The Crisis of Eighteen Hundred and Sixty-One in the Government of the United States. / Its Cause, and How It Should Be Met

by Abel D. Streight

Although the grounds for argument to show that this government was established by the people collectively of the whole country, (and not by the several States, as claimed by some,) and that it can only be rightfully altered or abolished by a constitutional majority of the same power that established it, would seem to have been entirely gone over, nevertheless we propose to introduce the additional evidence of that noble, honored statesman, and able constitutional expounder, Daniel Webster.

On the 21st day of January, 1830, Mr. Hayne delivered in the Senate of the United States a very able speech advocating the right of the various States to nullify the laws of Congress in certain contingencies, or what might be more properly called the South Carolina doctrine, embracing the right to nullify the laws of Congress, or declare herself out of the Union at pleasure. His speech was considered a complete succces by the advocates of his sentiments, and was thought by them an unanswerable vindication of those principles, and when Mr. Webster undertook the task of replying to Mr. Hayne, he was met with jeers by the friends of nullication; but as the volume of his reasoning began to unfold itself, all eyes were attentively turned toward the speaker. After proceeding to state the grounds upon which was founded the pretended right to nullify the acts of Congress, Mr. Webster said:

“This leads us to inquire into the origin of this government and the source of its power. Whose agent is it? Is it the creature of the State legislatures, or the creature of the people? If the government of the United States be the agent of the State governments, then they may control it, provided they can agree in the manner of controlling it; if it is the agent of the people, then the people alone can control it, restrain it, modify or reform it. It is observable enough, that the doctrine for which the honorable gentleman contends leads him to the necessity of maintaining, not only that this general government is the creature of the States, but that it is the creature of each of the States severally; so that each may assert the power, for itself, of determining whether it acts within the limits of its authority. It is the servant of four and twenty masters, of different wills and purposes; and yet bound to obey all. This absurdity (for it seems no less) arises from a misconception as to the origin of this government, and its true character. It is, sir, the people’s constitution, the people’s government; made for the people; made by the people; and answerable to the people. The people of the United States have declared that this constitution shall be the supreme law. We must either admit the proposition, or dispute their authority. The States are unquestionably sovereign, so far as their sovereignty is not affected by this supreme law. The State legislatures, as political bodies, however sovereign, are yet not sovereign over the people. So far as the people have given power to the general government, so far the grant is unquestionably good, and the government holds of the people, and not of the State governments. We are all agents of the same supreme power, the people. The general government and the State governments derive their authority from the same source. Neither can, in relation to the other, be called primary; though one is definite and restricted, and the other general and residuary.

“The national government possesses those powers which it can be shown the people have conferred on it, and no more. All the rest belongs to the State governments, or to the people themselves. So far as the people have restrained State sovereignty by the expression of their will, in the constitution of the United States, so far, it must be admitted, State sovereignty is effectually controlled. I do not contend that it is, or ought to be, controlled further. The sentiment to which I have referred propounds that State sovereignty is only to be controlled by its own ‘feelings of justice;’ that is to say, it is not to be controlled at all; for one who is to follow his feelings, is under no legal control. Now, however men may think this ought to be, the fact is, that the people of the United States have chosen to impose control on State sovereignties. The constitution has ordered the matter differently from what this opinion announces. To make war, for instance, is an exercise of sovereignty; but the constitution declares that no State shall make war. To coin money is another exercise of sovereign power; but no State is at liberty to coin money. Again, the constitution says, that no sovereign State shall be so sovereign as to make a treaty. These prohibitions, it must be confessed, are a control on the State sovereignty of South Carolina, as well as of the other States, which does not arise ‘from feelings of honorable justice.’ Such an opinion, therefore, is in defiance of the plainest provisions of the constitution.”

Mr. Webster proceeded to investigate the South Carolina doctrine as it was then termed; he referred to the resolutions of Pennsylvania and Kentucky declaring the tariff laws constitutional, while in South Carolina the same laws were declared to be a palpable, deliberate usurpation of power by Congress; and in speaking of the absurdity of allowing each State to decide in such cases, he said:

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

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

In referring to remarks made by Mr. Hayne, concerning what Mr. Hillhouse should have said about not being bound to obey an unconstitutional law, Mr. Webster says:

“He quotes that distinguished senator as saying, that in his judgment the embargo law was unconstitutional, and that, therefore, in his opinion, the people were not bound to obey it.

“That, sir, is perfectly constitutional language. As unconstitutional law is not binding; but then it does not rest with a resolution or a law of a State legislature to decide whether an act of congress be or be not constitutional. An unconstitutional act of congress would not bind the people of this District although they have no legislature to interfere in their behalf; and, on the other hand, a constitutional law of congress does bind the citizens of every State, although all their legislatures should undertake to annul it, by act or resolution. The venerable Connecticut senator is a constitutional lawyer, of sound principles and enlarged knowledge; a statesman practiced and experienced, bred in the company of Washington, and holding just views upon the nature of our governments. He believed the embargo unconstitutional, and so did others; but what then? Who did he suppose was to decide that question? The State legislature? Certainly not. No such sentiment ever escaped his lips.”