. Is a proved conspirator to

murder innocent? Are the Crowningshields and the Knapps innocent? What

is innocence? How deep stained with blood, how reckless in crime, how

deep in depravity may it be, and yet remain innocence? The law is made,

if we would speak with entire accuracy, to protect the innocent by

punishing the guilty. But there are those innocent out of a court, as

well as in; innocent citizens not suspected of crime, as well as

innocent prisoners at the bar.

The criminal law is not founded in a principle of vengeance. It does

not punish that it may inflict suffering. The humanity of the law feels

and regrets every pain it causes, every hour of restraint it imposes,

and more deeply still every life it forfeits. But it uses evil as the

means of preventing greater evil. It seeks to deter from crime by the

example of punishment. This is its true, and only true main object. It

restrains the liberty of the few offenders, that the many who do not

offend may enjoy their liberty. It takes the life of the murderer, that

other murders may not be committed. The law might open the jails, and

at once set free all persons accused of offences, and it ought to do so

if it could be made certain that no other offences would hereafter be

committed, because it punishes, not to satisfy any desire to inflict

pain, but simply to prevent the repetition of crimes. When the guilty,

therefore, are not punished, the law has so far failed of its purpose;

the safety of the innocent is so far endangered. Every unpunished

murder takes away something from the security of every man's life.

Whenever a jury, through whimsical and ill-founded scruples, suffer the

guilty to escape, they make themselves answerable for the augmented

danger of the innocent.

We wish nothing to be strained against this defendant. Why, then, all

this alarm? Why all this complaint against the manner in which the

crime is discovered? The prisoner's counsel catch at supposed flaws of

evidence, or bad character of witnesses, without meeting the case. Do

they mean to deny the conspiracy? Do they mean to deny that the two

Crowningshields and the two Knapps were conspirators? Why do they rail

against Palmer, while they do not disprove, and hardly dispute, the

truth of any one fact sworn to by him? Instead of this, it is made

matter of sentimentality that Palmer has been prevailed upon to betray

his bosom companions and to violate the sanctity of friendship. Again I

ask, Why do they not meet the case? If the fact is out, why not meet

it? Do they mean to deny that Captain White is dead? One would have

almost supposed even that, from some remarks that have been made. Do

they mean to deny the conspiracy? Or, admitting a conspiracy, do they

mean to deny only that Frank Knapp, the prisoner at the bar, was

abetting in the murder, being present, and so deny that he was a

principal? If a conspiracy is proved, it bears closely upon every

subsequent subject of inquiry. Why do they not come to the fact? Here

the defence is wholly indistinct. The counsel neither take the ground,

nor abandon it. They neither fly, nor light. They hover. But they must

come to a closer mode of contest. They must meet the facts, and either

deny or admit them. Had the prisoner at the bar, then, a knowledge of

this conspiracy or not? This is the question. Instead of laying out

their strength in complaining of the _manner_ in which the deed is

discovered, of the extraordinary pains taken to bring the prisoner's

guilt to light, would it not be better to show there was no guilt?

Would it not be better to show his innocence? They say, and they

complain, that the community feel a great desire that he should be

punished for his crimes. Would it not be better to convince you that he

has committed no crime?

Gentlemen, let us now come to the case. Your first inquiry, on the

evidence, will be, Was Captain White murdered in pursuance of a

conspiracy, and was the defendant one of this conspiracy? If so, the

second inquiry is, Was he so connected with the murder itself as that

he is liable to be convicted as a _principal_? The defendant is

indicted as a _principal_. If not guilty _as such_, you cannot convict

him. The indictment contains three distinct classes of counts. In the

first, he is charged as having done the deed with his own hand; in the

second, as an aider and abettor to Richard Crowningshield, Jr., who did

the deed; in the third, as an aider and abettor to some person unknown.

If you believe him guilty on either of these counts, or in either of

these ways, you must convict him.

It may be proper to say, as a preliminary remark, that there are two

extraordinary circumstances attending this trial. One is, that Richard

Crowningshield, Jr., the supposed immediate perpetrator of the murder,

since his arrest, has committed suicide. He has gone to answer before a

tribunal of perfect infallibility. The other is, that Joseph Knapp, the

supposed originator and planner of the murder, having once made a full

disclosure of the facts, under a promise of indemnity, is,

nevertheless, not now a witness. Notwithstanding his disclosure and his

promise of indemnity, he now refuses to testify. He chooses to return

to his original state, and now stands answerable himself, when the time

shall come for his trial. These circumstances it is fit you should

remember, in your investigation of the case.

Your decision may affect more than the life of this defendant. If he be

not convicted as principal, no one can be. Nor can any one be convicted

of a participation in the crime as accessory. The Knapps and George

Crowningshield will be again on the community. This shows the

importance of the duty you have to perform, and serves to remind you of

the care and wisdom necessary to be exercised in its performance. But

certainly these considerations do not render the prisoner's guilt any

clearer, nor enhance the weight of the evidence against him. No one

desires you to regard consequences in that light. No one wishes any

thing to be strained, or too far pressed against the prisoner. Still,

it is fit you should see the full importance of the duty which devolves

upon you.[4] . . .

Gentlemen, your whole concern should be to do your duty, and leave

consequences to take care of themselves. You will receive the law from

the court. Your verdict, it is true, may endanger the prisoner's life,

but then it is to save other lives. If the prisoner's guilt has been

shown and proved beyond all reasonable doubt, you will convict him. If

such reasonable doubts of guilt still remain, you will acquit him. You

are the judges of the whole case. You owe a duty to the public, as well

as to the prisoner at the bar. You cannot presume to be wiser than the

law. Your duty is a plain, straightforward one. Doubtless we would all

judge him in mercy. Towards him, as an individual, the law inculcates

no hostility; but towards him, if proved to be a murderer, the law, and

the oaths you have taken, and public justice, demand that you do your

duty.

With consciences satisfied with the discharge of duty, no consequences

can harm you. There is no evil that we cannot either face or fly from,

but the consciousness of duty disregarded. A sense of duty pursues us

ever. It is omnipresent, like the Deity. If we take to ourselves the

wings of the morning, and dwell in the uttermost parts of the sea, duty

performed, or duty violated, is still with us, for our happiness or our

misery. If we say the darkness shall cover us, in the darkness as in

the light our obligations are yet with us. We cannot escape their

power, nor fly from their presence. They are with us in this life, will

be with us at its close; and in that scene of inconceivable solemnity,

which lies yet further onward, we shall still find ourselves surrounded

by the consciousness of duty, to pain us wherever it has been violated,

and to console us so far as God may have given us grace to perform it.