Part 23

The next day, Mr. Webster went into a grave and formal examination of _the doctrines of nullification_, or the right of the state legislatures to interfere, whenever, in their judgment, the general government transcends its constitutional limits, and to arrest the operation of its laws. Four days had hardly elapsed, since this doctrine had been announced with an air of assured success in the Senate; and these four days had been filled with active debate and contest. Of course, here again, there had been neither time nor opportunity for especial preparation. Happily, too, there was no need of it. The fund, on which the demand was so triumphantly made, was equal to the draft, great and unexpected as it was. Mr. Webster's mind is full of constitutional law and legislation. On all such subjects, he needs no forecast, no preparation, no brief;--and, on this occasion, he had none. He but uttered opinions and arguments, which had grown mature with his years and his judgment, and which were as familiar to him as household words. We have, therefore, no elaborate, documentary discussion,--no citation of books or authorities. It is with principles, great constitutional principles, he deals; and it is in plain, direct arguments, which all can understand, that he defends them. There is nothing technical, nothing abstruse, nothing indirect, either in the subject or its explanation. On the contrary, all is straight forward--obvious--to the purpose. For instance, after stating the question at issue to be, "_whose prerogative is it, to decide on the constitutionality or unconstitutionality of the laws?_" he goes on:--

"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 honourable 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 the supreme law. We must either admit the proposition, or dispute 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 honourable justice." Such an opinion, therefore, is in defiance of the plainest provisions of the constitution." pages 410, 411.

Again, what can be more sure and convincing than such plain reasoning as this:--

"I maintain, that, between submission to the decision of the constituted tribunals, and revolution, or disunion, there is no middle ground--there is no ambiguous condition, half allegiance, and half rebellion. And, Sir, how futile, how very futile it is, to admit the right of state interference, and then attempt to save it from the character of unlawful resistance, by adding terms of qualification to the causes, and occasions, leaving all these qualifications, like the case itself, in the discretion of the state governments. It must be a clear case, it is said, a deliberate case; a palpable case; a dangerous case. But then the state is still left at liberty to decide for herself, what is clear, what is deliberate, what is palpable, what is dangerous. Do adjectives and epithets avail any thing? 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 neighbours, 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 more than 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 honourable 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 for 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 states, 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 confederacy." pp. 416, 417.

This is a striking fact about Mr. Madison; but one still more striking occurred after the publication of the speech. His great name and authority had been constantly and confidently appealed to, not only in this debate, by General Hayne, but, on previous occasions, by other favourers of the South Carolina doctrines, until at last it began to be almost feared, that Mr. Madison sustained the positions of the nullifiers. But as he had already shown that the tariff law was quite constitutional, so, now, with no less promptness and power, he came out against the whole doctrine of nullification, and showed that his resolutions of 1798, on which its friends had rested the wild fabric of their argument, as its main pillars, had nothing to do with it; and thus, in conjunction with what had been done in the Senate, brought down the whole temple they had built with such pains and cost, upon the heads of their uncircumcised presumption and extravagance. His letter, indeed, on this subject, is one of the most characteristic efforts of his great wisdom, and one of the most important results of this discussion, since it took from the advocates of nullification all the support of his authority--the _magni nominis umbra_--the shade and shelter of his great name.

But to return to Mr. Webster; the general tone of the last half of his speech is uncommonly grave and imposing; but there is one passage in which a lighter accent is assumed. It is that in which he runs out General Hayne's nullifying doctrine into practice, and sets him, as a military man, to execute his own nullifying law. The argument of this passage is the more efficacious, because it is concealed under so much wit and good-humour.

"And now, Mr. President, let me run the honourable 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. Now, I wish to be informed, _how_ this state interference is to be put in practice. 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 honourable 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, bearing that the tariff laws are palpable, deliberate, and dangerous violations of the Constitution! He will proceed, with his 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, probably, not 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 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 a little upon the 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 Turrene and Vauban. They would ask him, therefore, something 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 all may 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.

Mr. President, the honourable gentleman would be in a dilemma, like that of another great general. He would have a knot before him which he could not untie. He must cut it with his sword. He must say to his followers, defend yourselves with your bayonets; and this is war--civil war." pp. 421, 422.

After this his tone becomes even more grave and solemn than before, until, when he approaches the conclusion, he bursts forth with the expression of feelings of attachment to the Union and the Constitution, which it seemed no longer possible for him to suppress. We should quote the passage, but that it has been quoted every where, and is familiar to every body.

We forbear to pursue this debate any further. Mr. Hayne replied in a short speech, which he afterwards expanded in the newspapers into a long one; and Mr. Webster rejoined with a syllogistic brevity, exactness, and power, which carried with them the force and conclusiveness of a demonstration; and thus ended the discussion as between these two. It was afterwards continued, however, for several weeks, and a majority, or nearly a majority, of the whole Senate took part in it; but whenever it is now recollected or referred to, the contest between the two principal speakers, from the 19th to the 23d of January, is, we believe, generally intended.

The results of this memorable debate are already matter of history. The vast audience that had contended for admission to the senate-chamber, till entrance became dangerous, were the first to feel and make known its effect; for, with his peculiar power of explaining abstruse and technical subjects, so that all can comprehend them, Mr. Webster there expounded a great doctrine of the constitution, which had been powerfully assailed, so that all might feel the foundations on which it rests, to have been consolidated rather than disturbed by the attempt to shake them. Their verdict, therefore, was given at the time, and heard throughout the country. But since that day, when the crowd came out of the senate-chamber rejoicing in the victory which had been achieved for the constitution, nearly twenty editions of the same argument have been called for in different parts of the country, and thus scattered abroad above an hundred thousand copies of it, besides the countless multitudes that have been sent forth by the newspapers, until almost without a metaphor, it may be said to have been carried to every fire-side in the land. The very question, therefore, which was first submitted to an audience in the capitol,--comprising, indeed, a remarkable representation of the talents and authority of the country, but still comparatively small,--has since been submitted by the press to the judgment of the nation, more fully, probably, than any thing of the kind was ever submitted before; and the same remarkable plainness, the same power of elucidating great legal and constitutional doctrines till they become as intelligible and simple as the occupations of daily life, has enlarged the jury of the senate-chamber till it has become the jury of the whole people, and the same verdict has followed. What, therefore, Chancellor Kent said in relation to it, is as true as it is beautiful;--"Peace has its victories as well as war;"--and the triumph which Mr. Webster thus secured for a great constitutional principle, he may now well regard, as the chief honour of his life.

Indeed, a man such as he is, when he looks back upon his past life, and forward to the future, must needs feel, that his fate and his fortunes, his fame and his ambition, are connected throughout with the fate and the fortunes of the constitution of his country. He is the child of our free institutions. None other could have produced or reared him;--none other can now sustain or advance him. From the days when, amidst the fastnesses of nature, his young feet with difficulty sought the rude school-house, where his earliest aspirations were nurtured, up to the moment when he came forth in triumph from the senate-chamber, conscious that he had overthrown the Doctrines of Nullification, and contended successfully for the Union of the States, he must have felt, that his extraordinary powers have constantly depended for their development and their exercise on the peculiar institutions of our free governments. It is plain, indeed, that he has thriven heretofore, by their progress and success; and it is, we think, equally plain, that in time to come, his hopes and his fortunes can be advanced only by their continued stability and further progress. We think, too, that Mr. Webster feels this. On all the great principles of the constitution, and all the leading interests of the country, his opinions are known; his ground is taken; his lot is cast. Whoever may attack the Union on any of the fundamental doctrines of our government, he must defend them. _Prima fortuna salutis monstrat iter._ The path he has chosen, is the path he must follow. And we rejoice at it. We rejoice, that such a necessity is imposed on such a mind. We rejoice, that, even such as he cannot stand, unless they sustain the institutions that formed them; and that, what is in itself so poetically just and so morally beautiful, is enforced by a providential wisdom, which neither genius nor ambition can resist or control. We rejoice, too, when, on the other hand, a man so gifted, faithfully and proudly devotes to the institutions of his country the powers and influence they have unfolded and fostered in him, that, in his turn, he is again rewarded with confidence and honours, which, as they can come neither from faction nor passion, so neither party discipline nor political violence can diminish nor impair them. And, finally, and above all, we rejoice for the great body of the people, that the decided and unhesitating support they have so freely given to the distinguished Senator, with whose name "this land now rings from side to side," because he has triumphantly defended the Union of the States and the principles of the Constitution;--we rejoice, we say, _for the people_, because, such a support given by them for such a cause, not only strengthens and cements the very foundations of whatever is most valuable in our government; but at the same time, warns and encourages all who would hereafter seek similar honours and favours, to consult for the course they shall follow, neither the indications of party nor the impulses of passion, but to address themselves plainly, fearlessly, calmly, directly to the intelligence and honesty of _the whole nation_, "and ask no omen but their country's cause."

[Footnote 5: These are the last words of the speech; and the sentiment they contain in favour of a navy and naval protection, has been maintained with great earnestness by Mr. Webster for nearly thirty years, on all public occasions. In an oration delivered July 4th, 1806, and printed at Concord, N. H., he says, "an immense portion of our property is in the waves. Sixty or eighty thousand of our most useful citizens are there, and are entitled to such protection from the government as their case requires." In another oration, delivered in 1812, and printed at Portsmouth, he says, "a navy sufficient for the defence of our coasts and harbours, for the convoy of important branches of our trade, and sufficient, also, to give our enemies to understand, when they injure us, that _they_ too are vulnerable, and that we have the power of retaliation as well as of defence, seems to be the plain, necessary, indispensable policy of the nation. It is the dictate of nature and common sense, that means of defence shall have relation to the danger." These doctrines in favour of a navy were extremely unwelcome to the nation when they were delivered; the first occasion referred to, being just before the imposition of the embargo; and the second, just before the capture of the Guerriere. How stands the national sentiment now? Who doubts the truth of what Mr. Webster could not utter in 1806 and 1812 without exciting ill-will to himself?]

[Footnote 6: North American Review, 1821. Vol. xii. p. 342.]

[Footnote 7: See the beautiful passage respecting the fortune and the life of John Adams at p. 44.]