Elliot’s Debates: Volume 4
South Carolina and the Tariff Protest
The Senate and House of Representatives of South Carolina, now met, and sitting in General Assembly, through the Hon. William Smith and the Hon. Robert Y Hayne, their representatives in the Senate of the United States, do, in the name and on behalf of the good people of the said commonwealth, solemnly PROTEST against the system of protecting duties, lately adopted by the federal government, for the following reasons:
1st. Because the good people of this commonwealth believe that the powers of Congress were delegated to it in trust for the accomplishment of certain specified objects which limit and control them, and that every exercise of them for any other purposes, is a violation of the Constitution as unwarrantable as the undisguised assumption of substantive, independent powers not granted or expressly withheld.
2d. Because the power to lay duties on imports is, and in its very nature can be, only a means of effecting objects specified by the Constitution; since no free government, and least of all a government of enumerated powers, can of right impose any tax, any more than a penalty, which is not at once justified by public necessity, and dearly within the scope and purview of the social compact; and since the right of confining appropriations of the public money to such legitimate and constitutional objects is as essential to the liberties of the people as their unquestionable privilege to be taxed only by their own consent.
3d. Because they believe that the tariff law passed by Congress at its last session, and all other acts of which the principal Object is the protection of manufactures, or any other branch of domestic industry, if they be considered as the exercise of a power in Congress to tax the people at its own good will and pleasure, and to apply the money raised to objects not specified in the Constitution, is a violation of these fundamental principles, a breach of a well-defined trust; and a perversion of the high powers vested in the federal government for federal purposes only.
4th. Because such acts, considered in the light of a regulation of commerce, are equally liable to objection; since, although the power to regulate commerce may, like other powers, be exercised so as to protect domestic manufactures, yet it is clearly distinguishable from a power to do so eo nomine, both in the nature of the thing and in the common acceptation of the terms; and because the confounding of them would lead to the most extravagant results, since the encouragement of domestic industry implies an absolute control over all the interests, resources, and pursuits of a people, and is inconsistent with the idea of any other than simple, consolidated government
5th. Because, from the contemporaneous exposition of the Constitution in the numbers of the Federalist, (which is cited only because the Supreme Court has recognized its authority,) it is clear that the power to regulate commerce was considered by the Convention as only incidentally connected with the encouragement of agriculture and manufactures; and because the power of laying imposts and duties on imports was not understood to justify, in any case, a prohibition of foreign commodities; except as a means of extending commerce, by coercing foreign nations to a fair reciprocity in their intercourse with us, or for some other bona fide commercial purpose.
6th. Because, whilst the power to protect manufactures is nowhere expressly granted to Congress, nor can be considered as necessary and proper to carry into effect any specified power, it seems to be expressly reserved to the states, by the 10th section of the 1st article of the Constitution.
7th. Because, even admitting Congress to have a constitutional right to protect manufactures by the imposition of duties, or by regulations, of commerce, designed principally for that purpose, yet a tariff of which the operation is grossly unequal and oppressive, is such an abuse of power as is incompatible with the principles of a free government and the great ends of civil society, justice, and equality of rights and protection.
8th. Finally, because South Carolina, from her climate, situation, and peculiar institutions, is, and must ever continue to be, wholly dependent upon agriculture and commerce, not only for her prosperity, but for her very existence as a state; because the valuable products of her soilthe blessings by which Divine Providence seems to have designed to compensate for the great disadvantages under which she suffers in other respectsare among the very few that can be cultivated with any profit by slave labor; and if, by the loss of her foreign commerce, these products Should be confined to an inadequate market, the fate of this fertile state would be poverty and utter desolation; her citizens, in despair, would emigrate to more fortunate regions, and the whole frame and constitution of her civil polity be impaired and deranged, if not dissolved entirely.
Deeply impressed with these considerations, the representatives of the good people of this Commonwealth, anxiously desiring to live in peace with their fellow-citizens, and to do all that in them lies to preserve and perpetuate the union of the states, and liberties of which it is the surest pledge, but feeling it to be their bounden duty to expose and resist all encroachments upon the true spirit of the Constitution, lest an apparent acquiescence in the system of protecting duties should be drawn into precedentdo, in the name of the commonwealth of South Carolina, claim to enter upon the Journal of the Senate their protest against it as unconstitutional, oppressive, and unjust.
PRESIDENT JACKSON’S PROCLAMATION, Of the 10th December, 1833, CONCERNING THE ORDINANCE OF SOUTH CAROLINA. ON THE SUBJECT OF THE TARIFF, ON THE 24TH NOVEMBER, 1832.
Whereas a convention assembled in the state of South Carolina have passed an ordinance, by which they declare “that the several acts, and parts of acts, of the Congress of the United States, purporting to be laws for the imposing duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States,” and more especially, two acts for the same purposes, passed on the 29th of May, 1828, and on the 14th of July, 1832, “are unauthorized by the Constitution of the United States, and violate the true meaning and intent thereof, and are null and void, and no law,” not binding on the citizens of that state or its officers; and by the said ordinance it is further declared to be unlawful for any of the constituted authorities of the state, or of the United States, to enforce the payment of the duties imposed by the said acts within the same state, and that it is the duty of the legislature to pass such laws as may be necessary to give full effect to the said ordinance:
And whereas, by the said ordinance, it is further ordained, that, in any Case of law or equity decided in the courts of said state, wherein shall be drawn in question the validity of the said ordinance, or of the acts of the legislature that may be passed to give it effect, or of the said laws of the United States, no appeal shall be allowed to the Supreme Court of the United States, nor shall any copy of the record be permitted or allowed for that purpose, and that any person attempting to take such appeal shall be punished as for a contempt of court:
And, finally, the said ordinance declares that the people of South Carolina will maintain the said ordinance at every hazard; and that they will consider the passage of any act, by abolishing or closing the ports of the said state, or otherwise obstructing the free ingress or egress of vessels to and from the said ports, or any other act of the federal government to coerce the state, shut up her ports, destroy or harass her commerce, or to enforce the said acts otherwise than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union; and that the people of the said state will thenceforth hold themselves absolved from all further obligation to maintain or preserve their political connection with the people of the other states, and will forthwith proceed to organize a separate government, and do other acts and things which sovereign and independent states may of right do:
And whereas the said ordinance prescribes to the people of South Carolina a course of conduct in direct violation of their duty as citizens of the United States, contrary to the laws of their country, subversive of its Constitution, and having for its object the destruction of the Unionthat Union which, coeval with our political existence, led our fathers, without any other ties to unite them than those of patriotism and a common cause, through a sanguinary struggle, to a glorious independencethat sacred Union, hitherto inviolate, which, perfected by our happy Constitution, has brought us, by the favor of Heaven, to a state of prosperity at home, and high consideration abroad, rarely, if ever, equalled in the history of nations. To preserve this bond of our political existence from destruction, to maintain inviolate this state of national honor and prosperity, and to justify the confidence my fellow-citizens have reposed in me, I, Andrew Jackson, President of the United States, have thought proper to issue this my Proclamation, stating my views of the Constitution and laws applicable to the measures adopted by the Convention of South Carolina, and to the reasons they have put forth to sustain them, declaring the course which duty will require me to pursue, and, appealing to the understanding and patriotism of the people, warn them of the consequences that must inevitably result from an observance of the dictates of the Convention.
Strict duty would require of me nothing more than the exercise of those powers with which I am now, or may hereafter be, invested for preserving the peace of the Union, and for the execution of the laws, But the imposing aspect which opposition has assumed in this case, by clothing itself with state authority, and the deep interest which the people of the United States must all feel in preventing a resort to stronger measures, while there is a hope that any thing will be yielded to reasoning and remonstrance, perhaps demand, and will certainly justify, a full exposition, to South Carolina and the nation, of the views I entertain of this important question, as well as a distinct enunciation of the course which my sense of duty will require me to pursue.
The ordinance is founded, not on the indefeasible right of resisting acts which are plainly unconstitutional, and too oppressive to be endured, but on the strange position that any one state may not only declare an act of Congress void, but prohibit its execution; that they may do this consistently with the Constitution; that the true construction of that instrument permits a state to retain its place in the Union, and yet be bound by no other of its laws than those it may choose to consider as constitutional. It is true, they add that, to justify this abrogation of a law, it must be palpably contrary to the Constitution; but it is evident that, to give the right of resisting laws of that description, coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws: for, as by the theory, there is no appeal: the reasons alleged by the state, good or bad, must prevail. If it should be said that public opinion is a sufficient check against the abuse of this power, it may be asked why it is not deemed a sufficient guard against the passage of an unconstitutional act by Congress. There is, however, a restraint, in this last case, which makes the assumed power of a state more indefensible, and which does not exist in the other. There are two appeals from an unconstitutional act passed by Congressone to the judiciary, the other to the people and the states. There is no appeal from the state decision in theory, and the practical illustration shows that the courts are closed against an application to review it, both judges and jurors being sworn to decide in its favor. But reasoning on this subject is superfluous when our social compact, in express terms, declares that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land; and, for greater caution, adds, “that the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.” And it may be asserted, without fear of refutation, that no federative government could exist without a similar provision. Look, for a moment, to the consequence. If South Carolina considers the revenue laws unconstitutional, and has a right to prevent their execution in the port of Charleston, there would be a clear constitutional objection to their collection in every other port, and no revenue could be collected any where; for all imposts must be equal. It is no answer to repeat, that an unconstitutional law is no law, so long as the question of its legality is to be decided by the state itself; for every law operating injuriously upon any local interest will be perhaps thought, and certainly represented, as unconstitutional; and, as has been shown, there is no appeal.
If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy. The excise law in Pennsylvania, the embargo and non-intercourse law in the Eastern States, the carriage tax in Virginia, were all deemed unconstitutional, and were more unequal in their operation than any of the laws now complained of; but, fortunately, none of those states discovered that they had the right now claimed by South Carolina. The war into which we were forced, to support the dignity of the nation and the rights of our citizens, might have ended in defeat and disgrace, instead of victory and honor, if the states who supposed it a ruinous and unconstitutional measure had thought they possessed the right of nullifying the act by which it was declared, and denying supplies for its prosecution. Hardly and unequally as those measures bore upon several members of the Union, to the legislatures of none did this efficient and peaceable remedy, as it is called, suggest itself. The discovery of this important feature in our Constitution was reserved to the present day. To the statesmen of South Carolina belongs the invention, and upon the citizens of that state will unfortunately fall the evils of reducing it to practice.
If the doctrine of a state veto upon the laws of the Union carries with it internal evidence of its impracticable absurdity, our constitutional history will also afford abundant proof that it would have been repudiated with indignation, had it been proposed to form a feature in our government.
In our Colonial state, although dependent on another power, we very early considered ourselves as connected by common interest with each other. Leagues were formed for common defence; and, before the declaration of independence, we were known in our aggregate character as the United Colonies of America. That decisive and important step was taken jointly. We declared ourselves a nation by a joint, not by several acts; and when the terms of our confederation were reduced to form, it was in that of a solemn league of several states, by which they agreed that they would collectively form one nation, for the purpose of conducting some certain domestic concerns and all foreign relations. In the instrument forming that Union is found an article which declares that “every state shall abide by the determinations of Congress on all questions which, by that confederation, should be submitted to them.”
Under the Confederation, then, no state could legally annul a decision of the Congress, or refuse to submit to its execution; but no provision was made to enforce these decisions. Congress made requisitions, but they were not complied with. The government could not operate on individuals. They had no judiciary, no means of collecting revenue.
But the defects of the Confederation need not be detailed. Under its operation we could scarcely be called a nation. We had neither prosperity at home nor consideration abroad. This state of things could not be endured, and our present happy Constitution was formedbut formed in vain, if this fatal doctrine prevails. It was formed for important objects, that are announced in the preamble made in the name and by the authority of the people of the United States, whose delegates framed, and whose conventions approved it. The most important among these objects-that which is placed first in rank, on which all the others restis “to form a more perfect union.” Now, is it possible that, even if there were no express provision giving supremacy to the Constitution and laws of the United States over those of the states,can it be conceived, that an instrument made for the purpose of “forming a more perfect union” than that of the Confederation, could be so constructed by the assembled wisdom of our country, as to substitute for that Confederation a form of government dependent for its existence on the local interest, the party spirit, of a state, or the prevailing faction of a state? Every man of plain, unsophisticated understanding, who hears the question, will give such an answer as will preserve the Union. Metaphysical subtlety, in pursuit of an impracticable theory, could alone have devised one that is calculated to destroy it.
I consider, then, the power to annul a law of the United States, assumed by one state, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent, with every principle on which it was founded, and destructive of the great object for which it was formed.
After this general view of the leading principle, we must examine the particular application of it which is made in the ordinance.
The preamble rests its justification on these grounds: It assumes as a fact that the obnoxious laws, although they purport to be laws for raising revenue, were, in reality, intended for the protection of manufactures, which purpose it asserts to be unconstitutional; that the operation of these laws is unequal; that the amount raised by them is greater than is required by the wants of the government; and, finally, that the proceeds are to be applied to objects unauthorized by the Constitution. These are the only causes alleged to justify an open opposition to the laws of the country, and a threat of seceding from the Union, if any attempt should be made to enforce them, The first virtually acknowledges that the law in question was passed under a power expressly given by the Constitution to lay and collect imposts; but its constitutionality is drawn in question from the motives of those who passed it. However apparent this purpose may be in the present case, nothing can be more dangerous than to admit the position that an unconstitutional purpose, entertained by the members who assent to a law enacted under a constitutional power, shall make that law void; for how is that purpose to be ascertained? Who is to make the scrutiny? How often may bad purposes be falsely imputedin how many cases are they concealed by false professionsin how many is no declaration of motive made! Admit this doctrine, and you give to the states an uncontrolled right to decide; and every law may be annulled under this pretext. If, therefore, the absurd and dangerous doctrine should be admitted, that a state may annul an unconstitutional law, or one that it deems such, it will not apply to the present one.
The next objection is, that the laws in question operate unequally. This objection may be made with truth to every law that has been or can be passed. The wisdom of man never yet contrived a system of taxation that would operate with perfect equality. If the unequal operation of a law makes it unconstitutional, and if all laws of that description may be abrogated by any state for that cause, then, indeed, is the Federal Constitution unworthy of the slightest effort for its preservation. We have hitherto relied on it as the perpetual bond of our union. We have received it as the work of the assembled wisdom of the nation. We have trusted to it as to the sheet anchor of our safety in the stormy times of conflict with a foreign or domestic foe. We have looked to it with sacred awe as the palladium of our liberties; and with all the solemnities of religion have pledged to each other our lives and fortunes here, and our hopes of happiness hereafter, in its defence and support. Were we mistaken, my countrymen, in attaching this importance to the Constitution of our country? Was our devotion paid to the wretched, inefficient, clumsy contrivance which this new doctrine would make it? Did we pledge ourselves to the support of an airy nothinga bubble that must be blown away by the first breath of disaffection? Was this self-destroying, visionary theory the work of the profound statesmen, the exalted patriots, to whom the task of constitutional reform was intrusted?
Did the name of Washington sanction, did the states deliberately ratify, such an anomaly in the history of fundamental legislation? No. We were not mistaken, The letter of this great instrument is free from this radical fault. Its language directly contradicts the imputation; its spirit, its evident intent, contradicts it. No, we did not err! Our Constitution does not contain the absurdity of giving power to make laws, and another power to resist them. The sages, whose memory will always be reverenced, have given us a practical, and, as they hoped, a permanent constitutional compact. The Father of his Country did not affix his revered name to so palpable an absurdity. Nor did the states, when they severally ratified it, do so, under the impression that a veto on the laws of the United States was reserved to them, or that they could exercise it by implication. Search the debates in all their conventions; examine the speeches of the most zealous opposers of federal authority; look at the amendments that were proposed: they are all silentnot a syllable uttered, not a vote given, not a motion made, to correct the explicit supremacy given to the laws of the Union over those of the states, or to show that implication, as is now contended, could defeat it. No, we have not erred! The Constitution is still the object of our reverence, the bond of our union, our defence in danger, the source of our prosperity in peace: it shall descend as we have received it, uncorrupted by sophistical construction, to our posterity; and the sacrifices of local interest, of state prejudices, of personal animosities, that were made to bring it into existence, will again be patriotically offered for its support.
The two remaining objections made by the ordinance to these laws, are, that the sums intended to be raised by them are greater than are required, and that the proceeds will be unconstitutionally employed.
The Constitution has given expressly to Congress the right of raising revenue, and of determining the sum the public exigencies will require. The states have no control over the exercise of this right, other than that which results from the power of changing the representatives who abuse it, and thus procuring redress. Congress may, undoubtedly, abuse this discretionary power; but the same may be said of others with which they are vested. Yet the discretion must exist somewhere. The Constitution has given it to the representatives of all the people, checked by the representatives of the states, and by the executive power. The South Carolina construction gives it to the legislature, or the convention, of a single state, where neither the people of the different states, nor the states in their separate capacity, nor the chief magistrate elected by the people, have any representation, Which is the most discreet disposition of the power? I do not ask you, fellow-citizens, which is the constitutional disposition: that instrument speaks a language not to be misunderstood. But if you were assembled in general convention, which would you think the safest depository of this discretionary power, in the last resort? Would you add a clause giving it to each of the states, or would you sanction the wise provisions already made by your Constitution? If this should be the result of your deliberations, when providing for the future, are you, can you be, ready to risk all that we hold dear, to establish, for a temporary and a local purpose, that which you must acknowledge to be destructive, and even absurd, as a general provision? Carry out the consequences of this right vested in the different states, and you must perceive that the crisis your conduct presents at this day would recur whenever any law of the United States displeased any of the states, and that we should soon cease to be a nation.
The ordinance, with the same knowledge of the future that characterizes a former objection, tells you that the proceeds of the tax will be unconstitutionally applied. If this could be ascertained with certainty, the objection would, with more propriety, be reserved for the law so applying the proceeds, but surely cannot be urged against the laws levying the duty.
These are the allegations contained in the ordinance. Examine them seriously, my fellow-citizensjudge for yourselves. I appeal to you to determine whether they are so clear, so convincing, as to leave no doubt of their correctness; and even if you should come to this conclusion, how far they justify the reckless, destructive course, which you are directed to pursue. Review these objections, and the conclusions drawn from them, once more. What are they? Every law, then, for raising revenue, according to the South Carolina ordinance, may be rightfully annulled, unless it be so framed as no law ever will or can be framed. Congress have a right to pass laws for raising revenue, and each state has a right to oppose their executiontwo rights directly opposed to each other; and yet is this absurdity supposed to be contained in an instrument drawn, for the express purpose of avoiding collisions between the states and the general govern by an assembly of the most enlightened statesmen and purest patriots ever imbodied for a similar purpose!
In vain have these sages declared that Congress shall, have power to lay and collect taxes, duties, imposts, and excises; in vain have they provided that they shall have power to pass laws which shall be necessary and proper to carry those powers into execution; that those laws and that Constitution shall be the “supreme law of the land, and that the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding;” in vain have the people of the several states solemnly sanctioned these provisions, made them their paramount law, and individually sworn to support them whenever they were called on to execute any office;vain provisions! ineffectual restrictions! vile profanation of oaths! miserable mockery of legislation!if a bare majority of the voters in any one state may, on a real or supposed knowledge of the intent with which a law has been passed, declare themselves free from its operationsay, “Here it gives too little, there too much, and operates unequally here it suffers articles to be free that ought to be taxedthere it taxes those that ought to be freein this case the proceeds are intended to be applied to purposes which we do not approvein that, the amount raised is more than is wanted.
“Congress, it is true, are vested by the Constitution with the right of deciding these questions according to their sound discretion. Congress is composed of the representatives of all the states, and of all the people of all the states; but WE, part of the people of one state, to whom the Constitution has given no power on the subject, from whom it has expressly taken it away,we, who have solemnly agreed that this Constitution shall be our law,we, most of whom have sworn to support it,we now abrogate this law, and swear, and force others to swear, that it shall not be obeyed. And we do this, not because Congress have no right to pass such laws,this we do not allege,but because they have passed them with improper views. They are unconstitutional from the motives of those who passed them, which we can never with certainty know; from their unequal operation, although it is impossible, from the nature of things, that they should be equal; and from the disposition which we presume may be made of their proceeds, although that disposition has not been declared.” This is the plain meaning of the ordinance in relation to laws which it abrogates for alleged unconstitutionality. But it does not stop there It repeals, in express terms, an important part of the Constitution itself, and of laws passed to give it effect, which have never been alleged to be unconstitutional. The Constitution declares that the judicial powers of the United States extend to cases arising under the laws of the United States, and that such laws, the Constitution, and treaties, shall be paramount to the state constitutions and laws. The judiciary act prescribes the mode by which the case may be brought before a court of the United States, by appeal, when a state tribunal shall decide against this provision of the Constitution. The ordinance declares there shall be no appeal; makes the state law paramount to the Constitution and laws of the United States; forces judges and jurors to swear that they will disregard their provisions; and even makes it penal in a suitor to attempt relief by appeal. It further declares that it shall not be lawful for the authorities of the United States, or of that state, to enforce the payment of duties imposed by the revenue laws within its limits.
Here is a law of the United States, not even pretended, to be unconstitutional, repealed by the authority of a small majority of the voters of a single state. Here is a provision of the Constitution which is solemnly abrogated by the same authority.
On such expositions and reasonings, the ordinance grounds not only an assertion of the right to annul the laws of which it complains, but to enforce it by a threat of seceding from the Union if any attempt is made to execute them.
This right to secede is deduced from the nature of the Constitution, which, they say, is a compact between sovereign states, who have preserved their whole sovereignty, and, therefore, are subject to no superior; that, because they made the compact, they can break it when, in their opinion, it has been departed from by the other states. Fallacious as this course of reasoning is, it enlists state pride, and finds advocates in the honest prejudices of those who have not studied the nature of our government sufficiently to see the radical error on which it rests.
The people of the United States formed the Constitution, acting through the state legislatures in making the compact to meet and discuss its provisions, and acting in separate conventions when they ratified those provisions; but the terms used in its construction show it to be a government in which the people of all the states collectively are represented. We are ONE PEOPLE in the choice of the President and Vice-President. Here the states have no other agency than to direct the mode in which the votes shall be given. The candidates having the majority of all the votes are chosen. The electors of a majority of states may have given their votes for one candidate, and yet another may be chosen. The people, then, and not the states, are represented in the executive branch.
In the House of Representatives there is this difference, that the people of one state do not, as in the case of President and Vice-President, all vote for the same officers. The people of all the States do not vote for all the members, each state electing only its own representatives. But this creates no material distinction. When chosen, they are all representatives of the United States, not representatives of the particular state from whence they come. They are paid by the United States, not by the state, nor are they accountable to it for any act done in the performance of their legislative functions; and however they may, in practice, as it is their duty to do, consult and prefer the interests of their particular constituents when they come in conflict with any other partial or local interest, yet it is either first and highest duty, as representatives of the United States, to promote the general good.
The Constitution of the United States, then, forms a government, not a league; and whether it be formed by compact between the states, or in any other manner, its character is the same. It is a government in which all the people are represented, which operates directly on the people individually, not noon the states. They retained all the power they did not grant but each state, having expressly parted with so many powers as to constitute; jointly with the other states, a single nation; cannot, from that period, possess any right to secede, because such secession does not break a league, but destroys the unity of a nation; and any injury to that unity is not only a breach which would result from the contravention of a compact but it is an offence against the whole Union. To say that any state may at pleasure secede from the Union, is to say that the United States are not a nation; because it would be a solecism to contend that any part of a nation might dissolve its connection with the other parts, to their injury or ruin, without committing any offence. Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right, is confounding the meaning of terms, and can only be done through gross error, or to deceive those who are willing to assert a right, but would pause before they made a revolution, or incur the penalties consequent on a failure.
Because the Union was formed by compact, it is said the parties to that compact may, when they feel themselves aggrieved, depart from it; but it is precisely because it is a compact that they cannot. A compact is an agreement or binding obligation. It may, by its terms, have a sanction or penalty for its breach, or it may not. If it contains no sanction, it may be broken with no other consequence than moral guilt: if it have a sanction, then the breach insures the designated or implied penalty. A league between independent nations, generally, has no sanction other than a moral one; or if it should contain a penalty, as there is no common superior, it cannot be enforced. A government, on the contrary, always has a sanction, express or implied; and, in our case, it is both necessarily implied and expressly given. An attempt, by force of arms, to destroys government, is an offence, by whatever means the constitutional compact may have been formed; and such government has the right, by the law of self-defence, to pass acts for punishing the offender, unless that right is modified, restrained, or resumed, by the constitutional act. In our system, although it is modified in the case of treason, yet authority is expressly given to pass all laws necessary to carry its powers into effect, and, under this grant, provision has been made for punishing acts which obstruct the due administration of the laws.
It would seem superfluous to add any thing to show the nature of that union which connects us; but, as erroneous opinions on this subject are the foundation of doctrines the most destructive to our peace, I must give some further development to my views on this subject. No one, fellow-citizens, has a higher reverence for the reserved rights of the states than the magistrate who now addresses you. No one would make greater personal sacrifices, or official exertions, to defend them from violation; but equal care must be taken to prevent, on their part, an improper interference with, or resumption of, the rights they have vested in the nation. The line has not been so distinctly drawn as to avoid doubts, in some cases, of the exercise of power. Men of the best intentions and soundest views may differ in their construction of some parts of the Constitution; but there are others on which dispassionate reflection can leave no doubt. Of this nature appears to be the assumed right of secession.
It rests, as we have seen, on the alleged undivided sovereignty of the states, and on their having formed, in this sovereign capacity, a compact which is called the Constitution, from which, because they made it, they have the right to secede. Both of these positions are erroneous, and some of the arguments to prove them so have been anticipated.
The states severally have not retained their entire sovereignty.
It has been shown that, in becoming parts of a nation, not members of a league, they surrendered many of their essential parts of sovereignty. The right to make treaties, declare war, levy taxes, exercise exclusive judicial and legislative powers, were all of them functions of sovereign power. The states, then, for all these purposes, were no longer sovereign The allegiance of their citizens was transferred, in the first instance, to the government of the United States: they became American citizens, and owed obedience to the Constitution of the United States, and to laws made in conformity with the powers it vested in Congress. This last position has not been, and cannot be, denied. How, then, can that state be said to be sovereign and independent whose citizens owe obedience to laws act made by it, and whose magistrates are sworn to disregard those laws when they come in conflict with those passed by another? What shows conclusively that the states cannot be said to have reserved an undivided sovereignty, is, that they expressly ceded the right to punish treason,not treason against their separate power, but treason against the United States, Treason is an offence against sovereignty, and sovereignty must reside with the power to punish it. But the reserved rights of the states are not less sacred because they have, for their common interest, made the general government the depository of these powers.
The unity of our political character (as has been shown for another purpose) commenced with its very existence. Under the royal government we had no separate character: our opposition to its oppressions began as united colonies. We were the United States under the Confederation; and the name was perpetuated, and the union rendered more perfect, by the Federal Constitution. In none of these stages did we consider ourselves in any other light than as forming one nation. Treaties and alliances were made in the name of all. Troops were raised for the joint defence. How, then, with all these proofs that, under all changes of our position, we had, for designated purposes and defined powers, created national governmentshow is it that the most perfect of those several modes of union should now be considered as a mere league that maybe dissolved at pleasure? It is from an abuse of terms. Compact is used as synonymous with league, although the true term is not employed, because it would at once show the fallacy of the reasoning. It would not do to say that our Constitution was only a league, but it is labored to prove it a compact, (which in one sense it is,) and then to argue that, as a league is a compact, every compact between nations must of course be a league, and that from such an engagement every sovereign power has a right to recede. But it has been shown that, in this sense, the states are not sovereign, and that, even if they were, and the national Constitution had been formed by compact, there would be no right in any one state to exonerate itself from its obligations.
So obvious are the reasons which forbid this secession, that it is necessary only to allude to them. The union was formed for the benefit of all. It was produced by mutual sacrifices of interests and opinions. Can those sacrifices be recalled? Can the states, who magnanimously surrendered their title to the territories of the west, recall the grant? Will the inhabitants of the inland states agree to pay the duties that may be imposed without their assent by those on the Atlantic or the Gulf, for their own benefit? Shall there be a free port in one state, and onerous duties in another. No one believes that any right exists in a single state to involve the other in these and countless other evils, contrary to the engagements solemnly made. Every one must see that the other states, in self-defence, must oppose it at all hazards.
These are the alternatives that are presented by the conventiona repeal of all the acts for raising revenue, leaving the government without the means of support; or an acquiescence in the dissolution of our Union by the secession of one of its members, When the first was proposed, it was known that it could not be listened, to for a moment. It was known, if force was applied to oppose the execution of the laws, that it must be repelled by force; that Congress could not, without involving itself in disgrace, and the country in ruin, accede to the proposition; and yet, if this is not done on a given day, or if any attempt is made to execute the laws, the state is, by the ordinance, declared to be out of the Union. The majority of a convention assembled for the purpose have dictated these terms, or rather this rejection of all terms, in the name of the people of South Carolina. It is true that the government of the state speaks of the submission of their grievances to a convention of all the states, which, he says, they “sincerely and anxiously seek and desire.” Yet this obvious and constitutional mode of obtaining the sense of the other states on the construction of the federal compact, and amending it, if necessary, has never been attempted by those who have urged the state on to this destructive measure. The state might have proposed the call for a general convention to the other states, and Congress, if a sufficient number of them concurred, must have called it. But the first magistrate of South Carolina, when he expressed a hope that, “on a review, by Congress and the functionaries of the general government, of the merits of the controversy,” such a convention will be accorded to them, must have known that neither Congress, nor any functionary of the general government, has authority to call such a convention, unless it may be demanded by two thirds of the states. This suggestion, then, is another instance of the reckless inattention to the provisions of the Constitution with which this crisis has been madly hurried on; or of the attempt to persuade the people that a constitutional remedy had been sought and refused. If the legislature of South Carolina “anxiously desire” a general convention to consider their complaints, why have they not made application for it in the way the Constitution points out? The assertion that they “earnestly seek it” is completely negatived by the omission.
ON THE TARIFF.
SUMMARY OF THE ARGUMENT ON THE SOUTH CAROLINA EXPOSITION.
“The argument against the constitutional authority [to lay taxes, except for the purposes of revenue] is understood to be maintained on the following grounds, which, though applied to the protection of manufactures, are equally applicable to all other cases, where revenue is not the object, The general government is one of specific powers, and it can rightfully exercise only the powers expressly granted, and those which may be ‘necessary and proper’ to carry them into effect; all others being reserved expressly to the states, or to the people. It results, necessarily, that those who claim to exercise a power under the Constitution are bound to show that it is expressly granted, or that it is ‘necessary and proper,’ ass means to execute some of the granted powers. No such proof has been offered in regard to the protection of manufactures.
“It is true that the 8th section of the 1st article of the Constitution authorizes Congress to lay and collect an impost duty; but it is granted, as tax power for the sole purpose of revenuea power in its nature essentially different from that of imposing protective or prohibitory duties. The two are incompatible; for the prohibitory system must end in destroying the revenue from imports. It has been said that the system is a violation of the spirit, and not of the letter, of the Constitution. The distinction is not material. The Constitution may be as grossly violated by acting against its meaning, as against its letter. The Constitution grants to Congress the power of imposing a duty on imports for revenue, which power is abused by being converted into an instrument for rearing up the industry of one section of the country on the ruins of another. The violation, then, consists in using a power, granted for one object, to advance another, and that by a sacrifice of the original object. It is, in a word, a violation of perversion, the most dangerous of all, because the most insidious, and difficult to resist. Such is the reasoning emanating from high legislative authority.”Story.
MR. CALHOUN’S REPORT ON THE CIRCULATING, THROUGH THE MAILS, OF INFLAMMATORY APPEALS.
Senate, February 4, 1836.
The message recommends that Congress should pass a law to punish the transmission, through the mail, of incendiary publications intended to instigate the slaves to insurrection. It of course assumes for Congress a right to determine what papers are incendiary and intended to excite insurrection. The question, then, is, Has Congress such a right?a question of vital importance to the slaveholding states.
After examining this question with due deliberation, in all its bearings, the committee are of opinion, not only that Congress has not the right, but to admit it would be fatal to those states. Nothing is more clear than that the admission of the right, on the part of Congress, to determine what papers are incendiary, and, as such, to prohibit their circulation through the mail, necessarily involves the right to determine what are not incendiary, and to enforce their circulation. Nor is it less certain that to admit such a right would be virtually to clothe Congress with the power to abolish slavery, by giving it the means of breaking down all the barriers which the slaveholding states have erected for the protection of their lilies and property. It would give Congress, without regard to the prohibition laws of the states, the authority to open the gates to the flood of incendiary publications which are ready to break into those states, and to punish all who dare resist as criminals. Fortunately, Congress has no such right. The internal peace and security of the states are under the protection of the states themselves, to the entire exclusion of all authority and control on the part of Congress. It belongs to them, and not to Congress, to determine what is, or is not, calculated to disturb their peace and security; and, of course, in the case under consideration, it belongs to the slaveholding states to determine what is incendiary and intended to incite to insurrection, and to adopt such defensive measures as may be necessary for their security, with unlimited means of carrying them into effect, except such as may be expressly inhibited to the states by the Constitution. To establish the truth of this position, so essential to the safety of those states, it would seem sufficient to appeal to their constant exercise of this right, at all times, without restriction, or question, both before and since the adoption of the Constitution.
That the states which form our federal Union are sovereign and independent communities, bound together by a constitutional compact, and are possessed of all the powers belonging to distinct and separate states, excepting such as are delegated to be exercised by the general government, is assumed as unquestionable. The compact itself-expressly provides that all powers not delegated are reserved to the states and the people. To ascertain, then, whether the power in question is delegated or reserved, it is only necessary to ascertain whether it is to be found among the enumerated powers or not. If it be not among them, it belongs, of course, to the reserved powers. On turning to the Constitution, it will be seen that, while the power of defending the country against external danger is found among the enumerated, the instrument is wholly silent as to the power of defending the internal peace and security of the states, and, of course, reserves to the states this important power, as it stood before the adoption of the Constitution, with no other limitations, as has been stated, except such as are expressly prescribed by the instrument itself. From what has been stated, it may be inferred that the right of a state to defend itself against internal dangers is a part of the great primary and inherent right of self-defence, which, by the laws of nature, belongs to all communities; and so jealous were the states of this essential right, without which their independence could not be preserved, that it is expressly provided by the Constitution, that the general government shall not assist a state, even in case of domestic violence, except on the application of the authorities of the state itself; thus excluding, by a necessary consequence, its interference in all other cases.
ABOLITION.RECEPTION OF PETITIONS.
House, January, 1836.
Mr. CUSHING. Looking into the Constitution, I find, among the amendments proposed by the Congress of 1789, and in the very first of the number, the following article:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.”
Long before I had imagined that such a right would ever be called in question, I remember to have read the remark of a distinguished jurist and magistrate of the state of Virginia, (Tucker’s Notes on Blackstone,) complaining that the concluding words of the clause I have cited from the Constitution did not so strongly guard the great right of petition as the liberties of the people demanded. On the other hand, a still more distinguished jurist and magistrate of my own state, Massachusetts, (Story,) in remarking upon the same article, expresses the opinion that it is ample in terms; because, he adds:, “It [the right of petition] results from the very nature of the structure and institutions of a republican government; it is impossible that it should be practically denied until the spirit of liberty had wholly disappeared, and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen.” These eminent constitutional lawyers agreed in opinion of the importance of the provision; they differed only in thinking, the one, that the right of petition could not be too clearly defined; the other, that, whether defectively defined or not in the letter, the people would take care that it should in spirit be faithfully observed. While the first entertained a wise jealousy of the encroachments of the people’s representatives, the other looked for the protection of the public rights to the people themselves, the masters of the people’s representatives; and, as the fears of the former have been verified too speedily, I trust the hopes of the latter will be not less truly realized.
When the Constitution was submitted to the people of the respective states, for their adoption or rejection, it awakened the warmest debates of the several state conventions. Some of them, in accepting the proposed plan of government, coupled their acceptance with a recommendation of various additions to the Constitution, which they deemed essential to the preservation of the rights of the states, or of the people. The commonwealth of Massachusetts insisted, among other things, on the adoption of that memorable amendment.
New York, North Carolina, and Rhode Island, proposed, either literally or in substance, the same provision; and the consequence was, the addition to the Constitution of the article, which I am now discussing, on the right of conscience, speech, and petition. And, such being the history of this clause, I look to the gentlemen from Virginia especially, constant and honorable as they are in their attachment to constitutional principles at whatever hazard, to go with me in maintaining inviolate this great original right of the people.
Mr. PRENTISS. If Congress, under the clause giving it “exclusive legislation, in all cases whatsoever,” over the District, has authority to impose taxes, and provide how they shall be raised, for local and municipal purposes, I do not see why it has not the power, by means of taxation, to effect the abolition Of slavery here I say nothing of the right or justice of exerting the power for such a purpose. I speak only of the power, and of its capacity to be used to accomplish such an end. But, however this may be, I hold that Congress, if the public interest and welfare require it, may directly, and at once, emancipate the slaves, on making a just compensation to the owners. The clause in the Constitution which regulates the taking of private property for public use, is not in my opinion, restricted to such property, merely, as may be converted and applied to the actual use and emolument of the public. I think the word use, in the Constitution, is to be understood, in a liberal sense, as equivalent to purpose or benefit; and that whatever is taken for public purposes, or for the public benefit, is taken for public use, within the meaning of the Constitution. Neither justice, nor the security of private rights, would Seem to demand any other or different construction. No principle of justice can be violated, nor can private property be exposed to wrongful and unjust invasions of power, when an equivalent is required to be rendered. A more strict, narrow, and limited interpretation would be obviously less beneficial, and does not appear to be called for either by he Words or the intent of the Constitution. Such an interpretation would not only be an unnecessary and inconvenient restraint upon the power of the legislature, but might prevent, in many instances, the accomplishment of objects of the greatest importanceobjects of the highest interest, and utility to the community. The equivalent prescribed and guarantied by the Constitution is a sure and sufficient security against any abuse of the power; and it certainly is not unreasonable that private rights should yield, on terms of just compensation, to the paramount rights of the public, so far, and to such extent, as the interest and welfare of the public may require, or as may be necessary to effectuate great and useful public purposes.
Mr. HUGH L. WHITE. When the Constitution was framed, the great and leading interests of the whole country were considered, and, in the spirit of liberality and compromise, were adjusted and settled. They were settled upon principles that ought to remain undisturbed so long as the Constitution lasts, which I hope will be forever; for although liberty may be preferable to the Union, yet I think the Union is indispensable to the security of liberty. At the formation of the Constitution, slavery existed in many of the states; it was one of the prominent interests that was then settled. It, in all its domestic bearings, was left exclusively to the respective states to do with as they might think best, without any interference on the part of the federal government. This, it is admitted by every gentleman who has addressed you, is now the case, in every slaveholding state; therefore it is only urged that Congress has the power to abolish slavery in the District of Columbia. It should never be forgotten that when the Constitution was formed and adopted, what is now the District of Columbia was then comprehended within two of the slaveholding states, Maryland and Virginia.
In my opinion, we should refuse to receive these petitions. It is a mere question of expediency what disposition we shall make of them. All who have yet spoken admit that Congress has no power whatever over slavery in the respective states. It is settled. Whether slavery is right or wrong, we have now no power to consider or discuss. Suppose, then, a petition were presented to abolish slavery in the states; should we receive it? Assuredly we ought not, because it would be asking us to act upon a subject over which we have no power.
Slaves are property in this District. Congress cannot take private property, even for public use, without making just compensation to the owner. No fund is provided by the Constitution to pay for slaves which may be liberated; and the Constitution never gives Congress the power to act upon any subject, without, at the same time, furnishing the means for its accomplishment. To liberate slaves is not taking them for public use. It is declaring that neither individuals nor the public shall use them.
Congress sits here as the legislature of the whole Union, and also as the only legislature for the local concerns of the District of Columbia. These petitions do not ask us to make a general law, operating throughout the whole Union; but a law the operations of which are to be spent entirely upon property within the ten miles square. Now, if we were in form, as well as in substance, a local legislature when acting on this question, which gentlemen say is to affect slavery in the District, and nowhere else, should we be bound to receive these petitions? No more than we are hound to receive petitions from France or Germany. Would gentlemen, if sitting as members of the legislature of Alabama, feel bound to receive petitions from citizens of Maine or Pennsylvania to emancipate slaves within their own state? Assuredly not. If that be so, is it not most reasonable, when we are called upon to pass an act confined exclusively to this District, that we should conduct towards the people here as if in this matter they were our constituents?
Mr. GRUNDY. He would not go into an examination of the constitutional power of Congress. For his own part, he should consider himself as culpable, were he to vote for such a measure, if the constitutional power existed, as were he to vote for it in the absence of such power. He considered the faith of the government pledged not to interfere with this subject in this District, and the faith, of the government Should be preserved as sacredly as the Constitution.
It would be recollected that, by the Constitution of the United States, Congress is expressly prohibited from interfering with the slave trade, which might be carried on by the citizens of the different states for the space of twenty-one years; yet in 1790, the society of Quakers, or Friends, forwarded their petition to Congress praying their interference upon that subject. This petition, although in direct opposition to the Constitution, was received, and a motion was made to send it to a committee. This was opposed, and a proposition was made to lay it upon the table. Those most opposed to the object of the petition sustained the latter proposition. Mr. Madison, of Virginia, a slaveholding state, advocated the reference to a committee.
Mr. KING, (of Alabama.) The cession (of the District of Columbia) was made with a clear understanding, implied or otherwise, that no such power (abolition) would ever be claimed. This was apparent from the fact that, at the time of the cession, the states of Virginia and Maryland had, as they still have, a large slave population; and they never would have been so blind to their own safety as to make this cession, could they have believed that Congress thereby acquired the power to produce a state of things in this District that would operate on their slaves in so dangerous a manner. If such, then, was the understanding with which this cession was made, would it not be a violation of the faith pledged to these two states, if government was now to attempt any interference with the prohibited subject?
Mr. BUCHANAN Although the Constitution, as it came from the hands of its framers, gave to Congress no power to touch the right of petition; yet some of the states to whom it was submitted for ratification, apprehending that the time might arrive when Congress would be disposed to act like the British Parliament, (in Charles II.’s time,) expressly) withdrew the subject from our control. Not satisfied with the fact, that no power over it had been granted by the Constitution, they determined to prohibit us, in express terms, from ever exercising such a power.
The proposition [the right of petition] is almost too plain for argument, that, if the people have a constitutional right to petition, a corresponding duty is imposed upon us to receive their petitions. From the very nature of things, rights and duties are reciprocal. The human mind cannot conceive of the one without the other. They are relative terms. If the people have a right to command, it is the duty of their servants to obey. If I have a right to a sum of money, it is the duty of my debtor to pay it to me. If the people have a right to petition their representatives, it is our duty to receive their petition.
This question was solemnly determined by the Senate more than thirty years ago. Neither before nor since that time, so far as I can learn, has the general right of petition ever been called in question; until the motion now under consideration was made by the senator from South Carolina.
Mr. KING, (of Georgia.) Congress, under this article, [the, first amendment] can pass no law to “abridge” the right of the people to petition the government. A modern commentator on the Constitution, of some note and much ability, in noticing this part of the article, dismissed it with the remark, that it was totally unnecessary. This is obvious to every one who will consider for a moment the relation between a free people and the government of their own choice. The privilege belonged (Mr. K. said) to the form of governmentwas united with it, and inseparable from it. It as clearly belonged to the people, on the formation of the government, as did the right to use the English language without any constitutional provision for that purpose; and, said Mr. K., if gentlemen will only took at the Constitution, and not evade it, they will see that the right was not Acquired, by the Constitution, but only Secured by it. The right, as a preëxisting one, was expressly recognized by the language of the Constitution itself. What was the language applicable to the question before the Senate? It prevented Congress from pasting any law “abridging the right of the people to petition,” &c.
The right belonged to the people as inseparably incident to their form of government; was acknowledged to exist by the language of the Constitution; and was guardedly secured by the provisions of that instrument.
Mr. CALHOUN. The first amended article of the Constitution, which provides that Congress shall pass no law to prevent the people from peaceably assembling and petitioning for a redress of grievances, was clearly intended to prescribe the limits within which the right might be exercised. It is not pretended that to refuse to receive petitions, touches, in the slightest degree, on these limits. To suppose that the framers of the Constitutionno, not the framers, but those jealous patriots who were not satisfied with that instrument as it came from the hands of the framers, and who proposed this very provision to guard what they considered a sacred right performed their task so bunglingly as to omit any essential guard, would be to do great injustice to the memory of those stern and sagacious men.
If the Constitution makes it our duty to receive, we should have no discretion left to reject, as the motion presupposes. Our rules of proceeding must accord with the Constitution. Thus, in the case of revenue bills. which, by the Constitution, must originate in the other house, it would be out of order to introduce them here; and it has accordingly been so decided. For like reasons, if we are bound to receive petitions, the present motion would be out of order; and, if such should be your opinion, it is your duty, as the presiding officer, to call me to order, and to arrest all further discussion on the question of reception.
Mr. LEIGH, The original manuscript journal is the journalthat journal which the Constitution commands us to keep. But gentlemen insist that the constitutional provision, that “each house shall keep a journal,” imports only that they shall make one, without requiring that they shall preserve it.
This Anglo-Saxon word to keep is generally used in a strict literal sense, and then always imports to preserve, and nothing else or more. It is used in divers metaphorical senses, which, from frequency have the appearance, at first view, of being literal; but it always imports the idea of preservation or indefinite continuation, requested or commanded. It is never used as synonymous with making any thing.
I think myself well warranted in saying that the expunging of the resolution of the Senate of the 28th of March, 1834, from the journal, literally or figuratively, is wholly irreconcilable with the Constitution, upon any fair construction of its words; and that no authority for such expunction can be found in any precedent whatever at all applicable to the purpose, or entitled to the least weight. I think myself warranted in saying, too, that, if the Senate shall adopt this proposition, and carry it into execution, it will set a precedent fraught with the most dangerous and pernicious consequences.
Mr. RIVES. In the jealous apprehensions which were entertained, at the time of the adoption of the Constitution, of the encroachments and abuses of the new government, this objection was strongly urged against the clause in question; but it was replied, and with success, that every legislative body must have the power of concealing important transactions, the publication of which might compromise the public interests; and as it was impossible to foresee and enumerate all the cases in which such concealment might be necessary, they should be left to the sound discretion of the body itself, subject to the constitutional responsibility of its members, and the other securities provided by the Constitution against the abuse of power. These securities have hitherto been found sufficient; and, in point of fact, the journals of both houses have been published from day to day, with such special and limited exceptions as have been universally approved by the public judgment.
This publication, when made, is the practical fulfilment and consummation of the design of the Constitution in requiring a journal to be kept, by either house, of its proceedings. It is agreed, on all hands, that the great object for which a journal is required to be kept is, to give authentic information to our constituents of our proceedings; and that information is to be given, as the Constitution provides, by means of a publication, from time to time, of the journal itself. The requisition to keep a journal, on which gentlemen have laid so much stress, is therefore merely introductory, or what the lawyers call matter of inducement only, to that which forms the life and substance of the provision, to wit, the publication, from time to time, of the journal. The whole structure and sequence of the sentence sustains this interpretation: “each house shall keep a journal of its proceedings, and, from time to time, publish the same.” It is evident that the whole practical virtue and effect of the provision is in the latter member of the sentence, and that the former would have been implied and comprehended in it, though not expressed.
The requisition in the present Constitution, to keep a journal, is but an expression, for the sake of greater fulness, of what would otherwise have been implied, and serves only as a more formal introduction to the practical end and substance of the constitutional provision on the subject, and that with which it emphatically concludes, to wit, the publication, from time to time, of the journal. That publication once made, and the people put in possession of the authentic evidence of the proceedings of their agents, the purposes of the Constitution are fulfilled, and the preservation of the original manuscript journal becomes thenceforward an official formality.