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Feb. 16, 1833.]
IRevenue Collection Bill.
count of the establishment of this Government presents the most just and philosophical view of its foundation. The people of the several States had their separate State Governments; and between the States there also existed a confederation. With this condition of things the people were not satisfied, as the confederation had been found not to fulfil its intended objects. It was proposed, there. , fore, to erect a new common Government, which should possess certain definite powers, such as regarded the prosperity of the people of all the States; and to be formed upon the general model of American constitutions. This proposal was assented to, and an instrument was presented to the people of the several States for their consideration. They approved it, and agreed to adopt it as a constitution. They executed that agreement, they adopted the constitution, as a constitution; and henceforth it must stand as a constitution until it shall be altogether destroyed. Now, sir, is not this the truth of the whole matter? and is not all that we have heard of compact between sovereign States the mere effect of a theoretical and artificial mode of reasoning upon the subject? a mode of reasoning which disregards plain facts for the sake of hypothesis? .* Mr. President, the nature of sovereignty, or sovereign power, has been extensively discussed by gentlemen on this occasion, as it generally is when the origin of our Government is debated. But I confess myself not entirely satisfied with arguments and illustrations drawn from that topic. The sovereignty of Government is an idea belonging to the other side of the Atlantic. No such thing is known in North America. Our Governments are all limited. In Europe sovereignty is of feudal origin, and imports no more than the state of the sovereign. It comprises his rights, duties, exemptions, prerogatives, and powers. But, with us, all power is with the people. They, alone, are sovereign; and they erect what Governments they please, and confer on them such powers as they please. None of these Governments are sovereign, in the European sense of the word, all being restrained by written constitutions. It seems to me, therefore, that we only perplex ourselves when we attempt to explain the relations existing between the General Government and the several State Governments, according to those ideas of sovereignty which prevail under systems essentially different from our own. But, sir, to return to the constitution itself: let me inquire what it relies upon for its own continuance and suport? I hear it often suggested that the States, by reusing to appoint Senators and Electors, might bring this Government to an end. Perhaps that is true, but the same may be said of the State Governments themselves. Suppose the Legislature of a State, having the power to appoint the Governor and the judges, should omit that duty; would not the State Government remain unorganized? No doubt, all elective Governments may be broken up by a general abandonment, on the part of those intrusted with political powers, of their appropriate duties. But one popular Government has, in this respect, as much security as another. The maintenance of this constitution does not depend on the plighted faith of the States, as States, to support it; and this again shows that it is not a league. It relies on individual duty and obligation. The constitution of the United States creates direct relations between this Government and individuals. This Government may punish individuals for treason, and all other crimes in the code, when committed against the United States. It has power, also, to tax individuals, in any mode, and to any extent; and it possesses the further power of demanding from individuals military service. Nothing, certainly, can more clearly distinguish a Government from a confederation of States, than the possession of these powers. No closer relations can exist be*ween individuals and any Government.
On the other hand, the Government owes high and solemn duties to every citizen of the country. It is bound to protect him in his most important rights and interests. It makes war for his protection, and no other Government in the country can make war. It makes peace for his protection, and no other Government can make peace. It maintains armies and navies for his defence and security, and no other Government is allowed to maintain them. He goes abroad beneath its flag, and carries over all the earth a national character imparted to him by this Government, and which no other Government can impart. In whatever relates to war, to peace, to commerce, he knows no other Government. All these, sir, are connexions as dear and as sacred as can bind individuals to any Government on earth. It is not, therefore, a compact between States, but a Government proper, operating directly upon individuals, yielding to them protection on the one hand, and demanding from them obedience on the other. There is no language in the whole constitution applicable to a confederation of States. If the States be parties, as States, what are their rights, and what their respective covenants and stipulations? And where are their rights, covenants, and stipulations expressed? The States engage for nothing, they promise nothing. In the articles of confederation they did make promises, and did enter into engagements, and did plight the faith of each State for their fulfilment; but in the constitution there is nothing of that kind. The reason is, that in the constitution it is the people who speak, and not the States. The people ordain the constitution, and therein address themselves to the States, and to the Legislatures of the States, in the language of injunction and prohibition. The constitution utters its behests in the name and by the authority of the people, and it exacts not from States any plighted public faith to maintain it. On the contrary, it makes its own preservation depend on individual duty and individual obligation. Sir, the States cannot omit to appoint Senators and Electors. It is not a matter resting in State discretion or State pleasure. The constitution has taken better care of its own preservation. It lays its hand on individual conscience and individual duty. It incapacitates any man to sit in the Legislature of a State, who shall not first have taken a solemn oath to support the constitution of the United States. From the obliga. tion of this oath no State power can discharge him. All the members of all the State Legislatures are as religiously bound to support the constitution of the United States, as they are to support their own State constitution. Nay, sir, they are as solemnly sworn to support it, as we ourselves are, who are members of Congress. No member of a State Legislature can refuse to proceed, at the proper time, to elect Senators to Congress, or to provide for the choice of electors of President and Vice-President, any more than the members can refuse, when the appointed day arrives, to meet the members of the other House to count the votes for those officers, and ascertain who are chosen. In both cases the duty binds, and with equal strength, the conscience of the individual member, and it is imposed on all by an oath in the very same words. Let it, then, never be said, sir, that it is a matter of discretion with the States whether they will continue the Government, or break it up by refusing to appoint Senators and elect electors. They have no discretion in the matter. The members of the Legislatures cannot avoid doing either, so often as the time arrives, without a direct violation of their duty and their oaths; such a violation as would break up any other Government. Looking still further to the provisions of the constitution itself, in order to learn its true character, we find its great apparent purpose to be, to unite the people of all the States under one General Government, for certain definite objects; and, to the extent of this union, to restrain the
Revenue Collection Bill.
(Feb. 16, 1833.
separate authorities of the States. Congress only can de. They were asked to continue the existing compact between clare war; therefore, when one State is at war with a for- States; they rejected it. They rejected compact, league, eign nation, all must be at war. The President and the and confederation, and set themselves about framing the Senate only can make peace; when peace is made for one constitution of a National Government; and they accomState, therefore, it must be made for all.
plished what they undertook. Can any thing be conceived more preposterous than If men will open their eyes fairly to the lights of histothat any state should have power to nullify the proceedings ry, it is impossible to be deceived on this point. The of the General Government respecting peace and war? great object was to supersede the confederation by a reguWhen war is declared by a law of Congress, can a single lar Government; because, under the confederation, ConState nullify that law, and remain at peace? And yet she gress had power only to make requisitions on States; and may nullify that law as well as any other. If the President lif States declined compliance, as they did, there was no and Senate make peace, may one State, nevertheless, con- remedy but war against such delinquent States. It would tinue the war? And yet, if she can nullify a law, she may seem, from Mr. Jefferson's correspondence, in 1786 and quite as well nullify a treaty.
1787, that he was of opinion that even this remedy ought The truth is, Mr. President, and no ingenuity of argu- to be tried. “There will be no money in the treasury, ment, no subtlety of distinction, can evade it, that, as to said he, “till the confederacy shows its teeth;" and he certain purposes, the people of the United States are one suggests that a single frigate would soon levy on the compeople. They are one in making war, and one in making merce of a delinquent State the deficiency of its contripeace: they are one in regulating commerce, and one in bution. But this would be war; and it was evident that a laying duties of impost. The very end and purpose of the confederacy could not long hold together which should constitution was to make them one people in these parti- be at war with its members. The constitution was adoptculars; and it has effectually accomplished its object. Alled to avoid this necessity. It was adopted that there might this is apparent on the face of the constitution itself. I be a Government which should act directly on individuals, have already said, sir, that to obtain a power of direct le- without borrowing aid from the State Governments. This gislation over the people, especially in regard to imposts, is clear as light itself on the very face of the provisions of was always prominent as a reason for getting rid of the the constitution, and its whole history tends to the same confederation, and forming a new constitution. Among conclusion. Its framers gave this very reason for their the innumerable proofs of this, before the assembling of work in the most distinct terms. Allow me to quote but the convention, allow me to refer only to the report of the one or two proofs out of hundreds. That State, so small committee of the old Congress, July, 1785.
in territory, but so distinguished for learning and talent, But, sir, let us go to the actual formation of the consti- Connecticut, had sent to the general convention, among tution; let us open the journal of the convention itself; and other members, Samuel Johnson and Oliver Ellsworth. we shall see that the very first resolution which the conven- The constitution having been framed, it was submitted to tion adopted was, " That a National Government ought to a convention of the people of Connecticut for ratification be established, consisting of a Supreme Legislature, ju- on the part of that state, and Mr. Johnson and Mr. Ellsdiciary, and Executive.
worth were also members of this convention. On the This, itself, completely negatives all idea of league, and first day of the debates, being called on to explain the compact, and confederation. Terms could not be chosen reasons which led the convention at Philadelphia to recommore fit to express an intention to establish a National Gov- mend such a constitution, after showing the insufficiency ernment, and to banish forever all notion of a compact be- of the existing confederacy, inasmuch as it applied to tween sovereign States.
States, as States, Mr. Johnson proceeded to say: This resolution was adopted on the 30th of May. After “The convention saw this imperfection in attempting to wards the style was altered, and, instead of being called a legislate for States in their political capacity; that the coNational Government, it was called the Government of the ercion of law can be exercised by nothing but a military United States; but the substance of this resolution was re- force. They have, therefore, gone upon entirely new tained, and was at the head of that list of resolutions which ground. They have formed one new nation out of the was afterwards sent to the committee who were to frame individual States. The constitution vests in the General the instrument.
Legislature a power to make laws in matters of national It is true there were gentlemen in the convention who concern; to appoint judges to decide upon these laws;
and were for retaining the confederation, and amending its ar- to appoint officers to carry them into execution. This ticles; but the majority was against this, and was for a Na-excludes the idea of an armed force. The power which tional Government. Mr. Patterson's propositions, which is to enforce these laws is to be a legal power, vested in were for continuing the articles of confederation with ad- proper magistrates. The force which is to be employed ditional powers, were submitted to the convention on the is the energy of the law; and this force is to operate only 15th of June, and referred to the Committee of the Whole. upon individuals who fail in their duty to their countryAnd the resolutions forming the basis of a National Govern. This is the peculiar glory of the constitution, that it dement, which had been once agreed to in the Commitee of pends upon the mild and equal energy of the magistracy the Whole, and reported, were recommitted to the same for the execution of the laws." committee, on the same day. The convention, then in In the further course of the debate, Mr. Ellswortb Committee of the Whole, on the 19th of June, had both saidthese plans before them; that is to say, the plan of a con “In republics, it is a fundamental principle that the federacy, or compact between States, and the plan of a majority govern, and that the minority comply with the National Government. Both these plans were considered general voice. How contrary, then, to republican prinand debated, and the committee reported, " That they do ciples, how humiliating, is our preserit situation! A single not agree to the proposition offered by the honorable
Mr. State can rise up and put a veto upon the most important Patterson, but that they again submit the resolutions form- public measures. We have seen this actually take place: erly reported." If, sir, any historical fact in the world be a single State has controlled the general voice of the plain and undeniable, it is that the convention deliberated Union; a minority, a very small minority, has governed an the expediency of continuing the confederation, with us. So far is this from being consistent with republican
- emendments, and rejected that scheme, and adopted principles, that it is, in effect, the worst species of monsom *** National Government, with a Legislature, an archy. the plan o. Judiciary of its own. They were ask "Hence we see how necessary for the Union is a coerExecutive, and a sues they rejected the proposition. (cive principle. No man pretends the contrary. We all ed to preserve the leas
Feb. 16, 1833.]
Revenue Collection Bill.
see and feel this necessity. The only question is, shall it be a coercion of law, or a coercion of arms? There is no other possible alternative. Where will those who oppose a coercion of law come out? Where will they end? A necessary consequence of their principles is a war of the States one against another. I am for coercion by law; that coercion which acts only upon delinquent individuals. This constitution does not attempt to coerce sovereign bodies, States, in their political capacity. No coercion is applicable to such bodies, but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State, it would involve the good and bad, the innocent and guilty, in the same calamity. But this legal coercion singles out the guilty individual, and punishes him for breaking the laws of the Union.” Indeed, sir, if we look to all cotemporary history, to the writings of the Federalist, to the debates in the conventions, to the publications of friends and foes, they all agree that a change had been made from a confederacy of States to a different system; they all agree that the convention had formed a constitution for a National Government. With this result some were satisfied, and some were dissatisfied; but all admitted that the thing had been done. In none of these various productions and publications did any one intimate that the new constitution was but another compact between States, in their sovereign capacities. I do not find such an opinion advanced in a single instance. Every where the people were told that the old confederation was to be abandoned, and a new system to be tried; that a proper Government was proposed, to be founded in the name of the people, and to have a regular organization of its own. Every where the people were told that it was to be a Government with direct powers to make laws over individuals, and to lay taxes and imposts, without the consent of the States. Every where it was understood to be a popular constitu. tion. It came to the people for their adoption, and was to rest on the same deep foundation as the State constitutions themselves. Its most distinguished advocates, who had been themselves members of the convention, declared that the very object of submitting the constitution to the people was, to preclude the possibility of its being regarded as a mere compact. “However gross a heresy,” say the writers of the Federalist, “it may be to maintain that a party to a compact has a right to revoke that 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.” Such is the language, sir, addressed to the people, while they yet had the constitution under consideration. The powers conferred on the new Government were perfectly well understood to be conferred, not by any State, or the people of any State, but by the people of the United States. Virginia is more explicit, perhaps, in this particular, than any other State. Her convention, assembled to ratify the constitution, “in the name and behalf of the people of Virginia, declare and make known, that the powers granted under the constitution, being derived from the people of the United States, may be resumed by them whenever the same shall be perverted to their injury or oppression.” Is this language which describes the formation of a compact between States, or language describing the grant of powers to a new Government, by the whole people of the United States? Among all the other ratifications, there is not one which speaks of the constitution as a compact between States. Those of Massachusetts and New Hampshire express the transaction, in my opinion, with sufficient accuracy. They
recognise the Divine goodness “in affording the people of the United States an opportunity of entering into an explicit and solemn compact with each other, by assenting to and ratifying a new constitution.”. You will observe, sir, that it is the people, and not the States, who have entered into this compact, and it is the people of all the United States. These conventions, by this form of expression, meant merely to say that the people of the United States had, by the blessing of Providence, enjoyed the opportunity of establishing a new constitution, founded in the consent of the people. This consent of the people has been called by European writers “the social compact;” and, in conformity to this common mode of expression, these conventions speak of that assent, on which the new constitution was to rest, as an explicit and solemn compact, not which the States had entered into with each other, but which the people of the United States had entered into. Finally, sir, how can any man get over the words of the constitution itself? “We, the people of the United States, do ordain and establish this constitution.” These words must cease to be part of the constitution, they must be obliterated from the parchment on which they are written, before any human ingenuity or human argument can remove the popular basis on which that constitution rests, and turn the instrument into a mere compact between sovereign States. The second proposition, sir, which I propose to maintain, is, that no State authority can dissolve the relations subsisting between the Government of the United States and individuals; that nothing can dissolve these relations but revolution; and that, therefore, there can be no such thing as secession without revolution. All this follows, as it seems to me, as a just consequence, if it be first proved that the constitution of the United States is a Government proper, owing protection to individuals, and entitled to their obedience. The people, sir, in every State, live under two Governments. They owe obedience to both. These Governments, though distinct, are not adverse. Each has its separate sphere, and its peculiar powers and duties. It is not a contest between two sovereigns for the same power, like the wars of the rival houses in England; nor is it a dispute between a Government de facto and a Government de jure. It is the case of a division of powers between two Governments, made by the people, to which both are responsible. Neither can dispense with the duty which individuals owe to the other; neither can call itself master of the other; the people are masters of both. This division of power, it is true, is in a great measure unknown in Europe. It is the peculiar system of America; and, though new and singular, it is not incomprehensible. The State constitutions are established by the people of the states. This constitution is established by the people of all the States. How, then, can a State secede? How can a State undo what the whole people have done? How can she absolve her citizens from their obedience to the laws of the United States? How can she annul their obligations and oaths? How can the members of her Legislature renounce their own oaths? Sir, secession, as a revolutionary right, is intelligible; as a right to
be proclaimed amidst civil commotions, and asserted at
the head of armies, I can understand it. But as a practi. cal right, existing under the constitution, and in conformity with its provisions, it seems to me to be nothing but a plain absurdity; for it supposes resistance to Government, under the authority of Government itself; it supposes dismemberment, without violating the principles of union; it supposes opposition to law, without crime; it supposes the violation of oaths, without responsibility; it supposes the total overthrow of Government, without revolution.
The constitution, sir, regards itself as perpetual and immortal. It seeks to establish a union among the people
of the States, which shall last through all time. Or, if the common fate of things human must be expected, at some period, to happen to it, yet that catastrophe is not anticipated. The instrument contains ample provisions for its amendment, at all times; none for its abandonment, at any time. It declares that new States may come into the Union, but it does not declare that old States may go out. The Union is not a temporary partnership of States. It is the association of the people, under a constitution of Government, uniting their power, joining together their highest interests, cementing their present enjoyments, and blending, in one indivisible mass, all their hopes for the future. Whatsoever is steadfast in just political principles, whatsoever is permanent in the structure of human society, whatsoever there is which can derive an enduring character from being founded on deep laid principles of constitutional liberty, and on the broad foundations of the public will—all these unite to entitle this instrument to be regarded as a permanent constitution of Government. In the next place, Mr. President, I contend that there is a supreme law of the land, consisting of the constitution, acts of Congress passed in pursuance of it, and the public treaties. This will not be denied, because such are the very words of the constitution. But 1 contend further, that it rightfully belongs to Congress, and to the courts of the United States, to settle the construction of this supreme law, in doubtful cases. This is denied: and here arises the great practical question, who is to construe finally the constitution of the United States? We all agree that the constitution is the supreme law; but who shall interpret that law? In our system of the division of powers between different Governments, controversies will necessarily sometimes arise respecting the extent of the powers of each. Who shall decide these controversies? Does it rest with the General Government, in all or any of its departments, to exercise the office of final interpreter? Or may each of the States, as well as the General Government, claim this right of ultimate decision? The practical result of this whole debate turns on this point. The gentleman contends that each State may judge for itself of any alleged violation of the constitution, and may finally decide for itself, and may execute its own decisions by its own power. All the recent proceedings in South Carolina are founded on this claim of right. Her convention has pronounced the revenue laws of the United States unconstitutional; and this decision she does not allow any authority of the United States to overrule or reverse. Of course, she rejects the authority of Congress, because the very object of the ordinance is to reverse the decision of Congress; and she rejects, too, the authority of the courts of the United States, because she expressly prohibits all appeal to those courts. It is in order to sustain this asserted right of being her own judge, that she pronounces the constitution of the United States to be but a compact, to which she is a party, and a sovereign party. If this be established, then the inference is supposed to follow, that, being sovereign, there is no power to control her decision, and her own judgment on her own compact is and must be conclusive. I have already endeavored, sir, to point out the practical consequences of this doctrine, and to show how utterly inconsistent it is with all ideas of regular government, and how soon its adoption would involve the whole country in revolution and absolute anarchy. I hope it is easy now to show, sir, that a doctrine, bringing such consequences with it, is not well founded; that it has nothing to stand upon but theory and assumption; and that it is refuted by plain and express constitutional provisions, 1 think the Government of the United States does possess, in its appropriate departments, the authority of final decision on questions of disputed power. I think it possesses
this authority, both by necessary implication and by express grant. It will not be denied, sir, that this authority naturally belongs to all Governments. They all exercise it from necessity, and as a consequence of the exercise of other powers. The State Governments themselves possess it, except in that class of questions which may arise between them and the General Government, and in regard to which they have surrendered it, as well by the nature of the case as by clear constitutional provisions. In other and ordinary cases, whether a particular law be in conformity to the constitution of the State, is a question which the State Legislature or the State Judiciary must determine. We all know that these questions arise daily in the State Governments, and are decided by those Governments; and I know no Government which does not exercise a similar power. Upon general principles, then, the Government of the United States possesses this authority; and this would hardly be denied, were it not that there are other Governments. But since there are State Governments, and since these, like other Governments, ordinarily construe their own powers, if the Government of the United States construes its own powers also, which construction is to prevail, in the case of opposite constructions? And again, as in the case now actually before us, the State Governments may undertake, not only to construe their own powers, but to decide directly on the extent of the powers of Congress. Congress has passed a law, as being within its just powers; South Carolina denies that this law is within its just powers, and insists that she has the right so to decide this point, and that her decision is final. How are these questions to be settled? In my opinion, sir, even if the constitution of the United States had made no express provision for such cases, it would yet be difficult to maintain that, in a constitution existing over four-and-twenty States, with equal authority over all, one could claim a right of construing it for the whole. This would seem a manifest impropriety; indeed, an absurdity. If the constitution is a Government existing over all the States, though with limited powers, it necessarily follows that, to the extent of those powers, it must be supreme. If it be not superior to the authority of a particular State, it is not a National Government. But as it is a Government, as it has a legislative power of its own, and a judicial power co-extensive with the legislative, the inference is irresistible, that this Government, thus created by the whole and for the whole, must have an authority superior to that of the particular Government of any one part. Congress is the Legislature of all the people of the United States; the Judiciary of the General Government is the Judiciary of all the people of the United States. To hold, therefore, that this Legislature and this Judiciary are subordinate in authority to the Legislature and Judiciary of a single State, is doing violence to all common sense, and overturning all established principles. Congress must judge of the extent of its own powers, so often as it is called on to exercise them, or it cannot act at all; and it must act also independent of State control, or it cannot act at all. The right of State interposition strikes at the very foundation of the legislative power of Congress. It possesses no effective legislative power, if such right of State interposition exists; because it can pass no law not subject to abrogation. It cannot make laws for the Union, if any part of the Union may pronounce its enactments void and of no effect. Its forms of legislation would be an idle ceremony, if, after all, any one of four-and-twenty States might bid defiance to its authority. Without express provision in the constitution, therefore, sir, this whole question is necessarily decided by those provisions which create a legislative power and a judicial power. If these exist in a Government intended for the whole, the inevi
Feb. 16, 1833.]
Revenue Collection Bill.
table consequence is, that the laws of this legislative
still further the chances of discordant judgments. Why,