NULLIFICATION, SECESSION
WEBSTER’S ARGUMENT
AND
THE KENTUCKY AND VIRGINIA RESOLUTIONS
CONSIDERED IN REFERENCE TO THE
CONSTITUTION AND HISTORICALLY
BY
CALEB WILLIAM LORING
G. P. PUTNAM’S SONS
NEW YORK
27 WEST TWENTY-THIRD STREET
LONDON
24 BEDFORD STREET, STRAND
The Knickerbocker Press
1893
COPYRIGHT, 1893
BY
CALEB WILLIAM LORING
Electrotyped, Printed, and Bound by
The Knickerbocker Press, New York
G. P. PUTNAM’S SONS
PREFACE.
I was much shocked a few years ago, in reading a Life of Webster, by the
statement of its able and distinguished author that really Hayne had the
right of the argument in the renowned debate on nullification. In reply
I prepared a statement of Webster’s argument. Besides what Webster had
so ably said, I found in the Constitution itself other proofs of the
nationality of our government, of the intent of those who made it to
establish a nation, of their full belief that they had done so, and
that, historically, there was no contention as to this.
The vital question is whether a national union was established by the
States, or a confederacy of independent nations formed with the right of
each to decide upon the validity of the acts of the General Government
and leave it at its pleasure.
The superiority in men and wealth that gave the North the victory did
not decide the right or wrong of secession: it may have shown its
impracticability; but if the right ever existed it remains to-day.
There are many authors who have at great length discussed this matter on
the side of the South, but the case of the North, it seems to me, has
not been fully set forth. The idea appears to be creeping into history,
a recent fad of some Northern writers and commentators, that the
nationality of our government was a question from its inception, and
that the United States Judiciary and Congress by assumptions have
largely extended its powers.
The nation, as Pallas Athene full grown and armed from the brain of
Zeus, sprang to life from the Constitution with the sovereign authority
necessary for its existence and the power to enforce its rule. In the
beginning there was no debate, no question of its nationality. The early
commentators on the Constitution (and Story wrote three volumes upon
that matter) did not even mention that there was a doubt of it.
To those who so often quote the Kentucky resolutions, it will perhaps be
a matter of surprise to learn that their purport and existence were
forgotten from the time they were promulgated until South Carolina’s
threat in 1830 of nullification.
That Virginian of Virginians, Patrick Henry, who so strenuously opposed
his State’s adoption of the Constitution, struck the keynote, when he
objected that it was “We, the people,” and not “We, the States,” that
made the government. Later, when convinced of the wisdom of the
adoption, and Virginia had shown by its resolutions its objections to
the Alien and Sedition laws, and discontent at the rule of John Adams
and the Federalists, he no less forcibly declared that Virginia _owed_
an obedience to the laws of the United States.
It will be new to many that the Virginia resolutions do not in the least
countenance the doctrine of secession and nullification: that the
resolutions and explanations of them by the Virginia Legislature testify
to an attachment and love of the Union, and a professed intent to
strengthen and perpetuate it, and are, as they declare, only a protest
against the assumption by the government of undelegated power.
In the belief that the right and might both prevailed in our civil war,
and in full trust in that faith, these remarks are submitted to the
people of our whole country.
CALEB WILLIAM LORING.
CONTENTS
CHAPTER I.
PAGE
WEBSTER AND HAYNE 1
Insistance of the South on the right of secession--Belief in this
of English and of some Northern writers--The doctrine of
Webster’s speech on nullification approved throughout the country
except in South Carolina--Hayne’s doctrine and speech--Webster’s
reply to Hayne’s attack on the Eastern States--Statement of
Webster’s argument in reply to Hayne and Calhoun--Jackson’s
vigorous opposition to nullification, and his proclamation.
CHAPTER II.
THE NATIONALITY OF THE CONSTITUTION 24
The question is whether a national government or a confederacy of
nations was made by the adoption of the Constitution--The
doctrine of nullification and secession considered--The State
governments and the National government have limited powers--The
foundation of our government was necessarily a compact--The
compact was for a national government--The failure of the
government of the Confederacy of the revolution--The Constitution
had the sanction of the Confederacy, of the State government and
of the people--Preamble of Constitution declares its
perpetuity--Supremacy of the Constitution over State judiciaries
and laws--All really sovereign powers given to United
States--Restriction of State powers--Powers of States only
local--People of States or parts of States making war against the
United States guilty of treason--Originally States, like
counties, were suable by the Constitution--By amendments to the
Constitution the United States can assume any power over the
States--Other provisions giving the general government great
power over States--Restriction of States to prevent their making
resistance--Constitution established a government over
individuals not States--Authority of the judiciary.
CHAPTER III.
THE CONSTITUTIONAL CONVENTION INTENDED NATIONALITY 51
Convention called to amend the articles of Confederacy--First
resolution passed: the government should be supreme and
national--The national plan offered by the Virginia delegation
preferred and considered--The New Jersey plan of a confederacy of
the States with coercive power to compel obedience--Hamilton’s
plan--The Virginia plan again adopted. The United States adopted
as the title--Resolutions passed that there should be two
branches of the legislature, the first to be chosen by the
people--Long controversy as to representation in Senate, settled
by an equal representation of the States, the vote to be per
capita--This compromise of representation in Senate does not
affect the supremacy of the granted powers--Resolution of
Elbridge Gerry referring the plan of a _national_ government to
the committee of detail unanimously passed--Government called
national in many of the referred votes--Committee of detail
report votes passed; the preamble declaring the government to be
for posterity--Article against treason again debated and passed
unanimously--Constitution committed to committee of style and
arrangement--New draft considered at length, adopted, and signed
by delegates--Diversity of opinion as to durability, no
suggestion that a State had a right to leave the Union--Yates and
Lansing left convention because the Constitution made a national
government--Satisfaction with it of Southern States--Washington’s
service--Franklin’s happy speech at close--George Mason did not
sign, though efficient in making it--Constitution submitted by
State legislatures in each State to a convention of the
people--Its acceptance considered in long sessions of the
conventions held in the several States--Everywhere announced as a
national government--Ratified as national in Massachusetts and
Virginia--Unanimous opinion of convention of New York of its
perpetuity--Amendments of Constitution, passed to quiet
apprehension as to its excessive powers--Early laws show a
liberal construction of the powers of the government--The right
of individuals to sue States taken away, but jurisdiction over
States and disputes between States retained--Insurrection in
Pennsylvania against excise law suppressed--Opinion of Washington
as to power of government--Alien and sedition laws passed.
CHAPTER IV.
KENTUCKY AND VIRGINIA RESOLUTIONS 88
Jefferson reputed author of Kentucky resolutions--Slight notice
taken of Kentucky resolutions--Resolutions are merely the opinion
of the legislature passing them--Kentucky resolutions declare the
States being united by compact, each has a right to pass on the
validity of the laws and doings of government made by the
compact--The compact of the Constitution is to leave to the
United States judiciary the determination of the validity of all
laws and cases. Right of contracting powers to compel
performance by a party refusing to keep its contract--Further
absurdity of Kentucky resolutions in denying the validity of all
punitive laws passed by Congress except for offences mentioned in
the Constitution--Virginia’s resolutions fundamentally
different--Madison never sanctioned nullification--Resolutions of
Virginia--They are: in case of usurpation it is the duty of the
States, not a State, to interpose to redress the evil--This not
an assertion that States could refuse obedience to the
laws--Opposing declarations of other States--Kentucky replied to
the resolutions of other States by protest, not by
nullification--Virginia’s explanation to counter-resolutions of
the other States drawn by Madison--The reply conciliatory--It
affirms the Constitution is the compact to which the States are a
party--It defines States as meaning people of the States--The
right to resist in the last resort is a claim of right of
revolution--The right to interpose exists only in usurpation of
powers and for the sole purpose of arresting the
usurpation--Admitted the judiciary is to decide on all questions
submitted to it--The assumption of undelegated powers stated to
be dangerous to liberty--Alien and sedition laws declared to be
unconstitutional--These resolutions are merely opinions--No
objection to sending them to other States--May possibly influence
opinion even of the judiciary--The request of Virginia to other
States to join her in constitutional ways to maintain their
rights not objectionable--Resolutions asserted to be strongest
proof of the attachment of Virginia to the Constitution and
Union--The resolutions, perhaps partisan, but do not assert the
doctrine of nullification--Resolutions before the explanation
alarmed Washington and Henry who vigorously attacked
them--Henry’s declaration that Virginia owed the same obedience
to United States as one of her counties did to her.
CHAPTER V.
SUPREMACY OF CONSTITUTION MAINTAINED 116
Doctrines of Jefferson’s inaugural--Serious conflict in the
Gideon Olmstead case--Jefferson signed an act authorizing the use
of the army and navy against a State--The United States
jurisdiction enforced against Pennsylvania--Unanimous objection
of legislature of Virginia to taking from the Supreme Court its
exclusive jurisdiction in cases where States were
concerned--Purchase of Louisiana by Jefferson--Josiah Quincy’s
speech a threat of rebellion, not a claim of right of
secession--Sayings and acts of Jefferson opposed to nullification
and secession--Jefferson’s direction that the _Federalist_ should
be the permanent text-book of the University of Virginia--The
submission of New England to the embargo--The Hartford convention
passed no resolves asserting State rights; it proposed amendments
to the Constitution--Supremacy of the government always
maintained.
CHAPTER VI.
CALHOUN, JACKSON, AND NATIONAL GOVERNMENT 134
Calhoun in the beginning a leader and advocate of national views
in the House of Representatives--Sectional division of States on
the question of slavery--Missouri compromise--Calhoun’s change of
opinion--The nullification of South Carolina--Calhoun’s
“inexorable logic” considered--The doctrine of nullification not
asserted from time of the Kentucky resolves until revived by
South Carolina--Jackson’s proclamation--His firmness--His
experience in political matters as lawyer, legislator, and
judge--Congress passed a force bill to collect duties--Act
reducing duties also passed--Strong resolutions of legislatures
of the Southern States against nullification--Supremacy of the
government maintained by judges appointed by all the political
parties in every case and over all the States--Judgments of State
courts constantly reversed until the time of the civil war--It is
Congress, not the court, that makes the laws--Judge
Story--History after the threatened nullification of South
Carolina--Legislation and decision of Supreme Court extending
slavery--The South’s preparation for disruption of the
Union--Virginia opposed the government without passing an
ordinance of secession--Military academies of Southern
States--The government stronger than Hamilton thought--The
exceeding excellence of the Constitution--New vigor of South
Carolina as a free State.
NULLIFICATION, SECESSION, WEBSTER.
CHAPTER I.
WEBSTER AND HAYNE.
In the renewed friendly relations at the dinner-table and in the
lecture-room, the North of late has had the pleasure of listening to the
speeches and discourses of Southern orators, soldiers, and politicians,
who, while asserting their loyalty to the Union, claim that that Union
was a compact between independent sovereign States, from which each of
these independent sovereign States had an undoubted right to secede; our
Southern brethren, beaten in the trial of arms, persistently insist that
they fought for the right.
Besides Jefferson Davis’ _History of the Confederacy_, as bitter to some
of its generals as to the North, the Vice-President of that government,
of high repute for ability and reasoning powers, Alexander H. Stephens,
published two ponderous volumes to prove not only that the South could
secede, but that it was obligatory, if it wished to retain its equality
and freedom, alleging as the principal reason the wrongful infringement
of the right of the South to take its “peculiar property,” slaves, into
all the territories of the Union, the common property of all the States.
Recently was published Semmes’ _Career of the Sumter and Alabama_,
abusive of the Yankee and of Northern friends like Buchanan, insisting
on the justice and necessity of secession, and asserting the tyranny and
mean oppression of the North. We have had also a republication of
Governor Tazewell’s _Review of President Jackson’s Proclamation against
Nullification_; and generally the dedication of statues and decorating
of the graves of the soldiers of the Confederacy have been taken as
occasions to show the justice of the lost cause.
It is to be hoped that few agree with General Early’s declamation at
Winchester as to those of the South who changed their opinion as to
secession: “The Confederate who has deserted since the war is infinitely
worse than the one who deserted during the war.”
The same opinion as to the right of secession has been very generally
held by British politicians; and that opinion to a great extent
prevailed, and to-day prevails, in the English army and navy. Mr. John
Morley, in his life of Burke, in reference to Burke’s speeches
denouncing the conduct of Great Britain towards us as colonies, says
that “the current of opinion was then precisely similar in England in
the struggle to which the United States owed its existence, as in the
great civil war between the Northern and Southern States of the American
Union”; “people in England convinced themselves, some after careful
examination, others on hearsay, that the South had a right to secede.”
Lord Coleridge, who served as one of the British commissioners in the
Geneva arbitration, in an address recently delivered at Exeter on Sir
Stafford Northcote, says:
“I have myself seen that most distinguished man, Charles
Francis Adams, subjected in society to treatment which, if he
had resented it, might have seriously imperilled the relations
of the two countries.... But in this critical state of things,
in and out of Parliament, Mr. Disraeli and Sir Stafford
Northcote on one side, and the Duke of Argyll and Sir George
Cornewall Lewis on the other, mainly contributed to keep this
country neutral, and to save us from the serious mistake of
taking part with the South.”
Even Mr. Bryce, a most learned author, whose opinion in this matter has
great weight, intimates that the seceding States legally may have been
right.[1]
[1] Bryce’s _American Commonwealth_, vol. i., pages 409 and _seq._ Yet
Mr. Bryce’s whole work is in accordance with the theory he asserts at
the beginning of chapter iv., vol. i., page 29: “The acceptance of the
Constitution of 1789 made the American people a nation. It turned what
had been a league of States into a Federal State by giving it a
National Government with a direct authority over all citizens.”
Lord Wolseley, in his article in _Macmillan’s Magazine_ on the life of
Lee, extolling him as the greatest general of his age and the most
perfect man,[2] informs us that each State possessed the right both
historically and legally under the Constitution to leave the Union at
its will. Apparently he did not know that January 23, 1861, Lee wrote to
his son: “Secession is nothing but revolution.” “It” (the Constitution)
“is intended for perpetual union, so expressed in the preamble, and for
the establishment of a government not a compact, and which can only be
dissolved by revolution or the assent of all the people in convention
assembled. It is idle to talk of secession.”[2]
[2] General Long’s _Memoirs of Lee_, page 88.
Possibly in time the North may be of the same opinion as to Lee’s
transcendent ability as a general. No one doubts now his great soldierly
attainments and the worth of his private character, but for the sake of
the existence of our nation, may it never believe he fought for the
right.
Very generally and very fortunately for the country our Southern
fellow-citizens, except their historians, some of their politicians, and
a few whom they call unreconstructed rebels, concede that the right of
secession has been put to the arbitrament of war and decided against the
South forever. Now they tell us that none are more loyal and will march
more willingly under the Stars and Stripes than those who fought so
bravely to the bitter end under the flag of the Confederacy. Even
Jefferson Davis, in the conclusion of his history, concedes that the
result of the war has shown that secession is impracticable. It is
difficult, however, to understand how might has made right, and the
conquest of the richer and more populous North over the weaker South has
settled forever the right or wrong of the matter. The North does not
believe in the sneering maxim of Frederick the Great, that the Almighty
is on the side of the heavier battalions.
Nor need we go to the South or to our English military critics for this
opinion as to the Northern right. In a recent short life of Webster
written for the American Statesmen series, a distinguished Republican
politician and historian, Henry Cabot Lodge, in criticising the greatest
speech of our greatest orator, Webster’s in reply to Hayne, on South
Carolina’s nullification doctrines, makes these astounding statements:
“That it was probably necessary, at all events Mr. Webster felt
it to be so, to argue that the Constitution at the outset was
not a compact between States, but a national instrument....
When the Constitution was adopted, it is safe to say that there
was not a man in the country, from Washington and Hamilton on
the one side, to George Clinton and George Mason on the other,
who regarded the new system as anything but an experiment
entered upon by the States, and from which each and every State
had the right peaceably to withdraw, a right which was very
likely to be exercised.”
This is a declaration of the right of secession at the inception of our
government and that every one held that belief. If this be correct, with
such a right the Union was no enduring tie, but was a mere rope of sand.
He adds that the weak places in Webster’s armor were historical in
nature. In support of this opinion, he instances the Virginia and
Kentucky resolves in 1799, and the Hartford convention of 1814; a few
disloyal, some might say treasonable, acts and declarations; and then
tells us a confederacy had grown into a nation, and that Mr. Webster set
forth the national conception of the Union; and the principles, which he
made clear and definite, went on broadening and deepening and carried
the North through the civil war and preserved the national life. A
singular result from a speech, if it were so fundamentally and
historically wrong.
If Mr. Lodge, and those who agree with him, and there are some at the
North who do, be right, and Hayne got the better of Webster in that
celebrated contest, the nullification doctrines and acts of South
Carolina were constitutionally sound and legal; and if South Carolina
were right in her nullification, the secession of the South, thirty
years afterwards, was also right.
We do not concede that nullification and secession have been barred
because the course of events has been such that independent sovereign
States have grown into a nation; nor do we admit that the Union and its
indissolubility depend only on the result of an appeal to arms. We claim
with Webster that nullification and secession were entirely indefensible
constitutionally, and also in the light of history at the time of the
foundation of our Constitution, and ever since.
There can be no doubt of the effect of Webster’s speeches at the time of
their delivery; they aroused the national pride of the people, and the
whole country, except portions of the South, responded.
It was in this nullification controversy that Webster won the title of
the Great Expounder of the Constitution; he was then at his prime,
physically and mentally. Always carefully dressed, when he made his
speeches, in the blue coat with brass buttons, buff waistcoat, and white
cravat of the Whigs of Fox’s time; his large frame, his massive head
with dark, straight hair, and deep set and, in debate, luminous black
eyes; his superb swarthy complexion brightened with brilliant color that
is even in women so handsome; his grand and rich voice; his emphatic
delivery;--all served to make him the most impressive of orators.
It was often said by his contemporaries at the bar that unless Webster
wholly believed in the justice of the cause he was maintaining he could
not argue well. He was not like some of the greatest advocates, whose
ability and ingenuity are only fully brought forth when they have to
contend with the difficulties of a weak and almost desperate case.
Hayne, his antagonist, was an able, eloquent, and accomplished orator.
His speech did not create that enthusiasm at the South that Webster’s
did at the North; but his own State pertinaciously adhered to its
doctrine of nullification and saw no defeat to its champion.
There were no less than three speeches of Hayne’s--one of them, the
second, running through two days--and the same number of replies by
Webster. The debate took place in the Senate in January, 1830; it arose
on an amended resolution originally offered by Mr. Foote as to the
expediency of limiting or hastening the sales of the public lands. South
Carolina was then threatening to declare the existing tariff null and
void, and to pass laws preventing the United States from collecting
duties in its ports. Hayne urged that the government should dispose of
the public lands and after paying the national debt with the proceeds
should get rid of the remainder, so that there should not be a shilling
of permanent revenue; he looked with alarm on the consolidation of the
government. To get the support of the West against the East, he accused
the East of a narrow policy towards the West as to the public lands and
the tariff, “the accursed tariff,” as he termed it, which kept
multitudes of laborers in the East to the detriment of the West. In his
second speech, Hayne not only attacked the East and its policy as to the
public lands and support of the tariff, but went further and “carried
the war into Africa,” as he styled it, reading speeches, pamphlets, and
sermons, showing, as he claimed, the disloyalty of New England in the
war of 1812.
He maintained that the United States had exceeded the powers granted to
it by the Constitution in making the existing tariff, which protected
the manufacturing industry of the East, only a section of the country,
and compelled the non-manufacturing States to pay tribute to it; that
the United States government was a compact between independent sovereign
States; that each of the States, being an independent sovereign, had a
right in its own sovereign capacity to decide whether laws made by the
United States exceeded the powers given it by the Constitution, and if a
State held a law made by the United States was not authorized by the
Constitution, it could treat it as null and void; that the existing
tariff was a clear and palpable violation of the Constitution, and that
South Carolina could and would pass laws forbidding and preventing the
collection in its territory of the duties levied under it.
Before taking up Webster’s constitutional argument, we will give a brief
account of his answer to the attack made on himself and the East.
Webster, in his great speech, the second in reply to Hayne, alluding to
Hayne’s allegation that he, Webster, had slept upon his first speech,
said, “he must have slept upon it, or not slept at all”: and he assured
him that he did sleep on it and slept soundly.
One of the most stinging and dramatic events that ever occurred in the
Senate-chamber, as a distinguished Senator from Maine has told the
writer, was the manner in which Webster turned upon his opponents the
taunt of Hayne, that the ghost of the murdered coalition, like Banquo’s,
would not down at their bidding, and had brought up him and his friends
to defend themselves. Webster replied that it was not the friends but
the enemies of the murdered Banquo, at whose bidding the spirit would
not down. The ghost of Banquo, like that of Hamlet, was an honest ghost;
then turning on and pointing to Calhoun, who, as Vice-President in
Jackson’s first administration, was presiding over the Senate, and whose
reputed ambition to succeed as President had signally failed, he asked:
“Those who murdered Banquo, what did they win by it?
Substantial good? Permanent power? Or disappointment rather,
and sore mortification;--dust and ashes--the common fate of
vaulting ambition overleaping itself?... Did they not soon find
that for another they had ‘filed their mind,’ that their
ambition had put
“‘A barren sceptre in their gripe,
Thence to be wrenched by an unlineal hand--
No son of theirs succeeding.’”
Calhoun showed his emotion and moved in his chair. In a speech made
three years afterwards, when a Senator, he denied that he had aspired
after the presidency.
Webster defended at great length, and successfully, the policy of the
East as to the public lands, internal improvements, and the tariff. He
showed that Calhoun himself was originally in favor of internal
improvements, and that he voted for tariffs; that in 1816 a protective
tariff (denounced as such) was supported by South Carolina votes and was
opposed by Massachusetts; that under the tariffs of 1816, 1824, 1828,
which were protective tariffs and had become the policy of the country,
Massachusetts became interested in manufacturing; so he, Mr. Webster, in
1828 supported a protective tariff, though in 1816 and 1824 he had
opposed it.
As to Hayne’s “carrying the war into the enemy’s country by attacking
Massachusetts,” Webster asks: “Has he disproved a fact, refuted a
proposition, weakened an argument, maintained by me?” And “what sort of
a war has he made of it? Why, sir, he has stretched a drag net over the
whole surface of perished pamphlets, indiscreet sermons, frothy
paragraphs, and fuming popular addresses; over whatever the pulpit in
its moments of alarm, the press in its heats, and parties in their
extravagance, have severally thrown off in times of general excitement
and violence.”
Webster, declining to separate these accusations and answer them, asks:
“But what had this to do with the controversy on hand; why should New
England be abused for holding opinions as dangerous to the Union as
those which he now holds? Why does he find no fault with those opinions
recently promulgated in South Carolina?”
Then Webster, noticing Hayne’s eulogium of South Carolina, instead of
attacking her, puts himself on the higher plane of a common national
pride and patriotism.
“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 Sumters, 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. 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 on the light of
Massachusetts, instead of South Carolina?”
Then Webster refers to the great harmony of principle and feeling
formerly existing between the two States. “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.”
It was one of those great efforts delivered on the spur of the moment,
which, though not written out, had been thought and studied beforehand.
The bitter invective, the grand patriotic words for our National Union,
which make the heart beat and quicken the blood, came from the genius of
the orator. Dr. Francis Lieber, a most competent judge, wrote: “To test
Webster’s oratory, which has been very attractive to me, I read a
portion of my favorite speeches of Demosthenes and then read, always
aloud, parts of Webster’s; then returned to the Athenian, and Webster
stood the test.”[3] The question of the supremacy of the government of
the Union over that of the States was familiar to Webster; he had taken
part in the argument of the cases before the Supreme Court involving
that issue, and well knew the decisions of Marshall, its great chief.
There is no such thing “as extemporaneous acquisition,” as Webster
himself said of his speech. Its views and arguments have been adopted by
our jurists, and by Bancroft, Hildreth, Fiske, and all of our old
Northern historians. Webster was probably a more diligent student than
Mr. Lodge gives him credit for; his habit being to rise in the early
morn and work then. The writer of this has heard him say that he had
read through all the volumes of _Hansard’s Parliamentary Debates_.
[3] Lodge’s _Webster_, p. 187.
In giving Webster’s argument on the question of nullification, we will
use his speech in reply to Hayne, and his subsequent speech in answer to
Calhoun, delivered three years later, in 1833.
He showed, as we shall see, that by adopting the Constitution a national
government was formed, with legislative authority to make laws that
should be supreme within the powers granted in the Constitution, with an
Executive to carry out those laws, and a supreme Judicial Department
that should decide all questions arising under those laws, and whether
they were within the granted powers, whose decision no State could
question.
After disposing of the personal attack on himself and that against the
East, Webster took up that against the Union; he went back to its
formation, treating it historically. Under the confederacy made between
the States the whole power of the government was in the Continental
Congress. Though it could make war and peace, it could raise troops
and obtain its revenues only through the action of the several States;
it could not even regulate commerce and had no coercive power over the
States; its executive powers were exercised by committees and officers
appointed by the Congress. This Continental Congress carried the
country safely through the revolution; but during the few years
afterwards,--without the rights and powers essential to an effective
government, without a Judiciary and a responsible Executive, the
States quarrelling amongst themselves and struggling with internal
troubles--its authority became so weakened that it inspired respect
neither at home nor abroad[4]; and the people of all the States, finding
the necessity of a stronger government, the separate States entered into
a convention to form one.
[4] Chief-Justice Marshall, in his opinion in the case of Cohens _vs._
Virginia, says that its requisitions were habitually disregarded by
the States. Mr. John Fiske, in his admirable work, called _The
Critical Period of American History_, fully shows the inefficiency and
inadequacy of the government of the Confederacy.
The first resolution of this convention was, that the government of the
United States ought to consist of a _Supreme Legislature, Judiciary, and
Executive_; this showed the power that it intended to give the
government.
The declaration in the preamble of the Constitution they formed, set
forth: “We, the PEOPLE of the United States, in order to form a more
perfect Union,” etc., “do _ordain and establish_ this Constitution for
the United States of America.”[5] It was not that the States or the
people of the separate States made the Constitution, but it was the
people of the whole United States, and the acceptance of this
Constitution was submitted to conventions of each State, chosen by the
people, and not to the State governments and legislatures.
[5] See Webster’s speech in answer to Calhoun, Webster’s _Speeches_,
vol. ii., page 180. Ed. of 1850.
It was from Webster’s declaration, “It is the people’s Constitution, the
people’s government; made for the people; made by the people and
answerable to the people,” that Lincoln took the closing words of his
short immortal Gettysburg address, and applied them to the national
soldiers who had there died for the Union: “That this nation, under God,
shall have a new birth of freedom, and that government of the people, by
the people, for the people, shall not perish from the earth.”
Webster referred to contemporary history, to the writings of the
_Federalist_, to the debates in the conventions, to the publications of
friends and foes, as all agreeing in the statement that a change had
been made from a confederacy of States to a different system, to a
national government. The writers of the _Federalist_ say:
“However gross a heresy it may be to maintain, that a party to
a compact has a right to revoke the compact, the doctrine
itself has had respectable advocates. The possibility of a
question of this nature proves the necessity of laying the
foundations of our national government deeper than in the mere
sanction of delegated authority. The fabric of American empire
ought to rest on the solid basis _of the consent of the
people_.”
And amongst all the ratifications by the States, there is not one which
speaks of the Constitution as a compact between States. “They say they
ordain and establish it; we do not speak of ordaining leagues and
compacts.” He argued that the Constitution that was formed was not a
league, confederacy, or compact between States, but a _government
proper_, creating direct relations between itself and individuals of the
States. It punished all crimes committed against the United States. It
had power to tax individuals, in any mode and to any extent, and it
possessed the power of demanding from individuals military service. “It
does not call itself a compact; it uses the word compact but once and
that is when it declares that the States shall enter into no compact. It
does not call itself a league or a confederacy but it declares itself a
constitution.” “A constitution is the fundamental regulation which
determines the manner in which the public authority is to be
executed,”[6] “the very being of the political society.” It says, this
Constitution shall be the law of the land, anything in any State
constitution to the contrary notwithstanding; “and it speaks of itself,
too, in plain contradistinction from a confederation; for it says that
all debts contracted and all engagements entered into by the United
States shall be as valid under this Constitution as under the
confederation; it does not say as valid under this compact, or this
league, or this confederation.”
[6] Webster’s definition of constitution apparently is not a full one.
A constitution is the fundamental statement of the powers granted to
the government established by it; and it may, as Webster says, also
contain the regulation under which its authority is to be executed.
“Again the Constitution speaks of that political system which is
established as the _Government of the United States_. Is it not doing
strange violence to language to call a league or compact between
sovereign powers a _government_?”
The United States Government thus originated from the people, as did 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.
It was an Union among the States that should last for all time. It
contains provisions for its amendment, none for its abandonment at any
time. It declares that new States may come into it, but it does not
declare that old States may go out.
The Government was brought into existence for the very purpose of
imposing certain salutary restraints on the State governments: it gave
the United States _sovereign powers_ over the States; it could make war,
it could coin money, it could make treaties; it prohibited a State from
making war, coining money, or making treaties; it gave the United States
the exclusive power to make citizens. The people erected this
Government; they gave it a Constitution, and in that Constitution they
enumerated the powers they bestowed; they made it a limited Government;
they defined its authority. They did not leave it to the States to carry
out the legal action--the application of law to individuals--as the
Confederacy did. In the Constitution itself it declared 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_. No
State law is to be valid which comes in conflict.
Having enumerated the specified powers of the Government, it gives to
Congress as a distinct and substantive clause, the power to make all
laws which shall be necessary and proper for carrying into execution the
foregoing powers and all other powers vested by this Constitution in the
Government of the United States or in any department or office thereof.
Who is to decide when a controversy arises between the laws of a State
and the United States? The claim of South Carolina is that instead
of one tribunal we are to have four and twenty, as many tribunals
as States; that each State is at liberty to decide as to the
constitutionality of an act for itself and none bound to respect the
decision of others.
“But in regard to this question the Constitution is still more
express and emphatic. It declares that the judicial power of
the United States shall extend to all _cases_ in law or equity
arising under the Constitution, laws of the United States, and
treaties; that there shall be one Supreme Court, and that this
Supreme Court shall have appellate jurisdiction of all these
cases, subject to such exceptions as Congress may make.”
“No language could provide with more effect and precision than
is here done, for subjecting constitutional questions to the
ultimate decision of the Supreme Court.” “And after the
Constitution was formed and while the whole country was
engaged in discussing its merits, one of its most
distinguished advocates, Madison, told the people ‘it was true
that in controversies relating to the boundary between the two
jurisdictions, the tribunal which is ultimately to decide is
to be established under the General Government.’ Mr. Martin
who had been a member of the convention, asserted the same
thing to the Legislature of Maryland and urged it as a reason
for rejecting the Constitution.[7] Mr. Pinckney, himself also
a leading member of the convention, declared it to the people
of South Carolina; everywhere it was admitted by friends and
foes that this power was given to the United States Judiciary
in the Constitution.”
[7] As the whole question of nullification depends upon whether a
State is bound by a decision of the United States Court we give Mr.
Martin’s succinct and comprehensive statement of the power that the
third article of the Constitution conferred on the United States.
“Whether, therefore, any laws or _regulations_ of the Congress, any
acts of _its President or other officers_, are contrary to, or not
warranted by the Constitution, rests only with the judges, who are
appointed by Congress, to determine; by whose determination every
State must _be bound_.” Luther Martin’s letter, Elliot’s _Debates_
(second ed.), 1863, vol. i., p. 380.
We must bear in mind that this discussion was on the power of South
Carolina while remaining in the Union to declare the laws of the United
States null and void, and her own laws preventing their execution valid.
A singular claim that a State could enjoy the benefits of the Union and
at the same time disobey its laws; this is nullification which Mr.
Webster had to combat. His argument, however, applies equally strongly
to the claim of the right of secession. Indeed he says in his speech in
reply to Calhoun:
“Therefore, since any State before she can prove her right to
dissolve the Union, must show her authority to undo what has
been done, no State is at liberty to _secede_ on the ground
that the other States have done nothing but _accede_. She must
show that she has a right to _reverse_ what has been
_ordained_, to _unsettle_ and _overthrow_ what has been
_established_, to _reject_ what the people have _adopted_, and
to _break up_ what they have _ratified_, because these are the
terms which express the transactions which have actually taken
place. In other words, she must show her right to make a
revolution.”
Between Webster’s debate with Hayne, and that with Calhoun three years
afterwards, South Carolina had called a convention of its people and
passed resolutions declaring the United States tariff laws null and
void, and made laws of her own, forbidding and preventing the collection
of duties in the State, with threats of secession if an attempt to
collect them were made. Measures had also been taken to make a forcible
resistance--munitions of war collected and the militia organized and
drilled. Fortunately for the country at that crisis Andrew Jackson, the
President, was a Southerner and owner of many slaves and true to the
Union. He was a man of indomitable will, believed in implicitly and
trusted and enthusiastically followed by the great mass of the people.
Any policy of his commanded success. He did not hesitate as to his
course, he at once issued a proclamation, and sent a message to
Congress asking for powers to enforce the tariff laws of the United
States and if necessary to remove the custom-houses to safe places. In
his proclamation he declared that the Constitution of the United States
forms a government, not a league; that it is a government that acts on
the people individually and not on the States, and whether it be formed
by compact between the States or in any other manner its character is
the same. “The States retained all the power of the government,” he
said, “they did not grant: but each State, having expressly parted with
so many powers as to constitute, jointly with the other States, a single
nation, cannot from that period possess any right to secede, because
such secession does not break a league, but destroys the unity of a
nation.” As a South Carolinian--Jackson supposed he was born in South
Carolina, though his biographer, Parton, says it was in North Carolina,
near the line--he earnestly pleaded with his fellow-citizens not to
resist the laws of the United States.[8] He had previously at a dinner
in celebration of Jefferson’s birthday, when nullification sentiments
had been advanced, given as his toast: “Our Federal Union: it must be
preserved.”
[8] Jackson’s proclamation, Elliot’s _Debates_, 582. Elliot’s
_Debates_ were published by authority of Congress, Calhoun highly
praising them. See his letter in the beginning of vol. i.
It was generally said and believed that Jackson had threatened to hang
Calhoun as high as Haman if the law was resisted. This from Jackson was
no idle threat. There had been no other President of such inflexible
will. No other general ever assumed the authority he did in the Indian
wars and in that of 1812. He had fought those campaigns and gained the
battle of New Orleans, suffering at times agony from old wounds received
in a street brawl, that would have disabled any ordinary commander.
Thrice when in command he had exercised the power of punishing
capitally; he had hanged Arbuthnot and Ambrister; again, he had a
militiaman shot; and at the close of the war had permitted the execution
of six Tennesseeans, though they pleaded in defence, and probably
believed, that their time of enlistment had ended. The threat of
hanging, however, did not daunt Calhoun, who declared boldly, perhaps
pathetically, that Carolina alone would resist, even to death itself.
Mr. Clay, as on other occasions where a great crisis had arisen,
effected a compromise. A force bill to collect duties, which South
Carolina strenuously opposed, was enacted by large majorities in the
Senate and House of Representatives; and a bill was afterwards passed
gradually reducing the import duties then levied, which Calhoun and
South Carolina assented to.