David J. (David Josiah) Brewer.

Crowned masterpieces of eloquence, representing the advance of civilization, as collected in The world's best orations, from the earliest period to the present time (Volume 10) online

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one will deny this. Such resistance is not only acknowledged
to be just in America, but in England also. Blackstone admits
as much in the theory and practice, too, of the English Consti-
tution. We, sir, who oppose the Carolina doctrine do not deny
that the people may, if they choose, throw ofE any government
when it becomes oppressive and intolerable, and erect a better in
its stead. We all know that civil institutions are established for
the public benefit and that when they cease to answer the ends
of their existence they may be changed. But I do not under-
stand the doctrine now contended for to be that which, for the
sake of distinctness, we may call the right of revolution. I un-
derstand the gentleman to maintain that, without revolution, with-
out civil commotion, without rebellion, a remedy for supposed
abuse and transgression of the powers of the General Govern-
ment lies in a direct appeal to the interference of the State gov-

[Mr. Hayue here rose. He did not contend, he said, for the mere right of
revolution, but for the right of constitutional resistance. What he maintained
was that, in case of a plain, palpable violation of the Constitution by the
General Government, a State may interpose, and that this interposition is
constitutional. ]

So, sir, I understood the gentleman, and am happy to find
that I did not misunderstand him. What he contends for is that
it is constitutional to interrupt the administration of the Consti-
tution itself in the hands of those who are chosen and sworn to
administer it by the direct inference in form of law of the States
in virtue of their sovereign capacity. The inherent right in the
people to reform their Government I do not deny; and they have


another right and that is to resist unconstitutional laws without
overturning the Government. It is no doctrine of mine that un-
constitutional laws bind the people. The great question is: Whose
prerogative is it to decide on the constitutionality or unconstitu-
tionality of the laws ? On that the main debate hinges. The
proposition that, in case of a supposed violation of the Constitu-
tion by Congress, the States have a constitutional right to inter-
fere and annul the law of Congress, is the proposition of the
gentleman: I do not admit it. If the gentleman had intended no
more than to assert the right of revolution for justifiable cause,
he would have said only what all agree to. But I cannot con-
ceive that there can be a middle course between submission to
the laws, when regularly pronounced constitutional on the one
hand, and open resistance, which is revolution or rebellion on
the other. T say the right of a State to annul a law of Congress
cannot be maintained but on the ground of the unalienable right
of man to resist oppression; that is to say, upon the ground of
revolution. I admit that there is an ultimate violent remedy
above the Constitution and in defiance of the Constitution, which
may be resorted to when a revolution is to be justified. But I
do not admit that under the Constitution, and in conformity with
it, there is any mode in which a State government, as a mem-
ber of the Union, can interfere and stop the progress of the
General Government, by force of her own laws, under any cir-
cumstances whatever.

This leads us to inquire into the origin of this Government
and the source of its power. Whose agent is it ? Is it the creat-
ure 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 re-
form it. It is observable enough that the doctrine for which the
honorable gentleman contends leads him to the necessity of main-
taining, not only that this General Government is the creature of
the States, but that it is the creature of each of the States sever-
ally; so that each may assert the power for itself of determining
whether it acts within the Hmits of its authority. It is the serv-
ant 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

10 — II


this Government and its true character. It is, sir, the people's.
Constitution, the people's Government; made for the people, madt
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 un-
questionably 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 residu-
ary. The National Government possesses those powers which it
can be shown the people have conferred on it, and no more.
All the rest belong to the State governments or to the people
themselves. So far as the people have restrained State sover-
eignty, 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 further. 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, doubt-
less, who wish they had been left without restraint ; but the Con-
stitution has ordered the matter differently. To make war, for
instance, is an exercise of sovereignty; but the Constitution de-
clares 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 Car-
olina, as well as of the other States, which does not arise " from
her own feelings of honorable justice.*' Such an opinion, there-
fore, is in defiance of the plainest provisions of the Constitution,



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

Observe, sir, that this resolution holds the tariff of 1828, and
every other tariff, designed to promote one branch of industry at
the expense of another, to be such a dangerous, palpable and
deliberate usurpation of power, as calls upon the States, in their
sovereign capacity, to interfere by their own authority. This de-
nunciation, Mr. President, you will please to observe, includes
our old tariff of 18 16, as well as all others; because that was es-
tablished to promote the interest of the manufactures of cotton,
to the manifest and admitted injury of the Calcutta cotton trade.
Observe, again, that all the qualifications are here rehearsed and
charged upon the tariff, which are necessary to bring the case
within the gentleman's proposition. The tariff is a usurpation; it
is a dangerous usurpation; it is a palpable usurpation; it is a
deliberate usurpation. It is such a usurpation, therefore, as calls
upon the States to exercise their right of interference. Here is
a case, then, within the gentleman's principles, and all his quali-
fications of his principles. It is a case for action. The Constitu-
tion is plainly, dangerously, palpably and deliberately violated;
and the States must interpose their own authority to arrest the
law. Let us suppose the State of South Carolina to express this
same opinion by the voice of her legislature. That would be
very imposing ; but what then ? Is the voice of one State con-
clusive ? It so happens that at the very moment when South
Carolina resolves that the tariff laws are unconstitutional, Penn-
sylvania and Kentucky resolve exactly the reverse. They hold
those laws to .be both highly proper and strictly constitutional


And now, sir, how does the honorable Member propose to deal
with this case ? How does he relieve us from this difficulty upon
any principle of his? His construction gets us into it; how does
he propose to get us out ?

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

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

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

In another of the South Carolina addresses, having premised
that the crisis requires ^^all the concentrated energy of passion,**
an attitude of open resistance to the laws of the Union is ad-
vised. Open resistance to the laws, then, is the constitutional
remedy, the conservative power of the State, which the South
Carolina doctrines teach for the redress of political evils, real or
imaginary. And its authors further say that, appealing with con-
fidence to the Constitution itself to justify their opinions, they
cannot consent to try their accuracy by the courts of justice. In
one sense, indeed, sir, this is assuming an attitude of open resist-
ance in favor of liberty. But what sort of liberty ? The liberty
of establishing their own opinions, in defiance of the opinions of
all others; the liberty of judging and of deciding exclusively
themselves, in a matter in which others have as much right to
judge and decide as they; the liberty of placing their own opin-
ions above the judgment of all others, above the laws, and above
the Constitution. This is their liberty, and this is the fair result


of the proposition contended for by the honorable gentleman.
Or it may be more properly said, it is identical with it, rather
than a result from it.

In the same publication we find the following: —

« Previously to our Revolution, when the arm of oppression was
stretched over New England, where did our Northern brethren meet
with a braver sympathy than that which sprang from the bosoms of
Carolinians? We had no extortion, no oppression, no collision with
the king's ministers, no navigation interests springing up in envious
rivalry of England. ^^

This seems extraordinary language. South Carolina no colli-
sion with the king's ministers in 1775! No extortion' No op-
pression! But, sir, it is also most significant language. Does any
man doubt the purpose for which it was penned ? Can any one
fail to see that it was designed to raise in the reader's mind the
question whether, at this time, — that is to say, in 1828, — South
Carolina has any collision with the king's ministers, any oppres-
sion, or extortion to fear from England ? Whether, in short,
England is not as naturally the friend of South Carolina, as New
England with her navigation interests springing up in envious
rivalry of England ?

Is it not strange, sir, that an intelligent man in South Caro-
lina in 1828 should thus labor to prove that in 1775 there was no
hostility, no cause of war betv.^een South Carolina and England ?
That she had no occasion in reference to her own interest, or
from a regard to her own welfare, to take up arms in the revo-
lutionary contest ? Can any one account for the expression of
such strange sentiments and their circulation through ths State,
otherwise than by supposing the object to be what I have al-
ready intimated, to raise the question if the}^ had no ^' collision '^
(maik the expression) with the ministers of King George III., in
1775, what collision have they in 1828 with the ministers of King
George IV. ? What is there now in the existing state of things
to separate Carolina from Old more, or rather, than from New
England ?

Resolutions, sir, have been recently passed 0/ the legislature
of South Carolina. I need not refer to them; they go no further
than the honorable gentleman himself has gone, — and, I hope,
not so far. I content myself, therefore, with debating the matter
with him.


And now, sir, what I have first to say on this subject is that
at no time and under no circumstances has New England or anv
State in New England, or any respectable body of persons in
New England, or any public man of standing in New England,
put forth such a doctrine as this Carolina doctrine.

The gentleman has found no case, he can find none, to sup-
port his own opinions by New England authority. New England
has studied the Constitution in other schools and under other
teachers. She looks upon it with other regards, and deems more
highly and reverently both of its just authority and its utility
and excellence. The history of her legislative proceedings may
be traced — the ephemeral effusions of temporary bodies, called
together by the excitement of the occasion, may be hunted up —
they have been hunted up. The opinions and votes of her pub-
lic men, in and out of Congress, may be explored — it will all be
in vain. The Carolina doctrine can derive from her neither coun-
tenance nor support. She rejects it now; she always did reject
it; and till she loses her senses, she always will reject it. The
honorable Member has referred to expressions on the subject of
the Embargo law made in this place by an honorable and vener-
able gentleman [Mr. Hillhouse] now favoring us with his pres-
ence. He quotes that distinguished Senator as saying that, in
his judgment, the Embargo law was unconstitutional, and that,
therefore, in his opinion the people were not bound to obey
it. That, sir, is perfectly constitutional language. An uncon-
stitutional law is not binding; but then it does not rest with a
resolution or a law of a State legislature to decide whether an
act of Congress be or be not constitutional. An unconstitutional
act of Congress would not bind the people of this district, al-
though they have no legislature to interfere in their behalf; and,
on the other hand, a constitutional law of Congress does bind
the citizens of every State, although all their legislatures should
undertake to annul it by act or resolution. The venerable Con-
necticut Senator is a constitutional lawyer of sound principles
and enlarged knowledge; a statesman practiced and experienced,
bred in the company of Washington, and holding just views
upon the nature of our governments. He believed the Em-
bargo unconstitutional, and so did others ; but what then ? Who
did he suppose was to decide that question ? The State leg-
islatures ? Certainly not. No such sentiment ever escaped his
lips. Let us follow up, sir, this New England opposition



to the Embargo laws; let us trace it till we discern the prin-
ciple which controlled and governed New England throughout
the whole course of that opposition. We shall then see what
similarity there is between the New England school of consti-
tutional opinions and this modern Carolina school. The gen-
tleman, I think, read a petition from some single individual,
addressed to the legislature of Massachusetts, asserting the Car-
olina doctrine, — that is, the right of State interference to arrest
the laws of the Union. The fate of that petition shows the sen-
timent of the legislature. It met no favor. The opinions of
Massachusetts were otherwise. They had been expressed in 1798
in answer to the resolutions of Virginia, and she did not depart
from them, nor bend them to the times. Misgoverned, wronged,
oppressed as she felt herself to be, she still held fast her integ-
rity to the Union. The gentleman may find in her proceedings
much evidence of dissatisfaction with the measures of govern-
ment, and great and deep dislike to the Embargo; all this makes
the case so much the stronger for her; for notwithstanding all
this dissatisfaction and dislike, she claimed no right, still, to sever
asunder the bonds of the Union. There was heat and there was
anger in her political feeling. Be it so! Her heat or her anger
did not, nevertheless, betray her into infidelity to the Govern-
ment. The gentleman labors to prove that she disliked the Em-
bargo as much as South Carolina dislikes the tariff, and expressed
her dislike as strongly. Be it so; but did she propose the Caro-
lina remedy ? — did she threaten to interfere, by State authority,
to annul the laws of the Union ? That is the question for the
gentleman's consideration.

No doubt, sir, a great majority of the people of New England
conscientiously believed the Embargo law of 1807 unconstitu-
tional; as conscientiously, certainly, as the people of South Caro-
lina hold that opinion of the tariff. They reasoned thus: Congress
has power to regulate commerce; but here is a law, they said,
stopping all commerce, and stopping it indefinitely. The law is
perpetual; that is, it is not limited in point of time, and must,
of course, continue until it shall be repealed by some other law.
It is as perpetual therefore, as the law against treason or mur-
der. Now, is this regulating commerce or destroying it ? Is it
guiding, controlling, giving the rule to commerce, as a subsisting
thing; or is it putting an end to it altogether? Nothing is more
certain than that a majority in New England deemed this law



a violation of the Constitution. The very case required by the
g^entleman to justify State interference had then arisen. Massa-
chiisetts believed this law to be *' a deliberate, palpable, and
dangerous exercise of a power not granted by the Constitu-
tion.'* Deliberate it was, for it was long continued; palpable,
she thought it, as no words in the Constitution gave the power,
and only a construction, in her opinion most violent, raised it;
dangerous it was, since it threatened utter ruin to her most im-
portant interests. Here, then, was a Carolina case. How did
Massachusetts deal with it ? It was, as she thought, a plain,
manifest, palpable violation of the Constitution, and it brought
ruin to her doors. Thousands of families, and hundreds of thou-
sands of individuals were beggared by it. While she saw and
felt all this, she saw and felt also that, as a measure of national
policy, it was perfectly futile ; that the country was no way bene-
fited by that which caused so much individual distress; that it
was efficient only for the production of evil, and all that evil in-
flicted on ourselves. In such a case, under such circumstances,
how did Massachusetts demean herself ? Sir, she remonstrated,
she memorialized, she addressed herself to the General Govern-
ment, not exactly "with the concentrated energy of passion,** but
with her own strong sense and the energy of sober conviction.
But she did not interpose the arm of her own power to arrest
the law and break the Embargo. Far from it. Her principles
bound her to two things; and she followed her principles, lead
where they might. First, to submit to every constitutional law
of Congress, and, secondly, if the constitutional validity of the
law be doubted, to refer that question to the decision of the
proper tribunals. The first principle is- vain and ineffectual with-
out the second. A majority of us in New England believed the
Embargo law unconstitutional; but the great question was, and
always will be, in such cases : Who is to decide this ? Who is to
judge between the people and the Government ? And, sir, it is
quite plain that the Constitution of the United States confers on
the Government itself, to be exercised by its appropriate depart-
onent, and under its own responsibility to the people, this power
of deciding ultimately and conclusively upon the just extent of
its own authority. If this had not been done, we should not have
advanced a single step beyond the old confederation.

Being fully of opinion that the Embargo law was unconstitu-
tional, the people of New England were yet equally clear in the



Opinion,— it was a matter they did not doubt upon,— that the
question, after all, must be decided by the judicial tribunals of
the United States. Before those tribunals, therefore, they brought
the question. Under the provisions of the law they had given
bonds to millions in amount, and which were alleged to be for-
feited. They suffered the bonds to be sued, and thus raised the
question. In the old-fashioned way of settling disputes, they
went to law. The case came to hearing and solemn argument;
and he who espoused their cause and stood up for them against
the validity of the Embargo Act was none other than that great
man of whom the gentleman has made honorable mention, Sam-
uel Dexter. He was then, sir, in the fullness of his knowledge
and the maturity of his strength. He had retired from long and
distinguished public service here, to the renewed pursuit of pro-
fessional duties; carrying with him all that enlargement and ex-
pansion, all the new strength and force, which an acquaintance
with the more general subjects discussed in the national coun-
cils is capable of adding to professional attainment in a mind of
true greatness and comprehension. He was a lawyer and he was
also a statesman. He had studied the Constitution, when he filled
public station, that he might defend it; he had examined its prin-
ciples that he might maintain them. More than all men, or at
least as much as any man, he was attached to the General Gov-
ernment and to the Union of the States. His feelings and opin-
ions all ran in that direction A question of Constitutional law,
too, was, of all subjects, that one which was best suited to his
talents and learning. Aloof from technicality, and unfettered by
artificial rule, such a question gave opportunity for that deep and
clear analysis, that mighty grasp of principle, which so much dis-
tinguished his higher efforts. His very statement was argument;
his inference seemed demonstration. The earnestness of his own
conviction wrought conviction in others. One was convinced, and
believed, and assented, because it was gratifying, delightful, to
think and feel and believe in unison with an intellect of such
• Tident superiority.

Mr. Dexter, sir, such as I have described him, argued the
New England cause. He put into his effort his whole heart, as

Online LibraryDavid J. (David Josiah) BrewerCrowned masterpieces of eloquence, representing the advance of civilization, as collected in The world's best orations, from the earliest period to the present time (Volume 10) → online text (page 16 of 56)