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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well as all the powers of his understanding; for he had avowed,
in the most public manner, his entire concurrence with his
neighbors on the point in dispute. He argued the cause; it was
lost, and New England submitted. The established tribunals


pronounced the law constitutional, and New England acquiesced.
Now, sir, is not this the exact opposite of the doctrine of the
gentleman from South Carolina ? According to him, instead of
referring to the judicial tribunals, we should have broken up the
Embargo by laws of our ov/n; we should have repealed it qiicad
New England; for we had a strong, palpable, and oppressive
case. Sir, we believed the Embargo unconstitutional; but still
that was matter of opinion, and who was to decide it ? We
thought it a clear case; but, nevertheless, we did not take the
law into our own hands because we did not wish to bring about
a revolution, nor to break up the Union: for I maintain that, be-
tween 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 inter-
ference, and then attempt to save it from the character of unlaw-
ful 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 dan-
gerous. Do adjectives and epithets avail anything ? 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 unconstitu-
tionality 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 re-
solves that the tariff is palpably unconstitutional, oppressive, and
dangerous; but Pennsylvania, not to be behind her neighbors, and
equally willing to strengthen her own faith by a confident assev-
eration, 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 exer-
cise of a power not granted. The honorable Member supposes
the tariff law to be such an exercise of power; and that, conse-
quently, 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. In-
stead of a clear and palpable violation, it is, in his judgment, no
violation at all. So that, while they use his authority for a hy-
pothetical 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.

Let me here say, sir, that if the gentleman's doctrine had
been received and acted upon in New England, in the times of
the Embargo and Nonintercourse, we should probably not now
have been here. The Government would very likely have gone
to pieces, and crumbled into dust. No stronger case can ever
arise than existed under those laws; no States can ever entertain
a clearer conviction than the New England States then enter-
tained; and if they had been under the influence of that heresy
of opinion, as I must call it, which the honorable Member es-
pouses, this Union would, in all probability, have been scattered
to the four winds. I ask the gentleman, therefore, to apply his
principles to that case; I ask him to come forth and declare
whether, in his opinion, the New England States would have
been justified in interfering to break up the Embargo system
under the conscientious opinions which they held upon it ? Had


they a right to annul that law ? Does he admit, or deny ? If
that which is thought palpably unconstitutional in South Carolina
justifies that State in arresting the progress of the law, tell me
whether that which was thought palpably imconstitutional also in
Massachusetts would have justified her in doing the same thing?
Sir, I deny the whole doctrine. It has not a foot of ground in
the Constitution to stand on. No public man of reputation ever
advanced it in Massachusetts, in the warmest times, or could
maintain himself upon it there at any time.

I wish now, sir, to make a remark upon the Virginia Resolu-
tions of 1798. I cannot undertake to say how these resolutions
were understood by those who passed them. Their language is
not a little indefinite. In the case of the exercise by Congress
of a dangerous power not granted to them, the resolutions assert
the right, on the part of the State, to interfere and arrest the
progress of the evil. This is susceptible of more than one inter-
pretation. It may mean no more than that the States may in-
terfere by complaint and remonstrance, or by proposing to the
people an alteration of the Federal Constitution. This would all
be quite unobjectionable; or, it may be, that no more is meant
than to assert the general right of revolution, as against all gov-
ernments, in cases of intolerable oppression. This no one doubts;
and this, in my opinion, is all that he who framed the resolu-
tions could have meant by it: for I shall not readily believe
that he was ever of opinion that a State, under the Constitution,
and in conformity with it, could, upon the ground of her own
opinion of its unconstitutionality, however clear and palpable she
might think the case, annul a law of Congress, so far as it should
operate on herself, by her own legislative power.

I must now beg to ask, sir, whence is this supposed right of
the States derived? — where do the)^ find the power to interfere
with the laws of the Union ? Sir, the opinion which the honor-
able gentleman maintains is a notion, founded in a total misap-
prehension, in my judgment, of the origin of this Government
and of the foundation on which it stands. I hold it to be a
popular Government, erected by the people; those who administer
it, responsible to the people; and itself capable of being amended
and modified, just as the people may choose it should be. It is
as popular, just as truly emanating from the people, as the State
governments. It is created for one purpose; the State govern-
ments for another. It has its own powers; they have theirs.


There is no more authority with them to arrest the operation of
a law of Congress than with Congress to arrest the operation of
their laws. We are here to administer a Constitution emanating
immediately from the people, and trusted by them to our admin-
istration. It is not the creature of the State governments. It is
of no moment to the argument, that certain acts of the State
legislatures are necessary to fill our seats in this body. That is
not one of their original State powers, a part of the sovereignty
of the State. It is a duty which the people, by the Constitution
itself, have imposed on the State legislatures, and which they
might have left to be performed elsewhere, if they had seen fit.
So they have left the choice of President with electors; but all
this does not affect the proposition, that this whole Government,
President, Senate, and House of Representatives, is a popular
Government. It leaves it still all its popular character. The
governor of a State (in some of the States) is chosen, not directly
by the people, but by those who are chosen by the people, for
the purpose of performing, among other duties, that of electing
a governor. Is the government of the State, on that account,
not a popular government ? This government, sir, is the inde-
pendent offspring of the popular will. It is not the creature of
State legislatures; nay, more, if the whole truth must be told,
the people brought it into existence, established it, and have
hitherto supported it, for the very purpose, amongst others, of
imposing certain salutary restraints on State sovereignties. The
States cannot now make war; they cannot contract alliances; they
cannot make, each for itself, separate regulations of commerce;
^hey cannot lay imposts; they cannot coin money. If this Consti-
tution, sir, be the creature of State legislatures, it must be ad-
mitted that it has obtained a strange control over the volitions of
its creators.

The people, then, sir, erected this Government. They gave it
a Constitution, and in that Constitution they have enumerated the
powers which they bestow on it. They have made it a limited
Government. They have defined its authority. They have re-
strained it to the exercise of such powers as are granted; and
all others, they declare, are reserved to the States or the people.
But, sir, they have not stopped here. If they had, they would
have accomplished but half their work. No definition can be so
clear as to avoid possibility of doubt; no limitation so precise as
to exclude all uncertainty. Who, then, shall construe this grant


of the people ? Who shall interpret their will, where it may be
supposed they have left it doubtful ? With whom do they repose
this ultimate right of deciding on the powers of the Government ?
Sir, they have settled all this in the fullest manner. They have
left it with the Government itself, in its appropriate branches.
Sir, the very chief end, the main design, for which the whole
Constitution was framed and adopted, was to establish a Govern-
ment that should not be obliged to act through State agency, or
depend on State opinion and State discretion. The people had
had quite enough of that kind of Government under the Confed-
eracy. Under that system the legal action — the application of
law to individuals — belonged exclusively to the States. Congress
could only recommend — their acts were not of binding force till
the States had adopted and sanctioned them. Are we in that
condition still ? Are we yet at the mercy of State discretion and
State construction ? Sir, if we are, then vain will be our attempt
to maintain the Constitution under which we sit.

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

This, sir, was the first great step. By this the supremacy of
the Constitution and laws of the United States is declared. The
people so will it. No State law is to be valid, which comes in
conflict with the Constitution, or any law of the United States
passed in pursuance of it. But who shall decide this question of
interference ? To whom lies the last appeal ? This, sir, the Con-
stitution itself decides also by declaring " that the judicial power
shall extend to all cases arising imder the Constitution and laws
of the United States.* These two provisions, sir, cover the whole
ground. They are in truth the keystone of the arch. With these
it is a Constitution; without them it is a Confederacy. In pur-


suance of these clear and express provisions, Congress established
at its very first session in the judicial act a mode for carrying
them into full effect and for bringing all questions of constitu-
tional power to the final decision of the Supreme Court. It
then, sir, became a Government. It then had the means of self-
protection; and but for this it would, in all probability, have
been now among things which are past. Having constituted the
Government, and declared its powers, the people have further
said, that since somebody must decide on the extent of these
powers, the Government shall itself decide; subject always, like
other popular governments, to its responsibility to the peo-
ple. And now, sir, I repeat, how is it that a State legislature
acquires any power to interfere ? Who, or what, gives them the
right to say to the people : ** We, who are your agents and serv-
ants for one purpose, will undertake to decide that your other
agents and servants, appointed by you for another purpose, have
transcended the authority you gave them ! *^ The reply would be,
I think, not impertinent — *^Who made you a judge over another's
servants? To their own masters they stand or fall.^^

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

For myself, sir, I do not admit the jurisdiction of South Caro-
lina, or any other State, to prescribe my constitutional duty; or to
settle, between me and the people, the validity of laws of Con-
gress for which I have voted. I decline her umpirage. I have
not sworn to support the Constitution according to her construc-
tion of its clauses. I have not stipulated by my oath of office,
or otherwise, to come under any responsibility except to the peo-
ple and those whom they have appointed to pass upon the ques-
tion, whether laws, supported by my votes, conform to the


Constitution of the country. And, sir, if we look to the general
nature of the case, could anything have been more preposterous
than to make a Government for the whole Union, and yet leave
its powers subject, not to one interpretation, but to thirteen or
twenty-four interpretations ? Instead of one tribunal, established
by all, responsible to all, with power to decide for all, shall consti-
tutional questions be left to four-and-twenty popular bodies, each
at liberty to decide for itself, and none bound to respect the de-
cisions of others; and each at liberty, too, to give a new con-
struction on every new election of its own members ? Would
anything with such a principle in it, or rather with such a des-
titution of all principle, be fit to be called a Government ? No,
sir. It should not be denominated a Constitution. It should be
called, rather, a collection of topics for everlasting controversy;
heads of debate for a disputatious people. It would not be a
government. It would not be adequate to any practical good,
nor fit for any country to live under. To avoid all possibility of
being misunderstood, allow me to repeat again in the fullest
manner that I claim no powers for the Government by forced
or imfair construction. I admit that it is a Government of strictly
limited powers; of enumerated, specified, and particularized pow-
ers; and that whatsoever is not granted is withheld. But not-
withstanding all this, and however the grant of powers may be
expressed, its limit and extent may yet, in some cases, admit of
doubt; and the General Government would be good for nothing,
it would be incapable of long existing if some mode had not been
provided in which those doubts, as they should arise, might be
peaceably but authoritatively solved.

And now, Mr. President, let me run the honorable gentleman's
doctrine a little into its practical application. Let us look at
his probable modus operandi. If a thing can be done, an in-
genious 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
without violence, bloodshed, and rebellion. We will take the
existing case of the tariff law. South Carolina is said to have
made up her opinion upon it. If we do not repeal it (as we
probably shall not), she will then apply to the case the remedy
of her doctrine. She will, we must suppose, pass a law of her
legislature declaring the several acts of Congress, usually called
the tariff laws, null and void, so far as they respect South Caro-
lina or the citizens thereof. So far all is a paper transaction, and


easy enough. But the collector at Charleston is collecting the du-
ties 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 tmdertake their rescue; the mar-
shal with his posse will come to the collector's aid, and here the
contest begins. The militia of the State will be called out to
sustain the nullifying act. They will march, sir, under a very
gallant leader, for I believe the honorable Member himself com-
mands 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 palpa-
ble, deliberate, and dangerous violations of the Constitution ! ^^
He will proceed, with this banner flying, to the customhouse in
Charleston : —

«A11 the while
Sonorous metal blowing martial sounds.**

Arrived at the customhouse, 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 customhouse, collector, clerks
and all, it is very probable some of those composing it would re-
quest 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 Turenne and Vauban. They would ask him, therefore, some-
thing 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 offense, 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

10 — \2



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, palp-
ably, 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 honorable 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 bayo-
nets; and this is war — civil war.

Direct collision, therefore, between force and force is the un-
avoidable result of that remedy for the revision of unconstitutional which the gentleman contends for. It must happen in the
very first case to which it is applied. Is not this the plain result ?
To resist, by force, the execution of a law generally is treason.
Can the courts of the United States take notice of the indulgence
of a State to commit treason ? The common saying that a State
cannot commit treason herself is nothing to the 'purpose. Can
she authorize others to do it ? If John Fries had produced an act
of Pennsylvania annulling the law of Congress, would it have
helped his case ? Talk about it as we will, these doctrines go the
length of revolution. They are incompatible with any peaceable
administration of the Government. They lead directly to dis-
union and civil commotion; and, therefore, it is, that at their
commencement, when they are first found to be maintained by
respectable men, and in a tangible form, I enter my public pro-
test against them all.

The honorable gentleman argues that if this Government be
the sole judge of the extent of its own powers, whether that
right of judging be in Congress, or the Supreme Court, it equally


subverts State sovereignty. This the gentleman sees, or thinks
he sees, although he cannot perceive how the right of judging,
in this matter, if left to the exercise of State legislatures, has
any tendency to subvert the Government of the Union. The
gentleman's opinion may be, that the right ought not to have
been lodged with the General Government; he may like better
such a Constitution, as we should have under the right of State
interference; but I ask him to meet me on the plain matter of
fact; I ask him to meet me on the Constitution itself; I ask him
if the power is not found there — clearly and visibly found there.

But, sir, what is this danger, and what the grounds of it ?
Let it be remembered that the Constitution of the United States
is not unalterable. It is to continue in its present form no
longer than the people who established it shall choose to con-
tinue it. If they shall become convinced that they have made

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 17 of 56)