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SENATE.]

Revenue Collection Bill.

(FEB. 11, 1833,

cape his punishment, and the State courts and the State in the world, nor either of the four quarters thereof, but authority trampled on by the lawless felon. . The right to in the very people who were then organizing a Governtransfer is preceded by no examination; the prisoner is to ment for themselves--the people of South Carolina. be judge in his own cause, and would be blind to his own It does not appertain to a citizen of South Carolina to prospect of escape, if he did not swear roundly where he deny the authority of his Government, thus instituted. was clearly guilty, in order to get out of the clutches of The people of South Carolina have the supreme power, the law.

so far as to govern themselves. They divested themselves Thus it appears that the States may not only lose all of this power, except when they should be called togepower to punish offenders against their laws purely local, ther by two-thirds of both branches of the Legislature. but that it is proposed actually to enact such a provision. “No convention of the people shall be called, only by The Senator from Delaware, to whom I always listen with the concurrence of two-thirds of both branches of the pleasure--to none more so--in his argument against the whole representation." Having established the principle rights of the States, puts an extreme case. He says: Sup- that all power was in them, they put their Government in pose 10,000 foreigners to become naturalized, and to lo- motion, and limited their own power by a check that they cate themselves in Delaware; they would be equal to the would not resume it, except by two-thirds of the repre present number of votes in that State; they might nullify sentation consenting thereto. When, therefore, two-thirds à law of Congress; and that this would be an efficient agree that the power shall be resumed, which is a first means in the hands of foreigners to subvert our Govern- principle in their Government, the Government then be. ment. Sir, I admit this is an extreme case, and a violent comes a pure democracy. supposition; but I will meet it; I will never be driven from Mr. HOLMES here inquired when the constitution of a general rule laid down by me, by an extreme case; a South Carolina was adopted; whether it was not subseprinciple, to be worth any thing, should be able to resist all quent to the federal constitution? extreme cases, Although the Senator has thought prop Mr. MILLER answered, in 1790, subsequent to the er to disparage State rights in the person of Delaware, so federal constitution. Mr. M. said, he did not consider the ably represented by him on this foor, I will not follow Senator from Maine could make much out of the time, his example. I have known a judge refuse to let counsel since he contended that one convention was equal to anosuppose him capable of committing a fraud. I consider ther. A convention had adopted the federal constitution; it somewhat a discourteous supposition, that a concentra- a convention of the same people, after this, for themtion of foreigners in the State of Delaware might be the selves, at least, could say that all power lies with themmeans of introducing foreign-influence, and injury to the selves, for their own government. Subsequent laws aboperations of our Government. My reply to this case is, rogate prior laws, if they conflict. One Congress cannot that if ten thousand foreigners are naturalized in the Unit- prevent a subsequent one from repealing a law; nor can ed States, and settle in Delaware, they will be citizens of one convention of the people of South Carolina have that State. If, by their votes, a law of Congress is ar- more power than another. Things that are equal cannot rested, no matter from what motive, you must apply the bind one another. A people that are sovereign to-day, ultimate reforming power, as was done when Burr ran for must, when assembled rightfully, be sovereign to-morrow: President against Jefferson, and Chisholm sued the State the last act of the sovereign power must govern those of Georgia. Because the State of Delaware, from her num- who are subject to it. bers, may not be able to resist the force of numbers The Senator from Pennsylvania (Mr. DALLAS) has obthrown upon her under the laws and constitution of the jected that the acts of the late convention in South CaroUnited States, it is no good reason to argue either Dela. Iina were not submitted to the people. This objection ware or any other State out of her reserved sovereign proceeds upon a capital error as to the nature of a conpowers and rights.

vention; they were the people themselves, and their act was If Congress were to levy an export duty, (if they can the act of the people, without any further confirmation. lay a general embargo, they can levy an export duty by The constitution of the United States was adopted by a the same reasoning the greater power includes the mi- similar convention, and never brought before the people. nor,) in that event, ought not Delaware to disregard it, or The meaning of a convention was an assembly of every any other State! And yet any legislative declaration, sus- person having any political rights in the State, and the taining the rights of the citizen, may be met with military majority of the people to govern. power. Instead of the States being sovereign, the oppo What would the Sumters, Pinckneys, and Taylors site argument makes them slaves. The definition of a slave have thought, if, by the assertion in our State constitution, is one who holds his rights at the pleasure of another; the that all “ power is in the people," the basis of the acts States hold their rights at the will of Congress; ergo, the of the late convention, the Federal Executive had thereStates are slaves. Where two persons claim land under upon issued his proclamation, commanding them to redifferent grants, the correct rule is to locate in favor of assemble and snatch this heresy, this disorganizing edict, the elder grant. In doubtful cases, begin at the old well from their archives. Sir, they would have placed their known corner, which is, the States were sovereign and hands on their swords, and, like the sturdy barons of old, independent when they made the constitution, and fairly replied, we are unwilling that our constitution shall be allow to each party within their grants what the compact changed. If the position be correct, “ that the aggresgives, and to the States the benefit of the above rule. In sion may be regarded as committed when it is officially aupolitics, you may as well dispute the proposition, that in thorized, and the means of enforcing fully provided," then the beginning the States were sovereign, as in religion, to the aggression now complained of was committed when dispute that in the beginning the “ word was God.” He this clause was introduced into the State constitution; since who does either is an infidel to the true faith of our consti- that has given the power to do what has been done, and tution and religion, and I will waste no words with him, but also the power to provide the means. proceed from premises admitted to conclusions denied. Let me ask, what is law? It is a rule of conduct pre

After the adoption of the federal constitution in a con- scribed by the supreme authority, commanding what is vention of the people, South Carolina made her own, in right, and forbidding what is wrong. If the people in which there is this article: “All power is originally South Carolina have all the powers of self-government, vested in the people, and all free Governments are found- who shall interpose? Upon what principle, human or ed on their authority, and are instituted for their peace, divine, can the General Government punish a citizen of safety, and happiness.” Now, it may be asked, what South Carolina, for obeying a law emanating from the “people” is meant in this article? Surely, not the people supreme power in that State? This fundamental principle

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Feb. 11, 1833.]

Revenue Collection Bill.

[SENATE.

of civil liberty has held a place in our charter for fortytwo years, and now we are called upon, by force, to expunge this article from our constitution, and substitute, “all power is in Congress; there is but one God, who is the Federal Government; there is but one prophet, who is Andrew Jackson.” For the present, I shall assume that the article is still retained, and from it deduce the right to construe the constitution of the United States, to which they became a party. Sir, the whole of the present bill under consideration assumes that the people of South Carolina are bound by the ordinance and the laws. If the people of South Carolina are bound to obey the ordinance, it follows, as a just consequence, that any effort, by force, in that State, to compel the people to disobey their own laws, is war— regular, legitimate war. War is the assertion of a right, by force, of one nation against another nation. I deny that the United States can constitutionally carry on war against a State. If a State violates the constitution, you must correct the error by the Supreme Court, or by a convention of the States. It is a barbarous and tyrannical assumption, that this Government can, by force, overturn State legislation. Our Government being an imperium in imperio, neither power can, by force, resist the other power. I shall now proceed to consider the ordinance. Although I have shown that the people of South Carosina having, in their sovereign character, put their construction on their rights, which stops all further consideration, except of an unconstitutional or belligerent nature, I will proceed to consider this question as subordinate to the constitution of the United States. The first section declares the tariff laws null and void. The State has the right, consistent with the constitution, to make this declaration. It is the mere recital of a truth; only declaring what was originally so. But it is argued that the tariff is constitutional. If so, we are not now to decide that question; that is for another forum. We are not to expound and enforce our own law. Is the tariff constitutional? This question must be de cided in the affirmative, before you can enforce its provisions, or impugn its ordinance. The power to protect domestic manufactures is not to be found in terms in the constitution. . If it is to be found at all, it must be among the incidental powers. Thus, under the taxing power, the right to protect is set up. But it is the opinion of the great body of the people | South Carolina, that the right to tax for revenue does not extend the right to tax for protection. It is said by the President, that, as the power to tax is in Congress, they can tax to any extent, without the right, on the part of any one, to question the motive; this I deny, as a correct principle of constitutional construction. The people have the right to examine the motive. A limited power to tax can only be properly restrained by looking at the motive. Congress have the Power to fix their own compensation; they may, under the taxing power, levy a tax on the people, intending to distribute the same among themselves; this could only be F. by the people refusing to pay it, if the tax is id with an improper motive. The true way to test this tax is to analyze the law, and then determine whether it *s competent to levy a tax, to give the benefit thereof to the manufacturers. We have the treasury estimate of an

extra amount of taxation, equal to six millions; take this sum, and then inquire, can Congress levy that amount, sind give the same to the manufacturers? This right to levy a tax for protection is by some referred to the power to regulate commerce.

By looking into the proceedings Preliminary to the adoption of the Federal Government, to be found in the first volume of the laws of Congress, it *ill be there seen that this power was desired only to Protect the navigating interest; the object being clearly

to invigorate and encourage commerce, not to cripple and destroy it. I will not dwell on this subject. I delivered my opinions at length in the debate on the passage of the last tariff. This subject has undergone a most thorough investigation, and the united voice of the planting States pronounced the principle of protection unconstitutional. This is no new doctrine, for the first time broached by the convention of South Carolina. It has been pronounced from Virginia to Mississippi for the last eight years. But it has been urged that the revenue is repealed, as well as the protection; and, therefore, the ordinance is unconstitutional. Sir, let us examine a little the validity of this objection" to the ordinance. If it be partly contaminated, the whole is void. The fraudulent execution of an invalid power makes the deed null. A dollar, part silver, part pewter, is a counterfeit. Where a wrong-doer mixes his goods with those of another, if there is no way to ascertain how much belongs to each, he who produces the difficulty must lose what belongs to him. Who could expect to be paid for sugar sold, if half were sand? It is the fault of him who practises the fraud, if he loses that which might have been valuable. The third section declares, that appeals shall not be taken from the State court. This contravenes the 25th section of the judiciary act, it is said. It is well known that the right to take a case from the State court, by an appeal to the Supreme Court, has been contested in every form, ever since the enactment of this law. “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.” By this clause in the constitution, it is declared that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain. The whole of the judicial power is thus vested in the United States court. By what authority can any power be transferred by Congress to the State courts? There is no such power. “The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which He United States shall be a party; to controversies between two or more States; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens, or subjects.” • . . Having provided for the courts in the first clause, they have, in this one, provided for the jurisdiction, which is limited to all cases in law and equity arising under the constitution and laws of the United States. “Extend to,” means, reach to, cover. These words do not give exclusive jurisdiction. Judicial power is a generic term, including the Supreme Court, and the inferior courts of the United States. A State court is not an inferior court of the United States, and therefore no appeal can fairly be predicated on the proceedings of the State courts. There is a subsequent clause which provides that the State courts shall be bound by the constitution, and the laws made in pursuance thereof, and to treaties; this was the only check which was intended to secure the rights

of persons under the constitution, laws, and treaties. SENATE.]

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Revenue Collection Bill. z

[Feb. 11, 1833.

There is no more ground to suppose State courts could not be trusted to execute such cases as might be brought in State courts, where rights were secured under the Federal Government, than the Governors. Where fugitives may be demanded, the United States cannot control this officer; he may demand, or not; so the State officers must swear to support the constitution of the United States; if they do not, there is no way for this Government to compel them, unless by a resort to force, which was not intended. The President relies on this clause: “This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding,” to prove the State courts bound to sustain the United States laws. This is not denied; but not when those laws are in violation of the constitution; and it was not intended that the State judges should have their decisions questioned any more by federal judges, than federal judges should have their opinions questioned by State judges; both were to be final in their sphere. State courts are of general jurisdiction, nothing presumed out of their jurisdiction; federal courts limited. Every thing must be proven to give jurisdiction. Upon general principles, there would be more propriety in the State courts reversing the federal decisions, than the converse, because all courts of limited jurisdiction may be kept within their province by courts of general jurisdiction. The President, in his proclamation, says, the laws, constitution, and treaties, are the supreme law of the land. This is not a correct view of the constitution. The President seems to consider a law above the constitution, and the treaties subject to it; now, I understand it to be exactly different. The treaties are not required to be made in pursuance of the constitution, but the laws are. A treaty may become necessary, impairing, in some instance, the constitution; and it is incident to the war power. The treaty-making power may fairly be considered as an independent substantive one, involving the highest political rights; and, when sanctioned by twothirds of the Senate, binding on the constituted authorities of the United States and the States. And here I will remark, there seems no ground to suppose that the terms “law of the land,” mean any thing more than that the constitution, and laws of the United States made in pursuance thereof, and treaties, are, by this clause, made the law of the land of the States, not of the United States; they have no land but the public land; the lea: terræ referred to here is the local law; and the federal laws are made a part of the local law, and to be locally administered. So much for the argument of the Senator from Pennsylvania, who seeks to enlarge the powers of the United States by this clause. Luther Martin has been referred to, on the other side, as authority. In his report of what was done in the convention, to the Maryland Legislature, he says, the convention expressly refused to trust the State courts to be the agents of the United States, so far as to try cases in the first instance; and confirms precisely my construction of the judicial clauses.” I will read a part of Madison's report on this subject, which I shall consider a part of my argument. “The resolution having taken this view of the federal compact, proceeds to infer, “that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for main

* See his opinion, 33d page, in Elliott's Debates.

taining, within their respective limits, the authorities, rights, and liberties appertaining to them.” “It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the constitution, that it rests on this legitimate and solid foundation. The States, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows, of neces. sity, that there can be no tribunal above their authority, to decide, in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition. “It does not follow, however, because the States, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole, every part being deemed a condition of every other part, and of the whole, it is always laid down that the breach must be both wilful and material, to justify an application of the rule. But, in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties, in their sovereign capacity, can be called for by occasions only deeply and essentially affecting the vital principles of their political system. “The resolution has accordingly guarded against any misapprehension of its object, by expressly requiring for such an interposition ‘the case of a deliberate, palpable, and dangerous breach of the constitution, by the exercise of powers not granted by it.’ It must be a case, not of a , light and transient nature, but of a nature dangerous to the great purposes for which the constitution was established. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case not resulting from a partial consideration, or hasty determination, but a case stamped with a final consideration and deliberate adherence. It is not necessary, because the resolution does not require that the question should be discussed how far the exer. cise of any particular power, ungranted by the constitution, would justify the interposition of the parties to it. As cases might easily be stated, which none would contend ought to fall within that description—cases, on the other hand, might with equal ease be stated, so flagrant and so fatal, as to unite every opinion in placing them within the description. “But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition which it contemplates, to be solely that of arresting the progress of the evil of usur: pation, and of maintaining the authorities, rights, and liberties appertaining to the States, as parties to the colistitution. “But it is objected, that the judicial authority is to be regarded as the sole expositor of the constitution, in the last resort; and it may be asked, for what reason the declaration of the General Assembly, supposing it to be the: oretically true, could be required at the present day, and in so solemn a manner?

* * i “On this objection, it might be observed, first, that

FEs. 11, 1833.] Revenue Collection Bill. [SENATE Revenue Collection Bill.

there may be instances of usurped power, which the forms of the constitution would never draw within the control of the judicial department; secondly, that if the decision of the judicial be raised above the authority of the sovereign parties of the constitution, the decisions of the other departments, not carried by the forms of the constitution before the Judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution o: that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the constitution; and, consequently, that the ultimate right of the parties to the constitution to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the Judiciary as well as by the Executive, or the Legislature. “However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the Government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very constitution which all were instituted to preserve. “The truth declared in the resolution'being established, the expediency of making the declaration at the present day may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered, that a frequent recurrence to fundamental principles is solemnly enjoined by most of the State constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable, as well as other Governments, although in a less degree than others. And a fair comparison of the Political doctrines, not unfrequent at the present day, with those which characterized the epoch of our revolution, and which form the basis of our republican constitutions, will best determine whether the declaratory recurrence here made to those principles ought to be viewed * unreasonable and improper, or as a vigilant discharge of an important duty. The authority of constitutions over Governments, and of the sovereignty of the people over constitutions, are truths which are at all times neces*ary to be kept in mind; and at no time, perhaps, more necessary than at present.” Mr. M. further read from the proceedings of the Ohio Legislature, in 1820, against the Bank of the United States, to prevent its establishment in that State. “Resolved, by the General Assembly of the State of Ohio, ** at in respect to the powers of the Governments of the several States, which compose the American Union, and the powers of the Federal Government, this General Asseonbly do recognise and approve the doctrines asserted by the Legislatures of Virginia and Kentucky, in their res-olutions of November and December, 1798, and January-, 1800; and do consider that their principles have been recognised and adopted by a majority of the American pecple.”

“The States and the people recognised and affirmed the doctrines of Kentucky and Virginia, by effecting a total change in the administration of the Federal Government. In the pardon of Calender, convicted under the sedition law, and in the remittance of his fine, the new administration unequivocally recognised the decision and the authority of the States and of the people. Thus has the question, whether the federal courts are the sole expositors of the constitution of the United States, in the last resort, or whether the States, “as in all other cases of compact among parties having no common judge,” have an equal right to interpret the constitution for themselves, where their sovereign rights are involved, been decided against the pretension of the federal judges, by the people themselves, the true source of legitimate power.” Resolutions against the jurisdiction of the United States court in the case of the Bank, and all cases involving political rights; and against the powers of the General Government, establishing the Bank, in these words: “Resolved further, That this"General Assembly do protest against the doctrines of the federal circuit court, sitting in this State, avowed and maintained in their proceedings against the officers of the State, upon account of their official acts, as being in direct violation of the eleventh amendment of the constitution of the United States. “Resolved, further, That this General Assembly do protest against the doctrine that the political rights of the separate States that compose the American Union, and their power as sovereign States, may be settled and determined in the Supreme Court of the United States, so as to conclude and bind them in cases contrived between individuals, and who are, no one of them, parties direct.” So in his letter to Judge Johnson, in answer to the argument “that there must be an arbiter somewhere,” Mr. Jefferson says, “True; but this does not prove that it must be in either party. The ultimate arbiter is the people, assembled by their deputies in convention. Let them decide to which they mean to give an authority claimed by two of their agencies.” And, again: “With respect to our State and Federal Governments, (says Thomas Jefferson,) I do not think their relations are correctly understood by foreigners. They suppose the former subordinate to the latter. This is not the case. They are co-ordinate departments of one simple and integral whole. But you may ask, if the two departments should claim each the same subject of power, where is the umpire to decide between them? In cases of little urgency or importance, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the State must be called to ascribe the doubtful power to that department which they may think best.” Hear Mr. Jefferson's opinions: “That the principle and construction contended for by sundry of the State Legislatures, that the General Government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the Government, and not the constitution, would be the measure of their powers. “That the several States who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification by those sovereignties of all unauthorized acts done under the color of that instrument, is the rightful remedy.” The Senator from Delaware has gone into an argument to prove that Congress can control the federal courts, if, by corruption or otherwise, they should decide against the

Gn this subject, the report which precedes the resolu*\own contains the following words: -

Federal Government.

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SENATE.]

[Feb. 11, 1833.

Mr. CLAYTON here said, he used this argument in reply to the Senator from Kentucky. He referred to the jurisdiction of the inferior courts, but did not intend to say that congress should, in any event, interpose with the Supreme Court. Mr. MILLER resumed. He understood the Senator perfectly, he said, and concurred entirely in the position, that Congress could, by its legislation, make the federal courts speak what they please. The question is not, what security the Federal Government has against the bias, the prejudice, or corruption of the federal courts, when they incline to State authority; but what security the States have against their bias or corruption? The point in debate is, where is the conservative principle of State rights? All admit the States to have certain rights. When we inquire, where is their guaranty? our adversaries tell us the Supreme Court; and yet, the Senator from Delaware undertakes to prove, and does prove, that Congress can take care of federal rights against the usurpation or corruption of the federal courts; but he does not tell us who takes care of State rights, when invaded by these tribunals. Those gentlemen who talk about State rights, and yet leave those rights at the mercy of the party having an interest to invade them, remind us of the Indian philosopher, who supposed the globe rested on a terrapin; but when asked what that rested on, not knowing, he could not say. The authorities adverted to show that South Carolina is not an inventor of the doctrine we now contend for; on the contrary, she has followed in the footsteps of other distinguished members of the Union, in sustaining the true principles of the Jefferson or democratic school. In this faith she has been a constant believer ever since 1798, with but occasional aberrations, not varying more, or vibrating further from this creed, than the magnetic needle from the pole. How these authorities referred to can be said to exclude the construction put on them by South Carolina, I am at a total loss to conceive. Human language cannot be adapted more precisely to any purpose, than these authorities to the entire support of the South Carolina construction. It surely cannot be contended that the elaborate argument of Mr. Madison was intended only to establish the right of revolution. The Virginia resolutions of 1798 and 1799 establish, as the true theory of our Government the one indicated by Mr. Jefferson in his letter to Mr. Cartwright, and in the Kentucky resolutions. There are no two ways about it; you cannot resolve this vexed question into any thing but what we contend for, or what the old federalists do. So far as the reasoning of the report goes, the States have the right, when they think the com. pact violated, to put their construction on the constitution, and that, having done so, the Federal Government must rightfully acquiesce in this construction; and, to avoid the inconvenience, they must call a convention of all the States, to settle the question. “The right to fight” is a codification of international law, not predicated on the reasoning or theory recognised in the above authorities. If the principles of Virginia in 1809 underwent an obscuration, as they have been quoted by the Senator from New Jersey, they have been restored by the resolutions of 1828; and, so far as the opinions of that State can go, we have her in 1798 against herself in 1809. When the Senator from New Jersey appeals to Virginia authority, let him abide by the appeal. I cannot say altogether what produced that impression, but the fact is, I always have considered the years of the embargo and non-intercourse covering what may be called the dark era of our history. Hence, I do not give much weight to the Virginia sentiments of 1809, on the subject of the Supreme Court being the proper arbiter. She did not express the sentiments which, through a current of years, at various and repeated times, she has acknowledged as her settled

conviction, viz: that the Supreme Court is not the arbiter. At that time, I admit, she was found sleeping at her post, and has suffered her authority fairly to be quoted against the then opinions of Pennsylvania. Having attempted to prove the Supreme Court has no right to notice the tribu. nals of the State court, and, therefore, that this clause in the ordinance is not a violation of the constitution, I will proceed to consider the test oath clause, as it is called. This has been inveighed against both by the Executive and the honorable gentlemen who have preceded me, in terms of unmerited reproach. The practice of requiring officers to support the law of the land, whether fundamental or merely legislative, is almost universal. There is not a State in the Union which does not make its citizens, when they take office under the same, swear to support the constitution of the State. The State of South Carolina requires every officer, who takes a commission from her, to swear to support the constitution; it forms a condition precedent to taking of. fice in that State. If the constitution should be altered or changed according to the terms thereof, the supreme power altering the constitution may make it the duty, as well of all in office, as those afterwards appointed, to conform to the universal custom of swearing to support the highest known law, the will of the sovereign in whose employ they are. Without any express requisition in the ordinance to that effect, the oath administered to support the constitution of South Carolina would incorporate, within the sanction thereof, this ordinance, since it is the constitution, abrogating and cancelling every thing in that instrument to the contrary thereof. The objection is a most novel and singular one, that an officer has a right to take or hold office without swearing to sustain the constitution of the State appointing him. It is a most degrading, a most humiliating reflection, to impeach so far the State sovereignties, as not to allow them the scant power of determining on what terms they shall employ and pay their own servants. Here is a great civil contest, founded on adverse views of the theory of our political institutions; and South Carolina does not propose by the sword to decide the question, but by her civil institutions. With a view to counteract the usurpations of the agents of the Federal Government, she arms herself with all her moral strength, and calls into existence the most incontestable powers to sustain what are the disputed ones. One of these most indubitable powers is, to exact obedience of her own citizens to the supreme power of that State, and more particularly to require her public officers to reflect her opinions on the contested questions. However weak she may be against the General Government, she has the power left her to make those who feed upon her bounty either to leave her service, or fulfil the duties which she enjoins. The exercise of her high sovereign powers to effect this purpose must depend on her will; and she must be the judge of the necessity which forces the resort to powers deemed by others arbitrary. Power must be met by power. We see in the physical system, when one sense is destroyed, nature restores the defect often, by giving a greater perfection to the reserved senses. When one limb is amputated, the other corresponding is always invigorated; hence, in this controversy, if we were to follow the analogies of the providence of Heaven, it would be requisite that the mutilated limbs of our State Government should be compensated, by infusing into the reserved ones great strength and vigor. The Federal Government usurps the powers of the States, appoints its agents with a view to sustain its usurpation, and yet is loud in complaint that South Carolina will not permit that Government to plough with her heifer; she must consent to repose her strength in the hands of faithless Delilahs, or subject herself to the imputation of tyranny and oppression on her own citizens.

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