CHAPTER I.

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.

Nullification, Secession, Webster's Argument, and the Kentucky and Virginia Resolutions Considered in Reference to the Constitution and Historically · 第 1 / 6 章