American Eloquence, Volume I. (of 4) by Various

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This leads us to inquire into the origin of this government and the
source of its power. Whose agent is it? Is it the creature of the State
Legislatures, or the creature of the people? If the Government of the
United States be the agent of the State governments, then they may
control it, provided they can agree in the manner of controlling it; if
it be the agent of the people, then the people alone can control it,
restrain it, modify, or reform it. It is observable enough, that the
doctrine for which the honorable gentleman contends leads him to the
necessity of maintaining, not only that this General Government is the
creature of the States, but that it is the creature of each of the
States, severally, so that each may assert the power for itself of
determining whether it acts within the limits of its authority. It is
the servant of four-and-twenty masters, of different wills and different
purposes, and yet bound to obey all. This absurdity (for it seems no
less) arises from a misconception as to the origin of this government
and its true character. It is, sir, the people's Constitution, the
people's government, made for the people, made by the people, and
answerable to the people. The people of the United States have declared
that this Constitution shall be supreme law. We must either admit the
proposition, or deny their authority. The States are, unquestionably,
sovereign, so far as their sovereignty is not affected by this supreme
law. But the State Legislatures, as political bodies, however sovereign,
are yet not sovereign over the people. So far as the people have given
power to the General Government, so far the grant is unquestionably
good, and the Government holds of the people, and not of the State
governments. We are all agents of the same supreme power, the people.
The General Government and the State governments derive their authority
from the same source. Neither can, in relation to the other, be called
primary, though one is definite and restricted, and the other general
and residuary. The National Government possesses those powers which it
can be shown the people have conferred on it, and no more. All the rest
belongs to the State governments, or to the people themselves. So far as
the people have restrained State sovereignty by the expression of their
will, in the Constitution of the United States, so far, it must be
admitted, State sovereignty is effectually controlled. I do not contend
that it is, or ought to be, controlled farther. The sentiment to which I
have referred propounds that State sovereignty is only to be controlled
by its own "feeling of justice"--that is to say, it is not to be
controlled at all, for one who is to follow his own feelings is under no
legal control. Now, however men may think this ought to be, the fact is
that the people of the United States have chosen to impose control on
State sovereignties. There are those, doubtless, who wish they had been
left without restraint; but the Constitution has ordered the matter
differently. To make war, for instance, is an exercise of sovereignty;
but the Constitution declares that no State shall make war. To coin
money is another exercise of sovereign power; but no State is at liberty
to coin money. Again, the Constitution says that no sovereign State
shall be so sovereign as to make a treaty. These prohibitions, it must
be confessed, are a control on the State sovereignty of South Carolina,
as well as of the other States, which does not arise "from her own
feelings of honorable justice." The opinion referred to, therefore, is
in defiance of the plainest provisions of the Constitution.

There are other proceedings of public bodies which have already been
alluded to, and to which I refer again, for the purpose of ascertaining
more fully what is the length and breadth of that doctrine denominated
the Carolina doctrine, which the honorable member has now stood up on
this floor to maintain. In one of them I find it resolved, that "the
tariff of 1828, and every other tariff designed to promote one branch of
industry at the expense of others, is contrary to the meaning and
intention of the federal compact, and such a dangerous, palpable, and
deliberate usurpation of power, by a determined majority, wielding the
General Government beyond the limits of its delegated powers, as calls
upon the States which compose the suffering minority, in their sovereign
capacity, to exercise the powers which, as sovereigns, necessarily
devolve upon them when their contract is violated."

Observe, sir, that this resolution holds the tariff of 1828, and every
other tariff designed to promote one branch of industry at the expense
of another, to be such a dangerous, palpable, and deliberate usurpation
of power, as calls upon the States, in their sovereign capacity, to
interfere by their own authority. This denunciation, Mr. President, you
will please to observe, includes our old tariff of 1816, as well as all
others; because that was established to promote the interest of the
manufacturers of cotton, to the manifest and admitted injury of the
Calcutta cotton trade. Observe, again, that all the qualifications are
here rehearsed and charged upon the tariff, which are necessary to bring
the case within the gentleman's proposition. The tariff is a usurpation;
it is a dangerous usurpation; it is a palpable usurpation; it is a
deliberate usurpation. It is such a usurpation, therefore, as calls upon
the States to exercise their right of interference. Here is a case,
then, within the gentleman's principles, and all his qualifications of
his principles. It is a case for action. The Constitution is plainly,
dangerously, palpably, and deliberately violated; and the States must
interpose their own authority to arrest the law. Let us suppose the
State of South Carolina to express the same opinion, by the voice of her
Legislature. That would be very imposing; but what then? It so happens
that, at the very moment, when South Carolina resolves that the tariff
laws are unconstitutional, Pennsylvania and Kentucky resolve exactly the
reverse. They hold those laws to be both highly proper and strictly
constitutional. And now, sir, how does the honorable member propose to
deal with this case? How does he relieve us from this difficulty upon
any principle of his? His construction gets us into it; how does he
propose to get us out?

In Carolina the tariff is a palpable, deliberate usurpation; Carolina,
therefore, may nullify it, and refuse to pay the duties. In Pennsylvania
it is both clearly constitutional and highly expedient; and there the
duties are to be paid. And yet we live under a government of uniform
laws, and under a constitution, too, which contains an express
provision, as it happens, that all duties shall be equal in all States.
Does not this approach absurdity?

If there be no power to settle such questions, independent of either of
the States, is not the whole Union a rope of sand? Are we not thrown
back again precisely upon the old Confederation?

It is too plain to be argued. Four-and-twenty interpreters of
constitutional law, each with a power to decide for itself, and none
with authority to bind any body else, and this constitutional law the
only bond of their union! What is such a state of things but a mere
connection during pleasure, or to use the phraseology of the times,
during feeling? And that feeling, too, not the feeling of the people,
who established the Constitution, but the feeling of the State
governments.

In another of the South Carolina addresses, having premised that the
crisis requires "all the concentrated energy of passion," an attitude of
open resistance to the laws of the Union is advised. Open resistance to
the laws, then, is the constitutional remedy, the conservative power of
the State, which the South Carolina doctrines teach for the redress of
political evils, real or imaginary. And its authors further say, that,
appealing with confidence to the Constitution itself, to justify their
opinions, they cannot consent to try their accuracy by the courts of
justice. In one sense, indeed, sir, this is assuming an attitude of open
resistance in favor of liberty. But what sort of liberty? The liberty of
establishing their own opinions, in defiance of the opinions of all
others; the liberty of judging and deciding exclusively themselves, in a
matter in which others have as much right to judge and decide as they;
the liberty of placing their own opinion above the judgment of all
others, above the laws, and above the Constitution. This is their
liberty, and this is the fair result of the proposition contended for by
the honorable gentleman. Or, it may be more properly said, it is
identical with it, rather than a result from it. * * *

Sir, the human mind is so constituted, that the merits of both sides of
a controversy appear very clear, and very palpable, to those who
respectively espouse them; and both sides usually grow clearer as the
controversy advances. South Carolina sees unconstitutionality in the
tariff; she sees oppression there also, and she sees danger.
Pennsylvania, with a vision not less sharp, looks at the same tariff,
and sees no such thing in it; she sees it all constitutional, all
useful, all safe. The faith of South Carolina is strengthened by
opposition, and she now not only sees, but resolves, that the tariff is
palpably unconstitutional, oppressive, and dangerous; but Pennsylvania,
not to be behind her neighbors, and equally willing to strengthen her
own faith by a confident asseveration resolves, also, and gives to every
warm affirmative of South Carolina, a plain, downright, Pennsylvania
negative. South Carolina, to show the strength and unity of her opinion,
brings her assembly to a unanimity, within seven voices; Pennsylvania,
not to be outdone in this respect any more than in others, reduces her
dissentient fraction to a single vote. Now, sir, again, I ask the
gentleman, What is to be done? Are these States both right? Is he bound
to consider them both right? If not, which is in the wrong? or, rather,
which has the best right to decide? And if he, and if I, are not to know
what the Constitution means, and what it is, till those two State
legislatures, and the twenty-two others, shall agree in its
construction, what have we sworn to, when we have sworn to maintain it?
I was forcibly struck, sir, with one reflection, as the gentleman went
on in his speech. He quoted Mr. Madison's resolutions, to prove that a
State may interfere, in a case of deliberate, palpable, and dangerous
exercise of a power not granted. The honorable member supposes the
tariff law to be such an exercise of power; and that consequently a case
has arisen in which the State may, if it see fit, interfere by its own
law. Now it so happens, nevertheless, that Mr. Madison deems this same
tariff law quite constitutional. Instead of a clear and palpable
violation, it is, in his judgment, no violation at all. So that, while
they use his authority in a hypothetical case, they reject it in the
very case before them. All this, sir, shows the inherent futility, I had
almost used a stronger word, of conceding this power of interference to
the State, and then attempting to secure it from abuse by imposing
qualifications of which the States themselves are to judge. One of two
things is true; either the laws of the Union are beyond the discretion
and beyond the control of the States; or else we have no constitution of
general government, and are thrust back again to the days of the
Confederation. * * *

I must now beg to ask, sir, whence is this supposed right of the States
derived? Where do they find the power to interfere with the laws of the
Union? Sir, the opinion which the honorable gentleman maintains, is a
notion founded in a total misapprehension, in my judgment, of the origin
of this government, and of the foundation on which it stands. I hold it
to be a popular government, erected by the people; those who administer
it, responsible to the people; and itself capable of being amended and
modified, just as the people may choose it should be. It is as popular,
just as truly emanating from the people, as the State governments. It is
created for one purpose; the State governments for another. It has its
own powers; they have theirs. There is no more authority with them to
arrest the operation of a law of Congress, than with Congress to arrest
the operation of their laws. We are here to administer a constitution
emanating immediately from the people, and trusted by them to our
administration. It is not the creature of the State governments.

This government, sir, is the independent off-spring of the popular will.
It is not the creature of State legislatures; nay, more, if the whole
truth must be told, the people brought it into existence, established
it, and have hitherto supported it, for the very purpose amongst others,
of imposing certain salutary restraints on State sovereignties. The
States cannot now make war; they cannot contract alliances; they cannot
make, each for itself, separate regulations of commerce; they cannot lay
imposts; they cannot coin money. If this Constitution, sir, be the
creature of State legislatures, it must be admitted that it has obtained
a strange control over the volitions of its creators.

The people, then, sir, erected this government. They gave it a
constitution, and in that constitution they have enumerated the powers
which they bestow on it. They have made it a limited government. They
have defined its authority. They have restrained it to the exercise of
such powers as are granted; and all others, they declare, are reserved
to the States, or the people. But, sir, they have not stopped here. If
they had, they would have accomplished but half their work. No
definition can be so clear as to avoid the possibility of doubt; no
limitation so precise, as to exclude all uncertainty. Who, then, shall
construe this grant of the people? Who shall interpret their will, where
it may be supposed they have left it doubtful? With whom do they repose
this ultimate right of deciding on the powers of the government? Sir,
they have settled all this in the fullest manner. They have left it with
the government itself, in its appropriate branches. Sir, the very chief
end, the main design, for which the whole Constitution was framed and
adopted, was to establish a government that should not be obliged to act
through State agency, or depend on State opinion or State discretion.
The people had had quite enough of that kind of government under the
Confederation. Under that system, the legal action, the application of
law to individuals, belonged exclusively to the States. Congress could
only recommend; their acts were not of binding force, till the States
had adopted and sanctioned them. Are we in that condition still? Are we
yet at the mercy of State discretion and State construction? Sir, if we
are, then vain will be our attempt to maintain the Constitution under
which we sit.

But, sir, the people have wisely provided, in the Constitution itself, a
proper, suitable mode and tribunal for settling questions of
constitutional law. There are in the Constitution grants of powers to
Congress, and restrictions on these powers. There are also prohibitions
on the States. Some authority must, therefore, necessarily exist, having
the ultimate jurisdiction to fix and ascertain the interpretation of
these grants, restrictions, and prohibitions. The Constitution has
itself pointed out, ordained, and established that authority. How has it
accomplished this great and essential end? By declaring, sir, that "the
Constitution and the laws of the United States made in pursuance
thereof, shall be the supreme law of the land, any thing in the
Constitution or laws of any State to the contrary notwithstanding."

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

Sir, I deny this power of State legislatures altogether. It cannot stand
the test of examination. Gentlemen may say, that, in an extreme case, a
State government may protect the people from intolerable oppression.
Sir, in such a case the people might protect themselves without the aid
of the State governments. Such a case warrants revolution. It must make,
when it comes, a law for itself. A nullifying act of a State legislature
cannot alter the case, nor make resistance any more lawful. In
maintaining these sentiments, sir, I am but asserting the rights of the
people. I state what they have declared, and insist on their right to
declare it.

They have chosen to repose this power in the General Government, and I
think it my duty to support it like other constitutional powers.

For myself, sir, I do not admit the competency of South Carolina or any
other State to prescribe my constitutional duty; or to settle, between
me and the people the validity of laws of Congress for which I have
voted. I decline her umpirage. I have not sworn to support the
Constitution according to her construction of the clauses. I have not
stipulated by my oath of office or otherwise, to come under any
responsibility, except to the people, and those whom they have appointed
to pass upon the question, whether laws, supported by my votes, conform
to the Constitution of the country. And, sir, if we look to the general
nature of the case, could any thing have been more preposterous than to
make a government for the whole Union, and yet leave its powers subject,
not to one interpretation, but to thirteen or twenty-four
interpretations? Instead of one tribunal, established by all,
responsible to all, with power to decide for all, shall constitutional
questions be left to four-and-twenty popular bodies, each at liberty to
decide for itself, and none bound to respect the decisions of others;
and each at liberty, too, to give a new constitution on every new
election of its own members? Would any thing, with such a principle in
it, or rather with such a destitution of all principle be fit to be
called a government? No, sir. It should not be denominated a
constitution. It should be called, rather, a collection of topics for
everlasting controversy; heads of debate for a disputatious people. It
would not be a government. It would not be adequate to any practical
good, or fit for any country to live under.

To avoid all possibility of being misunderstood, allow me to repeat
again in the fullest manner, that I claim no powers for the government
by forced or unfair construction. I admit that it is a government of
strictly limited powers; of enumerated, specified, and particularized
powers; and that whatsoever is not granted is withheld. But
notwithstanding all this, and however the grant of powers may be
expressed, its limit and extent may yet, in some cases, admit of doubt;
and the General Government would be good for nothing, it would be
incapable of long existing, if some mode had not been provided in which
those doubts as they should arise, might be peaceably but
authoritatively solved.

And now, Mr. President, let me run the honorable gentleman's doctrine a
little into its practical application. Let us look at his probable
_modus operandi_. If a thing can be done, an ingenious man can tell how
it is to be done, and I wish to be informed how this State interference
is to be put in practice, without violence, bloodshed, and rebellion. We
will take the existing case of the tariff law. South Carolina is said to
have made up her opinion upon it. If we do not repeal it (as we probably
shall not), she will then apply to the case the remedy of her doctrine.
She will, we must suppose, pass a law of her legislature, declaring the
several acts of Congress, usually called the tariff laws, null and void,
so far as they respect South Carolina, or the citizens thereof. So far,
all is a paper transaction, and easy enough. But the collector at
Charleston is collecting the duties imposed by these tariff laws. He,
therefore, must be stopped. The collector will seize the goods if the
tariff duties are not paid. The State authorities will undertake their
rescue, the marshal, with his posse, will come to the collector's aid,
and here the contest begins. The militia of the State will be called out
to sustain the nullifying act. They will march, sir, under a very
gallant leader; for I believe the honorable member himself commands the
militia of that part of the State. He will raise the NULLIFYING ACT on
his standard, and spread it out as his banner! It will have a preamble,
setting forth, that the tariff laws are palpable, deliberate, and
dangerous violations of the Constitution! He will proceed, with this
banner flying, to the custom-house in Charleston,

"All the while,
Sonorous metal blowing martial sounds."

Arrived at the custom-house, he will tell the collector that he must
collect no more duties under any of the tariff laws. This he will be
somewhat puzzled to say, by the way, with a grave countenance,
considering what hand South Carolina herself had in that of 1816. But,
sir, the collector would not, probably, desist at his bidding. He would
show him the law of Congress, the treasury instruction, and his own oath
of office. He would say, he should perform his duty, come what come
might.

Here would ensue a pause; for they say that a certain stillness precedes
the tempest. The trumpeter would hold his breath awhile, and before all
this military array should fall on the custom-house, collector, clerks,
and all, it is very probable some of those composing it would request of
their gallant commander-in-chief to be informed upon a little point of
law; for they have doubtless, a just respect for his opinions as a
lawyer, as well as for his bravery as a soldier. They know he has read
Blackstone and the Constitution, as well as Turenne and Vauban. They
would ask him, therefore, somewhat concerning their rights in this
matter. They would inquire whether it was not somewhat dangerous to
resist a law of the United States. What would be the nature of their
offence, they would wish to learn, if they, by military force and array,
resisted the execution in Carolina of a law of the United States, and it
should turn out, after all, that the law was constitutional? He would
answer, of course, treason. No lawyer could give any other answer. John
Fries, he would tell them, had learned that some years ago. "How, then,"
they would ask, "do you propose to defend us? We are not afraid of
bullets, but treason has a way of taking people off that we do not much
relish. How do you propose to defend us?" "Look at my floating banner,"
he would reply; "see there the nullifying law!"

"Is it your opinion, gallant commander," they would then say, "that, if
we should be indicted for treason, that same floating banner of yours
would make a good plea in bar?" "South Carolina is a sovereign State,"
he would reply. "That is true; but would the judge admit our plea?"
"These tariff laws," he would repeat, "are unconstitutional, palpably,
deliberately, dangerously." "That may all be so; but if the tribunal
should not happen to be of that opinion, shall we swing for it? We are
ready to die for our country, but it is rather an awkward business, this
dying without touching the ground! After all, that is a sort of hemp tax
worse than any part of the tariff."

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