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

Mr. Webster went on to ask from whence this supposed right of the States came? Where did they get the power to interfere with the laws of the Union? He contended that the notion was founded in a misapprehension of the origin of this government and of the foundation on which it stands. I hold, said he, this to be a popular government, erected by the people, those who administer it responsible to the people, and itself capable of being amended and modified just as the people may choose it should be.

“It is as popular, just as truly emenating from the people, as the State governments. It is created for one purpose; the State governments for another. It has its own powers; they have theirs. There is no more authority with them to arrest the operation of a law of congress, than with congress to arrest the operation of their laws. We are here to administer a constitution emenating immediately from the people, and trusted by them to our administration. It is not the creature of the State governments. It is of no moment to the argument that certain acts of the State legislatures are necessary to fill our seats in this body. That is not one of their original State powers, a part of the sovereignty of the State. It is a duty which the people, by the constitution itself, have imposed on the State legislatures, and which they might have left to be performed elsewhere, if they had seen fit. So they have left the choice of president with electors; but all this does not affect the proposition that this whole government—president, senate and house of representatives—is a popular government. It leaves it still all its popular character. The governor of a State (in some of the States) is chosen not directly by the people for the purpose of performing, among other duties, that of electing a governor. Is the government of the State on that account not a popular government? This government, sir, is the independent offspring of the popular will. It is not the creature of State legislatures; nay, more, if the whole truth must be told, the people brought it into existence, established it, and have hitherto supported it, for the very purpose, amongst others, of imposing certain salutary restraints on State sovereignties. The States cannot now make war; they cannot contract alliances; they cannot make, each for itself, separate regulations of commerce; they cannot lay imposts; they cannot coin money. If this constitution, sir, be the creature of State legislatures, it must be admitted that it has obtained a strange control over the volition of its creators.”

Mr. Webster then proceeded to show that when the people erected this government they gave it a Constitution, and in that Constitution they enumerated the powers which they bestowed on it. That they had made it a limited government, and defined its authority and restrained it to the exercise of such powers as were granted, and all others were reserved to the States or the people. But they did not stop there, being aware that no Constitution could be so plainly written but what there would be a difference of opinion on the construction of some points, consequently they (the people) in order to avoid a recurrence of the difficulties experienced under the old confederacy and render the laws of Congress effective and binding upon all parties without applying to State authority, thus rendering the government complete within itself, declared the Constitution and the laws of the United States, made in pursuance thereof, should be the supreme law of the land. In referring to the tribunal in which to decide questions arising under the Constitution, Mr. Webster said:

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

“This, sir, was the first great step. By this, the supremacy of the constitution and laws of the United States is declared. The people so will it. No State law is to be valid which comes in conflict with the constitution or any law of the United States. But who shall decide this question of interference? To whom lies the last appeal? This, sir, the constitution itself decides also, by declaring ‘that the judicial power shall extend to all cases arising under the constitution and laws of the United States.’ These two provisions, sir, cover the whole ground. They are, in truth, the keystone of the arch. With these it is a government; without them it is a confederacy. In pursuance of these clear and express provisions, congress established, at its very first session, in the judicial act, a mode for carrying them into full effect, and for bringing all questions of constitutional power to the final decision of the supreme court. It then, sir, became a government. It then had the means of self-protection; and but for this, it would, in all probability, have been now among things which are passed. Having constituted the government, and declared its powers, the people have further said, that since somebody must decide on the extent of these powers, the government shall itself decide—subject always like other popular governments, to its responsibility to the people. And now, sir, I repeat, how is it that a State legislature acquires any right to interfere? Who, or what, gives them the right to say to the people, ‘We, who are your agents and servants for one purpose, will undertake to decide, that your other agents and servants, appointed by you for another purpose, have transcended the authority you gave them?’ The reply would be, I think, not impertinent, ‘Who made you a judge over another’s servants. To their own masters they stand or fall.’”

He then went on to show that a State could not make treason against the United States legal, and, says he, when I maintain these sentiments, I am but asserting the rights of the people; I state what they have declared and insisted on as their right to declare it. They have chosen to repose this power in the general government, and I think it my duty to support it like other Constitutional powers.

In referring to the importance of having but one tribunal, whose decisions should be final—Sir, said he:

“If we look to the general nature of the case, could any thing have been more preposterous than to have made a government for the whole Union, and yet left its powers subject, not to one interpretation, but to thirteen or twenty-four interpretations? Instead of one tribunal, established by all, responsible to all, with power to decide for all, shall constitutional questions be left to four and twenty popular bodies, each at liberty to decide for itself, and none bound to respect the decisions of others; and each at liberty, too, to give a new construction, on every new election of its own members? Would any thing, with such a principle in it, or rather with such a destitution of all principle, be fit to be called a government? No, sir. It should not be denominated a constitution. It should be called, rather, a collection of topics for everlasting controversy; heads of debate for a disputatious people. It would not be a government. It would not be adequate to any practical good, nor fit for any people to live under.”

Mr. Hayne, already overborne with the overwhelming and unanswerable arguments, was yet destined to receive the most cutting rebuke from his vanquisher. Mr. Webster said:

“And now, Mr. President, let me run the honorable gentleman’s doctrine a little into its practical application. Let us look at his probable modus operandi. If a thing can be done, an ingenious man can tell how it is to be done. Now, I wish to be informed how this State interference is to be put in practice. We will take the existing case of the tariff law. South Carolina is said to have made up her opinion upon it. If we do not repeal it, (as probably we shall not,) she will then apply to the case the remedy of her doctrine. She will, we must suppose, pass a law of her legislature, declaring the several acts of congress, usually called the tariff laws, null and void, so far as they respect South Carolina, or the citizens thereof. So far, all is a paper transaction, and easy enough. But the collector at Charleston is collecting the duties imposed by these tariff laws—he, therefore, must be stopped. The collector will sieze the goods if the tariff duties are not paid. The State authorities will undertake their rescue: the marshal, with his posse, will come to the collector’s aid; and here the contest begins. The militia of the State will be called out to sustain the nullifying act. They will march, sir, under a very gallant leader; for I believe the honorable member himself commands the militia of that part of the State. He will raise the nullifying act on his standard, and spread it out as his banner. It will have a preamble, bearing that the tariff laws are palpable, deliberate, and dangerous violations of the constitution. He will proceed, with his banner flying, to the custom house in Charleston—