jFollj? an# Jtf&ftttsfi of Wffhnf,o
J) Hi Af n© n
NECESSITY OF UNION
AND. THE
FOURTH OF JULY, 1809.
THOMAS S. GRIM^B^
io t.-im ■ ilf • •• ; *• .-■
SPEEC
or IHOUAS 3. GHIMKB.
MEI.IVERED
UY DECEMBER 1828,
ON
arijc <*r<mf>UtuUonaitt£ of tije f ariff*
AND
ON THP TRUE NATURE
if 9®T»»a3MwrvT>.
both dfdicated
To the People of South-Carolina.
c^aclctton.
Pit I NT EH BY IV. KU.KV, U.0 C11E I'* C H'»I !i E E T
1829.
Library of
Emory University
-2152133.
JUN 2 0 1950
AN
delivered
IN ST. PHILIP'S CHURCH,
before the
INHABITANTS OF CEARLS^TON;
on the
FOURTH OF JULY, 1809,
by the appointment of the
South Carolina State Society of Cincinnati
and
Published at the request of that Society, and of the
American Revolution Society.
BY THOMAS S. GRIMKE,
member of the cincinnati.
" The unity of government, which constitutes you one people, is a mala
<pillar in the edifice of your real independence; the support of your tran¬
quility at home, your peace abroad; of your safety; of your prosperity J
of that very liberty, which you so highly prize."— Washington's Valedictory
Address.
M Nam qu&cunque prius de parti — cesse
" Constitues, htec rebus erit pars janua lethi."—Lucn
CHARLESTON.
RE-HUNTED WM. RILEY, 110 GH9R6H-8TJtE&T«
1829.
TO THE
PEOPLE OF SOUTH-CAROLINA.
Fellow Citizens,
In republishing, for the purpose of dedicating to you, an
Oration written twenty years ago, in favour of the wisdom
and expediency of Union, and against the folly and madness
of Disunion, I trust that the present crisis will be my best
apology.
I have gathered from the experience and reflections of
twenty years, the most ample confirmation of every argument
and opinion, in the following composition. I lay before you,
at the same time, the sentiments of the young man, just en¬
tering on the business of life, and glowing with the ardent
feelings of early manhood ; and those of the same person, in
the maturity of years, earnestly and affectionately vindica¬
ting the same cause, the Union of these States. May he
stand absolved, at the tribunal of his Country, from all im¬
putations, unworthy of the Carolinian and the Americas.
For myself, I feel, that fortune and happiness, yea, even
life itself, would lose their chief value, if these States,
though Christian and educated communities, should ever
cease to be United. Our Country would then no longer be
the land of Peace, Forbearance and Brotherly love ; of
mutual emulation and improvement; of a common ancestry,
to be reverenced, and imitated by each; and of a common
posterity, to be loved and provided for by all. May that
Providenoe, which trained us up through the infancy, child¬
hood, and youth of colonial dependence, and which hath called
us forth, at his own appointed time, a free and independent
Nation, to be a light, and example, and warning to the world,
never reserve for us, in the darkest hour of his wrath, the
scourge op Disunion. We must expect our trials and our
chastisements, for national transgressions. We have sinned,
and we shall continue to sin against the Ruler and Judge of
nations. But, when our day of affliction shall overtake us,
that we may then have those pure, affecting consolations,
which soothe and strengthen the mourners of one family,
one household, will ever be the trust and prayer
Of your Servant,
and Fellow Citizen,
THOMAS S. GRJMKE.
CkarUst&n, 2d Nov. 1829.
Hw ©ration*
SHALL the creative eye of the poet still find in tire
•works of nature, the attractions of novelty ? Shall the
statesman acknowledge that political science opens a rich
and spacious field for investigation, and the philosopher dis¬
cover new wonders in the natural, and fresh beauties in the
floral world ? And shall the advocate of patriotism, the
eulogist of departed worth, the orator of Independence,
complain that his subject is barren and uninteresting ? Do
the blessings of Heaven descend on a country, more favoured
than ours ? Or does the world contain a nation, more strik¬
ingly distinguished ? Does the wide circle of human know¬
ledge embrace a theme more fertile than Liberty ? Or
the annals of history an aera, more glorious and eventful, than
American Independence ? While, therefore, Freedom
shall be the eastern star, which guides this country to
prosperity and happiness : while the energy of public virtue
shall arm the citizen with fortitude, and the soldier with in¬
trepidity : when the storied urns of our martyred heroes
shall have mingled with the dust they recorded, and our Age
will be hallowed with the name of antiquity, the orator of
this day shall never find his subject deficient in novelty and
instruction. And, when he remembers how many thousand's
have crimsoned with their blood, the very fields, whose har¬
vest waves only for him; and how long the gates of peace were
closed against his country, before she could establish those
rights, which he rises to commemorate, what mihgled emo¬
tions must agitate his bosom ! Called forth on such an occa¬
sion, before such an audience, in such a place, how must
the pale flame of languor and diffidence brighten into the
blaze of enthusiasm and manly confidence !
Hitherto, you have heard the messenger of peace pro¬
claiming you the favorites of Heaven, and inculcating the
4
iister virtues of the patriot and the Christian : or you have
listened with admiration, as the statesman described the
masterly schemes of policy, which he had assisted in establish¬
ing, or painted to your view the subtile machinery of gov
emment. And often, with the smile of exultation and the
tear of sympathy, have you followed the laureled veteran,
Whilst in imagination he grasped with feeble hand, the sword
of his youth, and planted again the standard of his country,
on the battlements of her foes* But now, the minister of
Heaven sleeps with those, over whom his benedictions were
so often pronounced. The voice of the statesman of seventy-
six is seldom heard, but in the trumpet of fame. And the
revolutionary soldier daily meets death, with a smile, since
the mould, which receives him, is sacred to freedom and to
honor Henceforth the child shall be taught to revere the
spot where they repose ; the stranger shall tread lightly the
Verdant turf which covers them ; and the future historian
mid orator, shall visit their hallowed graves, to kindle in his
bosom the admiration of virtue and the spirit of eloquence.
Henceforth, the rising generation shall be called to perpetu¬
ate the blessings, secured by the wisdom and valor of their
predecessors. The young man shall minister at the altar of
Liberty, which his parent had built, and proclaim to assem¬
bled thousands, the glory and usefulness of their fathers.
Happy had it been for America, thrice happy for him,
who addresses you this day, had the subject, which is to en¬
gage your attention, been the subject of his choice. He
might then have dwelt on the influence, which our revolution
has had on the world at large, or have traced its more fa¬
miliar effects in our native land. He might have explained
the importance of great national principles, or have unfolded
the fatal consequences, which often result from their decay.
But the imprudence of some and the corruption of others
have forced a theme on the public ear, at which every friend
to his country must start and tremble. They would efface
from the tomb of Washington, its brightest inscription, " The
Common Father of one Common Country." They have
proclaimed aloud, that these ought to be no longer United
5
States; that the arm, which severs us, will bring salvation
to America: that the constituted authority, which pronounces
our national divorce, will speak with the voice of Heaven.
Could you cease to be Americans; could you rend from
your hearts the feelings, which nature gave and your country
has cherished ; could you assume the changeful garment of
the courtier, or wear the imposing mask cf the hireling ;
you might listen unmoved to such a suggestion. But there
is no communion between purity and corruption, between
harmony and discord, between patriotism and treachery.
When, however, the burst of indignation has subsided,
strengthen the persuasion of feeling by the convictions of
understanding, and build the firm resolve to be united, on
the eternal basis of truth and reason. But open with the
deepest awe, the volume, which contains the principles of
Union : reverence it, next to the temples and altars of our
txod : think, when you approach it, that you hear a voice
from the tomb of Washington exclaiming, " the place,
whereon thou standest is holy ground:" think, that you be¬
hold a flaming sword, "turning every way to guard the
path to this tree of life ."
Even if the impolicy of Britain had not precipitated the
moment of separation, yet the time was approaching, when
this country must have been free. The child, as he matures
in age, assumes the dignity and independence, with the
vigour of manhood : and the iron links, which bind the colony
to the footstool of a Sovereign, give place to the golden
chain, which secures the rights, the interest, and the glory
of nations. If our Independence had sprung from the pro¬
gressive operation of the great principles of society, it might
be a question, whether we ought to have formed but one
government, and whether we ever would. But the iron
sceptre of power drew around us all one common circle of
defiance, and bade us submit to one common law of universal
slavery. Hence, Americans " established in war," inter¬
course of sentimeut, and uniformity of conduct ; and contin¬
ued in peace " a united cause, and a united nation."
From whatever source our arguments may be drawn, and
6
Whatever may be the chain of reasoning we pursue, still
shall we find, that ILvion is the vital principle of our perma^
nent happiness. If we argue from theoretical politics,
jure shall see them confirmed by the testimony of expe¬
rience : and if unsatisfied by these, we demand higher evi¬
dence, we shall discover it from the survey of our own
country, in its domestic and foreign relations.
Speculation, even in the philosophy of mind, its pecu¬
liar province, is often deficient in clearness and uniformity,
yet we know that its principles are founded on the
nature of man, and have often been advantageously employed
by the sagacious statesman. Asthe science of theoretical poli¬
tics arose out of the disorders or miseries of the subject, and
the errors or usurpations of the ruler, we may often resort to
it wh.li success, for the leading principles of national greatness
or national degradation. Led by this glimmering fight, we
may arrive at many of the fundamental maxims of sound
policy. This will teach us that the wider the interval be¬
tween united governments and tbe rest of the world, the
more is union the soul of their existence: that if tlieir
disunion be profitable to others, it certainly will be danger¬
ous to themselves ; and that it is easier to excite jealousy
and dissension between neighbouring nations., than between
different parts of the same empire. Thus also we may
learn, that union promotes the great objects of government:
that it multiplies, improves, and strengthens the resources
of a people : and as the nature of nations and individuals is,
in this respect tbe same, divided states are, when at peace,
faithless and suspicious, and when hostile, the most bitter
and destructive foes.
Unavailing, however, would solitary speculation be, were
not its precepts corroborated by experience. In vain had
the morning star of reason shone on the benighted scenes of
human life, had it not been followed by the Sun of Revela¬
tion. Equally, in vain, would theory presume to guide
us, did not its winding paths so frequently terminate in the
broad road of experience. But the page of speculation is
-often found to be a faithful counterpart to the past, and a
7
prophetic anticipation of the future. Here, we shall per¬
ceive, that though danger and necessity were the origin of
most confederacies, the advantages of union were the foun¬
dation of their continuance,* This salutary principle is evi¬
denced from the conduct of monarchies, and even in the
measures of savage nations, the same maxim is equally ap¬
parent. But though the stern dictates of sudden emergen¬
cy have sometimes united independent nations in one com¬
mon cause, let us not forget that it was under circumstances
peculiarly favourable. For experience testifies that like
the prophetic voice, which warned Rome of impending ruin
from the Gauls, the admonitions of threatened destruction
are often unavailing. If union of interest would always
lead to union of power, why did not Greece, with one voice,
assert her resolve to be free, when invaded by Philip ? Why
were not the Sabine cities allied against the usurpations of
Romulus ? And the states, which composed the Heptarchy,
against the ambitious projects of Egbert ? These examples
unequivocally declare, that, when once the spirit of jealousy
and the pride of sovereignty influence the counsels of inde¬
pendent, and especially of neighbouring nations, the appeal
to public welfare, the cries of individual misery, and the
claims of posterity are all disregarded.
Nor let us indulge the persuasion, that those, whom duty
and interest bind tqgether, will always stand firm and united,
in the hour of a nation's peril. To what then but this, shall
we attribute the want of energy and unanimity in Spain ?
Had all her powers been vigorously and harmoniously exert¬
ed, we might have hoped to see the progress of tyranny sin>
pessfully opposed. In vain, however, on this very day, of
the last year, did the junta of Seville, like our illustrious
congress of '76, invoke the God of nature and of nations, to
nerve their arms in battle, and enlighten their minds in coun-
*-The history of the Achaean and Helvetic confederacies, furnishes a
striking exemplification of this. The former, which consisted of twelve ci¬
ties, and lasted 130 years, began B. C. 284, from the union of three. The
latter was at first composed of three cantons, but comprised eventually th/r-
seen.
8
ci 1 • In vain, was the voice ot vengeance heard front every
province of Spain, amid the wreck of a dissolving govern¬
ment. In vain did thousands of swords glitter in the uplifted
hands of an incensed nation, to light them through the storms
of war, to the regions of freedom and peace. But the armies
of her enemy rushed in one mighty flood, from the summit
of the Pyrenees ; and in a moment, the rights, the glory, and
the happiness of Spain were swept into the shoreless ocean
of tyranny. Then we beheld the proud genius of that devo¬
ted country, borne aloft in the fiery chariot of despotism,
nor hath she left behind her even the mantle of Hope, to
cover the nakedness of despair. But shall we not believe
that the time will yet come, perhaps even now is come, when
in the midnight of that nation's misery and humiliation, the
shackles of the captive shall drop from his limbs, and the
doors of his prison burst open spontaneously: when the earth¬
quake of revolution shall humble the proud towers of despo¬
tism in the dust, and the great apostles of patriotism shall
swell the loud anthem of praise and gratitude, for their
country's deliverance.
But, if the fate of Spain speak not a language sufficiently
impressive, turn to the republics of Greece, and listen to
the faint murmur of admonition, that issues from the shat¬
tered tomb of their freedom and glory. If moral and politi¬
cal corruption ivere the efficient causes of their ruin, the
daring hand of discord administered the fatal poison. When
united against Persia, they presented as sublime a sight as
the world has ever witnessed. Then we beheld a band of
heroes rush from the calm vale of retirement, at their coun¬
try's call, great in the conscious dignity of nature, and the
pure energy of republican virtue. Then we beheld cities
opposed to nations, and a people to the world.
At that period, Greece furnished the noblest materials
for a happy and permanent union. In each state, virtue was
the predominating principle of the constitution: public good
the object of the individual, and national prosperity the sole
reward of the ruler. The soldier then was but the citizen
in disguise; his only jealousy was, for the preseryation of
9
domestic harmony ; his only fear, lest he should outlive the
liberties of his country ; his only wish, to hand down to pos¬
terity the blessings, which he had received from his fathers.
If they had then become but one nation, under one general
government, they might have resisted successfully even the
gigantic power of Rome, and have vied with the bright re¬
cords of glory and happiness, which fame shall transcribe from
the annals of America. But, when the storm had passed
away, whose fury had driven them to the same shelter,
when the serene sky of peace and independence invited to
the enjoyment of its genial influence, the spirit of discord
frowned on the brightening prospect. With one consent,
they levelled the encircling ramparts of union, and rushed,
like the prodigal, to revel in the lawless excesses of licen¬
tiousness and ambition. They overturned the altar they had
consecrated to the genius of their common country, and soon
we beheld that genius, mourning amid the ruined monuments
of his greatness, and shedding the tear of unavailing regret,
on the hallowed plains of Marathon and Plataea.
But vain would be the testimony of speculation, and equal¬
ly vain the combined experience of three thousand years,
could we not trace their application to ourselves ; and dis¬
cover in our domestic and foreign relations, arguments for
our union, which the sophist cannot answer, and the sceptic
dare not question. Let us now examine our internal situa¬
tion, and we shall perceive that the nature of our government,
our intimate connection with each other, and the rapid pro¬
gress of public prosperity since the revolution, are links in
a chain of reasoning, peculiar to ourselves.
In pursuing the train of thoughts, suggested by this part
jof our subject, we must be sensible, that the principle of
union is more perfect in our system, than in any other. With
us, each state retains such rights and powers, as are essen¬
tial to its individual interest; while the general government
is invested with those, which concern the duties and
happiness of all. Congress acts for all, with regard to foreign
eountries, as one united nation; and for all, when considered
to themselves, as consisting of parts necessarily different, yet
ID
closely allied. With us* no single State can constitutionally
affect the proceedings of the national legislature, or be ex¬
clusively the ally of other powers. If ever a political scheme
resembled the Divine government, it is ours, where each
exists for the whole, and the whole for each. As in the
planetary world, so in our system, each has its own peculiar
laws ; and the harmonious movement of the whole is but a
natural emanation from the cooperative influence of the
parts.
To the principle of union, we may add the principle of
renovation. Our government is the only just medium between
despotism, where the rights of nature vanish in the slavery
of the subject, and pure democracy, in which the subordina¬
tion of the citizen is lost in the licentiousness of the man.
Ours only is, in a word, the real government of the people,
where legislative power is the delegated will of the whole.,
and civil authority the representative force of all : in which
the duties of the individual are not neglected, as at Athens*
for the privileges of the citizen ; nor, as in the United Pro¬
vinces, are the immunities of the latter forgotten in the in¬
terest of the former. Hence the administration cannot long
be inconsistent with the views and wishes of the people. The
policy, which is fatal to their welfare and at variance with
their principles, is ruinous in itself, and soon gives way to
measures, more popular and judicious. If the interests, of
the community suffer, they are the judges, and their good
sense will soon compel their rulers to see and correct the
impolicy of their measures. What though the power of an
individual, disorder, for a moment, like the Comet descend¬
ing into our system, the harmony of the whole,, the. elastic
spring of such a government would act with redoubled force*
and expel him from the bosom of his country.. What though
the mighty torrent of faction swell beyond its limits, and
threaten an universal deluge, yet shall it soon be,last in the
vaT ocean of public good, and.public virtue.
The principle of improvement is intimately connected witk
that of renovation. Neither can exist, but in a representa*
live government; and each attains the height' of fterfeeth*.
11
only in a republic like oars. Unshackled by national
establishments, like the democracies of antiquity, our fo<s
reign and domestic regulations must always vary with the
actual state of our country. Whilst agriculture, manufac¬
tures, and commerce, shall be the main pillars of American
greatness, the spirit of improvement in them will govern the
policy of our national legislature. Hence we have no rea.
son to fear, that we shall ever justify the remark of an emi¬
nent political writer, "that the laws, which aggrandize, are not
those which preserve a nation." There was a point, be¬
yond which the institutions of Sparta and Rome could not
operate; but to the principle of union, the principle of
renovation, and the principle of improvement, no prophetic
voice shall ever be heard to say, " Thus far shall ye go, and no
farther." The former resembles the human body, which
after a season spontaneously languishes and decays ; whilst,
Jike the immortal spirit, the latter, did not the decrees of
Heaven forbid it, would flourish in never-fading energy and
beauty.
These arguments, deduced from the nature of our govern¬
ment, are strongly corroborated by those, which arise from
a survey of our mutual connections and dependence.
He, who casts his eye over our happy land, must per*
ceive that we form a little political world in ourselves:
that our country seems, as was said of Laconia, to be but the
patrimony of a band of brothers: that we appear to-be ano¬
ther favored race, sent out by Heaven, from the storms
and "miseries of Europe, to dwell in this land of promise.
The object of every government ought to he the happi¬
ness of man, though the measures adopted by each are es¬
sentially different. Fortunately for America, every State
in the Union, acknowledges, that property is the only true
foundation of society ; that the rights of the citizen are the
vital principles of the Constitution, and the interest of the
individual the vital principle of the community, that the wel¬
fare of the whole, not the aggrandizement of a part, the fe¬
licity of the people and not the glory of the ruler, should
ever be the aim of the administration. Whilst then we
12
thus agree in those leading features, in which the parts of a
great nation, ought to resemble each other, let not immate¬
rial differences excite the spirit of dissension. Were one
state a monarchy, and another an aristocracy ;* were this
like Carthage, but a company of merchants, and that, like
Sparta, but a band of soldiers, there might be grounds for
Complaint.
Let not contrariety of character be Urged as an argument.
Shall we find uniformity in the same state, the same city, or
even in the same family ? Why then desire it, in an exten¬
sive country ? In Switzerland, some cantons were catholic
and others protestant, some republican and others aristocra-
tical, some refined and elegant as Athens, others rude and
unpolished as Sparta. Nor let diversity of interest be ob¬
jected. Were this the same in the north and south, would
it not imply a similarity of local situation and natural advan¬
tages ? Where also would be the carrying trade, where the
mutual interchange of luxuries for necessaries, of raw mate*
rials for manufactures ? Disunion would then be less fatal,
because each would be independent of the other. But ex¬
perience teaches us that the clashing of the different, yet
connected interests of separate powers, threatens both with
destruction.
If the influence of individual States be complained of now,
bow must the danger increase, the narrower the sphere of
its action ! And if the politics of some particular states are
followed too servilely in others, whilst we are but one peo¬
ple, how soon should we behold the fatal effects flowing from
the truth remarked by an eminent statesman, " that men
are often more attached to the country of their principles,
than to the country of their birth." Wealth, talents and
population must always command superiority, and it is no
less absurd to imagine that particular states should not take
the lead in the American republic, than to be surprised,
* " Aussi voyons nous dans 1' Histoire Rornaine, que lorsque les Veiena
eurent choisi un Roi, toutes les petites republlques de Toscane les abandon*
tierent. Tout fut perdu en Grece, lorsque leg Rois de Macedoine ob-
tinrent une place, parmi les Amphictions."—M«nt. E*p> Loix. L 9, 6. &
13
because Athens and Sparta stood foremost in Greece. So
far from militating against a union, this furnishes one of the
strongest arguments, arising from our internal situation.—
Were these powerful states the leaders of separate confed¬
eracies, how much greater would their relative influence
be, and how much more pernicious to their own united go¬
vernment, and to the neighboring republics. Athens and
Sparta, when independent, were too powerful for the libeity
and happiness of Greece ; and the operation of similar prin¬
ciples, if we divide, may carry down the grey hairs of the
present generation, with sorrow to the grave>
There are limits to the powers of government, no less
than to those of the human mind ; but the more extensive
cur general administrates, within reasonable bounds, th$
more will its schemes of policy be liberal and enlightened;
The less also will they be affected by local interest and local
power ; by individual enmity, selfishness and ambition.—
These are some of the causes, which, if less restricted,
would prove our ruin ; but confined and blended, as they
now are, cooperate for the welfare of the whole. Notwith¬
standing the conflicting politics and interests of different parts
cf the union, we find that the individuals of the nation are
generally harmonious, and that local views and local antipa¬
thies are lost in the expansive rights of the American citi¬
zen. But, when disunited, even these advantages must va¬
nish ; for we shall then have no common character, no com¬
mon constitution, no common country.
As the policy and interest of each State are peculiar, and
continually vary, they ought to be regulated, as to internal
concerns, by itself. If, however, you narrow the system,
of which it is a part, its private welfare must be more fre¬
quently sacrificed to the general good of the whole. Hence*
also, those inconveniences, which are now diffused over the
nation, would be more severely felt, when confined to a part.
All now suffer or rejoice together; but then, the degrada¬
tion of this would be the aggrandizement of that; and the
decline of one would invigorate the spirit of enterprise in
another.
14
Let us conclude this survey of our internal connections, by
considering the influence of the social principle, in strength¬
ening the bonds of our union. In examining the operation of
this universal cause, we may trace it distinctly in its emana¬
tions from the parent to his family, from the individual to his
neighbors, and thence to the wider circle of his friends and
acquaintance. We may perceive it successively varying and
enlarging, as it interweaves the several ranks of Society,
unites the diversified classes of the town with the more uni¬
form inhabitants of the country, and combines the influence
of individuals and families, of cities and provinces, in forming
the complex, but harmonious system of society. When we
apply these views to our own country, we shall perceive them
strikingly exemplified. We may follow the principle of as¬
sociation from each state to its neighbours, and from them to
the union at large. And as the prospect expands, we shall
behold the ties of nature and friendship, the calls of duty and
interest, the rights of man, and the privileges of the citizen,
uniting to form the sacred and mysterious bond of our
union.
From the constitution of our government, and our natural
allianee with each other, the transition is easy to the rapid
progress of our country, since we became a confederate re¬
public. If we begin with our own State, we shall behold
our political and civil institutions continually improving ; re¬
ligion and knowledge more widely diffused ; civilization ex¬
tending in the country, and refinement in the city ; discordant
parts successively assuming the uniformity of the whole, and
confusion gradually subsiding into order. Travel through
each of our sister States, and you may observe with pleasure
and surprize the operation of similar principles. These
will be seen, however, to vary with the nature of the coun¬
try, the genius of the people, and the Spirit of the Constitu¬
tion. Then conceive yourselves elevated to an eminence,
whence the eye may embrace the wide circuit of our happy
land. Think what it was, when first we became a nation;
consider its present state, and mark the gradual advancement
of prosperity and power. See the forest retiring, and the
15
village expanding into the populous town: see this in turn
swelling into the magnificence and greatness of the city. See
the groves descending from our mountains, and rising again
in the stately ship, or the spacious edifice. See the white
sails of commerce gliding through the woods on the river or
canal; and in countless numbers, brightening on the azure
surface of the ocean, like the stars on the bosom of heaven.
Behold the genius of enterprize collecting his bands of ad¬
venturers, and leading them to the western wilds. Behold !
the mountains open to afford them a passage ; the dark wave
of the desert rolls back at their approach ; the gloomy spirit
of solitude retires before them, and the grateful wanderer
builds the verdant altar to agriculture and peace. Then
behold ! the forest bends beneath his strokes, the orchard
smiles on the hill, the harvest waves in the valley, and the
song of the reaper is heard in the silence of the wilder¬
ness.
The reasoning thus founded on ihe nature of our govern¬
ment, our mutual connections, and the rapid progress of our
republic, are alone sufficient to convince us. But, when we
reflect on our relations with the rest of the world, every
argument acquires new energy, every principle new impor¬
tance, and conviction flashes across the mind, with a brighter
and a purer blaze.
Were the United States the only nation on earth, or could
they live entirely within themselves, the question would
assume a different aspect. But in the actual state of the
world, the policy of our country and the wants of other na¬
tions render it impossible. In vain might we forge the fet¬
ters of domestic restriction, they would melt from around us
in the fierce fires of interest. In vain might we build the ram¬
parts of foreign prohibition, like the walls of Jericho, they
would fall as of their own accord. America then, must be
connected with other nations, and must be influenced by
them.. The policy, therefore, of our young and flourishing
country, is to preserve our interests as distinct as possible,
from those of other nations. This we shall be enabled to
do more effectually, by union, than by public virtue at home
16
and public faith abroad, if once we divide. From experi¬
ence wo learn, that interests different in themselves are yet
the same, when contrasted with those of others. Hence,
though the local policy of one part of America, be at vari¬
ance with that of another, they are one and the same, when
considered in relation to the tendency of foreign influence.
Now, from the operation of this cause, the interest of one
part of the union, will never govern the national alliances
and welfare of the whole; but when disunited, each must
be the ally or the foe of the powerful nations of Europe.
Were there but one great nation in the world beside our¬
selves, she would always be decidedly hostile or favorable
to us. Whilst, therefore, our confederacy lasts, other go¬
vernments may perplex, but cannot confound us ; they may
injure our interests, but not our liberties ; they may exas¬
perate us mutually as fellow-citizens, but never can arm us
against each other as enemies. So long as we continue uni¬
ted, our alliance will be an important object to Europeans ;
and our interest will be eventually secured by its intimate
connection with theirs. But when we cease to be one peo¬
ple, we must treat with them as a favor, perhaps for pro*
tection, even at the expense of our rights. Do we complain
then of foreign influence now, and shall we separate and hope
to escape the gigantic arm, which is stretched across
the Atlantic to destroy us ?
In every republican government there must be diversity
of opinion. If all are ever united hi time of peace, it beto¬
kens indeed sometimes universal enthusiasm, or universal
virtue, but almost always universal corruption. The public
calm, which exists in the absence of party, is the gloom of
midnight, before the blazing vulcano lights up the darkened
ocean; it is the awful pause of nature, before she is devas¬
tated by the tempest. Experience teaches us, that in exten¬
sive governments, the contentions of party are a war of words
and influence, but in small states, they become the contest of
the sword. In one, it is the citizen, who freely asserts his
principles; in the other, it is the individual, who combats with
(he weapons of personal interest and personal enmity, As
IT
soon then as disunion ensues, each state will be torn by itsr
own parties, and foreign influence will inflame them against
each other, and each against all the rest. Then would the
waves of faction dash with fatal success against the rock of
our freedom, and all the proud monuments of glory and liber¬
ty would perish in one boundless deluge of corruption and
ruin. Then, no Ararat would swell above the flood, no
dove would bear the olive-branch of peace, and the vir¬
tuous republican of future days would exclaim,
" - Thy lofty domes, do more,
" Not e'en the ruins of thy pomp remain,
" Not e'en the dust they gunk in
Thus have we endeavored faithfully to survey the grounds,
on which the friends of union rest their arguments for its
continuance. We beheld the faint light of speculation blend¬
ing with the bright and. steady flame of experience. We
beheld them, like the eastern star, resting on the temple of
our freedom, on whose portals were inscribed the words of
our departed Washington, " Your union must ever be consi¬
dered, as a main prop of your liberty." But if the picture
of our domestic and foreign relations, be correct, how shall
we observe every color heightened, and every feature more
strongly marked, the farther we extend our views I Through
every part, we shall trace the bright scenes of glory and
peace awakening into life, under the animating touches of
union ; and the prospect become wild and mournful under
the wintry influence of discord. We shall read a page iu
the book of futurity, which the hand of union only can tear
from the records of f|te. Let us then direct our attention
next to the fatal effects of disunion on ourselves, and the hap¬
py consequences, which reason and experience convince us
must flow from union of interest, union of sentiment, and
union of power.
The American, who can look forward with calmness to the
4ay of separation, must be either more, or less than man.—
He must be the victim of ambition or corruption; a deluded
enthusiast, or a prophet of good, which the most sanguine*
dare not hope, and the keen-eyed statesman cannot foresee*
3
18
Theticefof ward the American eagle shall drop the olive-branch
of peace, and grasp only the arrows of war. The hand, which
writes the declaration of disunion, shall feel the blood curdle
in its veins ; and the tongue, which reads it to the worlds
shall stiffen in the act. The mountains that divide us, shall
be " the dark mountains of death," and the streams that
flow between, like the waters of Egypt, shall be turned into
blood.
But terrific as is the picture, which anticipation presents*,
let us gaze upon it, resolutely and calmly. Conceive the
eventful crisis arrived, when the delegates of America meet
to sever our confederacy. Unlike the glorious Congress*
which declared us independent, unlike the equally glorious
Convention, which framed our Constitution, they would joini
to destroy the fairest edifice, that human hands have ever
raised. Already is their object attained. With one voice
they pronounce us free and independent of each other.*—
They dash on the earth the Tables of our common alliance ;
they march in triumph to kindle the flame, that is to con¬
sume the temple of union, and hear with a smile the loud
crash, as it sinks in ruins. In vain, when the youthful ge¬
nius of America is laid oil the altar of separation, may a voice
from Heaven exclaim, " Hold ! hold !" In vain, may the
bleeding image of their country arise and point to her
wounds ; each will exclaim, in the language of the murder¬
er Macbeth, u Thou canst not say, I did it." In vain, may
they call up the spirit of Washington to hallow their rites ;
like the prophet at Endor, be shall look but to blast* and
speak but to curse.
I pass over the scenes immediately succeeding the sepa*
* Were we to divide, several different united governments would proba¬
bly arise." As our present system is a Confederacy of independent states Of
nations, so we might then conceive a union of those independent leagues.
Congress, now the representative of single, but united states, would then
be a Congress of Ambassadors from distinct, but confederated leagues.
Now, Legislating for a union of free nations, it would then be the Lawgiver
for a union of separate confederacies. This scheme, however, would be
«s visiouary, as the national tribunal of Henry IV. or the independent re*
public of the proteataut leaders in France.
*9
ration. I shall not survey the anxiety of the public mind,
the interruption of private concerns, or the stagnation of
foreign and domestic intercourse. I shall not pourtray the
violence of party, the intrigues of powerful states, the ca¬
bals of individuals, and the efforts of foreign nations. Let
us suppose the boundaries of the States defined, their con¬
stitutions established, and treaties of alliance formed be¬
tween them, and with other governments. These new re¬
publics thus arising from the ruins of one, would present the
most flattering prospects." The gloomy countenance of des¬
pondence has already brightened into hope, and doubt is
exchanged for the confidence inspired by certainty.
For a season the affairs of these commonwealths might
be conducted with moderation and wisdom. Public virtue
Blight be the rule of action at home, and public faith towards'
each other and the rest of the world. But this could not
long be the state of independent and neighboring nations.
While the parent lives, his authority and affection may pre¬
serve the harmony of his family circle ; but when he dies,
the cessation of personal intercourse produces coldness, and
difference of interest creates difference of sentiment, per¬
haps even enmity. The human nature of nations is like that
of individuals ; for after any great change, the man and the
people are equally circumspect and moderate. But selfish¬
ness unfortunately too soon succeeds to duty, and the princi¬
ple of ambition to the principle of usefulness.
In a short time, we should see the confirmation of the
reasoning already advanced. We should see the fatal pro¬
gress of party spirit, of foreign influence, of local policy, of
dashing interests, and of individual intrigue. We should
look in vain for the principles of union, renovation, and im¬
provement ; in vain for the liberal views and dignified firm¬
ness of a united government ; in vain for the respect and
honorable alliance of foreign powers.
Let us not rest satisfied, however, with this cursory sur.
vey, but carefully examine the tendency of interest and
Ambition. Were we assured that these republics would
Always Understand and pursue their real welfare, that they
20
Would discard the influence of selfishness and local prejudice*
that they would be ready to acknowledge and change impo¬
litic measures, and to enter into the liberal and more en¬
lightened schemes of their neighbors, we might promise-
ourselves* that they would be permanent and happy. In a
few years, however, we should behold the operation of a
principle already mentioned as important: that different yet
connected interests, ought to be governed by the same hand.
Were they independent, the same effects never could arise;
but when associated, they induce each party to imagine,
that they have superior claims on the other. From this
source would spring misunderstanding, contention, perhaps
even a temporary cessation of intercourse ; and these un-
propitious events would be favorable to the machinations of
party, and the intrigues of other nations.
Let it not be said that a sense of interest would guide
them. Few nations have ever had the discernment, and
Still fewer the virtue and resolution, to consult their real
welfare. In vain, did Demosthenes urge a war against
Philip ; in vain did Burke dissuade from American taxation;
and Chatham plead, with his own immortal eloquence, for
conciliatory measures with the colonies. Those casual or
trifling events, which often decide the fate of human affairs,
would have a fatal influence.* Diversity of character would
give additional weight to every cause, that would militate
against reconciliation. The resentment or ambition of indi¬
viduals, the interested views of particular classes or esta¬
blishments, and a variety of unforeseen circumstances, would
darken the prospect.
To the jealousy of interest, we may add, the jealousy of
rights ; for the pride of sovereignty is as baneful to nations,
as the pride of intellect to individuals. The tendency of
each is to induce disregard or contempt for the claims, the
power, or the remonstrances of others This spirit is the
natural emanation of privileges long enjoyed, of indepen-
*" So paltry a sum as three pence, in the eyes of a financier; so insignU
Scant an article as tea, in the eyes of a philosopher, have shaken the pillars of
a commercial empire, that circled the whole globe."—Burke.
2\
sterice universally acknowledged, and of confidence in self-
opinion. At a time when this temper would influence legis¬
lative deliberation, few individuals would feel and act up
to the principle of an eminent statesman, l£ that timidity
with regard to the well being of our country, is heroic
virtue." Few national councils would be so discerning and
upright, as to show by their actions, that the true glory of a
people is ever inseparable from their real welfare. The
consequence of such occurrences might be an appeal to
arms. There v^as a time, when the western people were
ready to march down on New Orleans ; we have seen some
of the States agitated by insurrection and rebellion; and
but lately, the general government resisted by the legisla¬
ture of Pennsylvania. Had the affair of the Chesapeake con¬
cerned two of these republics, or had the minister of one
undertaken to act, as Genet did under Washington's admin¬
istration, how dark must have been the page of history, that
would have recorded the consequences ! If one State were
disaffected to the confederacy, of which it formed a part,
what pencil can paint the scene of contention, intrigue, and
anxiety that must ensue. These causes have been con¬
sidered in themselves, but when we embrace within our
view, the cooperating influence of other states and of foreign
nations, may we not exclaim with the poet,
" On the tomb of hope interred,
" Scowls the spectre of despair."
Attendant on these calamities, would also be the growing
power of individuals, and of military establishments. la
times of danger, it is not on the wisdom and firmness of le¬
gislatures only, that reliance is placed ; but also on the ta¬
lents and authority of an individual. At that moment, when
too often the rights of all are governed by a single arm, and
the voice of one is the collected voice of a natiou, who would
trust the glory and liberty of his country, but with another
Washington ? The general then would no longer be the
private citizen, called out by the free choice of his country¬
men} but the celebrated warrior pointed out by the urgency
of the times. The soldier would cease to be the farmer or
mechanic, on a temporary pilgrimage from home,
" But strutting round, in gaudy blue and red,
" Would eat in idleness the poor man's bread."
The soothing hand of time, which often closes our woundB
and dries up our tears, could never hold out the golden scep¬
tre of peace. The principles of ruin, like the breath of the.
pestilence, would scatter terror and infection around, and
though like the rivers ©f lava, it sprang from one common
source, would widen, at every moment, the circle of devasta¬
tion.
Thus should we see the objects of these states not only
unanswered, but supplanted by others. They had instituted
the civic festival of peace, and beheld it changed for the tri¬
umph of war. They had crowned the eminent statesman
with the olive of the citizen, and saw it converted into the
laurels of the warrior. The old man, who had walked ex¬
citingly in procession, to taste the waters of freedom from
the fountain of a separate government, beheld the plaeid
stream that flowed from it suddenly sink from his sight, and
burst forth a dark and turbulent torrent. The young man,
whose hand should have delighted in the arts of peace, now
grasps the glittering svv,ord of battle, and smiles with delight
at the blast of the trumpet. How soon the citizen would be
lost in the soldier, and the patriot leader of his countrymen in
the hero: how often the gleam of arms would startle the peace¬
ful tenant of the cottage, and the trump awake the slumbers
of infajicy, time only could show. War, which in its mildest
forms, is fraught with ruin and horror, when waged' by neigh¬
boring states, thirsting for vengeance, animated by interest,
or eager for glory, becomes the most cruel scourge in the
band of Heaven. Then, it is rapid as the whirlwind, over¬
whelming as the cataract, and merciless as the angel of
death. Memory still paints the terrific scene to many, who
witnessed our revolutionary struggle. Friends, who beheld
the companions of your youth, hewn down by your side in the
ranks of war, I appeal to you. Parents, who gras}»ed, for
the last time, the haRd of your child, aqd sent him to/all ih
23
the battles of his country, I appeal to you. Sons, who battl¬
ed with your tears the wounds of an aged father, and caught
the last benediction of paternal love, I appeal to you. Wi¬
dows, whose arms were thrown for the last time, in the ago¬
ny of separation, round the necks of your husbands, I appeal
to you. Spirits of the dead, whose last prayer was for an
orphan family, whose dying eyes were raised to Heaven for
a desolate widow, whose last words were a blessing on them
and your country, I appeal to you.
Amid this scene of horrors, when age would excite no pity,
infancy have no privilege, and beauty plead in vain, where
would be the order of Cincinnatus? Then would be the fa¬
vorable moment for the accomplishment of those ambitious
schemes, unjustly attributed to you. But in vain against
you, did the fire of eloquence flash from the lips of a
Mirabeau. It was but the lambent flame, that played over
your heads, and marked you the favorites of heaven. The
world and your country now freely bestow their confidence
and veneration, and let me promise for those, who have been
called in the flower of youth, to share in your rights and ho¬
nors, that they shall never be disgraced- To be Americans
is our noblest privilege as men, to be members of your body,
as citizens; and since the sacred duty of our lives shall be to
deserve well of our country, we shall look for our models
among you, on whose brows the laurel of the soldier is half
concealed by the olive wreath of the citizen. To preserve
and improve the blessings your valor has won, shall be the
height of our virtuous ambition: and often in the calm shades
of domestic life, shall we regret, that we did not share in
your dangers, because you " fought to protect, and conquer¬
ed but to bless." But, though we have not climbed with
you the steep ascent of freedom, nor waved the banners of
victory on the ramparts of glory, never shall we forget that
we also have feelings peculiar to ourselves. Your bosoms
have never heaved with gratitude, as you looked on the
champions of our liberty, for you are among the number of
our deliverers. You have never felt the glow of youthful
enthusiasm) in reflecting on the departed sages of our couo-
24
try, for you and they were fellow laborers in the great work
of our redemption. You have never heard a parent's voice
awakening the tender mind to the love of America, and to
the admiration of her statesmen and heroes. Your cradle
was rocked by the genius of Britain, her banners were the
swathing bands of your infancy, and hope already saw you
armed with the thunder of battle, and the lightning of elo¬
quence, in the cause of Britain. How then shall we ever
forget, that you were born British subjects, but we American
citizens ! You have indeed secured these privileges to us,
and millions yet unborn, we trust, shall inherit them. But
to that unborn posterity we can say, with mournful exulta¬
tion, uWe have beheld the faces of our deliverers, and
heard the voices of our revolutionary heroes. They were
pur friends, and often for us, has the tear of solicitude or
of affection bedewed their manly cheeks. They were our
fathers ; and often have the bright visions of hope been in¬
dulged, while they pictured to themselves, in us, the future
statesmen and heroes of our country. These arms have
been fondly thrown, in the caresses of childhood, around their
necks, and have supported them on the bed of death : these
hands have borne them to their graves, and inscribed on their
urns, the record of gratitude and glory."
If we have seen the jealousy of interest, and the jealousy
ef power, like resistless torrents, overflowing the fair fields
ef liberty and happiness, how shall their fatal effects be en-
creased, when we behold the troubled stream of party spirit
rushing to swell the flood, and dashing its aspiring waves
against the lofty rock of national prosperity. 'Tis like the
evil spirit suggesting terrific dreams to the sleeping Eve j
'tis like the same spirit, in the garden of Paradise, persua¬
ding to rebellion against God. Experience has taught us
that factions become more dangerous the narrower the
sphere, within which they operate. Those divisions, there¬
fore, which now Jarm us, would then be seen to influence
individual interest, and individual happiness ; for each would
fepl a personal concern in the principles of his party. Con-
25
sider the connections of these parties with others in fhfc
different states, and reflect on the influence of foreign na*
tions. Heighten the picture still farther, by embracing with¬
in your view the power and enmity of individuals, the se¬
cret schemes of interest, unlooked for events at home, and
political changes abroad. With these circumstances before
you, conceive an alteration in public opinion. But I draw
a veil over the scene of insult, animosity, and resentment
that must ensue ; and proceed to consider the progress and
influence of ambition.
Every republic has at times generated this principle, and
has been compelled to confess, that if combined with talents,
it is the secret mine, which when it is sprung, buries the
strongest bulwarks of freedom in ruins. Urged onward by
this incentive, and supported by the energies of a great
mind, it is not difficult to deceive or corrupt the unsuspec*
ting people ; for unhappily, the propensity to prefer interest
to duty, and appearance to reality, is inherent in national,
no less than individual character.
But, whatever Be the natural tendency of these causes,
they are generally concentered by the skill and good
fortune of some aspiring individual. And where could bright¬
er prospects open to such a man, than in these republics
The principle of emulation is implanted at an early age, and as
it expands, the chief delight of the youth is to excel, and his
keenest pang, that which springs from the superiority of
others. Governed by feeling, he soon dwells with en¬
thusiasm on the page, that records the virtues, the hrrd-
fhips, and the victories of the hero. Already has he admired
the brilliant actions of Alcibiades, Csesar, and Cromwell,
and half wished that he had lived in their days to dispute
With them the laurels, which they obtained. He reads the
noble sentiment of the orator, " Vita brevis, sed glorias
cursus sempiternus and would dig his own grave, could
fie dare to hope th^t his achievements, like those of Sesos-
tris, would be engraven on columns of brass, or immortalized
in the romantic narrative of a Quinfus Curtius. He soon
Begins to mingle in the world, to practice political hypocri-
26
cy, and to court the favor of the ignorant and unsuspicious.
Behold him now on the stage of life. His party chosen,
he pretends to idolize the people, and speaks of the impre¬
scriptible rights of man. No arts are too mean, no pro¬
fessions too humiliating, no sacrifice of principle, of.duty; of
affection, too great to secure popularity. In a few years he
enjoys the full confidence of the ruling party ; for his talents
are too splended not to ensure distinction, and his political
creed but too orthodox, not to stamp him the advocate of
the rights and welfare of his country. Early in life, he had
tesolved to stand first in the legislature of the nation, or to be
the leader of some powerful faction. Now, he aims at sov¬
ereignty No seat will satisfy him but the throne of Free¬
dom: no footstool but the neck of his country. By a train
of intrigues and propitious events, the moment at last comes,
when he shall wield the thunder of a despot, or perish like
Catiline. And now the blow is struck. Like Brennus, he
casts his sword into the scale, and his fellow-citizens become
his slaves.
Thus have we examined the probable consequences of
disunion, and seen the fatal tendency of the jealousy of in¬
terest, and the jealousy of rights, of party spirit, and of
ambition. We saw the prospect darken at every step..;
we walked through the valley of the shadow of death, " but
there was no rod, no staff to comfort us." We looked and
beheld the altar of peace shattered by the lightnings of fac¬
tion. and her temple swept by the whirlwind into the chasm
of separation. We saw the rock of freedom cleft to its
base, and sinking mid the billows of disunion : and the in'dig*
pant genius of Columbia ascending, never to return. Then
we beheld the flaming temple of ambition arise, rocked on
the stormy waves of faction and discord : we heard the de¬
mon of war rushing in the tempest to inhabit it, amid the
shrieks of the orphan and the widow : we saw his shrine
adorned with the gorgeous banner, the beamy helmet, and
the glittering spear ; whilst on the altar were inscribed in
letters of blood, " One Murder makes a Villain, Millions a
Hero."
21
If these be the fatal effects of disunion, people of Ameri¬
ca, why would you divide ? Shall we forsake the peaceful
shores of freedom, to seek the unknown land of separation
and discord ? Shall the fragile bark of national happiness
be hurried down the stream of time into the stormy ocean
of political uncertainty, and not be sunk in the whirlpools of
faction, or dashed against the rocks of ambition ? Shall the
traveller dare the massy fragment, which thunders from the
mountain's brow, and not be crushed ? And shall we leap
down the frightful precipice, that overhangs the black gulf
of national ruin, and hope to escape ?
I might call your attention now, to the happy consequen¬
ces which may be expected to flow from the continuance of
union, and contrast them with the gloomy scenes I have just
described ; but I forbear to rend a veil, which the hand of
time will remove. You have already drawn the lovely pic¬
ture, brightening under the creative pencil of ancy, and
softened by the mellow touches of feeling. And, moreover
anticipation could shed but a feeble gleam over a prospect,
on which the unfolding glories of our future union, will beam
with a splendor, hitherto unrivalled in the history of man.*
But though we decline a survey so useful and gratifying,
may we not dwell on our own advantages, and challenge the
world to produce a nation so eminently favored ? To what
page of history can the eye be turned, which will not en¬
hance, on a comparison, our national pride and the true glory
of our country ? Shall we fear an equal in the States of
Greece, or in the Commonwealth of Rome ? In the Lycian
Confederacy, or the Achaean League ? In the Cantons of
* The following picture of America from the pen of the great Burke, is
too flattering and appropriate to be omitted. " Nothing, in the history of
mankind, is like their progress. For my part, I never cast an eye on their
flourishing commerce, and their cultivated and commodious life, but they
seem to me rather ancient nations grown to perfection, through a long
series of fortunate events, and a train of successful industry, accumulating
wealth in many centuries, than the Colonies of yesterday, than a set of
miserable outcasts a few years ago, not so much sent as thrown out on the
bleak and barren shore of a desolate wilderness, three thousand milesfromr
all civilised intercourse-"
28
Switzerland, or the United Provinces ? Theirs was but the
twilight of freedom, a feeble transcript of what you possess.
Where then, but in our native land, shall we find this original
of all that is most honorable and useful to mankind ? Where
is the freedom of the citizen the basis, and his happiness
the object of the constitution ? And where are legislators
the choice of the people, and the laws enacted solely to
promote their welfare ? It is in America. Where are
the rights of man revered, the privileges of the citizen se¬
cured, and the claims of the stranger acknowledged and en¬
forced ? Where does the victim of foreign persecution find
an eminence, on which the ark of his hopes may rest ? It is
in America. Where can we look for a government so con¬
sistent with the liberty, and so adequate to the wants of
the people ? So comprehensive, and yet so minute ? So
permanent in its principles, and yet so versatile in their
application ? Where shall we find a country so various in
its productions, and so abundant in its resources : so admi¬
rably adapted for commerce with the whole world, and ye£
so capable of living within itself ; daily becoming more pow¬
erful and happy at home, more respectable and necessary
abroad ? And where do we meet with a nation more libe¬
ral, generous, and enlightened? more calm and intrepid in
war ? more dignified and polished in peace ? more moder¬
ate and grateful in prosperity ? more resolute and patient
in adversity ? Where—a nation, whose leading characters
have been more distinguished for the bold and energetic
virtues of public life, and the mild and engaging qualities,
which endear us in retirement ? whose heroes, and whose
statesmen have reflected brighter honor on their country,
by the comprehensive depth of their understanding, the
versatility of their genius, and the masterly powers of their
eloquence ?
Friends, and Fellow-Citizens— Were we assembled this
day merely to commemorate the glorious sera, of which it
is the anniversary, and to indulge our national enthusiasm,
by d veiling on the great events of our Revolution, still
would our feelings be proud and enviable indeed. But the
29
dark clouds of adversity have passed away, and the Sun¬
shine of peace streams in full splendor on our happy land.
Henceforth, the toils of the soldier, and the struggles of our
country, shall be contrasted with the blessings we enjoy :
the patriot and hero of former tirnes may sleep unnoticed,
but not unbeloved : and even the sacred virtues of Wash¬
ington may be rarely heard to enforce the reasoning, and
heighten the eloquence of the orator. Henceforth let the
page of history be the record of their usefulness and renown;
whilst you consult the future interests of yourselves, of pos¬
terity, and of the world.
Under impressions, so awful and interesting, reflect,
Americans, on these duties, and how you may best dis¬
charge them. Know then, that security or corruption in the
people, and ambition in the rulers, are the bane of republi¬
can governments. Know that from each of you flows the
tributary stream of power and influence, and that public au¬
thority and public opinion must be the same, as the fountain
from which they spring. Know that the perfection and hap¬
piness of a nation depend on the virtues of its citizens, and
that each contributes to the purity or corruption, the misery
or felicity of his country. Can you trace the effect of every
lineament and color, in giving beauty and grace to the land¬
scape ? Can you mark the swelling of every wave on the
ruffled surface of the ocear^ and the splendor of every star,
whose mingled light forms the grandeur and magnificence of
Heaven ? And shall the citizen be free from the reproaches
of his country and of future generations, merely because hfrv
is not the tyrant, the traitor, or the rebel ? Shall he hope
to escape the avenging arm of conscience, if his example or
his principles have roused the indignation of the virtuous and
wise ? Guard then, against that fatal security, which origi¬
nates in private indifference, and that universal corruption,
which is but the combined influence of individuals. Guard
against that party spirit, which makes the freeman a slave,
and the citizen a hireling ; which arms your country against
herself, and becomes too often the means of aggrandizement
to the turbulent and ambitious. Guard against that spirit of
50
innovation, which looks upon antiquity as the stamp of infa¬
my, and novelty as the test of usefulness and truth : which
holds nothing sacred, no, not even the records of eternal
goodness, not the memory of Washington, not the Constitu¬
tion of our country. Guard against ingratitude to the illus¬
trious characters of our nation ; for coldness and neglect to-
them, will cloud the bright dawn of youthful talents and pa¬
triotism. Your hands must weave the wreath of their re¬
nown, your hands must build the triumphal arch 6f their glo¬
ry, and open to them the gates of immortality. Above all,
admire and revere the great father of our country, whose
heart was the sanctuary of virtue, and his mind the temple
of wisdom. Love and venerate him, as the first of men;
and know, Americans, that the world envy us that man,
more than our freedom and happiness; for all have heard
the name of Washington; but who, except Americans, can
conceive the blessings, which Americans enjoy!
Let not the clamors of faction deafen you to the voice of
your country, nor the duties of the citizen yield to the in
terest of the individual. Let not the dissensions of party
cherish the spirit of ambition, by substituting the principles
of one for the principles of all: nor lead to political idolatry,
and thence to despotism, by converting the representative
of the people's power, into the master of the people's rights.
Imitate, therefore, your ancestors, who taught by their ex¬
ample, that death is the only equivalent for freedom, and
that virtue and moderation, can alone ensure union
in war, and prosperity in peace. But, if you neglect
the salutary counsels of wisdom and experience, already
may you tremble at the ruin, that awaits you. Think not
that you can never become a corrupt people, the mercena^
ries of a demagogue, or the slaves of a tyrant. Rome was
once powerful, happy, and free. Had the Roman then
been told, that the charter of her freedom, and the crown
of her glory, should be trampled in the dust, by the unhaL
lowed foot of ambition, how would his eye have flashed witfe
indignation, and the sword of vengeance have glistened
the descending hand of the incensed patriot 1 WrJ$M} Jhow-
31
ever, you consult your own interests, think of the glory and
usefulness of your forefathers ; think of the ties, which bind'
you to your descendants, and of the misery and degradation
of the mass of mankind. Think of what you owe to them, and
know that your duties are extensive as the world, commen¬
surate with the privileges of human nature, and sanctified
by the warnings and instructions of the Christian Scriptures.
They have claims, which you cannot, you dare not disregard.
They entreat you in the pathetic eloquence of persuasion :
they urge you in the forcible language of remonstrance :
they adjure you in the accents of despair, by the vengeance
of Heaven, and the curses of posterity, not to betray so
sacred a charge. To you are entrusted not merely the
liberty and glory of America, but the rights of man, and the
welfare of future ages. You alone enjoy genuine happi¬
ness, and genuine freedom ; and you are the chosen race,
whose example shall yet arouse the sleeping genius of na¬
tions, to unsheath the sword of reformation, and grasp the
giant sceptre of independence. Think not, then, that we
are to be the only great and independent nation in America.
Rather behold with the keen eye of anticipation, new revo¬
lutions taking place, other nations springing to light, and
knowledge and freedom universally diffused. Behold the
submissive spirit of the Colony, then exchanged for the bold
andenterprising character of an independent people. Behold
the white sails of commerce swelling in every breeze, and
reflected from every wave; the gilded spire, the marble
portico, and the splendid edifice, rising in the desert, and
brighteniug amid the gloom of surrounding woods. Behold
the vast surface of South America, now one boundless ex¬
panse of hills and forests, then diversified with flourishing ci¬
ties and cultivated plains. Behold the spirit of improve¬
ment gradually advancing from the shores of the ocean, le¬
velling the woods, clearing the vallies, and scattering the
golden harvest, and the purple fruits of autumn, over the
sides and summits of the mountains. Hear the confused
noise of the busy multitude, gathering on the shore, and roll¬
ing along the Amazon and La Plata, its deepening echoes
32
even to the cliffs and vallies of the Andes. Hear the voice
of religion hymning the praise of God in the wilderness, and
the cottager joining in the general anthem of praise and gra¬
titude. Hear the midnight song of the mariner, resounding
on every wave ; and the rustic strains of the shepherd, float¬
ing in the breeze, on a thousand hills. Hear poetry describe
the greatness and benevolence of God, in the sublimity and
beauty of this New World : and eloquence plead for the
rights of man, the glory of nations, and the happiness of uni¬
versal nature.
Under obligations so sacred, with prospects so bright, can
you, Americans, be deaf to the voice of posterity, and of
mankind ? Can you, as individuals, but be virtuous, when all
must suffer for the vices and follies of one ? Can you, as
fellow citizens, be otherwise than united, whilst you behold
the gigantic genius of faction, grasping the pillars of free-
erm, and preparing to shake the temple of national happiness
into ruins ' Can you, as the only free and independent na¬
tion on earth, be regardless of the admonitions of experi¬
ence, the voice of Heaven, the rights of your descendants*
and the claims of future ages ?—Great, happy, and free,
what wish would you form ? what prayer could you utter £
What wish ? but that the world may yet taste the blessings,
which Americans enjoy : What prayer ? but that ours may
be the last republic on earth, or the centre of UNIVERSAL
KNOWLEDGE, UNIVERSAL HAPPINESS, ANA
UNIVERSAL FREEDOM,
SPEECH
op
THOMAS SMITH GRIMKlJ,
ONE OF THE SENATORS
FROM ST. PHILIP'S AND ST. MICHAEL'S,
DELIVERED
IN THE SENATE OF SOUTH CAROLINA,
In December, 1828,
CURING THE DEBATE
ON SUNDRY RESOLUTIONS,
Of the Senate and House of Representatives,
msjttcttnrj tljc tariff.
" I beg pardon of tbis house for having taken up more time, than came
to my share ; and I thank them for the patience and polite attention, with
which have been heard. If I shall be in a minority, I shaH have those
painful sensations, which arise from a conviction of being overpowered in
• good oatwe."—Patrick Henry,
©fjatfeston.
|RIHTE# MX TV. JMLET, 110 CHURCH-STREET*
TO THE
PEOPLE OF SOUTH CAROLINA*
jFellow Citizens,
I TRUST that I may, without offence and without sua*
picion of disrespect, dedicate to you the following pages.—
They contain substantially the sentiments, delivered at the
last session of the Legislature, on the questions, arising out
of the passage of the T a riff bill of 1828. It is the privilege
of the minority, if that minority consist of but one member,
to be heard in your halls of Legislation; provided he speaks
with the seriousness and propriety, which become the
place, the audience and the subject. It is equally the pri¬
vilege of the minority among the people, though but the
thousandth part of them, to be heard through the press.—
And suffer me to remark, that the Peqple of this Country
can never value too highly, on all great "questions, the oppo¬
sition of a minority, as long as it is constitutional in its forms
and character, dignified, temperate and respectful in its
manner, pure and patriotic in its objects. Such a minority
is an inestimable blessing in a free, enlightened, represen¬
tative government, as affording to the majority an irreproach¬
able example of wisdom and moderation, of independence
and firmness, of public spirit and public virtue.
I cannot be too grateful for the kindness and attention,
with which I was favored by the Senate, during a long, com¬
plex and laborious examination of the great subject of Con¬
stitutional Law and National Policy, which was then before
them. I present to you, substantially (though with many
additions and alterations) what was then delivered: and, if it
were the last act of my life, I should feel, whatever may be
its reception, that I had not done my duty to my country, if
I had not laid before you these sentiments. I know that
they have been dictated by the love of peace and order,
4
of sober-minded, regulated liberty, of free* rational, tefti®
perate discussion. I do conscientiously believe them to be
perfectly consistent with the mutual rights and interests of
the States and of the Union : with the true dignity and au®
thority of local as well as general Sovereignty. If I err, I
have the satisfaction of knowing, that I do so honestly, after
a faithful and diligeut examination of the subject. If I err, I
have also the satisfaction of knowing, that although I differ
from some of the wise and good of this day, yet that the ma¬
jority of them advocate the same opinions. If I err, I have
the farther satisfaction of knowing, that the wise and the
good, of a nobler, and better, and wiser age, the age of 1789,
sanctioned by their opinions and acts, the sentiments which
I have attempted to vindicate. 1 appeal then from Carolina
as she is, excited, suspicious, full of fears and gloomy
thoughts, to Carolina as she was, from 1789 to the end of
Mr. Monroe's administration, free from passion, prejudice,
and apprehension. I appeal from Carolina, in 1828, a judge
in her own case, to Carolina from 1789 to 1824, a judge in
the case of her sister States. I appeal from Carolina, de¬
nying, and almost ready to resist the authority of the general
government, to Carolina, such as she was, when she took no
part in the sentiments and conduct of Virginia in 1798, as to
the Alien and Sedition LaWs : when she withheld her ap¬
probation from Pennsylvania, enacting a law, command¬
ing and empowering the Governor to resist the execution of
a Judgment rendered by a Court of the Union ; when she
rejected the opinion, maintained by many in New England,
that the Embargo of 1808, was unconstitutional : when she
frowned on the doctrine of Connecticut and Massachusetts,
in 1812, that the State Executive, not the President, was
to judge, whether the Constitution authorised a call on the
Militia in tkne of war: when, in 1821, (Acts p. 69,) she re¬
jected the amendment proposed by Pennsylvania, to prohibit
Congress from establishing the Bank of the United States,
or its offices, out of the District of Columbia : and when in
It-24, ( Acts p 83) she pronounced, by the unanimous vote
ot her Legislature, that the Administration of James Mon*
5
Jroe, so conspicuous for internal improvements and the protective
system, had been truly republican, wise, virtuous and success¬
ful. I appeal from Carolina, agitated and alarmed, suffer¬
ing and dissatisfied, acting almost alone, to the same Caro¬
lina, when she disapproved, in common with the vast major¬
ity of the People and States of the Union, the remonstrances
and menaces of discontented minorities.
I feel that my own opinions are worth nothing, beyond the
principles and reasonings, with which I have endeavored to
sustain them. I trust then 1 shall be pardoned for enforcing
them, by those of George Washington and Patrick Henry,
the former, equally admirable in patriotism and judgment,
the latter, originally the Great Antagonist of the Constitu¬
tion. Washington, in his Farewell Address, thus speaks,
" The unity of government which constitutes you one
people, is also now dear to you. It is justly so ; for it is a
main pillar in the edifice of your real independence ; the
support of youf* tranquility at home; your peace abroad; of
your safety; of your prosperity; of that very liberty, which
you so highly prize. But, as it is easy to foresee that, from
different causes and from different quarters, much pains will
be taken, many artifices employed, to weaken in your minds
the conviction of this truth; as this is the point in your political
fortress, against which the batteries of internal and external
enemies will be most constantly and actively (though often cov¬
ertly and insidiously) directed ; it is of infinite moment, that
you should properly estimate the immense value of your
national union to your collective and individual happiness ;
that you should cherish a cordial, habitual, and immoveable
attachment to it ; accustoming yourselves to think and speak
of it asofthe Palladium of your political safety and prosperity;
watching for its preservation with jealous anxiety ; discoun¬
tenancing whatever may suggest even,a suspicion that it can, in
any event, be abandoned ; and indignantly frowning upon the
first dawning of every attempt to alienate any portion of our coun¬
try from the rest, or to enfeeble the sacred ties, which now link to¬
gether the various parts."
"This government, the offspring of your choice uninflu¬
enced and unawed, adopted upon full investigation and ma¬
ture deliberation, completely free in its principles, in the
distribution of its powers uniting security with energy, and
containing within itself a provision for its own amendment,
$ias a just claim to your confidence and your support. Res-
6
pect for its authority, compliance with its laws, acquiescence-
in its measures, are duties enjoined by the fundamental max¬
ims of true liberty. The basis of our political systems is
the right of the people to make and to alter their constitu¬
tions of government. But the constitution which at any-time
exists, until changed by an explicit and authentic act of the
whole people, is sacredly obligatory upon all. The very
idea of the power, and the right of the people to establish
government, pre-supposes the duty of every individual to
obey the established government."
Patrick Henry, in his last speech against the Constitu¬
tion, had said, in 1793, (Wirt's Life, p. 297.) " If I shall
be in the minority, I shall have those painful sensations,
which arise from the conviction of being overpowered in
a good cause. Yet I will be a peaceable citizen. My
head, my hand, and my heart shall be free to retrieve the
loss of liberty, and remove the defects of that system, in a
-constitutional way. I wish not to go to violence ; but will
wait with hopes, that the spirit, which predominated in the
Revolution, is not yet gone, nor the cause of those who am
attached to the Revolution yet lost. I shall, therefore, pa¬
tiently wait, in expectation of seeing that government
changed, so as to he compatible with the safety, liberty and
happ'ness of the People."
What Patrick Henry meant by this " Constitutional way,"
is explained in his Speech to the People, at the election in
1798 ; for, although be was then nearly sixty-three, he
offered himself as a candidate for the House of Delegates ;
because he believed the sentiments and conduct of Iris own
Virginia, in relation to the Alien and Sedition Laws, to be
unconstitutional, and dangerous. He said to the People,
" That the late proceedings of the Virginia Assembly had
filled him with apprehensio is and alarm; that they had
planted thorns upon his pillow; that they had drawn him
from that happy retirement, which it had pleased a bounti¬
ful Providence to bestow, and in which he had hop-ed to
pass, in quiet, the remainder of his days; that therState had
quitted the sphere, in which she had been placed by the
constitution; and in daring to pronounce upon the validity
of federal 1 aws, had gone out of her jurisdiction in,a jwaunev
not warranted by any authority, and in the highest d$gr&e
alarming to every cm iterate mw ; that,such opposition,
1
on the part of Virginia, to the acts of the general govern*
merit, must beget their enforcement by military power;
that this would probably produce civil war; civil war, for¬
eign alliances; and that foreign alliances must neeessarily
end in subjugation to the powers called in."—"Mr. Henry,
proceeding in his address to the people, asked, "whether
the county of Charlotte would have any authority to dispute
an obedience to the laws of Virginia ; and he pronounced
Virginia to be to the union, what the county of Charlotte
Was to her. Having denied ihe right of a state to-decide
upon the constitutionality of federal laws, be added, that
perhaps it znight be necessary to say something of the merits
of the laws in question. His private opinion was, that they
were ugood and proper." But, whatever, might belheir
inerits, it belonged to the people, who held the reins over
the bead of congress, and to them clone, to say whether they
Were acceptable or otherwise, lo Virginians ; and that this
must be done by way oj petition. That congress were as
much our representatives as the assembly, and had as good
a right to our confidence. He had seen, with regret, the
unlimited power over the purse and sword consigned to the
general government; but that he had been overruled, and
it was now necessary to submit to the constitutional exercise
of tha%pow&r. " If," said he, " I am asked what is to be
done, when a people feel themselves intolerably oppressed,
my answer is ready :—Overturn the government. But do
not, I beseech you, carry matters to this length, without
provocation. Wait at least until some infringement is made
upon your rights, and which cannot otherwise he redressed ;
for if ever you recur to another change, you may bid adieu
for ever to representative government. You can never
exchange the present government, but for a monarchy."—
Wirt's Life of Henry, pp. 393-4-5.
I hope, I do not err in the opinion, that justice to myself
and to the subject, renders it proper, that I should publish
along with the Remarks at the last Session, my Protest
against the Preamble and Resolutions introduced by Dr.
Ramsay, at the Session of 1827; and the Resolutions offered
by me on the 12th of December last. I need hardly say,
that if the opinions expressed in these, are errors, it is my
misfortune to hold them still, with a more resolute convic¬
tion, that they are sober and valuable truths. If they are
errors, I know, that as I have adopted them honestly, go I
8
adhere to them steadily, and expose them freely and candid*
ly. If they are errors, suffer me to enjoy the consolation of
believing, that they may serve as beacons to warn you against
such heresies. But, if they are truths, I shall have the sa¬
tisfaction of thinking, that I shall not have served my country
in vain, if my public life should have brought forth no other
fruit than these pages. Pardon my simplicity, perhaps I
might say my presumption, in believing that I can render
any service, in this most interesting and important matter.
But it is the cause of our country ; and therefore a holy and
awful cause. But however unworthy, I hope that I have at
least afforded an example of calm, respectful, temperate
discussion, untainted by sarcasm and ridicule, undefiled bj
prejudice, jealousy and suspicion, unpolluted by threats and
denunciations, by passion and bitterness.
Tour Fellow Citizen,
And Servant,
THOMAS S. GRIMKE*
Charleston, 2d Nov. 1829
SOUTH CAROLINA.
IN THE SENATE.
Monday, December Ytth, 1827.
Mr. Grimke, handled in tbe following Protest, which was
ordered to be entered at length on the Journal.
" Protest of Thomas S. Grimke, one of the Senators from
St- Philip's and St. Michael's.
Against the Report and Resolutions of the Special Com¬
mittee, whereof Dr. Ramsay was Chairman, appointed 27th
Nov. 1827;, which Report and Resolutions were referred to
the Committee ofthe Whole, and were discussed on Monday,
Tuesday and Wednesday, the 10th, 11th and 12th of De¬
cember, and having been reported, were adopted with an
amendment to the second offered by Mr. Henry Deas, on
the day last mentioned.
With regard to the report itself, I protest against it,
considered as a preamble to the Resolutions, for the reasons
for which 1 protest against the Resolutions themselves.
The first Resolution reads thus :
Resolved, That the Constitution of the United States is a
compact between the people of the different States with
each other, as separate and independent sovereignties ; and
that for any violation of the letter or spirit of that compact
by the Congress of the United States, it is not only the right
ofthe people, but ofthe Legislature, who represent them,
to every extent not limiied, to remonstrate against violations
of the fundamental compact.
I protest against the foregoing resolution, for the following
-reasons.
1st. I consider it immaterial, what circumstances gave
rise to the present Constitution, in what mode it was called
into being, or in what manner officers under that constitution
are appointed, if the poioers and the duties of the government,
when constituted are national and not federative ; if the laws
enacted by it act upon the people of the Union, as onepeo-
ple> and not upon the States, as separate and independent
sovereignties, combined in a league of friendship (art. confed.
art- 3d.) The present constitution at its commencement,
" We the People, &c." compared with the articles of con¬
federation, and with the declaration of independence, asserts
itself to be the act of the People of the Union, and not of the
Q
ie
people of each of the thirteen United States. I cannot, there¬
fore, regard the Constitution as a compact, subsisting and
operating between the people of the different States, ivith
tach other, as separate and independent sovereignties, but
as a compact subsisting between and operating upon the peo¬
ple of one Nation.
2dly. I protest also against the latter part of the resolu¬
tion ; because whilst 1 admit that it is the right of the people
to remonstrate, 1 admit it is their right, only as the people
of the Union. 1 cannot admit that the people of a State, as
such, have the right of remonstrance ; because I deny that
a State, or the people of a State, as such, stand in such a
relation to the Union, as to possess the right of remonstrance
against the acts of a government, independent of such state
and such people, neither governing them, nor responsible to
them. As then, the people of the State, as swc/i, have not
this right, it follows conclusively that their Legislature can¬
not possess a power, which their constituents have not.
Besides remonstrance is an appropriate act of political, not
of legislative sovereignty : and as the General Assembly have
only a legislative capacity under the Constitution of South-
Carolina, they cannot do a political act, founded on a sup¬
posed political relation between them and Congress, when
none such exists.
The second Resolution is as follows :
Resolved, That the Acts of Congress passed in 1816, 1820,
and 1824, known by the name of the Tariff Laws, so far as
they w ere intended to encourage manufactures, under the
power to lay imposts, are violations of the Constitution in
its spirit, and ought to be repealed.
I protest against the foregoing resolution for the following
reasons.
1st. Congress has power to regulate Commerce. Manu¬
factures in the United States have been the natural growth
of a prosperous commerce. They are inseparably allied.
It is impossible to regulate commerce without having a
knowledge of, and a view to manufactures, at home. Duties
must depress or encourage manufactures, according as they
are laid with a view to, or under a disregard of manufac¬
tures. Congress, therefore, having the power, is bound to
regulate trade, so as to promote them ; if it should appear
to the national legislature, to be for the general welfare ;
and of this, as a question of expediency, they are the only
judges.
2dly. Because the practice of the government has beea
conformable to this construction of the Constitution, as ap¬
pears especially by the act of 20th July, 1789, (1st vol. edit.
1]
1815, L. U. S. page 2,) the preamble to which states these
objects of the duty thereby laid, 1st. to support government.
2dly, to pay debts, and 3dly, "/or the encouragement and
protection of manufactures also by all the acts, which lay
discriminating duties in favor of vessels, built in the United
States, and which can have no other effect, than to encou¬
rage all the manufactures, upon which ship building de¬
pends ; also by the various acts, which lay discriminating
duties in favor of spirits distilled at home, even from foreign
materials: also by the acts of 1816, and 1820, almost unan¬
imously approved throughout the Union.
3dly. Because I cannot reconcile, consistently with the
dignity, honor, candor, and good sense of South Carolina,
the above resolution, with the vote of thanks to President
Monroe, passed in Dec. 1824, (p. 83,) whereby the Legis¬
lature, by a joint resolution, declared, that his administra¬
tion had been truly republican, wise, virtuous and successful:
whereas, if the above resolution be correct in principle,
his administration was the very reverse of truly republican,
wise, virtuous and successful.
The third Resolution reads as follows :
Resolved, That Congress have no power to construct roads
and canals, in the States, with or without the assent of the
States in whose limits those improvements are made : the
authority of Congress extending no farther than to pass the
necessary and proper laws to carry into execution their
enumerated powers.
1 protest against the foregoing resolution for the follow¬
ing reasons :
1st. As to roads. If the word " establish" signifies sim¬
ply to designate, then the three last words " and post roads,"
mean nothing; because the power to designate post offices
contains in itself the power to designate post roads, for af¬
ter fixing the offices, the determining of the route would be
a mere matter of arrangement with the mail contractor.—
But the word establish cannot signify merely to designate.
This expression implies the pre-existence of the thing desig¬
nated. Whereas, the clause does not refer to offices and
roads already existing.
Besides, the meaning of the word, in other parts of the
Constitution, is, "to make, to create and not simply to
point out or select, (Art. 1, § 8 cl. 4,) " to establish a uni¬
form rule of naturalization, and uniform laws on the subject
of bankruptcies." (Art. 3, § 1.) " The judicial power
shall be vested m one supreme court, and in such inferior
courts, as congress may, from time to time, ordain and es¬
tablish " to establish justice," in the preamble means
strictly neither to create nor to designate, but to establish
justice, by creating national instead of state tribunals for its
administration.
2dly. As to roads and canals. It appears to me, that there
is a clear and marked distinction, between the specific grant
of a separate, substantive power : and the necessary grant of a
portion of the same power, as incidental to another separate,
substantive power, specifically granted. Thus the power
to create corporations would have enabled congress t© char¬
ter banks all over the union, without regard to the financial
department of the government ; but the powers to borrow
money, and to lay and collect taxes and duties, only confer
authority to incorporate a bank for the express purpose of
u conducing to the successful conducting of the national
finances," and " of facilitating the obtaining of loans for the
use of the government in sudden emergencies. " A specific
power to construct roads and canals, granted substantively
and separately, Would have authorised their establishment
all over the union, without regard to any one of the enumera¬
ted powers. But as the clause now stands, no road or canal
Can be constructed, except as incidental to some one specific
power, and with a view to the end or object of that power.
If the general power to construct roads and canals had been
given separately, the construction of them would have been
in the nature of an end: but given as it now is incidentally
such construction is in the nature of means.
The fourth Resolution reads thus :
Resolved, That the American Colonization Society is not
an object of national interest, and that congress has no power
in any way to patronize or direct appropriations for the be¬
nefit of this or any other society.
I protest against the preceding resolution because, al¬
though I freely concede that the American Colonization So¬
ciety is not an object of national concern, yet I cannot admit
the universal principle asserted by the resolution, that na
other society can be an object of national interest. If the
resolution had been limited to the A. C. S. I should have
voted for it, but I cannot adopt it, as it now stands ; because
I am satisfied that many societies may exist, whose objects
would be so intimately connected with some of the specific,
enumerated powers, that congress would have a clear right
and would be under a strong obligation to encourage them.
The fifth Resolution reads thus :
Resolved, That our senators in congress be instructed,
and our representatives requested to continue to oppose
every increase of the tariff, with a view to protect domestic
manufactures and all appropriations to the purpose of inter-
13
tial improvements of the United States, and all appropria¬
tions in favor of the Colonization Society, or the patronage
of the same, either directly or indirectly by the general
government.
I protest against the whole of the above resolution (ex¬
cept the clause as to the Colonization Society) for the rea¬
sons already given. I also object to the words " be in¬
structed" as asserting the right to instruct the senators from
S. C. in the congress of the U. S. as distinguished from the
representatives. I cannot admit this principle, in regard
to the senators. The Legislature of the State of South-
Carolina, under the Constitution of the United States, has
merely the naked powe- of appointment. Now I take it to be
a fundamental rule of all law, whether ciyil or political, that
the appointing power cannot qualify its act, either at the
time of execution, or at any subsequent period, unless such
a right, be conferred by the original instrument, creating
the power of appointment. And this principle is applicable
with tenfold force, to the case of a delegated power of ap¬
pointment ; as in the case of the legislature, when executing
the delegated authority to choose a senator.
It is unnecessary to say any thing on the subject of th&
sixth resolution, requiring the Governor to forward copies
to our senators, &c. because I acquiesce in it as a correct
measure, the majority having adopted the resolutions.
For the reasons above stated, I protest against the five
resolutions above copied.
(Signed) THOS. S. GRIMKfe.
—1
RESOLUTIONS
Submitted to the Senate by Thomas S. Grimke,
one of the Members from St. Philip's and St.
Michael'sy 12th December, 1828.
Resolved, That South-Carolina regards the Union of these
States, as indispensible to their Liberty and Independence,
their Peace, Prosperity, and Improvement.
Resolved, That South Carolina, pledges to her sister States
and to the Union, her Life, her Fortune, and her sacred Hon¬
our, for the maintenance of the Constitutional compact which
hinds them together.
14
Resolved, That South-Caroliaa acknowledges the impor¬
tance and necessity of adhering to cotemporaneous ex¬
positions of the Constitution, especially when they have been
repeatedly acted upon since by the different departments of
the National Government, and have been acquiesced in by
the great majority of the State Governments and of the Peo¬
ple.
Resolved, That, according to the true theory and sound,
practical interpretation of the Constitution of this State, all
ordinary cases of neglect of duty, of abuse of power and of
usurpation of power, by any of the departments of Govern¬
ment or by any public officer, are amply provided for by the
remedies of impeachment, indictment, and elective franchise,
and the Courts of Justice.
Resolved, That the people of this State and the Convention,
which formed the Constitution of South-Carolina, regarded
the exercise by the Legislature of power not granted, as a case
of ordinary breach of duty, and provided against it through
the elective franchise, and especially through the judicial
department.
Resolved, That, according to the sound construction of the
Constitution of this State, illustrated, sustained and enforced
by a cotemporaneous exposition ; by repeated judgments of
our Courts, declaring Acts of Assembly to be void ; by the
course of our Legislature in pursuance of said judgments ;
and by the acquiescence of the people of this State for near¬
ly forty years, the judiciary is the proper, peculiar, and only
tribunal for deciding, in the last resort, as to merely local
and domestic questions, on the Constitutionality of laws.
Resolved, That this Constitutional jurisdiction, thus estab¬
lished and approved, cannot be lawfully withdrawn from the
Courts, but by an amendment of the Constitution, and that it
doth not become the dignity, good sense, and discretion of the
Legislature, to impeach or call in question the sufficiency of
this tribunal, in point of wisdom and virtue, patriotism and
independence, talents and learning.
Resolved, That according to the true theory and sound
practical interpretation of the Constitution of these United
States, all ordinary cases of neglect of duty, of abuse of
power, and of usurpation of power by any of the departments
of the National Government, or by any of its officers, are
amply provided for by the remedies of impeachment, the
Supreme Court, and the Elective Franchise.
Resolved, That the Convention, which formed the Consti¬
tution of the Union, the Legislatures of the States, the Con¬
ventions of the different States, and the people throughout
the Union, regarded the exercise by the State and National
15
Legislatures oj power not granted, as a case of ordinary breach
of duty, and provided against it, through the Presidential
veto, the Elective Franchise, and the Supreme Court of the
United States.
Resolved, That, according to the letter and spirit, and to
the sound construction, both practical and theoretical, of the
National Compact, illustrated, sustained and enforced by co-
temporaneous exposition; by repeated judgments of the Su¬
preme Court, declaring Acts both of the State and National
Legislature to be void ; by the course of our Legislative
proceedings, both in Congress and in the State Assemblies,
in pursuance of said judgments ; and by the acquiescence of
the great majority of the State Tribunals, of the State Go¬
vernments, and of the people throughout the Union ; the
Supreme Court is the proper, and peculiar, and only tribunal,
having authority to decide in the last resort, upon the Con¬
stitutionality of the Acts of the General or State Govern¬
ments.
Resolved, That this Constitutional Jurisdiction thus estab¬
lished and approved, cannot be lawfully withdrawn from that
Court, but by an amendment of the National Compact ;
and that it doth not become the dignity, good sense and dis¬
cretion of the Legislature, to impeach or call in question the
sufficiency of this tribunal, in point of wisdom and virtue,
patriotism and independence, talents and learning.
Resolved, That if the Tariff Act of 1828, be unconstitution¬
al, the Supreme Court of these United States, is the only tri¬
bunal known to their Constitution, having jurisdiction to de¬
cide on the validity of that law ; inasmuch as a refusal to
comply with that law would constitute a case, arising under
a law of Congress, and under the 2d Section of the 3d Article
of the Constitution of the Union.
Resolved, That it is the duty of the State of South-Caroli¬
na, and that it well becomes her dignity, wisdom and mode¬
ration, her love of peace, order and good feeling, to desire,
and if it be necessary, to seek in the spirit of his Excellen¬
cy's Message of the 25th of November last, the judgment
of the proper Courts of Justice, on the question, whether
the Tariff Act of 1828, be Constitutional or not.
Resolved, That a palpable breach of the Constitution con¬
sists in the plain, simple affirmation of that, which is denied,
or in the like negation of that, which is affirmed in the Con¬
stitution ; and cannot be submitted to any honest man of
good sense, without his determining at once the question.
Resolved, That every other case of alleged violation of
the National Compact, opens a fair field for honest differ¬
ence of opinion •' that every such case is emphatically «
16
proper subject for the jurisdiction of the Supreme Court :
and that whatever may be the opinion of the people or Le¬
gislature of a State, they are bound in duty, if they allege
a violation, to desire the judgment of that tribunal : and to
acquiesce therein, respectfully and peaceably, as the final
decision of a supreme, independent arbiter, constituted
such by themselves.
Resolved, That the Tariff Act of 1828 is not a palpable
breach of the Constitution of the United States, not only be-
cause it neither affirms what is denied, nor denies what is
affirmed in the Constitution ; but because the constitutionality
of the protecting system was not called in question in Congress,
in the State Legislatures, or by the people, till the year
1824, after an open, continued, and extensive practice of
thirty-five years.
Resolved, That the Act of Congress of 4th July, 1789,
(the second passed by the National Government,) must be
regarded as a cotemporaneous exposition of the constitutional
right of the General Government, to protect domestic ma¬
nufactures ; because the subject was distinctly brought to
the view of Congress by the amendment of Mr. Fitzsimons,
accepted by Mr. Madison, by the petitions of the manufac¬
turers, by the nature of the argument on the duty and ton¬
nage bills, by the character of the provisions, and emphati¬
cally by the preamble of the former, which expressly de¬
clares one object to be, " the encouragement and protection
of domestic manufactures."
Resolved, Tiiat such cotemporaneous exposition is entitled
to the highest confidence, as the wise, salutary and sound
construction ; because unwarrantable extensions by the new
Government, of their granted powers, and usurpations of
others not granted, had been boldly and repeatedly pre¬
dicted ; because the first movements of that Government
were watched with extreme jealousy by those who had ob¬
jected to the Constitution ; because the first Congress con¬
sisted of men of both parties, of talents, integrity and expe¬
rience, and contained sixteen of the Delegates, who nad
formed the Constitution ; because George Washington, the
President of the Convention, was the President who signed
the Bill ; and lastly, because the repeated, unquestioned
practice of the Government, from 1789 to 1824, can bo
regarded in no other light, than as so many republications
of that original, cotemporaneous exposition.
Resolved, As the State of South-Carolina has declared,
that she believes the Tariff Act of 1828, to be unconstitu¬
tional, as a " misconstruction or abuse of power," she owe»
it to her own sense of^dignity and propriety, to her love of
17
regulated freedom, of peace and order, to follow the ex¬
ample set in 1789, by applying through her State Legisla¬
ture to her sister States, to unite with her in applying to
Congress for a " declaratory or restrictive amendment,"
through the Convention.
Resolved, That until the remedies pointed out by the Con¬
stitution, and recommended by wisdom, experience and
a spirit of moderation, have been exhausted, viz.: "the
petition of the people for a redress of grievances," under the
first amendment, the decision of the Supreme Court, under
the second section of the third article, and the application for
an amendment, under the fifth article of the National Con¬
stitution, it is neither the duty nor the interest of South-Caro¬
lina, nor can she, consistently with honor and good faith, with
wisdom and prudence, with her attachment to tranquility and
order, and with a sacred regard to her own example and influ¬
ence in the Union, take any measures founded on a resort to
sovereign rights and sovereign authority.
Resolved, That it is the opinion of the people of South-
Carolina, as expressed at all their public meetings, that the
Tariff Act of 1828 is unconstitutional; that even if it be
Constitutional, it is, in the judgment of the same people, in¬
expedient as a National measure, and unjust in relation to
the Southern States, on account of the great and sudden in¬
crease in the amount of duties ; that since Congress regards
the Tariff Act as Constitutional, and must legislate according¬
ly, South-Carolina, without waiving her denial thereof, and
her right to try the question constitutionally, will apply to
Congress, on the ground of inexpediency and injustice, to re¬
consider and modify the Law, consistently with a wise and
temperate policy*
N, B. The debate occurred in Committee of the Whole.
7
Mr. Chairman,
I HAVE heard with pain and sorrow, the opinion, that
in the present crisis, it well becomes South- Carolina to ap*
proach her sister States, and the National Government, with
the Sword in one hand, and the Glive Branch in the other:
that she walks in the paths of honor and duty, when she
offers the alternative of War or Peace. I may admire the
chivalry and frankness of the sentiment, but I cannot depre¬
cate too much a feeling so unnatural, so indiscreet, so un¬
wise. We are, and I trust we shall ever continue to be,
one family, bound together by the ties of a common ances-
Fy , eminent for the cultivation of peace at home, and only
glorious in foreign wars. Not one of these States has ever
yet shed the blood of a brother, notwithstanding the colli¬
sions of interest, and the exasperation of angry passions.
This, perhaps, is the most solemn and important lesson,
which the rest of the world can learn from us : And shall
we not profit by it ourselves ? Be it, then, our unchange¬
able feeling, our irrevocable purpose, as it is our holiest
duty and highest interest, that the sword never shall be
drawn against the National Government, or a Sister State.
Let the people of this country, in the East and the West, in
the North and the South, engrave this sentiment on the table
of their hearts, and reverence it as a religious truth. Let
them resolve, and call God to witness the vow. that the
voice of a Brother's blood shall never cry from the ground
against them. To live and to die in this sentiment, is re¬
commended by interest, advised by wisdom, and commanded
20
by duty. Let us take an illustration from the circle of do¬
mestic life. What son can think, without horror, of un¬
sheathing the sword against a father, however unjust and
even tyrannical ? What brother can brook the thought, that
he could ever be driven, by any extremity of injury or cru¬
elty, to shed his brother's blood ? Nature, Religion, pub¬
lic and private duty, the social feeling, the peace of fami¬
lies, have ordained these as irrevocable laws. Even the
barbarous code of false honor, though it spares the friend, the
neighbour, the acquaintance, no more than the stranger and
the enemy, has respected the sanctuary of a household.
And shall not this family of States reverence the command¬
ments of a holier and nobler law, to them the only true law
of honor and virtue, of enduring happiness, peace and im¬
provement ? Let them banish then forever from their in¬
tercourse, the language of the warrior, and all the thoughts,
and feelings, and associations, which are crowded together
in that single expression—War. Is one of them insulted
by a thoughtless unfeeling brother ? Let him remember,
that violence must aggravate, but cannot cure the evil.
Ate some the victims of selfishness and injustice ? They
would do well to consider, that angry words and intemperate
conduct can avail nothing, and may produce greater injuries.
Are any the sufferers by a brother's usurpation or abuse
of authority ? What can threats and denunciations do, but
to exasperate the guilty against the innocent ? Let the na¬
tions of Europe employ war, and its ministers of wrath, t6
chastise the insolent, to exact justice from the unjust, and
to humble tyranny ; but let the people of each state, under
every temptation and trial, arising from the National Gov¬
ernment, or other states, rely only on the arguments of wis¬
dom and moderation, and on the eloquence of friendship
and forbearance. Our country is emphatically a land of re¬
gulated liberty, of laws and principles. Our government
is pre-eminently the government of the people, the off¬
spring of mutual concessions and common interests. There
is, iu the great body of the citizens of every state, a fund
of good sense, of equity and candor, which, in the course
n
of years, will assuredly do that which is right. Let us ne¬
ver distrust, much less despair of them. What though, for
a season, we may be reviled, or injured, by sister states,
or be oppressed by the power of the general government ?
What though we may see, in our judgment, with absolute
certainty, that we are the victims of sectional prejudice, or
local interests, of fraud, intrigue, and corruption ? Let us
never distrust our country, nor despair of the Republic.
On the contrary, let us cling fast to the hope, that Ameri¬
cans will, at the last, respect truth and reason, and yield to
manly, temperate, candid remonstrance, and brotherly ex¬
postulation. Let us, then, before we approach the sanc¬
tuary of our Parent* Government, banish the feelings of
anger from our hearts, the language of menace from our
lips, and the expression of resentment from our countenance.
Before we address the august assembly of sister states, let
us remember, that we cannot honor and respect them too
highly, nor act ourselves with too much dignity, self rever¬
ence, and moderation. Before we enter the sacred pre¬
sence of our country, let us cast far away the sword, and
speak to her only in the spirit of faith and of hope, of peace
and of love.
Pardon me for having detained you thus long from the
great object of my remarks. But if you honor the son or the
brother, who mourns over the dissensions of his family, I
know that you will respect the feelings Which I have ex¬
pressed. No one can behold unmoved the present crisis ;
or be insensible to the delicate and perilous situation of
South-Carolina. The language of her Representatives in
Congress, the Resolutions of the Legislature at the last
session, and numerous public meetings of the citizens, have
placed her almost in the attitude of resistance. The people
have left it to their Legislature to decide what becomes her
in point of dignity and honor, of duty and interest. For my¬
self, I need not say, that I have objected anxiously and ear¬
nestly] to the course, which has been thus far pursued. I
* See Note A. ,
22
have felt, ai!J thought, and said, that it was unwise and unr
constitutional. I say so still. But I shall waste neither
your time nor my strength, in an argument on the constitu¬
tionality «f the Tariff, founded on the construction of the
National Charter. Waiving that topic, so fruitful in the
principles of political science, in the lessons of our own ex¬
perience under the Confederacy, and in the illustrations to
be gathered from our history since 1789, I proceed to offer
my views: And though I shall draw largely on your patience
and liberal forbearance, I know that your sense of duty will
ask no apology, because I am discharging my duty, accord¬
ing to the best of my judgment and conscience, to our com¬
mon country.
First, then, I shall endeavor to show you, that cotempo-
raneous expositions of the Constitution, acted upon success
sively for years, ought to settle its construction, and that
no State can wisely or lawfully call them in question ; or
consistently with her relations to the General Government
and the other States, resist the authority which they
recognize.
No one, I believe, has ever disputed the wisdom and im¬
portance of this rule. It is indispensable to peace and order
in all states of society, and under all forms of government.
It is respected in all ; and no person acquainted with history,
can doubt that a succession of cotemporaneous expositions
of the unwritten, customary law of Europe has led the way
insensibly to a series of improvements, that have made her
what she now is, compared to her condition, during the
dark ages. But there is no country, in which this principle
is more valuable, or ought to be held more sacred, than in
America. Our's is a government of the people, and all pub¬
lic officers are the responsible agents of the people- Their
acts are those of the people, through their lawful represen¬
tatives, they affect the rights and interests of the people,
and the people only are the ultimate tribunal to ratify or
reject their measure^. Hence, in our country, a construc¬
tion ot the constitution publicly asserted by one department,
repeatedly acted upon and acqnieseed in through a period
23
of years, by the people and the other departments, acquires
the undoubted force of law. If such an exposition does not
settle the meaning of the constitution, nothing ever will :
and yet a settled construction of that instrument is indispen¬
sable to private and public rights and security ; to peace,
order, and prosperity. It may be asserted with confidence*
that such an exposition, so published, sustained, and illus¬
trated, cannot exist, where the power exercised was not
granted. And if, in the opinion of statesmen of an after
age, the power had not been conferred, the judgment of
discretion and wisdom would be, that such a construc¬
tion must be respected and obeyed as Law, being the
solemn act of those, on whom devolved the right and respon¬
sibility of deciding, and whose duties, interests and oppor¬
tunities made them preeminently the fittest judges. If
such would be the sound, safe doctrine of the patriot, even
on such a supposition, how much more sacred ought the con¬
struction to be esteemed, when a minority only of intelli¬
gent men, have pronounced, in an after age, against it; while
the great majority of the people and of their rulers, whe¬
ther state or national, have never doubted. In either case,
such a construction acquires an authority, too sacred and
binding, to be safely and wisely controverted, much less to
be denied and resisted. Even if we could suppose a vast
majority of the people and of their rulers to hold a different
opinion, in an after age, yet if they consulted their own se¬
curity, dignity and interest, the consistency and stability of
their institutions, and the respect due to the wise and good
of a former generation, it would become them to tolerate
no departure, till an amendment had been constitutionally
adopted.*
Secondly. I proceed now to the application of this princi¬
ple. I then say, that according to the true theory and sound
construction of our State and National Constitutions, the
Judiciary is the lawful, competent tribunal to decide on the
constitutionality of any act of the Legislature, whether it,
* See .Note B:
24
affects the rights of an individual or of a State : And that a
practice of forty years has established this as the opinion of
the people both of the State and of the Union, and as the
judgment of the Legislative, Executive and Judicial De»
partrnents, both national and local.
Those, who framed the constitution of this State, certain¬
ly intended, that it should embrace a provision for every
known difficulty and emergency, which the history of their
own or of other countries had recorded. With a view to
cases of a peculiar character, or of extraordinary difficulty,
they ordained the remedy of amendment, not through a
Convention, but by two successive Legislatures. But for
all cases of an ordinary character, they meant to provide?
and I contend, they have amply provided, by. the proceed¬
ings of impeachment and indictment, by the Courts of Jtf&r
tice and the elective Franchise. Now, it is obvious, that
cases of neglect of duty, and of abuse or usurpation of pow"
er, were regarded by the Convention, as matters of ordi-
nary breach of duty, and were intended, according to the
theory of the Constitution, to be remedied, in the well
established modes abovementioned. Abuse and usurpation
of power were iamiliar events in English and in our own
Colonial history. The Revolution, in fact, had arisen from
them : and one great object of the framers of our new Con¬
stitutions, was to guard against the possibility of a recur-
rence to. first principles, to revolutionary measures. If tkey
regarded abuse and usurpation of power, as offences of a
well known and ordinary character, like neglect of duty,
then they considered them as amply provided for, (in aR
the forms, in which they had previously occurred) by indict**
ment and impeachment, by elections and courts ; while
peculiar and extraordinary cases came under the provision
for amendments. The irresponsibility to us of the King
and his Ministers, of the Parliament and of the King's Go¬
vernors and Judges, were the causes of the Revolution^
and these evils, the like of which we have not yet witnessed^
and doubtless never shall witness under our systems, ar©
all provided for in the modes already mentioned. There
25
remains then nothing, upon which the reserved rights and
powers of the primitive sovereignty of the people can act,
except on those unforeseen, unexampled cases, which oc¬
cur at far distant intervals, in the best ordered states of
society, and under the best regulated governments. No
such events have occurred since the Revolution ; and I do
not believe, that even our children's children are destined to
witness them. Our State and National authorities have
furnished many instances of neglect and misconstruction, of
abuse and usurpation of power ; yet they have all been
punished or remedied, without resort to the doctrine of pri¬
mitive sovereignty, or to first principles. Indeed, I consi¬
der it among the highest proofs of the wisdom and foresight
of the framers of our constitutions, that they have provided,
so comprehensively and effectually, by Courts of Justice
and Elections, and Amendments, against the necessity of a
recurrence to primitive rights, to reserved sovereignty, or
to revolutionary measures.
With these principles in view, I shall now proceed to
show you, that under the practical exposition of our own
State Constitution of 1790, the neglect, abuse or usurpa¬
tion of power, whether by the Legislative or Executive
Departments, has been invariably remedied, through the
ballot box and the Courts. Of the former, 1 shall say nothing,
for the exercise of the remedial authority of the people,
whenever they are dissatisfied with their rulers, is so fami¬
liar, of such continual occurrence, and so peaceable, yet
effectual in its operation, as to need not a word. But what
1 deem all-important to be noticed, is the position, which I
shall now endeavor to establish, that whenever neglect,
abuse or usurpation of power, by the Legislature or Execu¬
tive, whatever may have been its form or object, has affect¬
ed the life, the liberty, or the property of the humblest
individual, the Courts of Justice have taken cognizance of
the question, have repeatedly decided the act to be uncon¬
stitutional, and protected the individual against the Legisla¬
ture and the Executive, even in the exercise of their high¬
est sovereign authority. And mark the result, the people
m
have acquiesced in the judgment of their Courts ; and thfi
very Departments, whose proceedings were declared repug¬
nant to the Constitution, have acted on the supposition, that
the Courts had exercised only a well-known and lawful juris¬
diction. Now, it is difficult to conceive an act of the Legis¬
lature, and still less of any other branch of the Govern¬
ment, unless it be purely an act of political discretion,
(Madison's Message on the Bonus bill, 3d March, 1817)
which does not present a case for the judgment of a Court ;
because no such act can be imagined, which does not affect,
directly or indirectly, life, liberty or property. Let the
case exist, and if the individual, who is affected, chooses
to demand a trial, the combined power of the Legislative
and Executive Departments, cannot constitutionally with¬
draw the question from the jurisdiction of the Courts.*
Suffer me, in illustration of these views, to notice some of
the most remarkable instances, in which the Judges have
pronounced the acts of the Governor and Legislature to be
repugnant to the Constitution.
In Bowman vs. Middleton, they decided in 1792, that an
Act of the Colonial Assembly, which had transferred the
freehold of A. to B. was against common right, and the
principles of Magna Charta. I Bay, 252. In Zylstra vs. the
City Council, in 1794, Judge Waties held that the Legisla-;
ture could not give to the Court of Wardens the power ta
convict of penalties to any amount without a Jury. 1 Id. 382.
In White vs. Kendrick, in 1806, that the Legislature could
not constitutionally increase the jurisdiction of Justices be¬
yond Twenty Dollars. 1 Brevard's Digest, p. 476, N.
In Cohen vs. Hoff, in 1814, that the Act of 1769, re-enacted
by that of 1799, authorising tho Governor to appoint a tem¬
porary substitute, in case of the sickness of a Judge, was in¬
consistent with the Constitution. 2 Tread. 656. In January,
1317, that an Act, in pursuance of an amendment of the
Constitution, was unconstitutional ; because it had been
ratified on the same day with the amendment. In Hayes vs..
*" ?fote C.
21
H&rley, in 1817, that Ordinaries are Judges, not remove-
able by the Legislature, and that the Act of 1812, which
declared that Ordinaries then' in office, should go out on the
1st Dec. 1816, was unconstitutional. 1 C. C. D. (Mill.) 267.
In the State vs. Lyles, in 1821, that Ordinaries being Judges,
hold their offices during life, though elected by the People,
under the Act of 1812, which limits their office to four years.
1 M'C. 238. In the State vs. Hutson, in 1821, the same
point as to an Ordinary appointed by the Governor, till an
election. 1 Id. 240. In the Staters. M'Clintock, in 1821,
that a Sheriff, though appointed by the Governor, under
the Act of 1808, only till an election, held under the Con¬
stitution for four years. 1 Id. 244. In the State vs. Allen,
in 1822, that the Act which imposed a tax of $10,000 on Lot¬
tery Office Keepers, and authorised the Collector to issue
an execution for it, was unconstitutional. 2 M'C. 55. In
Dunn vs. the City Council, in 1824, that the Legislature
could not constitutionally empower the City Council to take
more of a Lot, than was required for widening the street.
Harp. L. Rep. 189.
Nor has this power been exercised by the Court, in
relation to the Legislative department only. The Ex¬
ecutive also has been declared in like manner to have
exercised authority not conferred. In August, 1813,
Judge Bay decided, in the case of Lamb vs. Young-
blood, that a Court Martial, organized under the Gene¬
ral Orders of Governor Alston, to try militia men under
the rules and articles of war, was unauthorised. He
accordingly discharged Lamb from the arrest; the Go¬
vernor acquiesced ; the Legislature was summoned to meet
in September, and passed an amendatory Militia Law.
The Governor, in his General Orders, says, " The Com¬
mander in Chief receives the decision of the Court, with
the submission due to the constituted Tribunals of a free
State." Thus, in 1798, in Hawkins vs. Arthur, 2 Bay, 195,
a grant of part of the Saxegotha Township was declared
void. In 1800, in the case of Win. H. Gibbes, Master in
Equity, the Ceurt of Chancery decided, that he held his
28
office during good behavior, and was not removable by the
Legislature, and that the Governor's Commission to another
person was void. 1 So. Ca. Eq'y. R. 587. In 1804, in
Rowe ads. the State, 2 Bay, 565, and in State vs. Willi¬
ams, in 1817, 2 N. & M'C. 26, that the Governor could'not
remit that part of a penalty, which goes to the informer.
In Jeter ads. the State,; in 1821, that the terms of the Go¬
vernor's commission cannot decide the tenure of an office ;
and in the same year, tbey twice again decided the same
point, in State vs. Hutson, 1 M'Cord, 240 ; and State vs.
M(Clintock, 1 Id. 245. Thus, then, it appears, that the
Judges have repeatedly exercised this power : And it is
notorious, that in all these cases, the People at large ac¬
quiesced, and that the Legislative and Executive Depart¬
ments have also acknowledged and confirmed the jurisdiction
thus asserted and acted upon. When has the Legislature
or the Executive denied or resisted the judgment of our
Courts ? Who has ever heard of any attempt to impeach a
Judge for an usurpation of power, because he claimed and
exercised this authority ? And yet no intelligent man can
look at the instances, which have been enumerated, with¬
out seeing, that they called in question, in various forms,
the highest sovereign authority of both the coordinate
branches of the Government; Nor can he fail to see, that
they present abundant illustrations of what has been already
said,—that scarcely any act can be done by the Legislative
or Executive Departments, which cannot become a case
for the judgment of a Court, because it touches invariably
an some form or other, the life, liberty or property of the
citizen. Hence, I conclude, that the practical consequence
from this review, and the public acquiescence in the law,
as thus settled by the Courts, is, that any act of abuse or
usurpation of power by the Legislature or Governor, which
can become a case between an individual and the public, is
a case of ordinary breach of duty, and must be remedied,
according to the true theory of the Constitution, through the
Courts of Justice.
This series of decisions establishes then, beyond all
29
controversy, that this is the true, cotemporaneous, con¬
tinued interpretation of the State Constitution. Nothing
but an amendment can alter this Law-—so often putvicly
declared, and solemnly approved. Nor let us forget, that
if a State be, in any respect, properly and peculiarly
sovereign, it is in relation to her own Tribunals and Officers,
created only by, and responsible only to, herself. And yet,
she has acknowledged her amenability to those very Courts,
for the Acts of her State Departments, under her own State
Constitution. And here, I shall remark once for all, with a
view to the decisions both of the State and the National Tri¬
bunals, that the result of the Judicial inquiry does not affect
the position, that the Courts have repeatedly asserted in vari¬
ous forms, their right and duty to examine the constitution¬
ality of Legislative and Executive proceedings. If they had
in every instance decided javorably, still those Depart¬
ments and the people at large would have been publicly no¬
tified, that the Judges claimed this jurisdiction ; and acqui¬
escence would have amounted to acknowledgment, that they
bad acted constitutionally. But, they have, on the contra¬
ry, so often decided unfavorably, and their adjudication has
been so often recognized, both affirmatively and negatively,
that it ceases to be a case of doubtful silence, or a casus omis¬
sus. In a word, the Judiciary has frequently resisted the usur¬
pations of the other Departments; but neither these nor the
people have ever resisted that resistance, as an alledged
usurpation by the Judiciary. This course of events has
settled the construction of the Constitution.
I shall state merely by reference to the cases, various
other instances, in which the constitutionality of Acts of
the Legislature or Governor has been considered and con¬
firmed by the Courts. As to the Legislature—See Lind¬
say vs. Commissioners of East Bay, 1795, 2 Bay. 38. Col¬
lins vs. Kincaid, 1804, 2 Bay. 536. State vs. O'Driscoll,
1815, 2 Ireadway, 718. State vs. Antonio, 1816, 2 Id. 776.
Eggleston vs. the City Council, 1817, 1 C. C. D. (Mill.)
45. Murray vs. Alston, 1817, 1 Id. 128. Wilson vs.
B lay lock, 1818, 2 Id. 351. Stark ads* M'Gowan, 1818,
30
Mt & M'C. 387. Alexander vs. Gibson, 1819, 1 Id. 480c
Bulow and others vs. City Council, 1 N. & M'C. 527, in
1819. State vs. Helfrid, 1820, 2 Id. 283. Lange vs.
Kobne, 1821, 1 MkC. 115. Cruickshanks vs. City Coun¬
cil, 1821, 1 M'C. 360. Billis ads. the State, 1822, 2 Id.
12. Belcher ads. Commissioners of Orphan House, 1822,
2 Id. 23. City Council vs. Rogers, 1822. 2 Id. 495.
State vs. Harrison. Same vs. Seaborn, 1823, Harp. L*
Rep. 88. City Council vs. Plowden Weston; 1824, Id.
340. M'Kenna vs. Commissioners of Roads, 1824, Id. 381.
Peake vs. Cantey & Johnson, 1825, 3 M'Cord, 107. Tal-
vande vs. Cripps, 1825, 3 Id. 147. Annsley vs. Timmons,
1825, 3 Id. 329. All the above were in the Court of Law.
In Equity, the following cases furnish instances : Nelson
vs. Rutledge, 1791, 1 S. C. Eq'y- R* 194. Washington
»$. Beresford & Huger, 1792, 1 Id. 361. Byrne vs. Stew¬
art, 1812, 3 Id. 466. The following case relates to the
Governor—State vs. Fuller, 1821, 1 M'Cord, 178.
Let us now turn to the National Constitution ; and under
that, we shall find the same clear, original, continued ex¬
position, but of a far more important character, as embra¬
cing the National and State Constitutions, the acts of the
President, the Laws of Congress and of "the States, the
Judgments of State Courts, and the authority of the States in
the exercise of their highest sovereign powers, as well as the
rights of individuals. Before we enter on this review, some
preliminaries will be of material consequence.
It is obvious, that, under the Confederation, there was
jbut one point of view, in which we could have a National
Court, viz. as to questions arising out of a state of war.
Accordingly we find, that although the Admiralty jurisdic¬
tion remained with the States, yet Congress had power
lo constitute a Court of Appeals from the judgments of the
State Courts. Art. Conf. A. 9. 3d Dallas, 19, 42, 54,
56, 88, 120. 5th Cranch, 115, U. S. vs. Peters. Nor
was an appellate power over State Tribunals any novelty
under the new Constitution. 1 Wheat. 345, Martin vs.
Hunter. And in Chisolni vs* Georgia, 2 Dall. 474. Chief
31
Justice Jay, one of the purest, wisest, and best of our Re¬
volutionary Patriots and Statesmen, says—
" Prior to the date of the Constitution, the people had not
any national tribunal to ubich they could resort lor justice;
the distribution of justice was then confined to State judica¬
tories, in whose institution and organization the people of
the other States had no participation, and over whom they
bad not the least controul. There was then no general
Court of appellate jurisdiction, by whom the errors of State
Courts, affecting either the nation at large or the citizens
of any other State, could be revised and corrected. Each
State was obliged to acquiesce in the measure of justice,
which another State might yield to her, or to her citizens;
and that even incases, where State considerations were not
always favorable to the most exact measure. There was
danger that from this source animosities would in time re¬
sult ; and as the transition from animosities to hostilities
was frequent in the history of independent States, a com¬
mon tribunal for the termination of controversies became
desirable, from motives both of justice and of policy.
" Prior also to that period, the United States had, by
taking a place among the nations of the earth, become ame*
nable to the laws of nations ; and it was their interest as
well as their duty to provide, that those laws should be
respected and obeyed ; in their rational character and ca¬
pacity, the United Slates were responsible to foreign nations
for the conduct of each State, relative to the laws of na¬
tions, and the performance of treaties ; and there the inex¬
pediency of referring all such questions to State Courts,
and particularly to the Courts of delinquent States, became
apparent. While all the States were bound to protect
each, and the citizens of each, it was highly proper and
reasonable, that they should be in a capacity, not only to
cause justice to be done to each, and the citizens of each;
but, also to cause justice to be done by each, and the citi¬
zens of each ; and that, not by violence and force, but in a
stable, sedate, and regular course of judicial procedure."
Before the adoption of the Constitution, also, Luther
Martin, in his memorable address to the Legislature of
Maryland, in January, 1788, prefixed to Yates's Debates,
expresses himself thus :
" By the third article, the judicial power of the United
States is vested in one supreme court, and in such inferior
courts, as the congress may from time to time ordain and
establish : These courts, and these only, s^ill have a right
32
to decide upon the laws of the United States, and all ques¬
tions arising upon their construction, and in a judicial riian-
ner to carry those laws into execution ; to which the courts
both superior and inferior of the respective states and their
judges and other magistrates are rendered incompetent.
To the courts of the general government are also confined
all cases in law and equity, arising under the proposed con¬
stitution, and treaties made under the authority of the
United States—all cases affecting ambassadors, other pub¬
lic ministers and consuls—all cases of admiralty and ma¬
ritime jurisdiction—all controversies to which the Uni¬
ted States are a party—all controversies between two or
more states—between a state and citizens of another state—
between citizens of the same state, claiming lands under
grants of different states, and between a state or the citi¬
zens thereof, and foreign states, citizens, or subjects. Whe¬
ther therefore, any laws or regulations of the congress, or
any acts of its president or other officers are contrary to, or not
warranted by, the constitution, rests only with the judges
who are appointed by congress to determine ; by whose deter¬
minations every state must be bound."
Let us look also at the Federalist on this subject, (No. 78,
et Seq.) and we shall see that the right of the Courts of
the Union to judge of the constitutionality of Laws, is ex¬
pressly asserted, as the true construction and a most im¬
portant feature of the new Constitution. The same posi¬
tion is equally apparent in the debates at the first session
of the First Congress in 1789, when the constitutionality of
a law, organizing the Department of Foreign Affairs, came
up for discussion : during which many of the members ex¬
pressed the opinion, that the Judges were the only proper
Tribunal for deciding such questions ; whilst others held,
that the Legislature ought first to act, leaving the %nal
judgment, where it eventually belonged, to the Courts.
Seethe Debates, 1st vol. p. 219 to 596, and 2d vol. p. 205
to 324. What makes this matter the more interesting and
important is, that although the Supreme Court had not ad¬
judged any Act of Congress to be repugnant to the Constitu¬
tion, prior to 1800, yet they had decided in Javor of the con¬
stitutionality of Laws of the Union. In some instances, how¬
ever, the Judges had so decided separately on Circuit. 4
Dall. p. 19. And_Chief Justice M'Kean, of the Supreme
m
Court of Pennsylvania, as late as 1798, uses the following
remarkable language, in the Commonwealth vs. Cobbett,
3 Dall. 473, after the national Judges had repeatedly
decided against the claims of the States, in some very im¬
portant instances :
The divisions of power between the national, federal,
and state governments, (all derived from the same source,
the authority of the People) must he collected from the
constitution of the United States. Before it was adopted,
the several States had absolute and unlimited sovereignty
within their respective boundaries ; all the powers, legis¬
lative, executive, and judicial, excepting those granted to
■Congress under the old constitution : They now enjoy thera
all, excepting such as are granted to the government of the
United States by the present instrument and the adopted
amendments, which are for particular purposes only. The.
government of the United States forms a part of the government
of jeach State ; its jurisdiction extends to the providing for
the common defence against exterior injuries and violence,
the regulation of commerce, and other matters specially
enumerated in the Constitution ; all other powers remain
iu the individual states, comprehending the interior and
other concerns ; these combined, jorm one complete govern-
ment. Should there be any defect in this form of govern¬
ment, or any collision occur, it cannot be remedied by the
sole act of the Congress, or of a State ; the people must be
resorted to, for enlargement or modification. If a State
should differ with the United States about the construction of
them, there is no common umpire but the people, who
should, adjust the affair by making amendments in the constitu¬
tional way, or suffer from the defect. Iu such a case the Con¬
stitution of the United States is federal; it is a league or
treaty made by the individual States, as one party, and all
the States, as another party. When two nations differ
about the meaning of any clause, sentence, or word in a
treaty, neither has an exclusive right to decide it; they
endeavour to adjust the matter by negociation, but if it can¬
not Jb<e thus accomplished, each has a right to retain its own
interpretation, until a reference be had to the mediation of
other nations, an arbitration, or the fate of war. There is
no provision in the Constitution, that in such a case the Judges
of the Supreme Court of the United States shall control and be
conclusive : neither can the Congress by a law eonfer that
power. There appears to be a defect in this matter, it is
a cctfiue omissus, which ought in some way to be remedied.
Perhaps the Vice-President and Senate of the United States y
9
34
»r commissioners appointed, say one by each State, would
be a more proper tribunal than the Supreme Court. Be
that as it may , / rather think the remedy must be found in an
amendment of the Constitution
Here then was a denial of the authority, which the Na¬
tional Courts had previously exercised, and have continued
to exercise ever since. Thos. M'Kean was certainly a great
man; but greater men than himself, repeatedly, in the
judgment seat of the Union, have denied and resisted his
doctrine, have acted accordingly, and the Departments of
the General Government, the People of the Union, and
4he majority of the States, over and over again, as every
separate case occurred, have acquiesced in the authority
claimed, and have ratified it as constitutional. Even the
Chief Justice himself would be obliged to admit, that this
branch of Jurisdiction was no longer a " casus omissus."
Those who have studied the Constitution and the Federal¬
ist, as every American ought to study them, cannot fail to
observe how little the Chief Justice has discriminated be¬
tween the national character of the present, and the federal
live character of the former, government : nor can they
fail to notice the apparent inconsistency between tracing
.every thing to the People on the one hand, as the origin,
and on the other hand referring every thing to them even¬
tually as the arbiters, and yet considering the Constitution,
with regard to the supposed casus omissus, as a Treaty
or League.
I proceed now to show the most important instances, in
which the Courts have decided or the question of the con¬
stitutionality of Acts of the Legislative and Executive De¬
partments. In conducting this enquiry, I shall show you
First, the chief instances, in which they have done this, as
to the Laws of the Union- Secondly, as to the Acts of the
Executive of the Union : Thirdly, as to the Laws ofparti¬
cular States : and, lastly, some other instances in which
they have acted on this principle.
1st. And first as to the* Laws of the Umox. In 1792,
Jay, Cushing, and Duane, in the Circuit Court at New**
35
York, decided that the Act of Congress, which require#--
the Judges to execute the Pension Act, was unconstitutional^
2 Dall. 410 : In 1793, in the case of Chisolm against Geor¬
gia, Judges Jay, Blair, Cushing and Patterson, decided?
against the remonstrance of Georgia, that she was liable te
he sued as a Defendant by an Individual, in the Supreme
Court, under the Constitution and Act of Congress. 2 Dall.
429. This decision was the more remarkable and import
tant, because Virginia had protested in like manner. 2 Id.
429. In Hylton vs. the United States, in 1796, the Su¬
preme Court decided that a tax on Carriages was not a di¬
rect tax, and was therefore constitutionally laid. 3 Dall.
171. In M'arbury vs. Madison, in 1801, that an Act of
Congress, giving to the Supreme Court jurisdiction in a
particular class of Mandamus cases, was unconstitutional.
1 Cranch, 137. In 1803, in Stuart vs. Laird, that the
Practice under the Constitution has settled its construction,
as to the right of Congress to require the Judges of the Su¬
preme Court to do the duty of Circuit Judges. 1 Cranch,
309. In Fisher vs. Blight, in 1SQ5, that Congress had
power to give to the United States a preference in certain
cases of Insolvency. 2 Cranch, 358. In 1813, in Fairfaxes.
Hunter, they asserted and exercised their jurisdiction over
the High Court of Appeals- of Virginia, 7 Cranch, 604.
In 1816, in the same case-, they again did the same, under,
the C. U. S. and A> C. 1 Wheat. 304. In 1819, in M'Cul-
lockvs. Maryland, they did the same, and decided the con¬
stitutionality of the Bank Charter. 4 Wheat. 316.* In
1821, they did| the like in the case of Cohens vs. Virginia.
@ Wheat. 264. f In 1823, they did the like, in the case of
Buel vs. Van Ness. 8 Wheat. 312. In 1824, in Osborn vs*
B. U. S. that the Act of Congress, enabling the Banks to sue
in the Circuit Court of the U. S. was constitutional. 9.
Wheat. 738. And in 1828, in Ross vs. Doe, 1 Pet. 655,
the same as in Buel vs. Van Ness. In 5 Wheaton, 1, 51,
Houston vs. Moore, the Supreme Court declares, that when.
* See Note D,
t See Note
m
Congress has acted on a subject of concurrent jurisdictiom,
tc all interfering State regulations must necessarily be sus¬
pended in their operation." In 9 Wheat. 1, 211, Gibboni
vs. Ogden, they again say, " In every such case, the Act
of Congress or Treaty is supreme, and the Law of the State
though enacted in the exercise of powers not controverted*
must yield to it." A similar position is taken in Ogden vs*
Saunders, 12 Wheat. 213. And in Annesley w. Timmena,
3 M'Cord, p. 329, 333, our present Court of Appeals, in
So. Ca. concede, that whenever a case of concurrent juris¬
diction, the laws of a State and those of the Union, conflict,
the latter are of paramount authority, and must prevail i
being the Supreme Law of the land.—See Constitution of
U. S. A. 6, § 2.
Let us now advert to the second class of cases, viz* : as
to the President. In 1801, in Marbury vs. Madison, they
decided, that the President could not constitutionally com¬
mand the Secretary of State, in his Ministerial (not his po¬
litical) capacity to withhold a commission from a Justice of
Peace. 1 Cranch, 137. In Little vs. Barreme, in 1804,
that the President's instructions could not protect the Com¬
mander of a National vessel, if against law. 2 Cranch, 170.
And in 1827, in Martin vs. Mott, that the President was
the sole judge, under the Constitution, when the militia
should be ordered out. 12 Wheat. 19.
Thirdly. Let us now consider the third head of our sub¬
ject, viz the constitutionality of State proceedings. In
Georgians. Brailsford, in 1794, that the Sequestration Act
of Georgia, was annulled by the Treaty of 1733. 3 Dall. 4:
In 1795, in Yanhorne vs. Dorrance, the Circuit Court of
U. S. for Pennsylvania District, decided, that the quieting
and confirming act of Pennsylvania was unconstitutional. 2
Ball. 304. In Ware vs. Hylton, in 1796, that$ although
under the Sequestration Act of Virginia, the Defendant
had paid the debt due to the Plaintiff (a British creditor)
into ihe State Treasury, under the Act, yet that the treaty
enabled the Plaintiff to recover it again from the Defendant.
3 Dallas, 199. And the same year, they decided the like
37
point, in the case of Clerke vs. Harwood, under the Mary-'
land Confiscation Law. 3 Dall. 342. And in 1809, in Uni¬
ted States vs. Peters, that a payment into the Treasury of
Pennsylvania, under a Legislative act, did not protect the
Debtor. In 1797, in United States vs. Dorrance, that the
Naturalization Act of Pennsylvania, was void under the
Constitution of Pennsylvania. 2 Dallas, 371. In 1804, in
Ogden vs. BlackJedge, that an act of North-Carolina was a
nullity, 2 Cranch, 272. In 1S09, in United States vs.
Judge Peters, that the Legislature of a State, (Pennsyl¬
vania) could not determine the jurisdiction of a Court of
the Union, nor annul its judgments. 5 Cranch, 115. In
1810, in Fletcher vs. Peck, that a party to a contract cannot
annul it, though that party be a sovereign State—and that a
repealing law of Georgia was a nullity, as impairing the
obligation of contracts. 6 Cranch, 87. In 1812, in New-
Jersey vs. Wilson, that an act of New-Jersey, repealing a
law, granting an exemption from taxes, was also void. 7
Cranch, 164. In 1815, in Terrett vs.' Taylor, that Virgi¬
nia could not grant the lands of the Episcopal Church to the
use of the poor. 9 Cranch, 43. In 1815, in Pavvlet vs.
Clark, the same point, that a Legislative grant of property
is irrevocable, and that an act, of Vermont, repealing a grant
of unappropriated glebes was unconstitutional. 9 Cranch,
292. In 1817, in Chirac vs. Chirac, that a Maryland state
law of Naturalization was a nullity, the jurisdiction being
solely in Congress. 2 Wheat. 259 In Sturgis vs. Crown-
inshield, in 1819, that a State Insolvent Law of New-York,
was unconstitutional. 4 Wheat. 122. In M'Millan vs.
M'Neill, in 1819, the same point as to a similar law of
Louisiana. 4 Id. 209. In 1821, in Farmers and Mechanics
Bank vs, Smith, the same point as to a similar Pennsylvania
law. 6 Wheat. 131. And in 1827, in Ogden vs. Saunders,
they again decided against the validity of a New-York In¬
solvent Law. 12 Wheat. 213. In 1819, in M'Culloch vs.
Maryland, that the State act taxing the Bank was unconsti¬
tutional, 4 Wheat. 316. And in 1824, in Osbornws. Bank
United States, the same point as to the Ohio act. 9. Id.
$38-* In 1819, in Dartmouth College vs. Woodward, 4
Wheat. 618, that a State Law of New Hampshire, alter¬
ing the Charter, was void5. In Green vs. Biddle, 1823 , that*
an act of Kentucky, as to occupying claimants of land, was
void—that the compact between Virginia and Kentucky is a?
gontracfc within the 1st el. 10th §. and: 1st Art. of Constitu¬
tion of the United States, forbidding a State to impair the,
obligation of contracts. 8 Wheat. 1. In 1823, in the case-
of the Society for Propagating the Gospel in Foreign Parts
?fs. Wheeler and the Town of New Haven, (in Vermont)
that an act of Vermont, granting the land of the Plaintiffs,
was void- 8 Wheat. 464. In Gibbons vs. Ogden, in 1S24,
that the Steam Boat Laws of New-York were unconstitu¬
tional, so far as they interfered, with vessels licensed under
haws of the United States, to carry on the coasting* trade;,
9'Wheat 1. In 1825, in Weyman vs. Southard, 10 Wheat.
V, and Bank United States vs. Halsted, 10 Wheat. 51, that
hwo Kentucky statutes, as to taking Bank Notes in payment
Tsnder'executions, an-d as to selling property at not less than
tihree fourths of the appraised value, were not binding on-
Courts of the United States. In Brown vs. Maryland, in«
1s827, that a Maryland la w, requiring an Importer of Foreign-
Goods to take out a license for selling them by wholesale
was unconstitutional. 12 Wheat. 4 3 9.
Fourthly.. Let us now turn to the fourth class of miscella1-
neous points In Marbury vs. Madison, in 1801, they de-
aided, that the Secretary of State (of the U. S.) though
exempt from process in his political capacity, can be com-
pelled by mandamus to deliver a-Commission, notwithstand¬
ing the express prohibition of the President. 1 Cranch, 137..
In 1812, in M'Kim vs. Voorhies, that a State Court, (of
Kentucky) cannot enjoin ajudgment of the U. S. Courts. 7
Cranch, 279. In 1817, in Slocum vs. Mayberry, that if a
State Court takes property from an officer of the United
States, under a lawful seizure, the U. S. Court can com¬
pel a redelivery by attachment against the Statp Officer- 2.
t See Nofe F.
39
Wheat. 1. Iu M*C lunges. Silliman, in 1821, that a Stale
Court cannot issue a mandamus to a Register of the U. 'S»
Land Office. 6 Wheat. 598. In Anderson*vs. Dunn, in 1821,
that the Speaker's warrant to arrest the Plaintiff, was a
■constitutional exercise of power. 6 Wheat. 204. In the
Governor of Georgia vs. Madrazo, in 1828, that the State
was a party, because her Chief Magistrate was defendarit
by his official name—and, therefore, the Court had no juris¬
diction under the 10th amendment. 1 Pet. 110. In 1828,
in the American Ins. Cy. vs Canter, that the Govern¬
ment of the United States can acquire Territory, under the
.powers to make war and to make treaties : and that in le¬
gislating for a Territory, Congress exercises the combined
powers of the General and State Governments. 1 Pet. 51 L
This review is assuredly sufficient to satisfy every rea¬
sonable man, that the Courts of the Union have asserted
and acted under the authority to consider and decide—1st*
The Constitutionality of Acts of Congress—2d. Of any order
-or authority all edged to be in pursuance of the Constitution
and National Laws—3d. The validity of State Laws—4th.
The legality of the Judgment of State Tribunals, whenever
■they have denied a right, or exemption, claimed under the
Constitution, Treaties, Laws, or other authority of the
Union, or have asserted a right inconsistent with them—5th-
They have decided against the remonstrances or claims oi"
States, made in the most solemn manner, and manifesting
the exercise of their highest sovereign authority—In fine,
they have protected the citizen against the officers of the
Union, and have sanctioned the lawful authority of these
over those : They have defended the privileges of the Ali¬
en, and even of Alien Corporations, against the Laws and
Judges of the States : They have vindicated the rights of
the citizen against the Legislature and Courts of his own
State ; and those of the Union against the assertion of State
rights : They have called in question, and decided upon,
the right of the States to pass laws to quiet and confirm the
titles of their citizens, and of occupying claimants of lands :
They have decided as to the power of the States to tax *;
40
as to navigation on their own waters ; as to naturalization
and insolvent laws ; as to the authority to repeal their own
acts; as to their claim to control officers of the Union ; to
modify their own corporations ; to regulate the time and
mode of collecting debts ; and to restrain the powers of the
Union. In two (2) cases, they have decided against, and
in six, (6) in favor of the constitutionality of Acts of Con¬
gress. In two (2) instances against, in two (2) in favor of
the President of the United States, and in one (1) against
the Secretary of State of the United States. In four (4)
instances, they have adjudged State Laws to be valid ; but
in twenty-four (24) to be invalid. In twelve (12) cases,
they have affirmed the judgments of State Courts; but in
seventeen, (17) they have set them aside. In six (6) in¬
stances, they have asserted and decided on the constitution¬
ality of their appellate power ; and in twenty-two (22) no
objection has been made. In eight (8) cases, they have
had the States before them by name, as well as in reality 3
and in five (5) remotely and eventually, though not nomi¬
nally and necessarily .*
In the course of the events, which have been above enu¬
merated, the Courts of the Union have had the acts or
claims of the States before them, and have had to decide,
in relation to them, expressly or by implication, various
points, to the following amount: As to North-Carolina^
one (1); as to South-Carolina, one (I) ;f as to Massachu-;
setts, two (2) ; as to New-Hampshire, three (3) ; as to
Connecticut, three (3) ; as to Kentucky, three (3) ; as to
Tennessee, four (4) ; as to Mississippi, three (3) ; as to
Vermont, four (4) ; as to Rhode Island, four (4) ; as to
New Jersey, four (4) ; as to Louisiana, five (5) ; as to
Georgia, seven (7) ; as to Ohio, seven (7) ; as to New-
York, eleven (11) ; as to Pennsylvania, eleven (11) ; as to
Virginia, eleven (11) ; and as to Maryland, fifteen (15) ;
making in all, an aggregate of ninety-nine (99). Of the
91d States, only Delaware, (she, who was the first to
* See Note Q-
t See ^Tote
41
adopt this Constitution) appears never to have been be¬
fore the Courts of the Union : and of the New States, only
Maine, Indiana, Illinois, Alabama and Missouri. No one,
assuredly, of these six States, would now hold herself at
liberty to question the high constitutional authority of the
national judiciary, thus publicly, solemnly, repeatedly as¬
serted and exercised; and, beyond all question, approved
and ratified by the People of the Union and of the States,
by the Legislative and Executive Departments of the Na¬
tional Government, and by the Legislative and Judicial De¬
partments of the States. Although, it is true, particular
States have resisted at times ; yet, as each has appeared
in its turn, on the stage of controversy, the antagonist of the
General Government, or of its Judiciary, the majority of
the Union has looked on in silence. And when we remem¬
ber, that they are free and intelligent, the constituents of
the one party, and the brethren of the other ; having the
same rights, and subject to the same responsibilities ; that
the cause of the one is the cause of ail ; that abuse or usur¬
pation of power as to one, is the same as to all, we must
say, that this country has pronounced, in the most courte¬
ous form, to the States, which have resisted, but in th&
most clear and satisfactory, in the most dignified and im¬
pressive manner, as to the Courts, which have decided
against them, that the former, and not the latter, have;
erred. New Hampshire and Vermont, New Jersey, Ohio
dhd Kentucky, NeW-York and Pennsylvania, Virginia,
Maryland and Georgia, have asserted their sovereign rights
against the authority of the Union, and have appealed from,
the judgment of the National Courts, to the Nation itself,
and to the States. Those August Tribunals have heard the
appeal, With the dignity, candor and solemnity, which be¬
came themselves ; with the moderation and wisdom, which
the occasion required ; with the respect and attention due
to the remonstrances and the rights of free, intelligent,
powerful States ; and with the fidelity and impartiality,
which their servants, the Judges, claimed and expected at
their hands. Those Tribunals have been sitting in judg-
10
snaent nearly forty years ; and, surely, a more affecting, a
nobler spectacle,, has rarely been witnessed. And they
have decided, again and again, in favor of the National Ju¬
diciary, against the States, by a vast majority in point of
numbers and power, of impartiality and justice, of learning
and talents.
The People of this country have thus furnished the most
satisfactory evidence of their exposition of the national com¬
pact. They have sanctioned, by the whole tenor of their
•pinions and conduct, the great truths for which I have con¬
tended, that the Framers of the Constitution desired, if
possible, to construct so practical and complete a Govern¬
ment, as to render any recurrence to first principles, to
revolutionary measures, unnecessary : that they established
the scheme of amendments, through the medium of con¬
ventions, as the wise, safe, efficient remedy for doubts,
defects and difficulties, otherwise unprovided. for ; that
they regarded the conduct of elective officers, as the ap¬
propriate subject of popular opinion, and secured the power
to remove them, at an appointed time, but not before, to
the people ; that they regarded abuse and usurpation of power,
by the Union, or its Officers, by the States, or their Offi¬
cers, as instances of ordinary, breach of duty, and provided
a remedy for them, by Impeachment, and by the adminis¬
tration of justice ; that the question, what power is to be
added, if there be too little, or what shall be taken away, if
there be too much, is a proper subject for amendment, where
the point is agreed upon, or, if disputed, has been decided
by the National Tribunal, in the last resort ; that the ques¬
tion, how their elective Officers have pleased them, is to
be decided by the people ; that the question, what power
is granted to the Agents of the people, or taken from the
States, by the Constitution, is within the jurisdiction of the
Supreme Court. But they neither intended to acknow¬
ledge, nor did they reserve, in letter or in spirit, expressly
or by implication, any authority to a State, as represented
by its People, its Legislature, its Executive, or its Judici¬
ary, or even by a Convention of the State, to sit in judg-
4S
mtnl on the constitutionality oj the measures of Congress, of
the President, or of any other Officer of the Union. The peo¬
ple have the constitutional power to petition (1st amend¬
ment*) for a redress of grievances ; the Legislature of a
State may propose an amendment to the Constitution, or
may, if so proposed by Congress, consider, adopt, or re¬
ject one ; the Governor may give to the Legislature of a
State, information of what he may conceive to be a viola¬
tion of the Constitution, with a view to the exercise of the
power of Amendment, or with a view to the Constitutional
mode of trying the question in a Court ;f and the Legisla¬
ture can take measures to carry this last, as well as the
former, into effect; the State Judiciary may decide, in
the first instance, that a law of Congress, or an act of the
Officers of the General Government, is unconstitutional,
subject, however, to revision, by the Supreme Court of
the Union. These are the constitutional powers of the
States in relation to the General Goverment ; but, beyond
this, they cannot lawfully go. What is to be understood:
fey the Sovereign authority of a State ; and what this State?
can possibly do., in the present crisis, on the faith of Sove¬
reign authority, shall be hereafter considered.
J have thus far endeavored to prove the importance and
authority of cotemporaneous and continued expositions of
the Constitution : to show you, that according to the true
theory both of the State and National Constitutions, illus¬
trated and settled by a practice of forty years, the jurisdic¬
tion over constitutional questions is vested in the courts of
justice ; and to demonstrate as the judgment of this country,
that the Supreme Court of the Union, is the appointed tri¬
bunal to decide on the constitutionality of Acts done under
or against the authority of the Union. To that .Court be¬
longs then the great question, " Is the Tariff Act of
1828 Constitutional V This memorable Law has been call¬
ed, in bold language, a fraud upon the Constitution. If so,
it is an abuse of constitutional (not an usurpation of ungranted)
* See Note I-.
See Note K.
u
power, from corrupt, or other improper motives, and can
be remedied only by the petitions of the People, or through
the ballot box. The People only can sit in judgment on the
motives of their Representatives, and on the wisdom and expe¬
diency of their measures. They may discard the honest ser¬
vant, because they think him incapable ; the capable, be¬
cause they think him dishonest; the man of talents, because
they differ from him in the right use of his talents ; the wise
and good man, because his views of national and state poli¬
cy are not in accordance with their wishes or judgment.
But the question, whether an Act of Congress be consti¬
tutional or not, can be settled only by the Supreme Court,
if the object be to declare the Law a nullity, because it is
repugnant to the Constitution. To amend the Constitution in
that particular, whatever the motive may be, would not de¬
cide the question ; because an amendment is not in the na¬
ture of a judgment, annulling an act done in pursuance of a
power ; but, admits a power to exist or not to exist, and
simply takes away or modifies what is admitted to exist, or
gives that, which is admitted, not to exist. Neither is a re¬
peal, in the nature of a judgment, declaring an act a nullity,
because unconstitutional; for the power to repeal implies an
existing, operative law, constitutionally enacted, however in¬
expedient or unjust. If the law be conceded to be uncon¬
stitutional, it does not exist; and you cannot repeal that
which does not exist.* Neither can a petition of the peo¬
ple (1st. amendt.) for a redress of grievances, presented to
Congress, look to any other remedy, than amendment or
repeal.
But two questions will be asked, with a view to a trial in
the Supreme Court. First, does it become a sovereign
state to submit a question respecting her sovereign rightg
to that Court ? And secondly, how can the question be
brought before that Tribunal ?
As to the first question, I have often heard it asserted1,
that the Tariff Act of 1828, invaded the sovereign rights of'
* See Note L.
45
South Carolina, but I have hitherto sought in vain for any-
proof. It does not interfere with her Executive, Legisla¬
tive or Judicial Departments, it does not affect her right to
lay taxes, to regulate property, to create corporations, or to
do any one of the hundreds of lawful acts, which she has been
doing, for the last forty years. Does it prevent her from
protecting and encouraging agriculture or manufactures, arts
and sciences, or from legislating on any subjects of local,
domestic policy ? Does it vest in the officers or courts of
the Union in South Carolina any power, which they have
not exercised from the formation of the Government ? Does
it subject the citizen in South Carolina to liabilities or bur¬
thens, to which he has not been subject from the organiza¬
tion of the Government ? Does it affect any reserved right
of the State ; if so the enquiry has been hitherto fruitless,
to discover which one it is.
Still, however, it will be said, that it does not become
South Carolina to submit the decision of the question to the
Supreme Court.* Is it because she would be dishonored ?
Assuredly if New York, and Pennsylvania, and Maryland,
and Virginia, and other States have not been dishonored, by
having their opinions on constitutional questions, tested by
that Tribunal, South Carolina cannot think it any indignity
to her. As each State in succession has appeared before
those Judges of the Nation's appointment, the rest of the
Union has not felt that their sister State was disgraced. In
every other than in her own case, South Carolina has not
considered a State disgraced, and she cannot have so little
magnanimity, so little conscious rectitude, as to believe,
now, that she in her turn is to appear, that she is submitting
to any humiliation. If the Congress and the President of
the Union, if the Legislatures and Executives and Judicia¬
ries of so many States, have not felt insulted by the thought,
South Carolina, if she respects herself or her sister States,
and the public opinion of the nation, or of the Tribunal of
•See Note M.
46
sister States, cannot apprehend, for she must know, that
there is not any indignity in such an act.
Nor has she a just ground of exception, as far as th«
constitution and character of the Supreme Court are con¬
cerned. It is emphatically a Court of the whole People,
and of every State, of the Government of the Union, and of
the Government of every State. It is as independent of
the President and Congress, as of the Governor and Legis¬
lature of South Carolina. Its members are selected from
different States, and its bar gathers within its bounds the
talents and learning, the courage, virtues and patriotism of
the East and the West, of the North and the South. For
wisdom, learning and abilities, for integrity and indepen¬
dence, for dignity and simplicity, for purity honor and pro¬
priety, they have never been rivalled. The passions and
prejudices that have made war against them, the envy, dis¬
appointment and selfishness, which have assailed them, the
talents and learning, the political and personal influence that
have resisted them, the party violence and sectional feelings,
which have risen up for their destruction, have only served
to brighten their reputation, to endear them to their coun¬
try, and to make them the pride and honor, as they have
been the good genius of these United States. The wise and
peaceful Spirit of the Hall of Justice, has taken the place
of the insatiable sword, of the cruelty and violence of war,
and of the arrogance and ambition of the warrior. How
honorable to this Tribunal is the fact, that only one of their
various members (21 in number*) has been impeached in
forty years, and it is believed, that no intelligent, dispas¬
sionate man, who values the character of his country, for im¬
partiality and justice, can read the trial of Judge Chase, with¬
out mortification. Equally honorable is it to this Tribunal,
that they have never been suspected of yielding to bribery
and corruption, to favor or affection, to local influence and
sectional prejudices. The charge on the contrary is that they
are too national: and this is precisely the c¥arge, that adiis-
* See Note N.
47
contented State would make, and that the rest of the Union
would disregard. Sfl. Carolina considered it groundless, when
advanced by Virginia, or Maryland, by Georgia, Kentucky or
Ohio. And surely if she loves consistency and values her own
dignity, she will not be the author of a charge, which she her¬
self has heretofore condemned, and which she well knows
the great majority of the Union will disregard now, as they
always have. No one, indeed, can possibly read the judg¬
ments of this tribunal, equally beneficent and illustrious,
and not be deeply impressed with its wisdom and learning,
its moral courage and justice, its high sense of duty, its love
of peace and order, its independence, dignity and patriot¬
ism. Who can read the opinions in Georgia vs. Brailsford,
and Chisolm vs. Georgia, in Vanhorne vs. Dorrance, in
Ware vs. Hylton, in U. S. vs. Burr, in Fletcher vs. Peck,
in Pawlett vs. Clark, in Martin vs. Hunter, in Sturgis vs.
Crowninshield, in M'Culloch vs. Maryland, in Dartmouth
Collegers. Woodward, in Green vs. Biddle, in the Society
for Prop, the Gos. in For. Parts vs. Wheeler, in Gibbon vs.
Ogden, in Osbornrs. the B. U. S. in Marbury vs. Madison,
in United States vs. Peters, in Cohens vs. Virginia, in Mar¬
tin vs. Mott, in Ogden vs. Saunders, in Brown vs. Maryland,
in the American Ins. Cy. vs. Canter, without the deepest
reverence, and the highest admiration, for tire Judges of
the Supreme Court, as, in an eminent degree, Patriots
and Statesmen, as well as Lawyers and Judges.* What
have we to fear from men, who have twice had the cou¬
rage to say to the Congress of 1789, that they had mis¬
construed the Constitution (almost of their own making) ;
who protected an obscure Justice of the Peace, against the
unconstitutional act of the most powerful and popular of all
our Presidents, Thomas Jefferson ; and who condemned his
favorite Secretary, James Madison, for obedience to his
instructions; who dared to shield Aaron Burr, and his al-
ledged accomplices, Bollman and Swartwout, against the
suspicions, the apprehensions and the odium of the Admf-
* See Note O,
48
histration and the People ; who shrunk not in the day of
trial, but decided fearlessly and frankly, yet respectfully
and calmly, against New-York and Virginia, Pennsylvania,
Kentucky and Ohio, the most powerful and influential States
in the Union; who distributed justice with the same inde¬
pendence and impartiality, to the helpless alien and the
mighty Napoleon, to the humble citizen and the Corpora¬
tion, to public Officers, and to States. Neither awed by
power, nor influenced by patronage ; not seduced by talents
and learning, nor corrupted by wealth ; serene, courteous
and dignified, amidst intimidation and calumny, they have
never forgotten what was due to their own honor and useful¬
ness, or to the character of their country. From such a
Tribunal, South-Carolina cannot, will not, say, that she ex¬
pects aught but justice. She knows that she will receive
its full measure, and more she neither asks, nor would
receive.
But still the enquiry remains, how can the question be
tried ? I answer, precisely in the same manner, that the
constitutionality of the Embargo, of the Bank Act, of the
Mandamus Act, of the Appeal System for revising the Judg¬
ments of State Courts, &c. &c. has been already tried.
Let a merchant refuse to pay the duties under the Act of
1828, and bring an action against the Collector for unlaw¬
fully withholding his goods, or let him give the customary
bond, but refuse to pay it, and when sued, deny its validity.
In either form, the question will arise. And here, we beu
hold another familiar illustration of what has been already
insisted on, that we can scarcely conceive any form, in which
the Sovereign authority of the Union or of the States can be
exercised, without affecting the life, liberty or property of
the citizen, in such manner, as to produce a case in Court,
in which the constitutionality of the act can be tried. If the
question be one of power, it is a question of Constitutional
Law, to be determined by the Supreme. Court ; but if it be
a question of expediency as to the measure, or of fidelity or
capacity as to the men, by whom it was adopted, it is then a
question of political economy, and must be decided by the
4D
Wtople, through their elective franchise. His Excellency
has recommended this safe and peaceful course, in prefer¬
ence to any of the wild or violent expedients, that have been
offered, from time to time* This advice is* that of a dis¬
creet, and sober minded Patriot, a friend to his country by
birth, and to his country by union.
Let us now proceed to examine the Constitutionality of
the Tariff; pot indeed as an original question of interpreta¬
tion, to be settled by an elaborate survey of the history,
Structure and objects of the National Government, and by a
careful, judicious, minute and comprehensive examination
and comparison of all the various parts of the Constitution %
but as a question of fact, to be settled by the authority of
precedents, not resting on the opinions of the foolish and ig¬
norant, but of men, preeminent for wisdom and knowledge ;
not on the acts of unauthorised individuals, but pf the ap¬
propriate National functionaries ; not on doubtful evidence,
but on the clearest; not on one or two, but on repeated
declarations and measures ; not on events, done in a corner,
but openly, notoriously, before the whole nation ; not on
expositions, thought of years after the date of the Constitu¬
tion, but cotemporaneous and continued.
Before, however, I enter on this part of my subject* let me
pause and enquire, whether the Tariff Act of 1828, be a
palpable breach of the Constitution. If it be such, surely
it must be so, according to the proper meaning and force of
the word palpable. Will any map, who values himself on
candor and good sense, call that a palpable violation, which
he must admit has been maintained, both in public and prii
vate, by very many of the ablest and most excellent piety
of every State in the Union. That is palpable, which is
obvious, plain, manifest, undeniable. Is that then palpa¬
ble, which has been the subject of fair, intelligent, honest
difference of opinion, ever since the controversy arose ?
and such has bepn the fact as to the Tariff Act. A palpa^
ble breach is one, which cannot be stated to any impartial
intelligent man, without his at once seeing the truth of the
position, whether he were an alien, citizen. Let
5#
Congress procure twenty miles square, for exclusive juris¬
diction ; let them regulate descents or administrations in a
State ; let them lay direct taxes, according to the rule of
uniformity, and others according to that of apportionment;
let them sieze on sites in particular States for forts, with¬
out a cession ; let them appoint militia officers ; let them
establish other than a uniform rule of naturalization and
bankruptcy ; let them appropriate money for the army,
longer than for two years ; let them pass a bill of attainder,
or an ex post facto law ; let them lay duties on exports, and
give a preference to the ports of one State, over those of
another. In all such cases, no one could possibly doubt ;
for the breach would be palpable. But is there any paral¬
lel between such instances, and the Tariff? If there be,
it belongs to some scheme of grammar and criticism, of de¬
finition and interpretation, to which the people of this coun¬
try are, and, I trust, ever will be strangers. To follow
it, can only bring upon us contempt and ridicule, not to say
degradation and misery. The Tariff then is not a palpable
breach of the Constitution : and if it be not such, then it is
a fair subject, as a question of construction, for reason and
argument, and for honest difference of opinion. As then it
is a question for discussion, shall it be examined in a manly,
temperate, candid spirit, or with violence and prejudice,
with narrow-minded jealousy and suspicions ? If we were
to grant that the Tariff Act of 1828, arose from the corrupt
influence of the manufacturers, and from the vile intrigues
of the two Presidential parties, bidding agahost each other,
still we should not be justified in treating a great constitu¬
tional question, otherwise than became the magnitude of the
subject, and our own dignity. We owe it to ourselves, our
sister States, to the People of the whole Union, and the
people of each State, to the noble example of the Fathers
of the Revolution, and to that example, for good or for
evil, lor honor or dishonor, which we must bequeathe to
posterity, to speak and act only as becomes Patriots and
Statesmen. The true Patriot and Statesman is grave, dig¬
nified, calm, respectful, equally free from levity and ca-
51
price, from passion and prejudice. Let us then examine
this question, as becomes the subject, our country, and
ourselves.
Many intelligent men have doubted, whether the power
to protect Domestic Manufactures is to be gathered from
the Constitution ; while many have absolutely denied, that
it can be. Assuredly, however, it must be admitted in
«andor, that there is no prohibition in the Constitution, like
those respecting Congress and the States. A. 1. § 9, 10.
It is also granted, that there is no express delegation of the
power, as in the case of laying taxes, declaring war, pro¬
viding a navy. It is then a fair question, whether the power
to protect and encourage Domestic Manufactures is involved
in any other power. For myself, I have no doubt, if it
were submitted, with the history of our country, and the
Constitution, to an intelligent Foreigner, (Sir James M'ln-
tosh or Mr. Brougham, for example) he would pronounce
a decisive opinion, in favor of the Protective system, as ex¬
isting inseparably and necessarily, under the powers to lay
duties and to regulate commerce. Let us then see what
•has been the course of events en this subject : and I err ex¬
ceedingly, if we do not gather from them, the clearest and
most satisfactory proof, that a cotemporaneous exposition,
forty years ago, acted upon, time after time, has settled
the construction.
And here the question arises, what is to be understood by
cotemporaneous exposition. I answer, the official opinions
and acts of those, who administered the Government. If they
were among the number of those, who framed the Constitu¬
tion, their opinions and acts are worth so much the more,
not because they are tests of the particular sentiments,
which they themselves may have entertained, but because they
are ihe results of the concentrated opinions of the body, as
to the properties and powers, the structure and * p* ration
of the system. There are some who rely, as on a species
of sacred book, on Yates' Debates, and on the .-hafts of
Constitutions, submitted to the Convention. I value these
but little, because they contain no sufficient evidence as to
IHe motives and reasons, and, above all, because they wer&
not before the public at the time. Who can pretend to as¬
sign the causes for each particular addition or retrenchment,
or alteration ? Was a particular clause struck out, because
the general independent pow6r was Hot intended to be given,
abd so miich of it, as was judged desirable, was already
Conferred as incidental to and inseparable from other pott¬
ers : or Was it omitted because no part of the poWer was to
be vested in Congress ? No one, in my judgment, can ven¬
ture to answer the question with confidence. I believe, as
the result of a careful consideration of the subject, that the
first is the correct view of the rejection of the proposal, to
vest in Congress the general independent powers, to emit
bills of credit, to appoint a treasurer, to establish military
toads, to Create corporations, to encourage manufactures,
&c. &c. But, wh&tever the reasons may have been, they
cannot be considered among those* which influenced the Peo¬
ple at large, because they had no opportunism cf seeing
them. They can never, therefore, be regarded a cotein-
poraneous exposition ; which consists essentially of the opi¬
nions held, and the acts done, pursuant thereto, by the pub¬
lic servants, appointed to execute the powers of Govern¬
ment. No one would pretend, in the construction of a trea¬
ty, that the private conferences of the Ambassadors were
to furnish rules of decision : nor, in the enquiry, what was
the original meaning of a Law, would any one offer the opi¬
nions of the committee, who prepared it. Let the treaty
be ratified and acted upon : let the law be passed and re¬
duced to practice : and then, for the first time, you have co-
lemporaneous exposition : such as the Nations in the first,
and the People and their Public Officers, in the second in¬
stance, must respect, as a rule for their government.
Now, what was the Convention, but a Committee to draft
the Great Constitutional Law of the Union. That
Law was adopted, and the proper Officers appointed forth¬
with to execute its provisions. Let us now look at their acts,
and illustrate those acts by their opinions, in the fulfilment
of the duty allotted to them. If these contradict those, no
53
hne, it is presumed, will question, that these ihust yifeld tt>
those. If on the other hand, they harmonize, it is equally
taken for granted, that the latter will explain and enforce
the former.
Before I proceed to the origin and history of the Tariff
system, I must be excused for premising a few observa¬
tions, in my judgment, indispensable to a right understand¬
ing of the subject. Congress has power to lay duties and to
regulate trade.* This must be done, not blindly and care¬
lessly, but in the exercise of an instructed, and enlarged
discretion. Must not the first enquiry then he, what is the
actual state of commerce, with respect to the shipping in¬
terest, and all the various trades connected with it, as to
their materials and tools : with respect to the raw mate¬
rials, or other productions of the earth, imported from
abroad, in their relation to the agriculture of the country i
and with respect to foreign manufactured articles, brought
from abroad, in their relation to domestic manufactures of
the same description P If this was indispensable; in laving
the foundations of the systems of regulating commerce and
laying duties, the same necessity and obligation have exist¬
ed ever since, and must continue to exist, as long as these
powers and their appropriate objects shall remain. Nor is
it sufficient to be acquainted with the actual state of things.
The wise and considerate Legislator knows, that he must
not only be master of the present condition, but, as far as
practicable, he must understand the prospects of agriculture,
commerce and manufactures, in their relations at home and
abroad. The revenue system and the regulation of trade,
must vary continually, with the changes at home and abroad,
in the materials and instruments of agriculture, manufac¬
tures and commerce. Let us take an illustration from the
staple of the South. Would Congress act wisely to repeal
the duty on foreign Cottons, and admit them to a free com¬
petition with our own, in the domestic market ? To do it,
without considering its effect on the Cotton interest, as well
* S«e Note P.
51
as on the Manufacture!-, would be worse than folly : it
would be unjust and unwise. Congress must then levy the
duty, so as to benefit both, if practicable, but if not, then
so as to benefit that branch of business, which can least af¬
ford to be injured. If, notwithstanding the present impost
bn foreign Cottons,* they should at a future day, threaten
to undersell the Cotton Planter in the domestic market,
Congress would not do their duty to the country, if they
were not to adapt the revenue system to the protection -of
the Planter, even though his constitutional scruples should
seal his lips. The power thus to protect, and thus to change
the system, on the very ground of the justice and expedi¬
ency of the protection, as a national measure, must exist
in every government ; and happily for us, the first founders
of our scheme of commerce and revenue, have left on re¬
cord, undoubted testimony of their understanding on this
subject. If these principles be correct, it follows, that the
degree, in which the objects, on which the power is to be ex¬
ercised, the time, when changes shall be made, and their
extent, are exclusively matters of legislative discretion. If
this has been exercised ignorantly, or oppressively, or cor¬
ruptly, the only constitutional remedies are amendment,
modified repeal, or the removal of such incompetent or faith¬
less servants, at the next election.
Let us now commence our survey. The first important
fact to be noticed, is the large number of the members of
the Convention, who were in the first Congress, and in the
Judicial and Executive Departments of the New Govern¬
ment. George Washington, the President of the Conven¬
tion, was the 1st President, under the new Constitution.
Alexander Hamilton, was his Secretary of the Treasury,
and Edmund Randolph, his Attorney General. William
Patterson, James Wilson, and John Blair, were appointed
Judges. In the Senate were John Langdon, Caleb Strong,
William Samuel Johnson, Oliver Elsworth, William Patter¬
son, Robert Morris, George Read, Richard Bassett, Pierce
* See Note Q.
55
Butler, and William Few, ten in number. In the House
Representatives, were Nicholas Gilruan, Elbridge Gerry ^
Roger Sherman, George Clymer, Thomas Fitzsimmons,
Daniel Carroll, James Madison and Abraham Baldwin, eight
in number. The Ten Senators were from seven States,
and the eight Representatives from eight: a majority of the
eleven States then forming the Union ; for North-Carolina
did not accept the Constitution till 21st Nov. 1789, and Rhode
Island not till 29th May, 1790. Need I add to this list the
names of John Adams, as Vice President, of Thomas Jef¬
ferson, as Secretary of State, of John Jay, as Chief Jus¬
tice, of Richard Henry Lee, Wm. Grayson, and Charles.
Carroll, as Senators, and of Fisher Ames, Egbert Benson,
Elias Boudinot, Wm. Loughton Smith, and doubtless many
others, whose characters are not sufficiently known to me,
as members of the House of Representatives? Can we
eiret hope from the government of the Union, for a sound,
safe, practical construction of the Constitution, on any point,
if not from such men as composed the Legislative, Executive,
and Judicial Departments, in 1789 ? And is it possible that
any State, whether acting through a Legislature or Conven¬
tion, could judge it to be wise, to call in question their deci¬
sion, pronounced forty years ago, repeatedly acted on, and
not questioned for more than thirty years. Such conduct
can never be the dictate of wisdom and duty, or of a safe
and discreet policy.
It is to be remembered, that prior to the establishment
of the Constitution, the whole country was divided between
the Federal and Antifederal parties, the former contending
for a liberal grant of power to the General Government*
the latter insisting, that the Union should be almost entire¬
ly dependent on the States. The former was the Nationalr
the latter the State party of that day. The small majorities,
which accepted the Constitution in many of the States, the
violent opposition, which it met with from men of the first
talents and character, the formidable minorities, who re¬
sisted it almost every where, show that a most respectable
portion of the community, in point of numbers, abilities*
56
experience, and influence, were hostile to the instru-.
ment; because they regarded it as the enemy of State rights.
The vast number of amendments proposed by the States,
show how exceedingly distrustful great numbers were of
the General Government, and that the dread of dismember-
ment, rather than a settled decisive love for the instrument, was
a chief cause of its acceptance- Such was the state of things,
that in the language of Washington, u It was, a long timn
doubtful, whether we were to survive as an Independent
Republic, or decline from our federal dignity, into insignifi-.
cant and wretched fragrr\ents of empire."* It was impossible
then for the new Government not to be watched, with the
utmost anxiety by its friends, ancj the utmost jealousy by its
enemies, in and out of Congress.
Cet us now look at the actual course of events in the 1st,
$d and 3d Sessions of the First Congress, and we shall see
abundant proof, that all the elements of a firm, enlightened,
able opposition existed, and were called forth into action,
on some most important occasions. The House of Repre¬
sentatives formed a quorum 1st April, 17S9, and the Se-
nate 6th April. The bill to establish the Department of*
Foreign Affairs, gave rise, in the House of Representa^
lives, to a very animated and able debate, on the constitu¬
tional power of the President to remove Executive Officers
at pleasure. On the bill establishing the Treasury Depart¬
ment, a spirited and zealous controversy took place, on th^
alleged ground, that to permit the Secretary of the/Trea¬
sury to digest and report plans, was a dangerous innovation
on the Constitutional privileges of the House of Representatives..
On the question, how the President and Vice President
should be addressed, the two Houses differed. A warm
debate ensued in the House of Representatives, which ended
in a Committee of Conference, who could not agree. Iw
^was in 1789, that twelve amendments, gathered out of the
pmss proposed by the States, were after much consideration^
offered to the States by Congress. At the 2d Session of
* 3 Marsh. Wash. 130, 132, 3, 137, 8. 208. And See Note JR.
57
the 1st Congress in January, 1790, the following topics wer#
discussed, with a zeal and perseverance, an ability and elo¬
quence, that proved the watchfulness and skill of the oppo¬
sition. The first subject debated was the appropriation of
permanent funds for the payment of the revolutionary do¬
mestic debts : the next was the question, whether the pub¬
lic creditor should be paid the whole debt on its face, or
only the depreciated value ; thirdly, whether, if they paid
the whole, Congress ought not to discriminate, by paying the
holder, only what he had actually paid, and giving the bal¬
ance to the original owner ; but there was one subject,
which seemed, in the language of the Historian of Washing¬
ton's Administration, '• to unchain all those fierce passions,
which a high respect for the government, and for those who
administered it, had in a great measure restrained." 5
Marsh. Wash. 244. It was the proposition to assume and
fund the State debts, in common with those of the Union.
The .Constitutional authority of Congress to do so was ques¬
tioned: as also the justice and expediency of the measure.
The proposition to render the debt irredeemable, was also
violently opposed. In the third Session (which began Dee.
1790) some important matters came up. The first was the
proposed tax on distilled spirits, which was vehemently
opposed ; and the next, the old National Bank, the consti¬
tutional power of Congress to charter which fvas denied by
Mr. Madison, Mr. Giles, and others. The President con¬
sulted his Cabinet on the question; and though Jefferson
and Randolph were against it, Washington adopted and rati¬
fied the unanswered and unanswerable argument of Alexan¬
der Hamilton.
•No man, after reviewing the labors of that Congress,
the nature of the questions considered, the grounds of oppo¬
sition, and the distinguished abilities enlisted, can believe,
that they could have suffered a palpable breach of the Con¬
stitution to pass unnoticed. No man can believe, that any
assumption of power, favorable to the General Government
and unfavorable to the States, could have been tolerated.
No man will dare to say, that that Congress was not emi-
12
55
nently fitted, to interpret the Constitution. With this know¬
ledge, then, of that Congress, we must say, (if we knew
nothing of the first Tariff Law, but the act itself) that they
had such motives and opportunities, and such knowledge,
experience and capacity, as must place their construction
on higher and more solid ground, than could be occupied by
the unanimous opinion, if it existed, of all the intelligent
men in the Union, at this day, to the contrary.
Let us come then, to the proceedings of that Congress, as
to the protective system. It is a fact, about which there
can be no dispute, that manufacturers of various kinds actu¬
ally existed, before the year 1789, in the United States.
For proof of this, I refer to Alexander Hamilton's Report
on Manufactures, p. 209, wherein he states the various
manufactures then existing, viz. of skins, iron, wood, flax
and hemp ; bricks, tiles and potter's ware; ardent spirits
and malt liquors ; paper, pasteboard, and paper hangings ;
hats ; stuff and silk shoes ; refined sugars; oils, soap and
candles ; copper and brass wares ; tin wares ; carriages ;
snuff, chewing and smoking tobacco ; starch and hair powder;
Jampblack and other painters' colors, and gunpowder. I
refer also to the Journal of the Senate of 1789, whereby it
appears, that the Shipwrights of South-Carolina, (p. 38)
and those of Baltimore and Philadelphia, (p. 46, 47) peti¬
tioned ; those of Baltimore and Philadelphia praying " that
such restrictions might take place, as to effect a revival of
their branch of business." The traders and manufacturers
of Baltimore, the manufacturers of Boston, and those of New-
York also petitioned, these last, praying, .that such regula¬
tions and restrictions may be adopted, in relation to the im¬
portation of foreign articles, as may encourage home manufac¬
tures, p. 47. The Distillers of Philadelphia also petitioned,
and John M'Lellen, on behalf of the merchants and traders of
Portland, prayed, that the duty on molasses might be abo¬
lished or greatly reduced. I now refer to the Journal of the
House of Representatives : The tradesmen, manufactu*
rers, and others of Baltimore, prayed " an imposition of
such duties on foreign articles which can be made in America?
58
as will give a just and decided preference to the labors of the
Petitioners." p. 14. The mechanics and manufacturers of
New-York said, " They look with confidence to the opera¬
tions of the new Government, for a restoration of both,
(trade and manufactures) that they have both subjoined a list
of such articles as can be manufactured in the State of New-
York, and pray the countenance and attention of the National
Legislature thereto." p. 20, 21. The tradesmen and ma¬
nufacturers of Boston, prayed "the attention of Congress
to the encouragement of manufactures, and the increase of
American shipping." p 66, 57. The Shipwrights of
Charleston, p. 16, of Baltimore, p. 32, and of Philadelphia,
p. 50, also prayed relief, and for the advancement and in¬
crease of American shipping. The traders of Portland
prayed relief as to the duty on molasses, p. 42, because it
Would produce " pernicious consequences to manufacturers."
The Distillers of Philadelphia alsfo suggested, that a greater
difference in the duties on molasses and rum, than now pro¬
posed, would be of advaniage to the interests of the United
States." In the Senate, (Journ. p. 46) a Committee was
appointed, while the second reading of the Duty Bill was
going on, toconsider the expediency of adding a clause, pro¬
hibiting the importation of goods from China or India, ex¬
cept in American ships. The promotion and encouragement
of domestic manufactures, was then urged upon Congress,
publicly and unequivocally as a constitutional duty, and as
called for by the general good. In other words, the Tariff
or protective system, as we now style it, was called for in
1789, at the outset of the new Government. All this went
abroad, through the press, to the nation at large.
Let us now see how Congress acted. Mr. Madison intro¬
duced the Resolution for a duty on certain goods, wares and
merchandize, imported into the United States. The com¬
mittee of the whole took up the subject on 11th April, and
on the 24th, the House entered upon it. The Bill was not
passed till 2d July. p. 11. 24, 24, and 70. In the Senate,
the Duty Bill, (which had come from the House of Repre¬
sentatives) was first taken up 18th May, and returned to
60
the House of Representatives 29th June. In both Houses
the bill was takan up day after day, and considered and dis¬
cussed step by step Mr Madison, I bare said, opened the
subject, and presented "the scheme of impost, which had
been recommended by the former Congress, and had beetf
sanctioned by a majority of the States, to which he added a
general proposition from himself for a duty on tonnage." 5
Marsh. Wash. 189, 190. Mr. Fitzsimmons, from Penn¬
sylvania, moved an amendment, greatly enlarging the cata¬
logue of enumerated articles, for the declared purpose of
encouraging the productions of our country,- and protecting oiiir
infant manufactures, p. 190. Mr. Madison accepted the'
amendment, p. 190. But when the details came to be con¬
sidered, much difference of opinion existed. " The tax on
many articles was believed to press more heavily on some,
than on others : it was supposed also to favor the products of
particular States, and no inconsiderable degree of watchful¬
ness was discovered, lest those which were more populous,
and whose manufactures were in greater progress, should
lay protecting duties by which the industry of one part of thg
Union, would be premiums charged on the labor of another
p. 191. Mr. Madison introduced at the same time, the
duty on tonnage : and in debating this branch of the subject*
" a great degree of sensibility was discovered, on the dis¬
crimination between the duty on American and Foreign bot¬
toms." It was said, u that the increased tonnage on foreign
bottoms, operated as a tax on agriculture and a premium to
navigation." p 191. I do not think, said Mr. Madison in
reply, that there is much weight in the objections ; " but
if there were, it may be a burden of that kind. which will ul*
timately save us from a greaterp. 190. At length* the
debate is closed, the bill is signed by the Speaker of the
House and President of the Senate, is sent to the President*
and is approved by George Washington, how interesting the
circumstance, on the Fourth of July, 1789. The first act
passed by the new Government was to regulate the time
and manner of administering oaths : the second, was the a£t
to lay a duty on goods* &e. and the third* the tonnage bill*
61
The preamble to the second, is the following : " Whereas
it is necessary, for the support of Government, for the dis¬
charge of the debts of the United States, and the encourage-
ment and protection of manufactures, that duties be laid on
goods, wares, and merchandizes " Thus, the first act of
the new Government was to bind its members by the sane-
Hon of an oath, to observe the Constitution, and the second act
WaS prefaced, according to the doctrine of our day, with a
declaration, that they had violated their oaths, and broken the
Constitution : and, according to the same doctrine, (1 blush
for Carolina) George Washington sanctioned that violation
and that breach, and recorded himself, even on the Fourth
of July, a Traitor to the Constitution !!
Let us concisely state the argument, deduced from the
foregoing views. The want of manufactures had proouced
great evils during the Revolution. They arose and pros¬
pered somewhat afterwards, but had declined and suffered
exceedingly under the Confederation. The manufacturers
petitioned the new Government for protection and encou¬
ragement. Mr. Fitzsimmons, (a member of the Conven¬
tion) offers an amendment for the express purpose of pro¬
tecting our infant manufactures. Mr. Madison, (another
Piember of the Convention) accepts the amendment. The
bill is supported by them and by Mr. Baldwin and Mr. Cly-
nier, two other members of the Convention, and also by Mr.
Jackson, a co-delegate with Mr. Baldwin, from Georgia.
Suspicions and fears are openly avowed, as to the unequal,
unjust and oppressive operation of the bill, on some interests,
in favor of others. 1 he great struggle is to prevent this, by
modifications of the duties, laid partly with an express view
to the protection of the home manufacturer. All this passes
openly in Congress, is published to the whole Union in the
printed Journals and debates of the two Bouses, and in the
act itself. The whole Union acquiesces in it. This is a co-
temporaneous exposition, made immediately after the adop¬
tion of the Constitution, by the proper departments of Go¬
vernment, the Legislative and Executive ; never ques¬
tioned by the Judiciary ; made known to the whole Union ;
6B
vand ratified by all the people, in the only way, in which
they can approve, by acquiescing. It is then a construction
of the highest authority, and cannot be questioned, much
less denied or resisted, if we set a right value on a stable
order of things, on a consistent government, and on a set¬
tled Constitution. Nor must we forget, that the whole
proceeding went on the supposition, that the principle of pro¬
tection was constitutional: and that no one ever doubted on that
point, in or out of Congress.
But we can add other proofs. Washington, in his Mes¬
sage of 8th January, 1790, says, "That their safety and
interest require, that they should promote such manufacto-
Ties, as would tend to render them independent on others for
essential, particularly for military supplies." 1 vol. Am. St.
Pap. p. 14. In the Report on Public Credit, (Ham. Off.
Rep. p. 47, 48) of 9th January, 1790, he expressly re¬
commends a discriminating duty, to favor spirits distilled
within the United States of domestic materials, beyond the
same, distilled in the United States from foreign materials ;
but by the act of 10th August, 1790, (2d vol. A. C. Edn.
1815, p- 176) duties were only levied on imported spirits,
at rates from 12 to 25 cents per gallon, which was of course
a protection to the domestic article. By the same act 10
per cent, was added after the last of Dec. on goods imported
in foreign bottoms. By the Tonnage Act of 20th July, 1790,
a very great difference is made between American and Fo¬
reign ships, viz. 6 cents per ton are charged on Ameri¬
can ships, owned by Americans, 30 on the same owned by
Foreigners, and 50 cents on all others. This discrimination!
was a powerful stimulus to ship building, (itself a manufac¬
ture, Ham. Rep. on Man. Off. Rep. p. 209) and to all the
manufactures depending on it, viz. in iron, copper, hemp,
paints, oil, &c. &c.
Again, when the controversy arose, as to the constitu¬
tionality of the National Bank, in 1790, Edmund Randolph,
in his opinion to the President, states, among the heads of
the power to regulate commerce with foreign nations, the
power to prohibit their commodities, to impose or increast
63
the duties on them. Ham. Off. Rep. p. 133. At page 145,
Hamilton states one object of the Laws of the United States
to be the advancement of our manufactures. " What," says
he on the same page, " are all the duties upon imported
articles, amounting in souie cases to prohibition, but so
many bounties on domestic manufactures." Alexander Ham¬
ilton's Report on Manufactures, was made in pursuance of
a Resolution of the House of Representatives, which re¬
ferred it to the Secretary of the Treasury, to report a pro¬
per plan or plans, pursuant to the President's recommenda¬
tion of 8th January, 1790, u For the encouragement and
support of such manufactories as will tend to render the Uni¬
ted States independent of other nations, for essential, par¬
ticularly for military, supplies." Jour. H. R. 1790, p. 14.
I shall not enumerate in detail, the applications of the ma¬
nufacturers, at the 2d Session of the First Congress in 1790,
but shall refer generally to the Journal of the House of Re¬
presentatives for those of the Rope Makers of Boston, p. 45,
of the Cordage Manufacturers of New-York, p. 56, of the
Manufacturers of Tobacco and Snuff of New-York and Phila¬
delphia, p. 70, of the Beverly Cotton Manufactory, p. 76,
of the Mustard Manufacturers of Philadelphia, and of the
Tobacco and Snuff do. of Baltimore, p. 82, of the Coach
Makers of Philadelphia, p. 97. and of a Glass Manufac¬
tory in Maryland, p. 115—all claiming protection and en¬
couragement.
In pursuance of the Resolution, the Secretary presented
his Report on Manufactures, of which, it is but saying what
it deserves, to pronounce it an honor to the age, and still
more to the young nation, which produced it. This paper
was ordered by the popular branch, was presented to them,
was published to the whole nation, and contains in every
possible variety of form, the assertion of the power of the
General Government to promote and encourage Manufac¬
tures. He begins by a sentence, which leaves no doubt,
that no man in his day, questioned the Constitutional power
of Congress. The expediency of encouraging Manufactures,
in the United States, which was not long sinee deemed very\
64.
questionable, appears at this time to be very generally admit*
ted/'' p 15, Oil. Rep- At page 173 he states the reasons,
why manufactures " not only occasion a positive augmenta¬
tion of the produce and revenue of society ; hut contribute
essentially to rendering them greater than they could possi¬
bly be without them." The 7th is stated at page 180 to
be that manufactures " create in some instances a new, and
secure in ah, a more certain and steady demand for the sur¬
plus produce of tho soil." At page 209 he says, " to all
the arguments brought to view, the. impracticability of suc¬
cess in manufacturing establishments, in the United States
it might have been a sufficient answer to refer to what has
been already done." At page 214 he shows the importance
of manufactures to commerce. At page 224 he proceeds to
enumerate the means of encouragement employed by other
countries, with a view to the formation of a better judgment
of the means proper to be resorted to by the United States.
The 1st are " protecting duties, on those foreign articles^
which are the rivals of the domestic ones, intended to be en¬
couraged. p. 224. This species of encouragement is sanc¬
tioned by the laws of the United States in a variety of instances,
p. 224. The 2d are prohibitiins of rival articles, of which,
" there are examples in the Laws of the United States-''
p. 225. The 3d are prohibiting the exportation of materi¬
als. The 4th, pecuniary bounties. At page 230, he states
that a question has been made as to the Constitutional poWjer
of Congress to employ this particular means, vig, bonnties;
but he had certainly never heard of any such objection*!#
the duty system. The 5th are premiums. The 6 th, th$
exemption of the materials of manufactures, of which thm#
are instances in the laws of the Union, p. 233. The
drawbacks of the duties, imposed on the materials of manu¬
factures, of which the Laws of the United States afford in¬
stances. The 8th, the encouragement of new inventions.aRil
discoveries,.&c. p. 235. The 9th, judicious regulations i&r
the inspection of manufactures. The 10th, facilitating frft-
cuniary remittances from place to place. Thevl.jUhfaQilt*
tating the transportation of commodities. iHe .proceed*
65
saasider the various classes of manufactures, which merited
or required encouragement, (p. 243 to p. 269) and which
I have already noticed (page 58). At page 271, he consi¬
ders the objection " of a diminution of the revenue," and
answers, that '• the interests of .the revenue are promo¬
ted, by whatever promotes an increase of national industry
and wealth."
It is impossible for any one to read this admirable Re¬
port, and not bite satisfied, that Hamilton, in his day, never
heard a suspicion of unconstitutionality against the protective
system, except as to a single item of means, viz. bounties;
and if he had pot heard of it, surely it is a fair conclusion
that Congress had not, and.jf they had not, the country at
large had not. Certain it is, that among the great number
of distinguished men, then in the public councils, in the
Executive and Legislative Departments, (of whom 21 had
been member$.of the Convention,) not one doubted on the sub¬
ject. We accordingly find that the whole Government agreed
in their official-declarations and acts, founded on the principle,
tfeat to protect and encourage manufactures, under ffte powers to
regulate commerce and to lay imposts, was the undoubted
right and duty of Congress. And yet, it is such men, tm-
questionably Jit, honest and vigilant, whom Carolina now stands
forth, before her sister States, to brand as ignorant, incapa¬
ble and faithless. If she has no regard for the great and good
men of other States, does' she remember, that she passes
this unjust and cruel judgment, on her own Senators, Pierce
Butler and Ralph Izard, and on her own Representatives,
Thomas Tudor Tucker, William L. Smith, (Edanus Burke,*
Thomas Sumpter and Daniel Huger ? Is she then to swell
the list of unnatural Parents, of ungrateful Republics
I shall not trouble you with a tedious review of the suc¬
cession of Acts of Congress, which have asserted in various
forms this jurisdiction of the National Government f Let
me rather ask your attention to a series of public docu¬
ments, perhaps, as a class, the most extensively read and
* -See Note S.
13
t S«« Note T.
66
the most interesting to every American. I mean the Pre*
sidents' Messages. I, have already referred to Washing¬
ton's of 8th January, 1790. In the same document, he
says, " I cannot forbear intimating to you, the expediency
of giving effectual encouragement, as well to the introduction
of new and useful inventions from abroad, as to the exer¬
tions of skill and genius in producing them at home." Pres.
Mess. 1825, p. 36. In the Message of 8th Dec. 1790, he
strongly recommends the ship-building interest, p. 41. In
the Message of 8th Dec. 1795, he says, " Our agriculture,
commerce and manufactures prosper beyond former exam¬
ple." p. 79. In the Message of 7th Dec. 1796, he says,
" Congress have repeatedly, and not without success, direct¬
ed their attention to the encouragement of manufactures.
The object is of too much consequence not to ensure a continu-
cince of their efforts in every way, which shall appear eligi¬
ble." p. 88. John Adams, in his Message of 23d Nor.
1797, says, " Our agriculture, fisheries, arts and manu¬
factures are connected with and depend upon it (commerce).
The faith of society is pledged for the preservation ©f the
rights of commercial and sea-faring, no less than of the
ether citizens." p. 137. Jefferson, in his Message of 8th
Dec. 1801, says, " Agriculture, manufactures, commerce
and navigation, the four pillars of our national prosperity,
are the most thriving, when left most free to individual
enterprize. Protection from casual embarrassment, how¬
ever, may sometimes be seasonably interposed." p. 175.
In his Message of 15th Dec. 1802, he states that " to pro¬
tect the manufactures adapted to our circumstances, is one
of the landmarks, by which we are to guide ourselves in all
vur proceedings." p. 184—5. In his Message of 8th Nov.
1804, he speaks of the " broader view of the field of Le¬
gislation," to be taken by Congress ; and states, as one of
their enquiries, " Whether the great interests of agricul¬
ture, manufactures, commerce, of navigation, can, with¬
in the pale of your ccnstitutional powers, be aided in any of
their relations." p. 200. In his inaugural address of 4th
March, 1805, in speaking of the surplus ipcome, which h«
6X
calculated on, after paying the public debt, he suggests the
idea, that it may, by a just repartition among the States, and
a corresponding amendment of the Constitution, be applied,
in time of peace, to rivers, canals, roads, arts, manufac¬
tures, education, and other great objects, within each State."
p. 203. In his Message of 2d Dec. 1806, speaking of the
same surplus, he speaks of their application to the great
purposes of the public education, roads, rivers, canals,
and such other objects of public improvement, as it may be
thought proper to add to the constitutional enumeration of
federal powers." p. 227. The same idea is repeated in
bis message of 27th Oct. 1807, at page 237, but without
^ny enumeration of particulars. In his Message of 8th Nov.
1808, he removes whatever doubt may have attached to
the four last extracts. Speaking of the suspension of foreign
commerce, and the consequent losses and sacrifices of our
citizens, having driven a portion of capital and industry to
internal manufactures and improvements, he says " The
extent of this conversion is daily increasing, and little doubt
remains that the establishments formed and forming, will,
under the auspices of cheaper materials and subsistence,
the freedom of labor from taxation with as, and of protecting
duties and prohibitions, become permanent, p. 246. Ma¬
dison, in his inaugural address 4th March, 1809, speaks of
promoting, by authorized means, improvements friendly to
agriculture, to manufactures, &e. p. 252. la his Message
of 23d May, 1809, he says to Congress, " It will be worthy
of their just and provident care, to make such farther alter¬
ations in the laws, as will more especially protect and foster
the several branches of manufactures, which have been re¬
cently instituted or extended." p. 256. In his Message of
29th Nov. 1809, he rejoices that the extension of manufac¬
tures is diminishing our dependence on foreign supplies, p.
264. In his Message of 5th Dec. 1805, he speaks of " the
highly interesting extension of useful Manufactures. How
far it may be expedient to guard the infancy of this improve¬
ment in the distribution of labor, by regulation of the Com¬
mercial Tariff, is a subject, which cannot fail to suggest it-
m
«elf to your patriotic reflections." p. 269^ 270. Ih his Mer-
sage of 5th Nov. 1S11, he says, " A portion of your delibe¬
rations cannot but be well bestowed on (he just and sound po¬
licy oj securing to our manufacturers the success they have
attained." p. 281. In bis Message of 7th Dec. 181-3, he
rejoices that the war had cherished and multiplied our mar
nufactures, so as to make us independent of all other coun¬
tries, for the more essential branches, for which we ought
to be dependent on none." p. 311. In his Message of 20th
Sept. 1814, speaking of the enemy, he says, " In his pride
of maritime dominion, and in hb thirst of commercial ipono-
poly, he strikes with peculiar animosity at the progress of
our navigation and manufactures." p. 319. Id his Message
of 18th Feb. 181.5, he says, "There is no subject which
can enter with greater force and merit into the deliberations
of Congress, than a consideration of the means to preserve
and promote the manufactures, which have sprung into exist¬
ence, and attained an unparalleled maturity, throughout the
United States, during the period of the European wars.
Tkis source of national independence and wealth, 1 anxiously
recommend, therefore, to the prompt and constant guardian¬
ship oj Congress." p 323. In his Message of 5th Dec. 1815,
he bestows a page on the subject, and says, " In adjusting
the duties on imports to the object of revenue, the influence
of the Tariff on Manufactures, will necessarily present itself
for consideration." p. 331. He then speaks of the " pro¬
tection due to the enterprising citizens, whose interests ape
at stake," of " selecting the branches more especially enti¬
tled to. the public patronage," and says, " it will be an ad¬
ditional recommendation of particular manufactures, where
the materials are extensively drawn from our agriculture."
p. 382 In his Message of 3d Dec. 1816, he regrets the
" depression experienced by particular branches of our numu-
factures," and says, " the evil will not, however, |be viewed
by Congress, without a recollection, that manufacturing, if
allowed to sink too low, or languish too long, may not revive
after the causes shall have ceasedp. 336—7. In the in¬
augural address of President Monroe on 4th Margb, 1817#
6&
be says, u our manufactures find a generous encouragement
by the policy which patronizes domestic industry." p.
$52. " Our manufactures will likewise require the sys-
tematic and fostering care of the Government." p. 355.
In his Message of 2d December, 1S17, he says, " Our ma-
nufactories will require the continued attention of Congress."
p. 372. In his Message of 17th November, 1818, he sayi.
'that the strict execution of the revenue laws " has, it is
presumed, secured to domestic manufactures all the relief,
which can be derived from the duties, that have been impo¬
sed upon foreign merchandize, for their protection." And he
goes on to say, " the expediency of further protec¬
tion is submitted to your consideration." p. 387. In the
Message of 7th Dec. 1819, he says, " It is deemed of great
importance to give encouragement to our domtstic manufac¬
tures :" and again proceeds to say, bow far it may be prac¬
ticable, "to afford them farther encouragements paying due
regard to the other great interests of the nation, is submit¬
ted to the wisdom of Congress." p. 405. In his Inaugural
Address of 4th March, 1821, he says, " I am satisfied that
internal duties and excises, with corresponding imposts on
foreign articles of the same kind, would, without imposing
%ny serious burthens on the People, enhance thet- price of
produce, promote our manufactures, and augment the revenue,
at the same time, that they would make it more permanent."
p. 431. In his Message of 3d December, 1821. he speaks
of the policy, which required the Government to refuse a
compliance with the demands of France, because the effect
would be "to give extraordinary encouragement to her ma¬
nufactures and productions, in the ports of the United States."
p. 441. He also says, " it may be fnirly presumed, that
under the protection given to domestic manufactures, by the
existing laws, we shall become, at no distant period, a manu¬
facturing country, on an extensive scale." p. 452. " It is
thought, that the revenue may receive an augmentation from
the existing sources, and in a manner, to aid our manufac¬
tures." " It is believed that a moderate additional duty, on
certain articles would have that effect, without being liable
7D
to any serious objection." p. 454. In his Message of 8d
December, 1822, he says, "from the-best information that
I have been able to obtain, it appears that our manufactures,
though depressed immediately after the peace, have con¬
siderably increased, and are still increasing, under the en¬
couragement given them by the Tariff of 1816, and by subse¬
quent laws." He then refers to the " strong reasons,"
" which impose on us the obligation to cherish and sustain
our manufactures." p. 4G8. " On a full consideration of
the subject, iu all its relations, I am persuaded, that a/ar*
ther augmentation may now be made of the duties on certain
foreign articles, in favour of our own, and without affecting
injuriously any other interest." p. 469. In his Message of
2d December, 1823, he says, that his views in the Message
of 1822, " respecting the encouragement, which ought to be
given to our manufacturesremain unchanged. " Under
this impression 1 recommend a review of the Tariff, for the
purpose of affording such additional protection, to those arti¬
cles, which we are prepared to manufacture, or which are
more immediately connected with the defence and indepen¬
dence of the country." p. 490.
Such is the long line of testimonies, which manufac-
tuftks are able to produce, in favor of the constitutionality
and expediency of encouraging them, through the revenue
system. These testimonies are found in the most interest¬
ing, and most extensively read of all public documents. The
Nation has been told, through the Presidential Messages
from 1790 to 1833, that Manufactures ought to be protec¬
ted and encouraged by duties laid for the purpose ; and
Congress has acknowledged the truth of the principle, the
justice of the claim, and the wisdotft of the measure, by
numerous Acts, adopted with a view to this object. And
yet, after repeated assertions of this right, and repeated
exercises of this power, by the National Government, for
more than thirty years, the Constitutional Statesmen of
Carolina have discovered, that no such power was granted j
or intended to be granted ; aad that on the contrary, it was
actually withheld ! ! Is Carolina willing to stultify herself,
71
and to stultify, or condemn as unfaithful and worthless, aTl
her distinguished men,* from 17S9 to 1823; and to swell
this list of unworthy and incompetent public servants, with
all the eminent Patriots and Statesmen, who have adminis¬
tered the Executive and Legislative Departments of the
National Government, during the same period of time ? Let
her seriously and deliberately maintain this opinion, and as¬
sert her right to act upon her judgment, against such over¬
whelming proofs, that she errs, and is actually self-condemn¬
ed ; and we give, to the world an example of inconsistency
and instability, of indiscretion and ingratitude, that must
bring down upon us the scorn and ridicule of the Statesman,
the pity and indignation of the Patriot. Disguise it as we
may, we are now denying a settled interpreu lion of the Con¬
stitution, and the long established authority of the National
Government founded upon it, and we are setting an example
which is hostile to the solid and safe principles of interpre¬
tation, to the stability and order of our Institutions, and to
the practical wisdom, sound discretion, and enlightened sense
of duty, with which the Executive and Legislative Admin¬
istration of the Union should ever be regarded.
The view, which I have thus presented of the Tariff
scheme, justifies me (I flatter myself,) in the position, that
the constitutionality of the protective system is no longer a
question of construction; but is really, when rightly consid¬
ered, merely a question of fact. Under this aspect, I have
endeavored to exhibit it: and I trust that I have not been
unsuccessful. I do indeed trust in this ; because I consci¬
entiously believe, that when this day of excitement and ap¬
prehension shall have passed away, as assuredly it must,
(like its predecessors in the East and the West, in the
North and the South,) Carolina will acknowledge, that the
National Government is vested with constitutional power, to pro¬
tect and encourage domestic manufactures, through the medium
of the revenue system ; that so to protect and encourage, that
branch of industry, is not an usurpation of power; though, if
* See Nofe V.
n
to do, be impolite, it would be an abuse of power, or a
neglect of duly : and either would be remediable only
through the elective franchise.
I come now to the deeply interesting, delicate, and im¬
portant question, What is State Sovereignty ? In what re¬
lation do the States, as members of the Union, stand to the
General Government ? What redress has the State, in the
existing crisis, acting on her opinion, that the Tariff of 1828,.
is unconstitutional ?
Let us suppose a State to exist by itself, apart from and
unconnected in any way with others. Such would be a So¬
vereign State ; yet it is obvious, that the only sovereignty,
which it. could be considered as possessing practically, is
domestic sovereignty. Foreign or international sovereignty
could only arise out of its relations to other States. Let*
these grow up, and immediately the law of nations attaches
to them, treaties, and various acts of international inter¬
course result from them, and the solitary State becomes
member of the family of Nations. In such a situation, the
foreign or international sovereignty is called forth and deve¬
loped in its full perfection. Such a State is then a Sove¬
reign State, in the highest and most comprehensive sense of
the word, enjoying all the powers and authorities, arising
from its international constitution under the Law of Nations,
and all those, which spring from its local constitution, under
its domestic polity. Such is the foreign, and such the do¬
mestic, sovereignty of a State. The combination of botb
constitutes the highest order of sovereignty. Precisely
in that degree, in which either is curtailed, is the one or
the other species diminished, and impaired. Take eithe?
away entirely, and the results will be of immense conse¬
quence. Let the world of nations remain ; but let one of
them transfer the whole of its foreign sovereignty to ano¬
ther, and the result is, that this, in relation to the rest ql
nations, becomes the only representative of that; and Mat
teases to be a nation, in respect to the rest of nations, under
the law of Nations.
Let us take an illustration from European History : When
73
Scotland became united to England, under the Act of Union,
and the separate Kingdoms of England and Scotland became
one Kingdom, under the style of the Kingdom of England,
and the British King became the Representative of both,
as to the foreign jurisdiction of Peace and War, of Treaties,
of sending and receiving Ambassadors, &c. &c. the conclu¬
sion cannot be resisted, that England and Scotland separately
disappeared from the list of nations; and that while that
Union shall subsist, they must continue entirely unknown
to the world of nations, separately considered as England
and Scotland. Neither can do any act, in relation to a
foreign government, nor a foreign government any, in
relation to either, except through the medium of the
British King, as the international Representative of
both England and Scotland. Hence, each of them is to¬
tally stripped of all the jurisdiction of foreign sovereign¬
ty, and having no persona standi in the Court of Nations,
ceases to be a nation, in the international sense of the term,
the only sense known to the Law of Nations.
Let us carry our illustration a step farther. Suppose
that Scotland were dissatisfied with the British Govern¬
ment, and chose to allege against the British King an usur¬
pation of power, not sanctioned by the mutual compact:
that all the Departments of the common Government sus¬
tained the views of the British King, who insisted that he
was right, and would not yield. What redress could Scot¬
land have ? She would have two remedies, one out of the
law of nations, and one under that law. The first would be
to petition for a redress of grievances ; to obtain, if she
could, a modification of the Act of Uniony to try the ques¬
tion, if it admitted of that form, under the compact, before
a judicial tribunal; but if these failed her, she could have
np farther redress, out of the law of nations : and her only
remaining remedy would be to make open war against
England. This might be done, either for the purpose of
obtaining the desired redress, still acknowledging the Union
to subsist, or for the purpose of establishing her independ¬
ence, declaring the Union np longer to subsist. It is too
clear, to need either reasoning or authority, that in the first
case, by her own admission, she could not be known to other
nations, and they could view the war in no other light, than
as a rebellion of a part of the nation against the nation itself,
as known to them and represented solely by the King. It
is equally clear, on the settled principles of public law, that ,
in the second case, other nations could only view the contest
as a civil war, in which they had no concern, and in which
they could not interfere. They could not do any act, in
relation to Scotland, directly ; though they might indirectly,
but still through the medium of the King, as in the, instance
of mediation. But other nations could not recognize Scot¬
land, or have any mutual dealings with her as a nation, ex¬
cept in three cases : First, where the British Govern¬
ment, either by force or by compact, acknowledged her in¬
dependence ; secondly, where Scotland had so effectually
vindicated her cause, as to have successfully resisted the
British power, though the contest was not closed.. In this
case, another nation might recognize her independence, if
she could be regarded as de facto independent ; bu,t then
the British Government would have a right, exercising its
own discretion, to regard it as an act of unjustifiable inter¬
ference, and hostility, and might declare it just cause of
war. The third would be, where France for instance,
should choose to interfere at the outset, and treat with Scot¬
land as independent. That would be an act of hostility, audi
good ground of war to the British Government. Henpe, I
conclude, that Scotland, after the Union, could not be knotty
to other nations, until she had separated, in a like peacea¬
ble manner, by consent; or by force—de jure, where thq
British Government acknowledged her independepcp;
facto, where she had substantially maintained it. If by pop-
sent, or by force, de jure, she might be regarded as
tion by another country, lawfully and without the risk of be¬
coming a party in the war ; but if by force, de facto, QpJ(y>.
that could be the result only of a fair trial of mutual strength,
and even then a third power would still incur the hsrgnjrd of
being regarded as an enemy.
15
It would be in vain .for Scotland to urge, that She had
been once independent, and that she had reserved to herself
the whole of her local legislation, and doqtestic sovereignty,
and all the power, which she had not parted with under the
compact. The ansiver would be, that she had retired vo¬
luntarily from the society of nations, and had constituted art
international representative to take her place, de jure and de
fadto, among nations : that she retained nothing of her inteir-
natiottal character*, and therefore was a stranger entirely un¬
known to nations. To them, it would be immaterial whether
she had parted with all or with none of her domestic sove¬
reignty, whether she had sunk into a province, or still con¬
tinued sovereign as to all matters of internal policy. Equally
immaterial would it be, what was her former, and what her1
present form of government. The Law of Nations coiilcf
draw no distinction between the Monarchy, the Aristocracy,
and the Republic. The external relations wily could be
considered. The internal must be disregarded. v
Let us now look at the state of things in our own country.
There never was a time, when the States were regarded as
separate nations by other nations. The United States, evdtt
before the Articles of Confederation, were the Nation,
as to the rest of the world. The Colonies appeared before
the world as thirteen separate independent States, by the
Declaration! 6f Independence ; but no international act of any
consequence, by virtue of the Foreign sovereignty was ever
done by any one State as to European nations, or by these as
to that. Practically, Europe knew nothing of the several
States. She only knew the Confederacy of States. This
was still more manifest after the confederation; for then all
the national branches of the foreign sovereignty were vested
frf Congress, as the international representative, as indeed
they had been, in all material respects, before. But, when
the National1 Constitution of 1789 was adopted, beyond all
question, under that, every atom of foreign sovereignty is
stripped from the States, and vested in the new govern¬
ment-. Every attribute of international existence is parted
with: and no State can ever be repossessed of any one of
76
ihem, But by a successful civil war, or the consent of the
rest to a dissolution of the Union, and the restoration of
this ceded authority to the State.
South-Carolina, practically, never was known as a nation.
The very idea would excite a smile, in every Cabinet of
Europe. Theoretically, as well as practically, she is now,
beyond all doubt, utterly unknown, by her own act, under
the Constitution of 1789. It would be idle to talk to Euro¬
pean nations aboat reserved rights. The answer would be,
we know you not. We know the Government of the United
States : the President, as the head of the Diplomatic De¬
partment ; the President and Senate, as the Treaty making
authority ; the President, Senate and House of Represen¬
tatives, as the war-declaring power. These we knew, and,
as represented by them, we know the United States as
one Nation. But who are you ? Your own act justifies
and requires us to regard you as not a nation, as only a part
of one.*
Let us follow out the consequence of these views, by
considering what means South-Carolina has for redressing
herself, under the Law o/Nations. The answer is—None,
absolutely none at all; unless she obtains the consent of the
Union to her independence, or forces it from them by war,
or establishes it de facto, by a successful /war, without any
recognition. Now, each of these things is equally impos¬
sible. The other States will not consent: and I presume,
the proudest Carolinian cannot believe, that she could
establish her independence, in a war against the Union, if
both parties, as would be the case, in such an event, should
do their best.
Let us go on* South Carolina insists that Congress has
violated the compact. She resolves, in any capacity, that
you please, by her Legislature, by a Convention, by popu¬
lar meetings throughout the State, that she will not submit;
* " It is onh in our united character, that we are known as an empire,
th at 'Mir independenoejs acknowledged, that our power can be regarded, or
our credit supported abroad." Washington's Letter of 8th Jane, 1783, to
the Governors of the States. 6 Marsh. Wash. p. 48.
77
that the Tariff is and shall be a nullity, within her limits;
that not a dollar of revenue shall be collected under it; that
goods imported, shall be received by the Merchant, without
the formalities of the Custom House, and, in the style of
Pennsylvania, in her act against the District Court of the
United States, that the parties, refusing obedience to the
laws of the Union, shall be protected by the State Execu¬
tive. Be it so, the Union can regard her in no other light
than as a refractory, rebellious member, resisting the laws
of the Union ; and liable, therefore, under the compact, to
have her own, or the Militia of any other State, marched
into her territory, to execute the laws of the Union, as was
done in the insurrection of Shays, and the Whiskey insur¬
rection. But the Union has no occasion for any such mea¬
sures. She'needs net to draw a sword, or march a single
soldier into her territory. To Carolina it would be said,
" We have made a law, which we, and the great body of
the States and People, regard as constitutional. You say
it is not so, and resist the supreme law of the land. You
have seized our Custom House : you have expelled our offi¬
cers : you have denied your obligations to us : you have
declared Charleston, Georgetown, and Beaufort, free ports ;
where all nations may trade at pleasure, in violation of our
laws. We, therefore, pronounce you, in the presence of
the world, an outlaw from the Confederacy, and rebels
against the nation. But we shall not strike a blow, nor
shed a drop of blood. We shall blockade your ports. We
shall place our troops along the frontiers of Carolina, to cut
off her intercourse with the neighbouring States." Then,
like the girdled tree, Carolina must perish. Foreign na¬
tions cannot notice her, or treat with her, without a pal¬
pable violation of the international rights of the Union. She
can have on her seaboard neither exportation nor importa¬
tion ; nor can she along her frontiers, without smuggling.
Of no avail then are her free ports and Custom Houses,
and revenue system.
But the Union need not go even thus far. All that is ma¬
terial for them to do is, to cut off all communication by sea,
78
with foreign powers, and Carolina-becomes the reservoir
to feed the Commerce of North-Carolina and Georgia. It
will be the direct interest of North-Carolina and Georgia to-
have Carolina precisely in this situation ; for their merchants
would do all the export and import business of South-Caro¬
lina. And would we trust to the magnanimity of Georgia!!
and North-Carolina in such a case ? I at least, Would not £
for I never will confide in the generosity of a sister State,
when I know that an immense interest is in opposition to*
that feeling. In the mean time, the Government of thd-
Union would persist in her Tariff system, and Carolina
would have to add the expense of dependence on her neigh¬
bours, (to say nothing of the humiliation) to the duties ah-
ready existing.
Let the Union station their ships along our coast, let tfteflr?
declare us in a state of rebellion, and it is obvious, on the
principles already explained, that no foreign power can no¬
tice us ; but at the peril of hostilities with the United States?.
There is but one nation that could think of such a result, for"
a moment. But what could induce even England to sitFb
with Carolina, to break the blockade, to trade with a part*
of the nation, against the authority of the rest ? No suffix
cient motive could be assigned for England thus to becorrilev'
the enemy of the United States. iier commerce would*
still enjoy all the benefits which it now enjoys, whereas the
whole commerce with America would be cut off, if she should
interfere. The question would not be, whether she shoal#
exchange the Tariff restrictions, now of force in Carolina?
ports, for none at all, or very light ones in the same ports;
but whether she should break up all her intercourse with
all the rest of the Union, for the sake of very doubtful ad¬
vantages in the ports of Carolina. Besides, Wonld not Eng<-
land see, that the instant she acted that part by us, theUtlfc
ted States would!'immediately act the same part by diseoriJ
tented Ireland ? Would she exchange Ireland fop Carolina-',
and that would be the reward of her folly ;: and Ifeel antouftt
of her gain and her loss ?
Let us now look back on a preceding sthtw of* tfftO ease.1
79
Carolina lias declared the Tariff a nullity, she has resisted
the Laws of the Union, she has biezed the Custom House,
ar.d forts, and dispossessed the Officers of the Union. Con¬
gress has declared her in a state of rebellion : and her coast
is beset with the navy of the Union. Is there any man so
bereft of his senses, as not to know, that such a state of
things would produce tremendous evils to Carolina, totally
separate from the horror of war ? Are we prepared to.esti-
inate the instantaneous depreciation of property, the fall of
bank stock, the ruinous state of private credit, and the
freezing point, to which Bank credit, and Bank bills would
immediately sink ? If it concerned only the foreign creditor,
or the creditor of other States, jcrliaps you might think it
a light matter ; but there is not a creditor in the State, who
would not receive a deadly blow, yet not more deadly to him,
than to the debtor. What becomes then of your Bank of the
State ; with its capital of almost nothing but debts ? What
becomes of your Financial Department, and of your resour¬
ces ? Do you think that the public debt of South-Carolina
would sustain no depreciation ? Those, who look at such
events with the eye of experience, know what a shock it
would sustain. Yes, they know, that even the hallowed
gift to the family of Jefferson would not be spared by the
remorseless fiend of Civil Discord.
Carolinians have been fond of ascribing to their Northern
brethren an intermeddling spirit, on the subject of slavery.
And will Carolina thus take off the only restraint, now im¬
posed, viz*. that of the Union ? Is she afraid of the mis¬
guided philanthropby, of the absurd notions of speculative
right, of the fanaticism, which she indignantly attributes to
the North, and even to the Middle States ? And will she
afford them the golden opportunity of doing ten times the
mischief they can now do ?
But let her add the horrors of a War to all the above
enumerated evils. Does she not see, that the first effect
is a still more dreadful depreciation of all property, of pub¬
lic and private credit ? Will not immense taxes be indispen¬
sable, and that with very reduced means of pay ing ? Must
so
not your military force be great, and a dreadful expense to
you ? Must not your Government necessarily become a very
strong, almost a military Government, in its Executive De¬
partment ? Must not the rights of property, and of personal
liberty be continually endangered ? Must not your Courts of
Justice be shut, because you must interfere between the
debtor and the creditor ? And do we believe that, in this
state of things, we incur no risk of servile insurrection ?
At all events, is it not obviously what must be guarded
against, by expensive precautions ? Let us add to all these
horrors, the state of feeling, in every man who has feeling,
and especially in the Father and the Mother, when they be¬
hold the Son, whom they had trained to peace, become the
victim of War, and him, whom they had taught to love and
defend the Union, called forth to tight against it ?
If the matter comes to the extremity of War, must not
Carolina seek assistance abroad ? Can she hope to stand sin¬
gle-handed against the power of the Union ? In vain may she
boast of the justice of her cause, or rely on the chivalry of
the South. These will not provide her with arms, nor
clothe and pay her troops, nor raise her taxes, nor save her
credit, nor stay the depreciation of all property, nor calm
the gloomy fears, that must beset her. I value a clear con¬
science and a gallant spirit, in a good cause, as much as any
one. But are we so blind as not to see, that there will be
an equally clear conscience, and gallant spirit, in as good a
cause, on the other side ? Let it be our consolation and
strength, that we fight against Usurpers ? And will it not be
theirs, that they fight against Rebels ? Let us not deceive
ourselves, with the idle supposition, that they will feel, that
roe are right, and they wrong. Even now, they have no doubt
of the reverse. And will they doubt less, when passion shall
aggravate their feelings towards us, when ambition, and the
pride of opinion, and the consciousness of powrer, and the in¬
dignation of resistance, shall turn our representative into our
enemy, our guardian into our destroyer ?
Nor let us shut our eyes against the inevitable consequence
of foreign dependence. And do we desire again to become
si
a "British province, of? a miserably degraded Ally of the
British Empire ? One or the other must ensue ; for to for*
eign aid we must apply, and to no one but England could
we apply. If she should decline, we are crushed by the
Union : if she should agree, we become a weak, dishonored
dependant of British power, whether as an Ally or a Pro.
vince. And what naught we expect to he the result ? As*
surediy, that whenever it suited England to close the war,
she would abandon us, exhausted and ruined, to the will,
not of sister States, and a parent Government, but of an
exasperated enemy. Adieu then to liberty and independence,
to peace and prosperity. What could we expect but to be
treated as a conquered country ? But if we should be re¬
ceived back into the Union, on the most favorable terms,
surely it would be a condition, inexorably demanded, that
South Carolina should pay the War-Debt, and should acknow¬
ledge by a solemn public act, that she had been a rebel
against-the lawful authority of the Union, that she herself
had broken the national compact.
Let us not be told, that such things as these can never
happen. They will not, if Carolina is discreet and wise ;
if she is content with expressing her opinions, but proceeds
hot to acts; and especially, if she does not resist the laws of
the Union. But let her add acts to sentiments, and resistance
to denunciation; and no human power can guarantee her,
against all the fatal consequences I have developed. Nor
let Carolina deceive herself with the idea, that she may
proceed, as far as she pleases ; but that the Union will not
follow her step by step, nor even anticipate her measures,
after a while. Let her only make it the case of another
State, and be judged by her own judgment, in that case.
Suppose Connecticut had denounced and resisted the em¬
bargo. Would not South Carolina have looked upon the
precedent, as eminently hostile to the dignity, authority,
solidity and permanence of the Union ? And would she not
have expected the National Government to act with promp¬
titude and energy, the instant the state had developed her
settled purpose qf resistance ? South Carolina would have
15
82
so judged in the case of another State : and shall she judge
otherwise in her own ? When New England was perishing
under the anti-commercial system of Mr. Jefferson, like the
withered arm of Jeroboam, South Carolina disregarded her
remonstrances and threats : and bade her suffer; because
the commoa authority had so ordained. And if New En¬
gland had proceeded to acts, South Carolina would have pro¬
nounced the National Government, imbecile and cowardly,
faithless to its trusts, ignorant of its power, and unworthy of
its rights ; if the Nation's arm had not vindicated the laws
and honor of the Nation. And does Carolina expect the rest
of the Union, to be less disposed to vindicate by force, if she
shall compel them, the rights and honor of the Nation, than
she would be ? Beyond all question, it must be done ; if a
State shall actually resist the laws of the Union, whether
that State be Carolina or Connecticut, Tennessee or Mary¬
land. Let us then look at the legitimate consequences of
her aet : and not shut our eyes against them, until—to pro¬
ceed be rebellion, to retreat be dishonor. Nor let us
shrink from the term rebellion, which we should not hesitate
to apply to Connecticut or New Jersey. To resist the laws
of the Union is rebellion, whatever State be guilty of the
act : and she must expect to be called a Rebel, precisely
under the same circumstances, which would justify her in
charging rebellion on another State. Carolinian as I am, J
must not, as a citizen of the Union> say less of my own State,
than 1 would of another ; I must not, through false delicacy,
or a criminal timidity, withhold from the conduct of Carolina,
the very name, which belongs to it : I must not be unfaith¬
ful to the Union,, lest I should be accounted disrespectful
to her.
I have thus endeavored to follow out, through all its prin¬
cipal consequences, the surrender of her foreign or interna-
tional Sovereignty by South-Carolina. Let us now return te
the,point, whence we set out, viz. that relinquishment, and
consider the true character of State Sovereignty, under the
Constitution of the Union ; for there only can we hope to find
it. If the State had yielded nothing, but the jurisdiction
8*
ever international subjects, it is obvious, that she will have
lost the most prominent and important attributes of sove¬
reignty ; because she ceased to be a nation, under the law
of nations. But she yielded a large and most important
portion of the highest attributes of domestic sovereignty. She
gave up the power to coin money, to emit bills of credit, to
authorise any tender but in gold and silver, to pass bills of
attainder, ex post facto laws, or those which impair the
obligation of contracts, or to grant any title of nobility. She
agreed to lay no duties on imports or exports, but with the
consent of Congress, (except for the execution of her inspec¬
tion laws, and then they must be not only necessary and pro¬
per, but absolutely necessary) and even when laid, she
agreed, that her laws should be subject to the revision of
Congress, and that the revenue should go into the JSational
Treasury. She agreed to lay no duty on Tonnage, to keep
neither troops nor ships of war during peace, to make no
compact or agreement with another State, or with a foreign
power, nor to engage in war, unless actually invaded, or in
such imminent danger as to admit of no delay : and, except
in the last instance for the reason there given, she agreed to
do none of these things, but with the consent of Congress. Nor
is this all. She gave to Congress the power, after 1807,
to prohibit forever the importation of Slaves : She agreed,
in a controversy with a sister State, to be bound by the
judgment of the Supreme Court : That Congress should
have power to prescribe rules to her Courts, as t© admitting
the records of another State. She has stripped herself of
the power to place the citizens of another State on any other
footing, than her own. She has bound herself to deliver up
fugitives from justice, and fugitive slaves, servants or ap¬
prentices. She has agreed not to divide herself into two
States, nor to unite herself with another in forming one new
State, without the consent of Congress.
Nor is this all. She has not required that the Judges and
other Officers of the Union should be bound by oath to sup¬
port her Constitution and laws ; but she has agreed, that all
Jier Officers should be bound by oath to support those of the
Si
tfnidn. And, moreover, she has agreed that the Constitu¬
tion, Treaties and Laws of the Union should be of paramount
authority in her own Courts, held by her own Judges,
against the requisitions of her own Constitution and Laws.
Nor is this all. She has yielded the regulation of com¬
merce with her sister States : the power to regulate the
value of domestic and foreign coin ; to fix the standard of
Weights and measures ; to grant copy rights and patents ; to
organize, arm and discipline her own militia ; to natural¬
ize, and to pass bankrupt laws : and her own laws for the
election of her representatives and Senators in Congress, are
subject to the revision of the Union, with the single excep¬
tion of the place for choosing Senators.
Ample and extraordinary as all these sessions are, even
these do not complete the list of her surrender? of sovereign¬
ty. She has subjected the persons of her eutzens to the
military control of the President, for purposes external to
herself, viz. to execute the laws of the Union, to suppress
insurrection, and to repel invasion in another State.* She
has subjected the whole of the property of her citizens, to
the taxing power of Congress : and agrees, if their law con¬
flicts with her's, this shall yield to that. She has empowered
the Union to establish Courts, not only of international, but
#f domestic jurisdiction, within her limits, and these Courts,,
in numerous instances, try her citizens, dispose of their pro¬
perty, without any regard to her laws, except as Congress
* Charles Pinckney, in his observations on his plan of Government, says,
at page 21 : " Independent of our being obliged to rely on the iV'ilitia, as a
Security against Foreign Invasions, or Domestic Convulsions they are in
fact the only adequate force the Union possess, if any should be requisite, to
coerce a refractory or negligent member, and to carry the ordinances, and de¬
cree* of congress into execution. This, as well as the cases ! have alluded to,
will sometimes make it proper to order the Militia of one State into another."
Mr. M'Duffie, in his Numbers against the G»ore;ia " Trio," says, a» page
11—" I should suppose, therefore, that no professional man could hesitate in
saying, that a forcible opposition to the judgment of the Federal Court,
founded upon an act of congress, by whatever Statt authority that opposi¬
tion might be authorised, would be ike Very case Which the Convention bad
In view, when they made provision for "'calling forth the militm to execute
the laws of the Union?'
S£
might choose to adopt tbem, and are totally independent of
her. Thus, then, the State has stripped herself of sove¬
reignty in two ways—1st, by transfer, and 2dly, by prohibi¬
tion. i Under the first head, she has vested in the Union, all
her international or foreign jurisdiction : all the regulations
of trade with her sister States, and with the Indians ; in a
Word, every thing common to herself and the other States,
Under the second head, she has renounced (never to be re¬
sumed but by an amendment of the National Constitution)
large and important portions of domestic sovereignty, and has
admitted the Government of the Union to a concurrent juris¬
diction with her own State authorities, over extensive and
valuable branches of local jurisdiction, such as taxes, cus¬
toms, courts, the militia, &c. : and even in ?uch cases of
co-equal right, she grants that lier laws and not those of the
Union shall give way, if they conflict. And to cap the cli¬
max of concessions to the Union, and of restrictions on herself
she binds all her officers under oath, to support the Union,
and lays down her State sovereignty, in all its Departments,
Executive, Legislative and Judicial, at the feet of the Con¬
stitution, Treaties and Laws of the Union, as the Supreme
Law of the Land.
Such is the faithful picture of State sovereignty, as drawn
by Carolina herself, in the Constitution of her own adoption,
and which she is botind to obey. And is she then a Sove¬
reign State, in any proper, comprehensive sense of the
word ? Consider the gigantic powers vested in the Union,
coextensive with the world, embracing every nation under
heaven, regulating a commerce, that traverses every sea,
levying armies and building navies, pervading every State
in the post office and judicial establishments, in taxes, cus¬
toms, and excises, in the naturalization, bankruptcy and
militia systems- Consider that the National rulers can sus¬
pend the Commerce of the State, can prohibit both export¬
ation and importation, can march armies through her, can
establish camps within her, can involve her in war,* and
* " These powers," (to lay and collect taxes, &c.) " are granted in the
m
keep her hilt, and all this against the unanimous rote of lur
delegation in both Houses of Congress, and against the unan¬
imous remonstrance of all her Poople ? Is this Fiction }
Is it Rhetoric ? No—It is Historical truth : it is Constitu¬
tional matter of fact. And is South-Carolina, then, a Sove¬
reign State ? I answer No—The Union is emphatically
Sovereign, not South-Carolina. The Union is endowed
with National^ the State has only retained a Corporate So¬
vereignty. The Union is vested with all Sovereignty, fo¬
reign and domestic, suited to its ends : the State has only a
local jurisdiction, suited to its ends, within its own corporate
limits ; and that, subject in many important particulars, to
the local authority of the Union, within the very same limits.
The Union is uncontrollable by the State, the State is sub¬
ject to the Union. And shall we still delude ourselves with
the notion of State Sovereignty ? Let those, who do so,
read the language of Charles Pinckney, in his Observations
on the Plan of Government, submitted by him to the Con¬
vention. He is speaking of the necessity of a revising pow¬
er as to the acts of the Stales : and considering it as a ques¬
tion of political expediency, he proposes that Congress should
have this power. As the Constitution now stands, the same
end is attained, as far as desirable, by vesting the superin¬
tending power, in the National Judiciary, as a matter of
Constitutional Law. Mr. Pinckney says :
" I apprehend the true intention of the States in uniting,
is to have a firm National Government, capable of effectu¬
ally executing its acts, and dispensing its benefits and pro-
most general and unlimited terms. Upon the discretion of Congress in " lay¬
ing and collecting.taxes," and in (! raising and supporting armies," there are
no restrictions, but those imposed by nature. Congress may push these pow¬
ers to the utmost verge, indicated by the physical capacity of the country.
They may, upon the slightest occasion, and for the most unwise, improvident,
and wicked ends, draw from the people (of the •' States" too,) the uttermost
farthing, that can be spared from their suffering families, to fill the national
coffers ; and call out the last man that can be spared from raising the necessa¬
ries of life, to Jill the national armies, and fight the battles of ambitious rulers t
And all this, however inexpedient, unjust and tyrannical, they can do, with¬
out transcending the limits of their constitutional authority."
S7
taction. In it alone can be vested these powers and prerog¬
atives, which wore particularly distinguish a Sovereign State.
The members, which compose the superintending Govern¬
ment, are to be considered merely as parts of a great whole,
and only suffered to rrtain the powers necessary to the ad¬
ministration of their Stale systems. The idea, which has been
so long and falsely entertained of each being a Sovereign State,
must be given up; for it is absurd to suppose there can be
more than one Sovereignty\ithm a Government. The States
should retain nothing more than that mere local legislation,
which, us Districts of a General Government, they can exer¬
cise, more to the benefit of their particular inhabitants, than
if it was vested in the Supreme Council; but in every for¬
eign concern, as well as in those internal regulations, which
respecting the whole, ought to be uniform and national, tke
States must not be suffered to interfere." p. 12.
u Whatever views we may have of the importance or re¬
tained Sovereignty of the States, be assured they are visionary
and unfounded, and that their true interest consists in con¬
centering as much as possible, the force and resources of the
Union in one superintending Government, where alone they
can be exercised with effect. In granting to the Federal
Government certain exclusive national powers, you invest
all their incidental rights. The term* exclusive involves
every right or authority necessary to their execution." p. 14.
" Mpst of the States have neglected altogether, the per¬
formance of their Federal Duties, and whenever their state
policy, or interests prompted, used their retained Sovereignty
to the injury and disgrace of the Federal Head. Nor can any
other conduct be expected, while they are suffered to consider
themselves as distinct Sovereignties, or in any other light, than
as parts of a common Government. The United States, can
have no danger so much to dread, as that of disunion ; nor,
has the Federal Government, when properly formed, any
thing to fear, but jrom the licentiousness of its members." p. 15.
" In short, from their example, (of the Ancient and Mo¬
dern Confederacies) and from our own experience, there
can be no truth more evident than this, that unless our Go¬
vernment is consolidated, as far as is practicable, by retrenching
the State authority, and concentering as much force and vigour
in the Union, as are adequate to its exigencies, we shall soon be
a divided, and consequently an unhappy people." p. 17.
So much for the sentiments of Mr. Pinckney, one of the
members of the Convention : one of the founders of the
Constitution, and the man, whose {Iraft resembled much
83
more (if sve judge by the copy annexed to Yates' Debates)
the present Constitution, than those of Randolph, Hamilton,
or Patterson. Let us now hear the sentiments of George
M'Duffie, the able and eloquent vindicator of Internal /m-
provements, against the South-Carolina radical doctrine of
strict construction. His Pamphlet, already referred to,
written against the Georgia Radicals in 1821, is prefaced
by an advertisement, ascribed to the late Representative
from Colleton and Beaufort, and which contains a just and
eloquent eulogium on the style and sentiments. In the Pre¬
face, p. 2, speaking of the argument of the radical Trio, in
favor of u a strict and literal construction of the Constitu¬
tion," he says, " To these views, the Triumvirate added,
the tocsin of " State Sovereignty," a note, which has
been sounded in the Ancient Dominion with such an ill-omened
blast, but with no variety, by them, to relieve its dull and
vexatious dissonance." I proceed now to the extracts, which,
J feel satisfied, will excite in those, who have not read the
Pamphlet, (published in Charleston in October, 1821) a
desire to read such a vindication of National against State
rights :
u What security, then, did the Convention, or in other
Words, " the People of the United States," provide, to re
strain their functionaries fiom usurping powers not delegated,
and from abusing those, with which they are really invest¬
ed ? Was it by the discordant clamors, and lawless resistance
of the State rulers, that they intended to " insure domestic
tranquility, and form a more perfect union ?" Was it by
the offici w interference of their inferior agents, appointed for
no other purposes, than those indicated by the State Con¬
stitutions, that they intended to " insure a salutary control
over their superior agents V No—the Constitution will tell
you, what is the real security they have provided. It is
the responsibility of the Officers of the General Govern¬
ment, not to the State authorities, but to themselves, the
People. This, and this only is the great conservative princi¬
ple, which lies at the foundation of all our political institu¬
tions, and sustains the great and glorious fabric of our liber¬
ty. This great truth ought to be kept in constant and lively
remembrance by every American." p. 2.
" The States, as political bodies, have no original, inhe¬
rent rights. That they have such rights is a false, dangerous
und anti-republican assumption, which lurks at the bottom of
all the reasonings in favor of State rights." p. 2.
In speaking of the General Government, he says, " I shall
show, that its admirable balance can only be jeopardized by
the eccentric and centrifugal tendencies of the States." p. 6." ■.
" We are called upon to believe that our federal rulers
will use with moderation tire very powers, byHvhich ambi¬
tious men, have in all ages, built up the monuments of their
own aggrandizement, upon the ruins of the Constitution,
and amidst the execrations of the people ; and yet that these
rulers will consummate their ambitious purposes, and sub¬
vert our libetties, by the paltry and petit larceny process of
pilfering little fragments from the temples of State sove¬
reignty." p. 8.
" The Supreme Judiciary of a State would hardly be in¬
clined td usurp jurisdiction over the class of cases, that fall
within the exclusive and humble jurisdiction of a common
magistratep. 8.
I cite these passages from the Pamphlet* of Mr. Pinck-
ney and Mr. M'Duffie, because they have my full approba¬
tion^ except that I should be unwilling to represent State
sovereignty in so humiliating a light, as the national enthusi¬
asm and indignation of Mr. M'Duffie have led him to do.
His principles I perfectly approve : and I cannot give a
stronger proof of my opinion as to his and Mr. Pinckney's
pamphlets, than by declaring, that I think them worthy of
a place, in the Library of every American. And when the
National sentiment cf South-Carolina shall revive, as I
know that it will, she will republish Mr. Pinckney's Draft
cf a Constitution, and his Commentary on it, in the pam¬
phlet referred to, as a more glorious monument of Carolina
talent and patriotism, than all the radical pamphlets, and
Reports, and Resolutions of the present day.
I have thus considered State sovereignty, in its actual
character, under the Constitution ef the United States,' as
to international and domestic jurisdiction : and have demon¬
strated, I trust, that the Union is emphatically Sovereign,
the State emphatically not Sovereign : that the Union is em¬
phatically a JSiation, at home and abroad, the State emphati¬
cally not a nation, but a Corporation, having a local authority,
16
$0
intmany respects, divided with, in many subordinate to the
Union.
But, there ,is another point of view, in which we must
contemplate State sovereignty. Nor is it the least import¬
ant and interesting; since it is that with regard to which the
strangest and most pernicious delusion exists. I refer to the
radical doctrine of Chief Justice M'Kean, in 3d Dallas, to
the doctrine ef the Virginia Resolutions and Report of 1798,
and to the same, as held by the Georgia Trio, in 182|. It
is this doctrine, among others, which Mr. M'-Duffie has com¬
bated so eloquently and triumphantly in his Numbers, signed,
most happily and appropriately, " One of the People."
" As far as I can collect" (says he to the Trio) " any dis¬
tinct propositions from the medley of unconnected quotations,
you have made, on these very important subjects, I under¬
stand you to affirm, that in expounding the Federal Consti¬
tution, we should be " tied down to the strict letter" of that
instrument; and that the General Government " was not
made exclusive or final judge of the extent of the powers to be
delegated to itself but that, as in all other cases of compact,
among parties having no common judge, each PARrr had a
right to judge foh itself these may be considered
the concentrated essence of clll the wild and destructive principles^
that have ever been advanced, in relation to the subjects
under consideration." p. 13.
I have endeavored to show, that the true theory and
sound practical construction of the National Constitution is,
that the Supreme Court is the final arbiter on all questions
of power arising under the National Charter, whether a
State or an Individual call-in question a law of Congress.
But the Georgia doctrine, now adopted in Carolina, asserts,
that the State has a right to judge for itself and has lawful au¬
thority to declare an act of Congress a nullity ! For myself,
i hold this to be a most dangerous doctrine, subversive of
the peace of the Union, and of the security of the States.
But let us take this doctrine, as the true one, and follow
out its consequences : and be it remembered, that it little
becomes the good sense and dignity of Carolina, to deceive
herself with puper-blockades of the General Government.
She must be prepared to carry out her opinions into deeds :
91
and she must count the cost of the deeds, as the harvest of
her opinions. If the State possesses the Constitutional au¬
thority to judge and to decide that the law is a nullity, there
Is no denying as a legitimate consequence, that she has a
right to act upon that judgment. Then let her act upon it,
and all the fatal'consequences already pourtrayed must re¬
sult from her decision, followed out into acts. But let us
waive this, and take a more peaceful view of the sub¬
ject. If Carolina can lawfully declare an act of Congress a
nullity, is she willing to admit, that no consequence is to flow
from her solemn judgment. If so, then her bodsted Sove¬
reignty amounts to nothing more than the right of every indi¬
vidual, to express his opinion of National acts. This surely
will not be the doctrine of Carolina. What then is to be the
consequence ? Can she pretend to a Constitutional veto, like
that of the President, th# effect of which is to require two-
thirds of both Houses to pas» the Law If she pretends to
this, let her remember, that smb interpolates into the Consti¬
tution, a power, not so much as imagined to exist there.
Does she assert, that her judgment can annul the act of
Congress ? What! when her acts of Assembly, and even
her Constitution, are not the supreme law of the land, in rela¬
tion to the Union, is she wild enough to assert, that a Reso¬
lution of her Legislature is the supreme law of the land, and
competent to annul an act of Congress ? If she eoatencfs for
this, let her remember, that, here again, she is interpola¬
ting into the National Constitution, a power, which she ne¬
ver will concede to another State. If she will concede it,
and to be consistent she must, then let her beware, and
tremble at the consequences. For she must grant that Mas¬
sachusetts had a right to adjudge the Embargo ^constitu¬
tional, and to annul it : that Connecticut had'lawful power
to say to the President, you shall not have my militia ; that
Maryland and Ohio had a right to say to the Bank of the
United States, your charter is a nullity, and you shall not
do business here : that New York had a right to say, I will
protect my citizens in the enjoyment of the exclusive privi¬
leges of steam-boat navigation : that Pennsylvania was jus-
92
tified in empowering her Executive to resist the Marshal ojT
the District Court in executing its sentence : that Kentucky
had the right to persist in her land laws, and to fl^in-
tain them by force against the judgment of the Supine
Court. Such things, and hundreds of others like thena,
must flow from this doctrine. Whenever any State regards
an act of Congress as unconstitutional, she has Cull .power,
say these expounders of the Constitution, to annul the law.*
But is this apt of annulment of no avail ? How shall it ope¬
rate ? Shall it exempt her from the obligation to obey the
law ? Shall the Union be compelled to repeal that law, or
the Supreme Court be bound by her judgment ? Shall site
only be liberated fiom the operation of the law, or those
also who think with her, or the whole Union ? Are there
any land-marks in the Constitution, to serve as guides in
answering these questions ? There a,re, on the National
side of the controversy, but none on the radioed side. This
is precisely the state of things, which Washington l,ooked tp,
when he says that the world will " see, and feel, that tjhe
JJnion, or the States individually, are sovereign, as be^t
suits their purposes, or in a word, that we are one nation tp
day, and thirteen to-morrow." 5 Marsh Wash. 73.
But let us take a farther view of this subject. If there bp
po common arbiter, as I insist there is, then South-Carolipa
must grant to others, the same right of judgment, which she
claims for herself : and if she asserts her right to annul a^ti
resist the law, she must grant as a consequence, their rigfyt
to vindicate and enforce the law. Hence the monstrous ab¬
surdity, that in a case of obvious occurrence, (a dispute a?
to a Constitutional point) the admirable Founders of the Con¬
stitution, could devise no other, than the desperate European
remedy of leaving the Union and the State, as Independent
* " It is the declared will of the people of the United. States, that every
treaty trade, by the authority of the United States, shall be superior to the
Constitution and laws of an y individual State; and their will alone is to de¬
cide. It a law of a State, coiltrary to a treaty is not void, but voidable ot^y
by a repeal, or nullification by a State Legislature, this certain consequence
follows, that the will of a small part of the United States may controul or
defeat the will of the whole:' Per Chase J. 3 Dallas, 237. Ware vs. Hyltop.
93
Nations, to settle the question by the law of power, by the
Sword! Will any American believe such a libel on the Pa¬
triot Statesmen of 1789 ? Not so; for she knows, that the
grectt, the riding object of the Convention was to make the Union,
totally independent of the States : and utterly to disable the
States, from interfering with the enactment or execution of the
Laws of the Union. They have totally, disgracefully, mise¬
rably failed, if the Trio doctrines, now the adopted foundling
of Carolina, be a sound exposition of the Constitution. But
they have succeeded, completely and gloriously, if the Na¬
tional doctrine be the true one, that on a question of politi¬
cal expediency the people are the final Judges ; on a ques¬
tion of Constitutional Law, the Supreme Court.
It will be granted, that to leave the State and the Union,
to settle a disputed point, by a treaty or by the sword, would
be a state of things exceedingly to be deprecated. A per¬
manent, authorised arbiter is indispensable to the safety
and peace of all. Our system is incomplete without it. If
we were now making a Constitution, is it not obvious that to
provide such an arbiter, would be a matter of primary duty
and interest. Such an arbiter then must exist. The State
can shew not a vestige of title for her claim ; but the Nation
shews the clause, which makes her laws supreme, and gives
tp her judiciary cognizance of all questions arising under her
laws. Hence, if a State denies (and I deny that she has any
such authority) that a Law of Congress is Constitutional,
there must be, both theoretically and practically, some per¬
manent, constitutional, independent arbiter, exempt from po¬
pular prejudices and passions; exposed neither to fear, nor to
favor, nor to affect ion; of clear judgment, serine temper, and
tried integrity; of sterling abilities and sound learning; and
thoroughly read in the Constitutional history and law of their
Country. Such a tribunal can only exist theoretically in a
Rational Judiciary, and we behold it, practically, in the Su¬
preme Court.
There is one more consideration, that ought to be well
considered. Carolina now deuies the constitutionality of
the Protective System. Let her remember, that all she
94
says and does, is in th§ face of the whole Union and of the
civilized world. Let her remember, that the Fathers of
the Revolution have taught her, that it is not enough for a
People to be right; but that they are bound in duty to satisfy
the world, that they are right. And how can she do this,
when the records of our own country condemn her, as having
been warned, and as having acquiesced over and over again;
when the wise and good men of 1789 rise up in judgment
against her; when her own statesmen, for more than thirty
years bear testimony against her; when Washington, and
Jefferson, Madison and Munroe all condemn her; when all
the States, for thirty years, approved the tariff seheme, and
a great majority now approve it; when the whole People ra¬
tified it for upwards of thirty years; and but, a slender mi¬
nority now object, to it. Let her state such a case to the
world, and that world will reply to her in the language of
Mr. Jefferson, " absolute acquiescence in the decisions of the
majority, is the vital principle of republics, from which there
is no appeal, but to force, the vital principle, and immediate
parent of despotism."* Let her state suck a case to hec
sister States, and they will reply to her in the spirit of
Charles Phickney's Observations :f "I trust no government
will ever again be adopted in this country, whose alteration
cannot be effected, but by the assent of all its members."
" Difficult as the forming a perfect government would be,
it is scarcely more so, than to induce thirteen separate Leg¬
islatures to think and act alike upon one subject—the alter¬
ations, that nine■ think necessary, ought not to be impeded
by four. So inconsiderable a minority should be obliged to
yieldLet her turn in disgust from the World abroad and
from the States at home, and lay her complaint before the
People of the Union, and they will answer her in the lan¬
guage of her own Statesman, George M'Duffie, " Your at¬
tempt to control them (the general government) is peculiar¬
ly unbecoming and arrogant. When the officers of the ge¬
neral government do any act, which we think unauthorised
* Presid. Mess. p. 165. Inaug. Address of March, 1801. tp. 24.
95
by our letter of instructions, we shall discard them from 6ur
service. But, as long as we continue them in office, aild ap¬
prove of their conduct, their acts are our's, and any attempt
oil your part to resist them, is an attempt to resist the power
that created you (the Slate authorities)"^ ill she turn,
indignant and mortified, from the'World, from her sister
• States, from the Nation ; and appeal to the departed great
and good, the light and honor of former years r Be it so: let
Her make the appeal, and the greatest and best of the
grfeat and good shall arise, and, in his own language to the
States in '83, the Father-Patriot shall say to her, u What¬
ever measures have a tendency to dissolve the Union, or
contribute to violate or lessen the Sovereign authority, ought
tb' be considered as hostile to the liberty and independence of
•Snerica, and the authors of them treated accordingly. "f
To whom then will Carolina appeal from the judgment
of the World and of her sister States, of the People of the
Union, and of the departed great and good. Condemned
alike, at home and abroad, by the living and the dead, to
whom can she appeal ? There remains no appeal, but to
God and the Sw ord- And can she deceive herself with the
belief, that a God of Justice, who denounces vengeance even
upon him, who removes the land-marks of a neighbour's field,
will favorably receive the supplications of a State, to aid her
in removing the ancient land marks of the nation, approved even
by herself ? Carolina acknowledged, for more than thirty
^years, the authority of Congress ; though, as she now be¬
lieves, deeply to her injury. And can she hope to be favor¬
ably heard by a God of Truth, who accepts only him, who
■" sweareth unto his neighbour, and disappointeth him not;
though it were to his own hindrance?" Let not Carolina de¬
ceive herself. She appeals not, a heathen people, to a
God of War, capricious and savage, rejoicing in the carnage
of battle-fields and the conflagration of cities. She appeals,
a Christian people, to a God of Truth and Justice, of Peace,
* " One of the People," page 3,
4 5 Marsh. Wash. p. 47, St>.
#3
arid Mercy, and Love. If she means riot to' mock rind bias-"
pheriie, let her consider solemnly, that the prayer which
she offers, is that God would sustain her courage, and
strengthen her'arm, in a war of Fratricide. And does she be¬
lieve, that her case is such, as to justify such a prayer, so
awful and affecting even when just; so horrible and impioits
if unjust ? Does she indeed believe, that if she calls, the
Pious through all her borders, will pray for her success ?
Does she believe, that from the Domestic altar, sup¬
plications for victory to her arms, will ascend to Heaven ?
Does she believe, that the countless temples of the Most
High will'send up "the effectual fervent prayer of thfe
righteous man," that her powerful enemy may be over¬
thrown, " that the race may not be to the swift, rior the bat¬
tle to the strong ?" Does she believe, that the appointed
Ministers of God will offer up, with all their heart arid with
all their soul, the ardent petition, that she niay be Conquer¬
or ? The Warrior, indeed, may wish that his country should
be Victor, whether right or wrong; but let her remember,
that the Christian dares not pray for victory to the arnik
even of his own country, if she hath gone forth to fight the bat¬
tles'oj Injustice. Let not Carolina then deceive herself. Let
her be solemnly convinced, that she can appeal with confi¬
dence to the religious feelings of her People; thrit her caUsfe
is the cause of justiee and truth, in the sight of God and of
Man ; thai the blood, which her Sons shall pour forth in her
service, will be the blood of martyrs ; that the lives, which
shall be laid down iii vindication of her rights, will be pre¬
cious in the sight of Angels ; that the groanfe of her dying arid
her worinded will ascend from the brittle field of Brothers,
like the agonies of the murdered Abet,* that in the gfaVbs
df her slaughtered children, Christian voldiers will lielfhfc
their gldriy, awaiting ift peace, the Resurrection of the JtrisL
Let this, ihtfeed, Hb hbt settled, religious corivietiori: arfff
she may believe, that rihfe; fights under the dhfehbe of tfc#
Most High, and abides under the shadow of his wings."
Then, indeed, a thousand may fall beside her, and ten thou?
sand at her right hand, but it shall not coixie nigh Her. Then,
97
I
indeed, she may feel, that she goes forth, the people qP
God, to fight the battles of God. But, if she hath
flot this assurance, deeply, solemnly realized, she goes forth to
battle, condemned by the World, and her sister States, and
the Union, cast off by the Spirits of the departed Great and
Good, yea, and forsaken even by God himself. She sends
forth her children, a band of Parricfdes, to a war of rebel¬
lion against their lawful Rulers ; a band of Fratricides, to
the slaughter of their Brethren. Without the sympathy of
the World, without the acclamations of the Free, without
the prayers of the Pious, or the blessings of her God, she
sends them forth to the harvest-field of battle, with no re¬
source but the chivalry of the south, with no strength but
the Sword. Then will she reap the reward of the Sword,
cruel, remorseless, insatiable. The winding sheet of her
sons shall be garments rolled in blood. The gray hairs of
her aged men, shall be brought down, with sorrow, to the
grave. The venerable matron, the mother and her circle
of children, the youthful bride, and the delicate maiden,
shall have for their portion, weeping, and lamentation, and
«riefs, that refuse to be comforted. Then, throughout all
her borders, shall be the trembling heart, and failing of
eyes, and sorrow of mind. Then from all her households
shall ascend the prophetic aspirations of the Ancient People
©f God—" In the Morning, would G^d it were Even—in
the Evening, would God it were Morning !"
May such a night of desolation and mourning never be the
lot of Carolina ! May it yet be given to her to feel, as a land
of Peace and quietness, that the lot is fallen unto her in a
fair ground, that she hath a goodly heritage ! May her re¬
sentments yet be overruled for good, good to herself and to
the Union, good to ourselves, the Carolina of this day, good
to our posterity, the Carolina of future years ! May this
season of fearful gloom be speedily overpast; and our belo¬
ved country be permitted again to feel all the holy, delight¬
ful influences that flow, as from a fountain of healing waters,
from the national fellowship ©f The Union.
17
NOTES TO THE SPEECH.
NOTE A. PAGE 21.
I love to contemplate the Government of the Union, as a
Parent Government : as the Guardian of the State Govern¬
ments, rather than those of that. 1 ana better pleased to
consider the separate existence and independence of the
States, as the result of a joint, common act, than the ex¬
istence and independence of the National Government, as
the result of the separate acts of the States. The Decla*
ration of Independence was the joint, common act of thir-
N teen States, already united, and relying on mutual efforts
to secure their separate independence. The first of those
efforts was the independence of each: and the successful
resistance of all as one band, produced the continued union
of all. I rejoice that I am able to refer to the following
sentiments of a great Statesman Judge (Chief Justice Jay)
in confirmation of what I have said :
" All the people of this country were then (before the
Revolution) subjects of the King of Great Britain, and owed
allegiance to him ; and all the civil authority then existing or
exercised here, flowed from the head of the British Empire.
They were in strict sense fellow subjects, and in a variety
of respects one people. When the Revolution commenced,
the patriots did not assert that only the same affinity and so¬
cial connection subsisted between the people of the colonies,
which subsisted between the people of Gaul, Britain, and
Spain, while Roman Provinces, viz. only that affinity and
social connection, which result from the mere circumstance
of being governed by the same Prince ; different ide^s-pre-
vailed, and gave occasion to the Congress of 1774 and 1775,
" The Revolution, or rather the Declaration of Indepen¬
dence, found the people already united for general purposes,
and at the same time providing for their more domestic con¬
cerns by State Conventions, and other temporary arrange¬
ments. From the Crown of Great Britain, thesovereig atJ
of their country passed to the people of it; and it was then
99
not ap uncommon opinion, that the unappropriated lancfc)
which belonged to that Crown, passed not to the people of
the Colony or States, within whose limits they were situa¬
ted, but to the whole people ; on whatever principles this
opinion rested, it did not give way to the other, and thirteen
sovereignties were considered as emerged from the princi¬
ples of the Revolution, combined with local convenience
and considerations. The people nevertheless continued to con¬
sider themselves, in a national point of view, as one people;
and they continued without interruption to manage their
national concerns accordingly." 2 Dallas, 470. Chisolm
vs. Georgia. Per Ch. J. Jay.
Mr. Monroe in his Inaugural Address of March, 1817,
speaks thus of this Parent Government : u The States re¬
spectively, protected by the National Government, under a
mild parental system, against foreign dangers, and enjoying
within their separate spheres, by a wise partition of sove¬
reignty, have improved their police, extended their settle¬
ments, and attained a strength and maturity, which are the
best proofs of wholesome laws well administered." Presid.
Speeches, p. 349. See also 5 Marsh. Wash. 48. It is of
this Parent Government that Mr. M'Duffie said, in his an¬
swer to " the Trio," in the summer of 1821, " Have we
not enjoyed all the happiness, which it is in the power of
Government to confer ? Where is the man that has felt the
oppressive arm of the General Government ? In the whole
history of its progress, you cannot point to one single act of op¬
pression. It has wrested from no man his property, it has
deprived no man of his liberty." And this was after the
Tariff of 1816 and 1820 ; and the schemes of Internal Im¬
provement. See the Pamphlet " National and State rights
considered," as republished, as has been always under¬
stood, by the former Representative from Colleton and
Beaufort, with a preface abounding in commendation of the.
writer and his principles.
NOTE B. PAGE 23.
I cannot d© better than to quote here the sentiments of
Mr. J. Story, in Terrett vs. Taylor, on the subject of co-
temporaneous exposition, because they are not only just in
themselves, but have a remarkable application to the pre¬
sent opinions of the Legislature of South-Carolina, when
contrasted with the opinions held by her from 1789 to 1820.
" It is asserted by the Legislature of Virginia, in 1798
and 1801, that this statute was inconsistent with the bill of
rights and constitution of that State, and therefore void.
Whatever weight such a declaration might properly have as
100
the opinion of wise and learned men, as a declaration of
what the law has been or is; it can have no decisive autho¬
rity. It is, however, encountered by the opinion, succes¬
sively given by former Legislatures, from the earliest existence of
the Constitution itself, which were composed of men of the
very first rank for talents and learning. And this opinion,
too, is not only a cotemporaneous exposition of the Constitu¬
tion, but has the additional weight that it was promulgated
or acquiesced in by a great majority, if not the whole, of the
very framers of the Constitution." 9 Cranch, 51.
Let rae add to this, the sentiments of Chief Justice Mar¬
shall, (in M'Culloch vs.. Maryland, 4 Wheat. 401) senti¬
ments equally honorable to him as a Judge, a Patriot and a
Statesman : u It will not be denied, that a bold and daring
usurpation might be resisted, after an acquiescence still
longer and more complete than this. But it is conceived,
that a doubtful question, one on which human reason may
pause, and the human judgment be suspended, in the decision
of which the great principles of liberty are not concerned, but
the respective powers of those who are equally the representa¬
tives of the people, are to be adjusted ; if not put at rest by
the practice of the Government, ought to receive a consi¬
derable impression from that practice. An exposition of the
Constitution, deliberately established by Legislative acts, on
the faith of which an immense property has been advanced,
6ught not to be lightly disregarded."
I shall add the sentiments of Mr. M'Duffie, from his
Numbers signed " One of the People," addressed to the
Radical Trio of Georgia : in which, speaking of Washington,
Hamilton and Madison, he says, ' For if you are sincere in
your professions of attachment for the " principles of the
Revolution" and of the Federal Constitution, and are not
acting a part in a great political manoeuvre ; if you are ho¬
nestly seeking for the truth of principles, and not for the
means of individual aggrandizement ; to what oracles could
you have applied, so likely to give you an unerring response,
as the immortal Patriots and Statesmen, whose names I
have just mentioned ?" p. 10. Thus said Carolina in 1621,
by the pen of George M'Duffie ; for no one can doubt, that
even after that time, the radical doctrines of Virginia and
Georgia were alien to the great body of the people, and to
the Legislature of South-Carolina. Witness the Report and
Resolutions of Mr. Prioleau in December, 1824.
Let me add, on the subject of cotemporaneous and conti¬
nued exposition, the sentiments of Mr. Madison, when he
returned the U. S. Bank Bill on 30th January, 1815, with
Aik reasons (on account of its inexpediency) for not signing
ioi
it. u Waiving the question of the Constitutional authority
of the Legislature to establish an incorporated Bank, as being
]precluded in my judgment by repealed recognitions, under va¬
ried circurastanbes, of the validity of such an institution, in
acts of the Legislative, Executive and Judicial branches of
the Government, accompanied by indications, in different
modes,, of a concurrence of the general will of the nation, &c.
&c." Senate Journal, 3d Session, 13th Congress, p, 309.
Mr. Madison had opposed the Charter of the old Bank in
1791, as unconstitutional : and yet, he felt himself bound,
as President, to yield his opinion to the exposition of prece¬
dents : and bad he opposed the Tariff act of 1789, on a simi¬
lar ground, he would, on the same principle, have with¬
drawn his objections to the Tariff bill of 1816. That Mr.
Madison entertained no doubt on the Constitutionality of the
Bank, is manifest from his Message of 5th December, 1815,
(Presid. Speeches, p. 329)—" If the operation of the State
Banks cannot produce this result, the probable operation of
a National Bank, will merit consideration and if aught
were necessary beyond this, it would be found in the fact,
that he signed and approved the Charter of 10th April,
1816, and rejected the Bonus bill, on a ground, totally un¬
connected with any objection to the Bank. Senate Journal,
2d Sess. 14th Congr. 3d March, 1817, p. 406.
NOTE C. PAGE 26.
The protective authority of a well regulated, independent
Judiciary cannot be too highly prized. And it is a remark¬
able and interesting fact, that with the single exception off
cases of Prerogative, even the King in England is obliged
to go to his Courts for justice, and, in like manner, the
State and the United States in this country, are obliged
to do the same ; because the right of Jury trial must re*!
main inviolate. If a debt is due to the State, if the public-
buildings are injured, if the public lands are trespassed upon,
if a public officer is guilty of neglect of duty or usurpation
of power, tfyere is no short-handed summary method of con¬
viction and punishment. The Defendant cannot be deprived,
but by his own act, of a fair and complete trial. Thus,
even in England, the King's high officer, his Secretary
of State, is liable, as well as his agents, for an illegal
warrant of commitment : and all the power of the Crown
could not screen them, from the responsibility to English
Judges and English Juries. Seethe cases of G-neraJ War¬
rants; Entickus. Carrington, 11 St Tr. 3P 9 : and Beard-
more vs. Earl of Halifax, (Sayer's Damages, p. 228) in
102
which the Plaintiff recovered 1500Z. There is nothing so
admirable in the English system, as the protective charac¬
ter of Courts of Justice ; nor is there any thing more so in
our American schemes of society and government, than the
calm, impartial, fearless administration of justice, between
the Union and a State, between that and a private citizen,
and between this and humble individuals. Truth and jus¬
tice are indeed full of dignity and beauty ; and Courts, right¬
ly estimated, are venerable and holy. They are the Guar¬
dian Angels of life, liberty, character and property. They
are neither disgraced by the crimes and follies of the parties
before them ; nor can they be honored by the rank and pow¬
er of suitors. They are clothed, as Ministers of Justice,
with power, dignity, authority, more pure and elevated,
more sacred and durable, than the presence of Kings or
States can bestow.
NOTE D. PAGE 35.
I republish here the Resolution of the Legislature of
South Carolina iia 1821, (A. A. p. 69.) because it becomes
Carolina, if she loves consistency, to reconcile that judgment
with her denunciation of the Constitutionality of the Tariff ;
when no one can doubt, that the power in the latter is of a
more obvious character than-in the former case, since the
Tariff rests on a host of evidence of various descriptions,
nothing like which attends the case of the Bank.
" In the House of Representatives, Dec. 11, 1821.
u The Special Committee, to whom were referred the
resolutions from the several States of Pennsylvania, Ohio,
New-Jersey, Vermont and Illinois, beg leave to Report^
That they have had the same under their consideration, and
find, that the State of Pennsylvania, by its resolution, has
proposed an amendment to the Constitution in the words fol¬
lowing, to wit: That " Congress shall make no law to erect
or incorporate any bank or other monied institution, except
within the District of Columbia; and every bank or other
monied institution, which shall be established hy the authority
of Congress, shall, together with its branches and offices of
Discount and Deposit, be confined to the District of Column
bia in which that State requests the concurrence of her
sister States : That the States of Ohio and Illinois have con¬
curred with Pennsylvania in the proposed amendment; and
that the States of New-Jersey and Vermont have disagreed
thereto. Your committee are unanimously of opinion, that
as Congress is constitutionally vested with the right to in¬
corporate a bank, it would be unwise and impolitic to restrict
10$
its operations within such narrow limits as the District of
Columbia. They apprehend no danger from the exercise
of the powers which the people of the United States have
confided to C cngress; but believe that ir« the exercise of
these powers, that body will render them subservient to
the great purposes of our national compact. Your commit¬
tee therefore beg leave to recommend to this house the fol¬
lowing resolutions :
Resolved, That the Legislature of the State of South-Car¬
olina do not concur in the amendment of the Constitutiou of
the United States, proposed by Pennsylvania in the follow¬
ing words" Congress shall make 110 law to erect or incor¬
porate any bank or other monied institution, except within
the District of Columbia ; and every bank or other monied
institution which shall be established by the authority of
Congress, shall, together with its branches and offices of
Discount and Deposit, be confined to the District of Colum¬
bia."
Resolved, That the Governor of this State be requested to
transmit copies of the foregoing resolution to the Executives
of the several States, with a request that they lay the same
before the Legislatures thereof.
Resolved, That the house do agree! to the report. Order-
ed, That it be sent to the Senate for concurrence.
By order of the House,
R. ANDERSON, C. H. R.
In the Senate, Dec. 12, 1821.
Resolved, That this House do concur with the House of
Representatives in the foregoing report. Ordered, That
the report be returned to the House of Representatives.
By order of the Senate,
WM. D. MARTIN, C. S.
NOTE E. PAGE 35.
I copy here these Resolutions of Virginia, in Jan. 1810, from
a Note to Cohens vs. Virginia, in 6 Wht. p. 358, N. A. which
as it is a book almost exclusively confined to the Profession of
the Law, may be considered as Inaccessible to the great
mass of the Intelligent. This, arid the South Carolina Re¬
solutions of 1821 as to the Bank of the United States, are
fair specimens of the sound and sober judgment of Virginia
and South Carolina, when acting dispassionately and delibe¬
rately on the cases of other States.
Exti act from the Journal of the Senate of the Common¬
wealth of Virginia, begun and held at the Capitol in the
city of Richmond, the 4th day of December, 1809.
104
" Friday, January 26,1810.
" Mr. Nelsoii reported from the committee to whom
Were committed the preamble and resolutions on the amend¬
ment proposed by the Legislature of Pennsylvania, to the
Constitution of the United States, by the appointment of an
impartial tribunal to decide disputes between the States
and Federal Judiciary, that the committee had, according
to order, taken the said preamble and resolutions under
their consideration, and directed him to report them without
amendment. And on the question being put thereupon, the
same were agreed to unanimously, by the House, as follows:
The committee to whom was referred the communication
of the Governor of Pennsylvania, covering certain resolutions
of the Legislature of that State, proposing au amendment to
the Constitution of the United States, by the appointment of
an impartial tribunal to decide disputes between the States
and Federal Judiciary, have had the same under their con¬
sideration, and are of opinion, that a tribunal is already pro*
vided by the constitution of the United States, to wit : the
Supreme Court, more eminently qualified from their habits
and duties, from the mode of their selection, and from the
tenure of their offices, to decide the disputes aforesaid, in
an enlightened and impartial manner. The members of the
Supreme Court are selected from those in the United States
who are most celebrated for virtue and legal learning, not
at the will of a single individual, but by the concurrent
wishes of the President and Senate of the United States ;
they will therefore have no local prejudices and partialities.
The duties they have to perform lead them necessarily to
the most enlarged and accurate acquaintance with the juris¬
diction of the Federal and State Courts, together with the
admirable symmetry of our Government.
The tenure of their office, enables them to pronounce
the sound and correct opinions they may have formed, with¬
out fear, favour, or partiality. The amendment to the
Constitution proposed by Pennsylvania, seems to be founded
upon the idea that the Federal judiciary will, from a lust of
power, enlarge their jurisdiction, to the total annihilation
of the jurisdiction of the State Courts ; that they will exer¬
cise their will, instead of the law and the Constitution.
This argument, if it proves any thing, would operate more
strongly against the tribunal proposed to be created, which
promises so little, than against the Supreme Court, which,
for the reasons given before, have every thing connected
with their appointment, calculated to insure confidence.
What security have we, were the proposed amendment
adopted, that this tribunal would not substitute their will
105
and their pleasure'in place of the law ? The Judiciary are
the weakest of the three departments of Government, and
least dangerous to the political rights of the Constitution.
They hold neither the purse nor the sword ; and even to en¬
force their own judgments and decrees, must ultimately de¬
pend upon the Executive ariu. Should the Federal Judi¬
ciary, however, unmindful of their weakness, unmindful of
the duty which they owe to themselves and their country,
become corrupt, and transcend the limits of their jurisdic¬
tion, would the proposed amendment oppose even a probable
barrier to such an improbable state of things ? The crea¬
tion of a tribunal, such as is proposed by Pennsylvania, so
far as we are enabled to form an idea of it, from the descrip-
tioU given in the Resolutions of the Legislature of that State,
would, in the opinion of your Committee, tend rather to in¬
vite, than prevent a collision between the Federal and State
Courts. It might also become, in process of time, a seri¬
ous and dangerous embarrassment to the operations of the
General Government.
Resolved, therefore, that the Legislature of this State do
disapprove of the amendment to the Constitution of the Uni¬
ted States, proposed by the Legislature of Pennsylvania.
Resolved, also, that his Excellency the Governor be, and
is hereby requested to transmit forthwith, a copy of the fore¬
going Preamble and Resolutions to each of the Senators and
Representatives of this State, in Congress, and to the Ex¬
ecutives of the several States in the Union, and request
that the same be laid before the Legislatures thereof."
Extract from the Journal of the House of Delegates of the
Commonwealth of Virginia :
" Tuesday January 23d, 1810.
" The House, according to the order of the day, resolved
itself into a committee of the whole house on the state of
the Commonwealth, and after some time spent therein, Mr.
Speaker resumed the Chair, and Mr. Robert Stanard re¬
ported, that the committee had, according to order, had
under consideration, the Preamble and Resolutions of the
select committee, to whom were referred that part of the
Governor's communication, which relates to the amendment
proposed to the Constitution of the United States, by the
Legislature of Pennsylvania, had gone through the same,
and directed him to report them to the House without
amendment; which he handed in at the Clerk's table, and
the question being put on agreeing to the said Preamble and
Resolutions, they were agreed to by the House unanimous¬
ly." Wheat. Rep- vol. 6, p. 358, Cohens vs. Virginia.
106
NOTE F. PAGE 38,
If the objection had been taken, in the case, of the Law of
Ohio, which was taken in the case of the State vs, Allen,
1st M'Cord, p. 525, (Ante p. 27) viz. that the sum im¬
posed was a penalty, and not a tax, though professing to he
such, a prohibition would undoubtedly have stopped the
Ohio Tax-warrant, and have driven the State, with all her
sovereign authority around her, to a court of justice, to re5-
Gover the penalty.
NOTE G. PAGE 4Q.
Decisions of the Supreme Court.
No. 1. Declaring Acts of Congress unconstitutional: Pen¬
sion Law, 2 Dall. 410, N. 1792 ; Marbury vs. Madison, 1
Cranch, 137, 1801.
No. 2. Declaring Acts of Congress constitutional : Chis-
olm vs. Georgia, 3 Dall. 429, 1793; Hilton vs. United States,
3 Dall. 171, 179,6 ; Fisher vs. Blight, 4 Cranch, 358J 1805}
United States vs. Brigantine William, 2 Araer. Law Jour¬
nal, p. 255, 1808 ; M'Culloch vs. Maryland, 4 Wheat. 316,
1819 ; Osborn vs. B. U. S. 9 Wheat. 738, 1824.
No. 3, Declaring State Laws Constitutional : Cooper vs.
Telfair, 4 Dall. p. 14, Georgia, 1800 ; Houston vs. Moore,
5 Wheat. 1, Pennsylvania, 1820; 0 wings vs. Speed, 5
Wheat. 420, Virginia, 1820 ; Williams vs. Norris, 12
Wheat. 117, Tennessee, 1827 ; Montgomery vs. Hernan¬
dez, 12 Wheat. 129, Louisiana, 1827 ; Wilson vs. Black¬
bird Creek Marsh Cy. 2 Pet. 251, Delaware, 1829 ; Sat-
terlee vs. Mathewson, 2 Pet. 380, Pennsylvania, 1829 ;
Bank of Hamilton vs. Dudley, 2 Pet. 523, Ohio, 1829 ;
Wilkinson vs. Leland, 2 Pet. 627, Rhode Island, 1829.
No. 4, Declaring State Laws Unconstitutional : Georgia
vs. Brailsford, 3 Dall., 4, Georgia, 1794; Vanhorne vs.
Darrance, 2 Dall. 304, Pennsylvania, 1795; Ware vs.
Hy 1 ton, 3 Dall. 199, Virginia, 1796; U. S. vs. DorrancOjk
2 Dail. 371, Pennsylvania, 1797 ; Clerke vs. Harwood, 3
Dall. 342, Maryland, 1797 ; Ogden vs. Blackledge, 2
Cranch, 272, North-Carolina, 1804; Hopkirk vs. Bell, $
Cranch, 454, Virginia, 1806 ; U. S. vs. Peters, 5 Cranch,
115, Pennsylvania, 1809; Fletcher vs. Peck, 6 Cranch,
87, Georgia, 1810; New-Jersey vs. Wilson, 7 Crapch,
164, New Jersey, 1812; Terrett vs. Taylor, 9 Crapci)», .
43, Virginia, 1815; Pawlettvs. Clark, 9 Cranch, 292, Ver¬
mont, 1815; Chirac vs. Chirac, 2 Wheat. 259, Maryland,
1817 ; Sturgis vs. Crowninshield, 4 Wheat. 122, New-
York, 1819; M'Millan vs. M'Neil, 4 Wheat. 209, Loui-
10T
Siana, 181 & ; M'Culloch bs. Maryland, 4 Wheat. 316i Ma¬
ryland, 1819 ; Dartmouth College vs. Woodward, 4 Wheat.
518* New Hampshire, 1819 ; Farmers & Mechanics Bank
vs. Smith* 6 Wheat. 131* Pennsylvania* 1821 ; Greenes,
Biddle* 8 Wheit. I, Kentucky, 1823; Society for Propa¬
gating Gospel in Foreign Parts vs. Wheeler, 8 Wheat. 464,
Vermont, 1823 ; Gibbons tis. Ogden, 9 Wheat. 1, N. York,
1824 ; Osburn vs. B. U. S. 9 Wheat. 738, Ohio, 1824 ;
Ogden vs. Saunders, 12 Wheat. 213, New-York, 1827 ;
Brown vs. Maryland, 12 Wheat. 4l 9, Maryland, 1827 ;
Plowden Weston vs. City Council of Charleston, 2 Pet. 449,
South-Carolina, 1829 ; Bank of Hatnllton vs. Dudley, %
Pet. 525, Ohio, 1829.
No. 5. Affirming Judgments of State Courts : Olney vs.
Arnold, 3 Dall. 808, Rhode Island, 1796 ; Calder vs Bull,
3 Dall. 386, Connecticut, 1798 ; Mathews vS. Zane, 3
Cranch, 92, Ohio, 1809 ; Smith vs. Maryland, 6 Cranch,
286, Maryland, 1810 ; Otis vs. Bacoh, 7 Cranch, 589, Mas¬
sachusetts; 1813; Slocuta vs. Maybefry, 2 Wheat. 1, R.
Island, 1817 ; Gelstonvs. Hoyt, 3 Wheat. 246, New York,
1818; Houston vs. Moore, 5 Wheat. 1, Pennsylvania, 1820;
Martin vs. Mott, 12 Wheat. 19, New-York, 1827 ; Wil¬
liams vs. Norris, 12 Wheat. 117, Tennessee, 1827 ; Mont¬
gomery vs. Hernandez, 12 Wheat. 129, Louisiana, 1827 ;
Ross vs. Doe, 1 Pet. 655, Mississippi, 1828 ; Wilson vS.
Blackbird Creek Marsh Cy. 2 Pet. 251, Delaware, 1829 ;
Satterlee vs. Mathewson, 2 Pet. 380, Pennsylvania, 1829..
No. 6. Annulling Judgments of State Courts : Clerke tls.
ttarwood, 3 Dall. 342, Maryland, 1797 ; New-Jersey vs.
Wilson, 7 Cranch, 164, New-Jersey, 1812 ; M'Kim vtf.
Voorhies, 7 Cranch, 279, Kentucky, 1812 ; PalmCr vs.
Allen, 7 Cranch, 550, Connecticut, 1813 ; Fairfax vs. Huh-
ter, 7 Cranch, 604, Virginia, 1813; Fairfax vs. Hunter,
1 Wheat. 304, Virginia, 1816 ; M'Gulloclr vs. Maryland,-
4 Wheat. 316, Maryland, 1819 ; Dartmouth College vs.
Woodward; 4 Wheat. 518, New Haven, 1819; Farmers^
& Mechanics Bank vs. Smith, 6 Wheat. 131, Pennsylvania*
1821 ; Cohens vS. Virginia, 6 Wheat. 264, Virginia, 1821 ;
M'Clung ts\ Sillinaan, 6'Wheat. 598, Ohio, 1821 ; Buel
tfs. Vati Nesfs, 8 Wheat. 312, Vermont, 1823; Gibbons vs.
Ogden, 9 Wheat. 1, New York, 1824 ; Broun vs. Mary¬
land, 12 Wheat. 413, Maryland, 1827 ; Weston vs. City
Council of Charleston* 2 Pet. 449, South-Carolina, 18291.
No. 7. Assenting Appeal Jurisdiction : Mathews vs. Zarie,
4 Cranch, 332, Ohio, 1808 ; Pawlett vs. Clarke, 9 Cra'nCh,
292, 1815; Martin vsl HiintWr, 1 Wheat-. 304, Virginia^
1816 ; Cohens vs. Virginia, 6 Wheat. 264, Virginia, 1821 ;
1GS
Buel vs. Van Ness, 8 Wheat. 312, Vermont, 1823; Ross
vs. Doe, 1 Pet. 655, Mississippi, 1828 ; Weston vs. City
Council of Charleston, 2 Pet. 449, South-Carolina, 1829.
No. 8. Appeal Jurisdiction acquiesced in : OIney vs. Ar¬
nold, 3 Dall. 308, Rhode Island, 1796 ; Clerke vs. Her-
wood, 3 Dall. 342, Maryland, 1797; Calder vs. Bull, 3
Dall. 386, Connecticut, 1798; Mathews vs. Zane, 4 Cranch,
382, Ohio, 1808; Smith vs. Maryland, 6 Cranch, 286,
Maryland, 1810 ; New Jersey vs. Wilson, 7 Cranch, 164,
New Jersey, 1812 ; Fairfax vs. Hunter, 7 Cranch, 604,
Virginia, 1813 ; Otis vs. Bacon, 7 Cranch, 589, Massachu¬
setts, 1813 ; Palmer vs. Allen, 7 Cranch, 550, Connecti¬
cut, 1813 ; Gelston vs. Hoyt, 3 Wheat. 246, New-York,
1818; Sloeum vs. Mayberry, 2 Wheat. 1, Rhode Island,
1817 ; Miller vs. Nicholas, 4 Wheat. 311, Pennsylvania,
1819 ; M'Culloch vs. Maryland, 4 Wheat. 316, Maryland,
1819; Dartmouth College vs. Woodward, 4 Wheat; 518,
New Haven, 1819 ; Houston vs. Moore, 5 Wheat. 1, Penn¬
sylvania, 1820; Farmers & Mechanics Bank vs. Smith, 6
Wheat.. 131, Pennsylvania, 1821 ; Gibbons vs. Ogden, 9
Wheat. 1, New-York, 1824; Martin vs. Mott, 12 Wheat.
19, New-York, 1827 ; Weston vs. City Council of Charles¬
ton, 2 Pet. 449, South-Carolina, 1829 ; Wilson vs. Black,
bird Creek Marsh Cy. 2 Pet. 251, Delaware, 1829 ; Sat-
terlee vs. Mathewsou, 2 Pet. 380, Pennsylvania, 1829.
No. 9. States parties nominally and really : Chisolra vs.
Georgia, 3 Dall. 429, Georgia, 1793 ; Georgia vs. Brails-
ford, 3 Dall. 4, Georgia, 1799 ; U. ,S vs. Peters, 5 Cranch,
115, Pennsylvania, 1809; Smith vs. Maryland, 6 Cranch,
286, Maryland, 1810; New Jersey vs. Wilson, 7 Cranch,
164, New Jersey, 1812 ; M'CulIoch vs. Maryland, 4 Wheat.
316, Maryland, 1819.
No. 10. States parties incidentally ; Fowler vs. Lindsay,
3 Dall. 411, Connecticut and New York, 1799; Handly
vs. Anthony, 5 Wheat. 374, Ohio and Kentucky, 1820 ;
Osborn vs. B. U. S. 9 Wheat. 738, Ohio, 1824 ; B. U. S.
vs. Planters Bank of Georgia, 9 Wheat. 904, Georgia, 1824.
No. 11. Opinions against the President : Marbury vs.
Madison, 1 Cranch, 137, 1801 • Little vs. Barreme, 2
Cranch, 170, 1804.
No. 12. Opinions in favor of the President : Martin vs.
Mott, 12 Wheat. 19, New York, 1827 ; Parker vs. U. S.
1 Pet. 293, 1828.
No. 13. Opinion against the Secretary of State : Marbu¬
ry vs. Madison, 1 Cranch, 137, 1801,
m
NOTE H. PAGE 40,
This case was decided in the (old Law) Appeal Court of
South-Carolina, by Judges Colcock, Johnson, Richardson
and Gantt, against Judges Bay, Nott and Huger. And in
the Supreme Court, by Ch. J. Marshall, Judge Story, Judge
Washington, and Judge Duval, against Judge Johnson and
Judge Thompson.
NOTE I. PAGE 43.
The two first amendments, proposed by the Congress of
1789, (the first as to the apportionment of Representatives,
and the second as to the compensation of Members of Con¬
gress) have never been adopted. See 1st vol. L. U. S.-
(authorised edition of 1815) p. 72, and Senate Journal of
March, 1791, p. 92. And yet these two first are published
with the^rest of the twelve in the collection of the Presi¬
dents' Speeches, or rather Messages, p 25, with the Acts
of Assembly of South-Carolina of 1816, p. 132, and are even
spoken of as adopted in 5 Marsh. Wash. p. 209, 210,
NOTE K. PAGE 43.
,1 apprehend, that his Excellency in his Message, has done
great injustice, undesignedly, I doubt not, to the Clergy of
the Established Church in Virginia, in 1763. According to
Mr- Wirt, in his Life of P. Henry, p. 22, "it seems im¬
possible to deny, at this day, that the Clergy had much the
best of the argument." And again, " the Court very much
to the credit of their candor and firmness, breasted the popu¬
lar current, by sustaining the demurrer" in favor of the Cler¬
gy. p. 22. H is Excellency says, " a Church establishment
was overset, and a system of tythes and contributions insti¬
tuted for its support, put down forever." Now there was
no controversy, about maintaining or destroying the Church
Establishment, nor any about abolishing tythes: and if there
had been, and the effort alluded to had been produced, it
would then follow, that the Jury had actually overturned a
system, founded and secured by all the sanctions of their own
Legislature! The question was not, whether the Clergy
should be paid any tythe at all, but how much they should
have. They claimed according to the undoubted law of the
Province, to be paid in Tobacco, without any regard to its
value; for the law simply entitled thein to 16000 lbs.;
while the people contended, under a repealed law, that they
should have only as much money, as would pay them 16-8
for each pound, wheu Tobacco was actually worth 50 cents
per pound. The principle contended for by Patrick Henry
no
was subversive of the fundamental, constitutional lavr of the
Colony, about which no man ever doubted, viz. : that the
King and Council had a right to annul the Colonial Laws at
pleasure. They had done so, as to the act, under which
the people claimed : and, therefore, the only law, by which
the Court and Jury could have been lawfully guided, wai!
that under which the Clergy claimed. It seems impossible
to read the account of the trial without regarding the success
of Mr. Henry as dishonorable to the cause of right and jus¬
tice: and, while it is one of the most extraordinary instances
of the triumph of eloquence, it is at the same time a melan¬
choly illustration of that skill, which " makes the worse
appear the better reason."
But the most singular circumstance, attending the trial,
was that the Judges should so far have forgotten their duty,
upon the Jury's finding a verdict of one penny damages,
(when the Defendants admitted the Plaintiffs were entitled to
16000 lbs. of Tobacco, commuted at 16-8 per pound,) as lo
refuse a motion for a new trial. If these be the triumphs of
eloquence, and these the blessings of Jury Trial, no man of
good sense could value either. Happily, however, such an
abuse of power on the part of an eloquent man, such disre¬
gard of admitted rights by the Jury, and such abandonment of
their plain, unquestionable duty, by the Judges, i$ Scarcely
to be paralleled
Another circumstance equally singular is this, Which f
notice on the authority of Mr. Hay, (1 Hen. and Murf. ftbp.
p. 381, Orerstreet vs. Marshall,) and on my general recol¬
lection of Virginia law. The Action was Debt, on A Stat¬
ute for 16008 lbs. of Tobacco. Now judgments WCrfc al¬
tered and executions issued funder the Virginia fawsf) fiotf
Tobacco, in the case of a Tobacco contract, and not fdt Mof-
ney. Tobacco was statute money. To the decltiraifciUft the
Defendant pleaded in bar, the Plaintiff demurred. The
Demurrer was sustained : of course the plea Was set' hdidfey
and according to the settled course of practise, judgment
final by default for the Statute Debt should bdvfe beert eh*
tered forthwith. There was, in fact, nothing to submit? tcf
the Jury: any more than there would have in Virginia hi the?
case of a Bond, with a money penalty and money condition ;
or of a Bond, with a Tobaceo penalty and Tobdced conditio'**
NOTE L. PAGE 44.
On, principles of Constitutional Law, is it not a oofafrbAui'
tion vn terms,, to ask for the repeal of a.n utoconstitutioiiral bill
ef a md act ?' On principles of potitioulMspodientcy? there
Ill
Is reason to ask it, in order that those, who would other*
wise be disposed to regard it as constitutional, might save
themselves and others trouble and embarrassment, by no
longer finding it in their way. The Resolutions of the Ken¬
tucky Legislature of 10th Nov. 1798, penned by Mr. Jef¬
ferson, concludes, u That the Co-States concur in declaring
these acts void and of noforct, and will each unite with this
Commonwealth in requesting their repeal, at the next ses¬
sion of Congress." p. 65. The Report of Mr. Madison, p.
58, in support of the Resolutions of the Virginia Legislature
of 21st Dec. 1798, says at p. 58s " The Legislatures of
the States might have made a direct representation to Con¬
gress with a view to obtain a, rescinding of the two offensive
acts and this is spoken of in the next paragraph, as a far¬
ther measure, " after declaring the two acts to be unconsti¬
tutional" It would appear by the Pamphlet, reprinted in
Charleston last year, from the Richmond copy of February,
1826, that the only States, who returned answers to the
Virginia Resolutions disapproved them ; for the only replies
given are those of New Hampshire, Vermont, Massachu¬
setts, Rhode Island, Connecticut, New York, and De¬
laware.
NOTE M. PAGE 45.
" I wish," says Chief Justice Jay, " that the state of
society was so far improved, and the science of Government
advanced to such a degree of perfection, as that the ichoh
Nation could, in the peaceable course of law, be compelled
to do justice, and be sued by individual citizens." 2 Dall.
478. Does it not become Republics to act on the principle
of that noble sentiment of a King, Frederick the Great—
" Judges ought to know, that the poorest peasant is a man,
as well as the Ring himself. All men ought to obtain jus*
tice ; since in the estimation of Justice, all men are equal;
whether the Prince complain of a peasant, or a peasant
cpmplajn of the Prince" Don Diego, the son of Colam-
bus, sued Ferdinand before the Council for Indian Affairs,
who decided against the King* Louis the XVIth did not
feel himself to be degraded by suing Robert Morris in a
Pennsylvania Court, 2 Dall. 407 ; and Georgia did not
consider herself as dishonored' by appearing as a Plaintiff.
Georgians. Brailsford, 2 Dall. 402, and 3 Id. p. 4. The
indignity attending a suit against a State, as against an indi¬
vidual, arises from the Defendant's refusing ta do, except
by coercion, what he ought to have done cheerfully and
freely. A suit against. Gen. Washington would not have dis-
m
honored him, if he had had a just defence ; but he would
have been degraded in universal estimation, if he had re¬
fused to do justice, without the compulsory process of the
Law. If one great and good man cannot be degraded by a
suit against him, if his defence be fair and reasonable ; nei¬
ther can fifty, or a thousand, or a hundred thousand, or a
million: and whether they constitute a mere partnership or
company, or constitute a Nation, can make no possible dif¬
ference, in the estimation of wisdom and virtue, good sense
and true honor. I refer with great satisfaction to the ad¬
mirable remarks of Chief Justice Jay, on this subject, in 2
Dall 472—3. The conduct of New York and New Jersey,
in relation to the Steam-Boat controversy, as testified by
their Acts of Assembly, cannot be too much admired, as
exhibiting a noble and dignified love of order and peace.
The Act of New-York, of 1820, declares, that her juris¬
diction on the waters in controversy, had been " hitherto
actually and constantly exercised or possessed" by New
York, and that it was to be " preserved, maintained and
defended by all lawful ways and means, until this State
shall be evicted thereof by due course of law while that
of New Jersey concludes—" Provided always, that nothing
in this act contained shall be so construed as to have any
operation against any patent right or privilege obtained un¬
der the Constitution or Laws of the United States." In
speaking of the latter Act, Chancellor Kent expressed the
opinion, that the constitutionality of the New Jersey Act
was to be decided first by the Courts of New Jersey, and
then by the Supreme Court. 4 Johns. Chy. Cas. p. 429,
431, Livingston and Tomkins.
Those who advocate the authority of the National Govern¬
ment to make internal improvements, to protect domestic
manufactures, to charter a National Bank, &c. are often
charged with a wish to degrade the State Governments to
mere corporations. And what, let me ask, are they but
corporations ? " From the moment of their association,"
says Chief Justice M'Kean, (1 Dall. 44) " the United
States necessarily became a body corporate," " But still it
maybe insisted," says Judge Gushing, 2 Dall. 468, " that
this will reduce the States to mere corporations : and take away
all their sovereignty. As to corporations, all States whatever
are corporations, or bodies politic." In 3 Dall- 473, Chief
Justice M'Kean says of our system of Government, " It is
in some particulars National, in others Federal, and in all
the residue Territorial, or in Districts, called States."
The King in England is called a corporation, 10 Co. 29, b.;
and se is the Parliament, 1 Shepard's Abrt. p. 431. " The
114
word corporations, in its largest sense," says Judge Iredell,
2 Dalf. 447, ^ has a more extensile rtteaning than people
are generally aware of. In this extensive sense, not only
each State singly, but even the Uiiited States may, without
impropriety, be termed corporations." Whenever, there¬
fore, the advocates of a Government, " Consolidated as far
as practicable," (to use the Words of Mr. Charles Pinckney,
in his Observations on his Plan-of Government, p. 16) shall
be charged witfi degrading the States into corporations, they
have only to cite as their justification, the sentiments of
M'Kean, Iredell and Cushing. For myself, I hold empha¬
tically, that if either party be degraded by the name cor¬
poration, it is the Union, and not the States ; for these are
appropriately corporations, as will be hereafter shown,
NOTE N. PAGE 46.
I place here, a list of the Judges of the Supreme Court,
because I know not anybody of men, whom this or any other
country has produced, who are entitled to more enlightened
Admiration, more sincere gratitude, more profound respect
for their talents, learning, virtues and services. Theirs,
is indeed, a parental guardianship, full of moral dignity and
beauty, sustained by the energy of wisdom, and adorned by
the simplicity of justice and truth.
Judges of the Supreme Court of the United States front
the time of its first establishment; with the dates of their
Commissions :
John Jay, Chief Justice, 26th Sept. 1789 ; William
Cushing, Associate Justice, 27th Sept. 1789; James Wil¬
son, Associate Justice, 29th Sept. 1789; John Blair, Asso¬
ciate Justice, 30th Sept. 1789 ; James Iredell, Associate
Justice, 10th Feb. 1790; Thomas Johnson, Associate Jus¬
tice, 7th Nov. 1791 ; William Paterson, Associate Justice,
4th March, 1793 ; John Rutledge, Chief Justice, 1st July,
; Samuel Chase, Associate Justice, 7th Jan. 1796 ;
Oliver Ellsworth, Chief Justice, 4th March, 1796 ; Bush-
rod Washington, Associate Justice, 20th Dec. 1798; Al¬
fred Moore, Associate Justice, 10th Dec. 1799 ; John Mar¬
shall, Chief Justice, 31st Jan. 1801 ; William Johnson,
Associate Justice, March, 1804Brockholst Livingston,
Associate Justice, 20th Nov. 1806 ; Thomas Todd, Associ¬
ate Justice, 1S07 ; Gabriel Duvall, Associate Justice, 18th
Nov. 1811; Joseph Story, Associate Justice, 18th Nov.
1811 ; Smith Thompson, 9th Dec. 1823 ; Robert Trimble ;
John M'Lean, 7th March, 1839.
19
in
NOTE 0. PAGE 47,
I cannot forbear from giving here some passages from the
opinions of the Supreme Court, as specimens of the charac¬
ter of that Tribunal, which, if it needed-any other vindica¬
tion than that, which is recorded in the pages of Dallas and
Cranch, of Wheaton and Peters, would find it in the 4th
No. of the Southern Review, at page 576, in the article on
the Georgia Controversy, ascribed to our Representative
in Congress, from Charleston District.
EXTRACTS.
In delivering my opinion on this important case, I feel
myself deeply affected by the awful situation in which I
stand. The uncommon magnitude of the subject, its novel¬
ty, the high expectation it has excited, and the consequence
with which a decision may be attended, have all impressed
me with their fullest force. I have trembled lest by an
ill informed or precipitate opinion of mine, either the honour,
the interest, or the safety of the United States should suffer
or be endangered on the one hand, or the just rights and pro¬
per security of any individual on the other. In endeavouring
to form the opinion I shall now deliver, I am sure the great
object of my heart has been to discover the true principles
upon which a decision ought to be given, unbiassed by any
other consideration than the most sacred regard to justice.
Happy should 1 have thought myself, if I could as confident¬
ly have relied on a strength of abilities equal to the great¬
ness of the occasion." By J. Iredell^ 3rd Dallas, 256.
Ware vs. Hjlton.
u To the general observations made on this subject, it will
pnly be observed, that as the Court can never be unmindful
of the solemn duty imposed on the Judicial Department
when a claim is supported by an act which conflicts with the
Constitution, so the Court can never be unmindful of its duty
to obey laws which are authorised by that instrument."
Fisher vs. Blight, 2 Cranch, 396. By Chief J. Marshall.
tk That this Court dares not usurp power is most true. That
this Court dares not shrink from its duty is not less true. No
man is desirous of placing himself in a disagreeable situa¬
tion. No man is desirous of becoming the peculiar subject
of calumny. No man, might he let the bitter cup pass from
him without, self reproach, would drain it to the bottom.
But if he has no choice in the case ; if there is no alternative
presented to him but a dereliction of duty, or the opprobri¬
um of those, who are denominated the world, he merits
the contempt as well as the indignation of his conntry, who
can hesitate which to embrace.
115
That gentlemen, in a $ase the most interesting, in the
zeal with which they advocate particular opinions, and under
the conviction in some measure produced by that zeal, should
on each side press their arguments too far, should be impa¬
tient at any deliberation in the Court, and should suspect or
fear the operation of motives to which alone they can ascribe
that deliberation, is perhaps a frailty incident to human na¬
ture ; but if any conduct on the part op the Court could
warrant a sentiment that they would deviate to the one side or the
other from the line prescribed by duty and by laic, that conduct
would be viewed by the Judges themselves, with an eye of extreme
severity, and would long be recollected with deep and serious
regret." 4 Cranch Appendix, p. 506, U. S. vs. Burr, per
Ch. J. Marshall.
44 The duties of this Court, to exercise jurisdiction where
it is conferred, and not to usurp it wrhere it is not conferred,
are .of equal obligation. The Constitution, therefore, and
the law, are to be expounded, without a leaning the one
way or the other, according to those general principles
which usually govern in the construction of fundamental or
other laws." By Ch. J. Marshall. B. U. S. vs. Devcaux.
5 Cranch, 87.
44 That the Legislature can repeal statutes creating pri¬
vate corporations, or confirming to them property already
acquired under the faith of previous laws, and by such re¬
peal can vest the property of such corporations exclusively
in the State, or dispose of the same to such purposes as they
may please, without the consent or default of the corpora¬
tors, we are not prepared to admit : and we think ourselves
standing upon the principles of natural justice, upon the fun¬
damental law of every free government, upon the spirit and
letter of the Constitution of the United States, and upon
the decisions of most respectable judicial tribunals, in re¬
sisting such a doctrine." By Judge Story. Terrett vs.
Taylor, 9 Cranch, 52.
44 In the case now to be determined, the Defendant, a
Sovereign State, denies the obligation of a law enacted by
the Legislature of the Union, and the Plaintiff, on his part,
contests the validity of an act which has been passed by the
Legislature of that State. The constitution of our country,
in its most interesting and vital parts, is to be considered
the conflicting powers of the government of the Union, and
of its members, as marked in that constitution, are to be
discussed; and an opinion given, which may essentially in¬
fluence the great operations of the government. No tribu¬
nal can approach such a question without a deep sense of its
importance, aHd of the awful responsibility involved in its
116
decision. But it must be decided peacefully, or remain a
source of hostile legislation, perhaps, of hostility of a still
pore serious nature ; and if it is to be so decided, by thip
tribunal alone can the decision be made. On the Supreme
Court of the United States has the Constitution of our coun¬
try devolved this important duty." By Ch. J. Marshall.
M'Culloch vs. Maryland. 4 Wheat. 400, 1-
" Questions of this nature are always of great importance
and delicacy. They involve interests of so much magnitude?
and of such deep and permanent public concern, that they
cannot but be approached with uncommon anxiety. The
Sovereignty of a State in the exercise of its legislation, is
pot to be impaired, unless it be clear that it has transcended
its legitimate authority : nor ought any powpr to be sought?
much less to be adjudged, in favor of the United States, un¬
less it be clearly within the reach of its constitutional char*
iter. Sitting here, we are not at liberty to add one jot of
power to the National Government, beyond >yhat the people
have granted by the Constitution : and, on the other hand,
Ttve are bound to support that Constitution as it stands, and
to give a fair and rational scope to all the powers which it
clearly contains." By J. Story. 6 Wheat. 48, Houston w.
Jjjdoore.
" The questions presented to the Court by the two first
points made at the bar, are of great magnitude, and may be
truly ?ajd vjtally to affect the Union. They exclude the
enquiry whether the Constitution and Laws of the United
States have been violated by the judgment, which the Plain¬
tiffs in error seek to review ; and maintain that, admitting
such violation, it is not in the power of the government to
apply a corrective. They maintain that the nation does not
possess a department capable of restraining peaceably, and
by authority of law, any attempts which may be made, by
a part, against the legitimate powers of the whole; and that
the government is reduced to the alternative of submitting
to such attempts, or of resisting them by force. They
maintain that the Constitution of the United States has pro¬
vided no tribunal for the final construction of itself, or of the
laws or treaties of the nation ; but that this power may be
exercised in the last resort, by the Courts of every State
in the Union- That the constitution, laws, and treaties, may
Receive as many constructions as there are States; and that
this is not a mischief, or if a mischief, is irremediable.
These abstract propositions are to be determined; for he who
demands decision without permitting inquiry, affirms that
the decision he asks does not depend on inquiry.
117
If such be the constitution, it is the duty of the Court to
bow with respectful submission to its provisions. If such be
not the constitution, it is equally the duty of this Court to
say so ; and to perform that task which the American peo¬
ple have assigned to the Judicial Department." By Ch. J.
Marshall, in Cohens vs Virginia. 6 Wheaton, 377.
" The State of New-York maintained the constitution¬
ality of these laws ; and their Legislature, their Council
of Revision, and their Judges, have repeatedly concurred in
this opinion. It is supported by great names—by names
which have all the titles to consideration that virtue, intel¬
ligence, and office, can bestow. No tribunal can approach
the decision of this question, without feeling a just and real
respect for that opinion which is sustained by such authori¬
ty ; but it is the province of this Court, while it respects,
not to bow to it implicitly : and the Judges must exercise,
in the examination of the subject, that understanding wbich
Providence has bestowed upon them, with that independence
which the people of the United States expect from this de¬
partment of the Government." By Ch. J Marshall. Gib¬
bons vs. Ogden, 9 Wheat. 186.
" This Court has uniformly professed its disposition, in
cases depending on the laws of a particular State, to adopt
the construction which the Courts of the State have given to
those laws. This course is founded on the principles, sup¬
posed to be universally recognized, that the Judicial Depart¬
ment of every Government, where such department exists,
is the appropriate organ for constructing the Legislative
acts of that Government. Thus no Court in the universe,
which professed to be governed by principle, would, we
presume, undertake to say, that the Courts of Great Bri¬
tain, or of France, or of any other nation, had misunder¬
stood their own statutes, and therefore erect itself into a
tribunal which should correct such misunderstanding. We
receive the construction given by the Courts of the nation
as the true sense of the law, and feel ourselves no more at
liberty to depart from that construction, than to depart from
the words of the statute. On this principle, the construc¬
tion given by this Court, to the Constitution and Laws of the
limited States is received by all as the true construction ;
apd on the same principle, the construction given by the
Courts of the several States to the Legislative acts of those
Spates, is received as true, unless they come in conflict
with the Constitution, Laws, or Treaties of the United
Spates." By Ch. J.Marshall. Elmendorf vs. Taylor, 10
Wheat. 15,9|, 160.
" Independently of the consideration, that a decision of the
118
^Supreme Court, of the United States, is entitled to the
highest respect, in all cases, a decision upon provisions of
the Constitution, is emphatically entitled to our utmost re¬
spect. 1 consider that Court as paramount, when deciding
on an article of the Constitution, and an act of Congress
passed under its express injunction ; and whatever might be
my individual opinion, I should feel it my duty to surrender
it to their controuling authority." By Ch. J. Spencer. An¬
drews vs. Montgomery, 19 Johns. 164.
" But what is. the course of prudence and duty, where
these cases of difficult distribution as to power and right
present themselves. It is to yield rather than encroach;
the duty is reciprocal, and will no doubt be met in the spirit
of moderation and comity. In the conflicts of power hnd
opinion, inseparable from our very peculiar relations, cases
may occur, in which the maintenance of principle, and the
administration of justice, according to its innate and insepa-
rable attributes, may require a different course ; and when
such^ases do occur, our Courts must do their duty ; but until
then, it is administering justice in the true spirit of the
Constitution and Laws of the United States, to conform, as
nearly as practicable, to the administration of justice in the
Courts of the State." By J. Johnson, Fullerton vs. B. U. S»
1 Pet. 614.
The Judicial Department of every government, is the
rightful expositor of its laws ; and emphatically of its su¬
preme law. If in a case depending before any Court, a
legislative act shall conflict with the Constitution, it is ad¬
mitted that the Court must exercise its judgment on both,
and that the Constitution must controul the act. The Court
must determine whether a repugnancy does or does not ex¬
ist ; and in making this determination, must construe both
instruments. That its construction j>f the one is authority,
while its construction of the other fs to he disregarded, is a
proposition for which this Court can perceive no reason."
2d Peters, p. 524. Bank of Hamilton vs. Dudley. Per Ch.
J. Marshall.
JVble. Mr. M'Duffie in his Pamphlet against the Georgia
Trio, says thus at p. 17. " It is not less evident that it
belongs to the JSational Judiciary, to pronounce on the con¬
stitutionality or unconstitutionality of the Laws of the JVa-
tional Legislature. Its jurisdiction extends to all cases arising
under them ; and it is hard to eonceive how in any possible
case a federal judge, can decide a case arising under a law,
without pronouncing on the constitutionality of that law. In
fact, it would be in rain and idle to make the laws of Congress
119
supreme, if the National Judiciary had not the power of enfor¬
cing them." p. 17.
The Supreme Court is justly characterised by President
Monroe, (in his Message of December, 18-24, Presidents'
Speeches, p. 521) both as to its authority and value :
" The duties of the Supreme Court would be of great
importance, if its decisions were confined to the ordinary
limits of other tribunals ; but when it is considered that this
Court decides, and in the last resort, on all the great ques¬
tions which arise under our Constitution, involving those be¬
tween the United States, individually, between the States
and the United States, and between the latter and foreign
powers, too high an estimate of their importance cannot be
formed."
The Decisions of the Supreme Court on Constitutional
Law, are among the noblest Commentaries on our Consti¬
tution : and among the most dignified, able and finished
specimens of our Political Literature. They ought to be
alongside of the Federalist, in the Library of every educa¬
ted man in the Union. Will not some enterprising Booksel¬
ler republish them, simply abbreviating the statement of
the case ; but preserving the arguments of Counsel, as well
a$ the opinions of the Judges ?
NOTE P. PAGE 53.
It is somewhat singular, that the Hypercritics of the
Anti-Tariff school, should not have discovered, that the term
to regulate trade, did not contain in itself any power even to
promote and encourage trade itself, but simply to establish rules
for the government of captains and seamen, of entries and
clearances, of the time and mode of paying duties, of the
national character of ships, of the number of passengers,
seamen, &c- &c. and that, to make any regulation, such
as the tonnage act, is a violation of the letter of instructions.
The very mode of argument, which shows, that you cannot
use this power according to any wise, practical construc¬
tion, but for the purpose of promoting commerce, as one
great end, also proves that you cannot promote commerce,
without, due regard to the interests of manufactures, as tnse-
parable, on an enlarged view of the subject, from these of
commerce.
NOTE Q. PAGE 54.
The present duty en foreign cottons of 3 cents per pound,
is obviously a decided advantage to the Planter. If he com¬
plains? that the duties on sot ton cloths are an unconstitutional
m
bounty to the cotton manufacturer, why does he not on prin¬
ciple apply to Congress, to take off the protective duty oil'
foreign cottons, as an unconstitutional bounty to the cotton
grower ? To be consistent, he ought to do this, for Con¬
gress, according to his doctrine, has no more authority to
protect and encourage agriculture, than manufactures. Ac¬
cording to my view of the Constitution, Congress has power
and is bound to do both. As far back as 1790, Alexander
Hamilton says, (Rep. on Manuf. p. 260—T) " The present
duty of three cents per pound on the foreign rate materials,
is undoubtedly a very serious impediment to the progress of
those manufactories." This bounty the Planters have en¬
joyed all along, since the cotton manufactories have thrived
in the United States, and if the time should ever come,
when the manufacturers shall apply for the repeal of the
duty, (and " to secure to the national manufacturers so es¬
sential an advantage, a repeal of the present duty on im¬
ported cotton is indispensable," Ham. Rep. on Manuf. p.
2G1) so as to enable the cotton-grower of Brazil, &c. to
undersell our raw material in our home market, I doubt it
Would produce a greater excitement than the Tariff of 1828.
NOTE R. PAGE 56.
The Life of Washington by Ch. J Marshall, is a book of
which Americans may well be proud : not indeed as a rhet¬
orical composition, for which the ancient Historians are SO
unreasonably extolled ; but as surpassing in the true dignity
and usefulness, simplicity and beauty of History, all that
can be found in Herodotus, Thucydides and Xeiaophdn, in
Livy or Sallust, Caesar or Tacitus. To be thoroughly ver¬
sed in the facts, and to be deeply imbued with the spirit of
Washington's Administration, is worth more to the citizen of
the United States, than the most intimate acquaintance with
the whole body of Greek and Roman History. How1 indeteti
could it be otherwise, since the sentiments and Writings,
the conduct and entire character of Washington exhibit! more
of true glory, and of exalted patriotism, than is to he found
in the Statesmen, and Heroes of Antiquity. Washington's
Letter to the Governors of the States, his Inaugural Ad*
dresses, his Messages, and his Farewell Addrese, are of
more value to us, as a text book of national and social mor¬
als, of enlightened duty, virtuous moderation, and a dignified
yet ardent love of regulated freedom, thanr all the political
wisdom of Ancient History. To Cb. J. Marshall,, as a Rep¬
resentative in Congress, as an Ambassador, as a Judge and
a Historian, his Country owes an ampfe debt of gratitude.
121
May our children's children acknowledge it with pride, and
repay it with a thankful, admiring spirit. His will ever
be, in American annals, peculiarly and emphatically t£ clar-
um et venerabile nomen."
NOTE S. PAGE 65.
If any doubt had been or could have been entertained in
1789, as to the Constitutionality of the Protective System,
the following passage from Judge Burke's opinion in the case
t)f Zylstra vs. the City Corporation, must satisfy us, that he
at least of the five, would have noticed it. u Upon the
slender basis of the confined authority which the Corporation
really possesses, to erect such a high superstructure, and
insist publicly on their right to do so, proves another thing-
it serves to illustrate upon a small scale, the intruding,
usurping nature of power ; and with how much greater than
the energy of a wedge, it is constitutionally at work to force
open for itself, more elbow room and free license, than fore^
sight itself or reason ever intended." 1 Bay, 388.
NOTE T. PAGE 65.
It gives me pleasure to notice, in connection with the his¬
tory of the Tariff Question, the letters of Mr. Madison to
Jos. C. Cabell, in Sept. and Oct. 1828. I regard these as
the patriarchal testimony of this venerable Patriot, to the
cause of established order, to the sacredness and value of
cotemporaneous and continued exposition of the Constitution.
There cannot be a stronger proof of the blindness of preju¬
dice, and the suspicious, inexorable spirit of excitement,
which prevails in Carolina, than the fact, that these letters
of this aged and eminent Statesman, (bearing all the marks
of a clear, strong, practical mind) are rejected as utterly
unworthy of his earlier years, unworthy of the coadjutor of
Washington and Hamilton. But Carolina cannot deprive
him of her own homage from 1787 to 1827, freely, gladly
yielded to the object of her esteem, admiration and grati¬
tude. Mr. Madison may well leave her to reconcile this
inconsistency of sentiment and conduct.
NOTE U. PAGE 71.
Two of the most eminent men of Carolina were the advo¬
cates of the Tariff of 1816. In reply to Mr. Randolph's
motion to strike out a clause of the bill, Mr. Calhoun said,
that, till then, the debate had been confined to the degree
of protection to cotton and woollen manufactures : that the
motion of Mr. ft- went on the ground that the manufacte-
20
1SS
rers ought not to be encouraged : that the subject was Con¬
nected with the security of the country : that without manu¬
factures, industry would be without the means of produc¬
tion : that manufactures, agriculture and commerce combi¬
ned, were indispensable to a flourishing state of the currency
and finances : that a system of internal improvements should be
added: that liberty and union were inseparable : that Dis¬
union comprehended almost the sum of our political dangers.
(Nat. Intel!. 22d April, 1816.) On the 8th April, 1816,
Mr. Randolph moved to postpone the Tariff bill, on the
ground, that the subject had, not been properly matured by the
Treasury Department: and he therefore moved, that the
old and new bills should be printed side by side, that each
member might consult his constituents. Mr. Lowndes denied
the charge, he said that circulars had been sent all over
the country, and that the bill would be beneficial to the ge¬
neral interests of the country Mr. R's motion was lost, by
a vote of 47 for, and 95 against it.—(Times, 8th April,
1816). It is certain then, that Mr. Lowndes and Mr. Cal¬
houn were decided advocates of the Tariff of 1816, and that
neither they nor Mr. Randolph imagined the protective system
to be unconstitutional They never doubted on the subject;
for if they had, we know that they would have acted on the
jnoble principle of Judge Chase, " Whatever is unconstitution¬
al is inexpedient." Show me then the Carolina Statesman
of the present day, opposed to the Tariff principle, who is to
compare with them.
Carolina says, that she is contending for principle : all the
advocates of her Resolutions of '25, '27 and '28 hold the
same language. The Resolutions of '25 and '27 place in¬
ternal improvements on the same footing of principle, as the
Tariff. Indeed it seems impossible to deny, both upon
principle and precedent, that internal improvement stands
upon inferior ground to the Tariff, as a constitutional mea¬
sure. And yet, Carolina sends Mr. M'Duffie as a Repre¬
sentative, and gives her vote to Mr. Calhoun, as Vice Pre¬
sident, when she knows, that they are among the ablest
and most illustrious advocates of internal improvement. Is
tuis the consistency of principle ? As a Carolinian, I
feel mortified at such a specimen of inconsistency. Asa
pil.i.:en of the Union, I rejoice that the State pride of Ca-
roein.v has been victorious over her State principles :
that Carolina is too National to sacrifice on the altar of
Sta te rights, the most distinguished of her Public Men.
May they long be spared to honor and adorn Carolina,
against, her principles, to dignify, illustrate and bless the Union,
according to the enlarged views and national policy of those
12$
" immortal Patriots and Statesmen," Washington, Madison
and Hamilton !
Gen. Hayne, in his remarks on presenting the Protest of
this State, to the Senate of the United States, on the 10th
February last, refers to the letter of Mr. Jefferson to Mr,
Giles, of 26th Dec. 1825, and remarks, " After this, what
candid man will pretend to doubt the opinion of Mr. Jeffer¬
son ? If it can be shown, that on any previous occasion, Mr.
Jefferson used language on this subject, susceptible of mis¬
construction, here is conclusive proof that he died, as he lived
" true to the faith." I would refer my friend, Gen. Hayne,
to Mr. Jefferson's Messages of Dec. 1801, Dec. 1803, and
Nov. 1808 : and ask, in his own language, " After these,
what candid man can doubt Mr. Jefferson's opinion" of the
power of Congress ? Who would not rather have the official
sentiments of Mr. Jefferson, in the responsible station of Pre¬
sident, in 1801 and 1808, his first and last annual messages,
than his opinion, as a private citizen, in 1825 ? The former is
public official exposition, the latter only private indi¬
vidual judgment.
But let us grant, that Mr. Jefferson meant that Congress
did not possess the protective power, through the Revenue
system; yet it must be granted, that he did recognize a
protective power in Congress. If so, what was its nature ?
If it does not exist under the shelter of duties, where does
it reside ? Is it to be found in the form of prohibitions of
rival articles ? But the prohibitory power is a part of the
power to regulate trade, and of the system of duties : and
if you can prohibit in toto by a duty, amounting to prohibi¬
tion, you can exercise the same species of power in any less
degree : and therefore, you may ascend step by step, from
a small beginning, up to the point of prohibition. But, if
not found in this form, is it in the form of premiums and
pecuniary bounties ? If so, then it follows, that having
authority thus to appropriate the public money, Congress
would have the unquestionable power to lay duties for the
purpose. Thus it cannot be denied, that the revenue sys¬
tem would be made subservient to the promotion of manu¬
factures : and assuredly the duty would be laid, if wisely
laid, with a view to their encouragement in both forms.
Thus we might go through the whole list of the means of
protection, and every one would be found an inseparable
part of the general scheme of regulating commerce, and of
laying duties. As then Mr. Jefferson did acknowledge a pro¬
tective power in Congress, it is not very material to the ma¬
nufacturer, what form it assumes. But, if it be granted,
that the end (protection and encouragement) may be law-
124.
fully attained by Congress, (and who can deny this, that
reads Mr. Jefferson's Messages, p. 66, 67) then it is an
obvious consequence, that all the natural, customary modes
are placed in the hands of Congress, as means, among whieh
they are to exercise the power of selection.
I cannot forbear to notice here the argument against the
propective system, founded on the 10th Sect, of 1st Art. of
the Constitution. I had regarded it as a felo de se, according
to every rule of good sense and of logic, before I read the
confirmation of my own view in Mr. Madison's Letter of 18th
Sept. 1828. There is another view, however, founded on
the very argument of my opponents, which is to my mind
conclusive in favor of the protective power, under the reve¬
nue system. Let us grant, that the object of the Conven¬
tion, in the clause in question, was to enable the States to
protect their own manufactures: and the conclusion is irresis¬
tible, that such protection was regarded as only a part of a
national scheme. On what ground, are the State laws res¬
pecting the election of Senators and Representatives, sub¬
jected to the controul of Congress, (Art. 1, S. 4.) but that
this power is a portion of national power, thus entrusted to
the States, subject to the appellate jurisdiction of Congress,
as the Legislative Depository of national power. On what
principle then are the laws of a State, laying duties for the
protection of its own manufactures, subjected to the controul
of Congress, but that this also being a portion of national
power, ^part of a general system, the supervising authority
must be in the Union. But the argument does not stop
here. Grant that the portion of power thus vested is na¬
tional, and therefore, properly controllable by Congress ;
yet the end, for which the power is used as a means, is ac¬
cording to the position of the enemies of the protective syse
tem, purely local and domestic, not general and national.
And yet the duty laid for such au pbject, is paid, not in the
State, but into the National Treasury. This disposition of
the money demonstrates the end to be national, as well as
the means. For, if Congress have the power to protect
manufactures under the revenue system, then both the
means and end being national, there is consistency in subject¬
ing the State laws to the revision of Congress, and in ap¬
propriating the sum raised, as a part of the national revenue.
But if Congress have not the protective power, through the
medium of the revenue system, where is the consistency,
the justice, the common sense, of using such means, for such.
an end, and of applying local revenue to national purposes ?
Such, however, is the reductio ad absurdum, to which the
construction of this clause by the adversaries of the Tariff,
126
leads us. Nor must we forget, that according to the above
view, they ascribe to the Framers of the Constitution, a
monstrous inconsistency ; and according to Mr. Madison's
answer to the same reasoning, they attribute to the same
illustrious men, an act of little less than downright folly.
NOTE f PAGE 95.
I copy here the following passage of the same letter'
that it may not be said, I shunned it on account of the cha*
racter ascribed by Carolina to the 19th Congress, so differ"
ent from that of the Congress of 1783, as drawn by. the
pen of Washington :
" If after all a spirit of disunion, or a temper of obstina-
cy or perverseness should manifest itself in any of the
States ; if such an ungracious disposition should attempt to
frustrate all the happy effects that may be expected to flow
from the Union ; if there should be a refusal to comply
with the requisitions ; and if that refusal should revive all
those jealousies, and produce all those evils, which are now
happily removed ; Congress, who have in all their transac¬
tions shown a great degree of magnanimity and justice, will
stand justified in the sight of God and man : and the State
alone, which puts itself in opposition to the aggregate wisdom
of the Continent, and follows such mistaken and pernicious
counsels, will be responsible for all the consequences."
Let not Carolina flatter herself, that her opinion of the
want of magnanimity and justice in the Congress of 1828,
will justify her in the eyes of the world. They will con¬
demn her on Washington's principle, that the "aggregate
Wisdom of the continent" is against her ; or Jefferson's, of
" absolute acquiescence in the decisions of the majority
or Charles Pinckney's, that " so inconsiderable a minority
should be obliged to yield and on that of George M'Duf-
$e, that " the Tariff act is the act of the people." And
let Caroliaa remember, that if she objects to the Tariff of
1828, as unjust and oppressive, she objects to it on political,
not on constitutional grounds ; and in such case, her only re¬
medy is petition by the people, the repealing power of Con¬
gress, and the elective franchise. But if she insist, that her
objection is to its constitutionality, she must remember, that
she cannot charge Congress from 1789 to 1820, with igno¬
rance and incapacity, or with a want of justice and magnan¬
imity : and yet her opposition and resistance, if right on Con¬
stitutional grounds, affect equally every Congress, from 1789
to 1828; for whether the protective duty be one cent or fifty,
is immaterial.
126
POSTSCRIPT.
I had intended to complete the published Speech,
by adding the views taken in one part of the Speech
as delivered on the second day, as to the import¬
ance, and indeed necessity (on a comprehensive
view of the permanent policy of this country) of an
extensive and growing manufacturing system. My
object was to show, that both theory and experi¬
ence justified the conclusion, that this country
could not possibly be as great, prosperous and hap¬
py, without manufactures as with them : that whe¬
ther we looked at home or abroad, this was equally
true: that manufactures were inseparable from the
commercial system; and that the promotion of ma¬
nufactures was one of the most efficient, natural
and well established modes of promoting commerce:
^hat the manufacturing interest was, therefore, es¬
sentially and permanently, a national, not a sec¬
tional interest: and that to encourage it was at
once the duty of the Government, and the interest
of the People. The greater importance, however,
of the two other subjects, (the Constitutionality of
the Tariff, and the doctrine of State Sovereignty)
determined me to give them the preference : and
when I had finished them, I not only found, that I
could not spare the time to do more, but that to
add any more to a Pamphlet already of 140 pages
was absolutely out of the question.
TABLE OF CONTENTS
OF THE ORATION-
Tag*.
Dedication to the People of South-Carolina* - 2
Introduction, 3
The Subject—Union. - - - 4
Sources of argument, speculation and experience, - 5
Warnings from other countries, - 7
Principle of Union in our system, - 9
Do. " Renovation, - 10
Do. " Mutual connection and interest, - 11
Do. " Intercourse with each other, - 14
Do. of our foreign connections, - - 15
Do. of difference of opinion, - - 16
Conclusions, - - - - -17
Disunion supposed, - - 17
Immediate effects, - 19
Jealousy of interests and rights, - 20
Danger from the military character and ambition, - 21
Ruinous consequences, - - - 22
Address to the Cincinnati, 23
Influence of party spirit, - - 24
Motives and materials for ambition, - 25
Fatal results of Disunion, - 26
Blessings of continued Union, - - 27
Address—Duties of Americans, - 29
Condition and prospects of do. - - - 31
Conclusion, - - 32
TABLE OF CONTENTS
OF SPEECH* Ac.
Address to People of South Carolina, 3
Protest of T. S. Grimke, 17th Dec. 1827, - 9
Resolutions of Do. 12th Dec. 1828, - - IS
Speech of Do. in Dec. 1828, - - 19
Introduction to speech, - - 19
Present Situation of So. Ca. - - 21
Authority of Cotemporaneous Expositions, 22
Judiciary under the Slate Constitution to decide the £ ^
Constitutionality of a Law, - )
Abuse and Usurpation of Power, how regarded by ) qa
the Framer» of the Constitution, - I
128
Page-
Decisions of So. Ca. State Courts against acts of the ) 2-
Legislature and Governor as unconstitutional, $
Conclusion from these Judgments, - 28
Collection of other Cases, - - 29
Same view as to National Constitution, 30
Origin of a National Judiciary, and its duties & objects, 30
Adjudications of Courts of the United States, as to > _ .
Constitutionality of Legislative or Executive acts J
1. As to Acts of Congress, - - - 34
2. As to Acts of the President, - - - 36
3. As to Acts, &c. of States, - 36
4. As to Miscellaneous Cases, - 38
Nature and Number of these Judgments, 39
Approved by the Nation and the States, 41
The Consequences, - - 42
Constitutionality of Tariff Act for Supreme Court, 4S
Tariff does not affect the Sovereign rights of So. Ca. 44
Shall a Sovereign State submit to it ? - - 45
Character of the Supreme Court, - - 46
How the Question can be tried, - 48
Constitutionality of Tariff examined as a Question of fact, 4£
Tariff not a palpable breach, - - 49
Our Duty, - 50
Constitutionality of Tariff a question of Construction, 51
What is Cotemporaneous Exposition, - 51
Union between Manufactures and Revenue system > ^
and Regulation of Trade, natural and indissoluble, $
Illustrated by Cotton Trade, - - 54
Members of Convention afterwards Members of Ad-?
ministration, or of Congress, - )
State rights Party of 1788, - - 55
Leading acts of the 1st Congress, and their fitness, 66
Actual Manufactures of United States, 1789, - 68
Petitions ef Manufacturers in 1789, - - 58
Proceedings of Congress thereon, - 59
1st and 2d Acts of First Congress, - - 60
Conclusions from foregoing views, - - 61
Other proofs of notoriety of claim to the Protective
Power, -
Petitions of Manufacturers to 2d Session of 1st Con¬
gress, in January, 1790,
Alexand r Hamilton's Report on Manufactures, - 68
Conclusions from it, - 65
jProofs from the Presidents Messages from 1790 to 1823, 66
Conclusions therefrom, - 70
Sovereignty, Foreign or Domestic, • * 72
63
129
Page.
Case of England and Scotland, - 12
Case of our own Union, * - - - 75
Consequences of our Annulling and Resisting the Law, 76
1st. As to other Nations, - 78
Fatal effects on ourselves without war, - - 78
The same with war, - - - 79
Foreign dependence inevitable, - 80
Carolina judging her sister States, - 81
State Sovereignty tested by Constitution of U. S. 82
Charles Pinckney, on State Sovereignty, 86
George M'Duffie on the same, - 88
The same on the radical doctrine, each party has a ) qq
right to judge for itself, - )
Followed out to its consequences, - 90
A libel on the Convention of 1787, - 92
The Condemnation of Carolina, <• 93
Conclusion. - -- -- -- 99
TABLE OF NOTES.
A. p. 21. Parental character of the General Government, 98
B. p. 23. On cotemporaneous exposition, - 99
C. p. 26. On the protective power of Courts, - 101
D. p. 35. Resolution of South Carolina of 1821, as ) in«
to Bank U. S. - - * J
E. p. 35. Do. in Virginia, of 1819, - 103
F. p. 38. To Osborn vs. B. U. S. - - 106
G. p. 40. Schedule of decisions of Supreme Court, 106
H. p. 40. As to Weston vs. City Council, - 109
I. p. 43. u 12 Amendments proposed in 1789. 109
K. p. 43. " Governor's Message, Nov. 1828, and ) .qq
the Clergy case in Virginia, - $
L. p. 44. As to repeal of a void law, - - 110
M. p. 45. " the motion of a State's being dishon- ) m
ored as a party to a cause, - $
N. p. 46. List of Judges of Supreme Court, - 113
O. p. 47. Noble sentiments of Judges of S. C. 114
P. p. 53. As to the term "regulate trade," - 119
Q. p. 54. u As to the duty on Cotton, - 119
R. p. 56. Character of Marshall's Life of Washington} 120
S. p. 65. Judge Burke, - - - 121
T. p. 65. Mr. Madison's Letter on the Tariff, - 121
U. p. 71. Mr. Calhoun and Mr. Lowndes—Mr. Jef- )
ferson's opinions and 10th § of 1st Art. of C. U. S. 5
f. p. 95. Washington's sentiments as to a refracto- )
ry State, - - , - J u*