lative councils in the territories, would have been subjected to the revision and control of Congress. If the will of a majority of Congress is to be the supreme law of the land, it is clear the Constitution is a dead letter, and has utterly failed of the very object for which it was designed the protection of the rights of the minority. But when, by the very terms of the compact, strict limitations are imposed on every branch of the federal' government, and it is, moreover, expressly declared that all powers not granted to them "are reserved to the states or the people," with what show of reason can it be contended that the federal government is to be the exclusive judge of the extent of its own powers? A written constitution was resorted to in this country, as a great experiment, for the purpose of ascertaining how far the rights of a minority could be secured against the encroachments of majorities—often acting under party excitement, and not unfrequently under the influence of strong interests. The moment that Constitution was formed, the will of the majority ceased to be the law, except in cases that should be acknowledged by the parties to be within the Constitution, and to have been thereby submitted to their will. But when Congress (exercising a delegated and strictly limited authority) pass beyond these limits, their acts become null and void, and must be declared to be so by the courts, in cases within their jurisdiction; and may be pronounced to be so by the states themselves, in cases not within the jurisdiction of the courts, of sufficient importance to justify such an interference.

But what then? asks the gentleman. A state is brought into collision with the United States, in relation to the exercise of unconstitutional powers; who is to decide between them? Sir, it is the common case of difference of opinion between sovereigns, as to the true construction of a compact. Does such a difference of opinion necessarily produce war? No. And if not among rival nations, why should it do so among friendly states? In all such cases, some mode must be devised, by mutual agreement, for settling the difficulty; and, most happily for us, that mode is clearly indicated in the Constitution itself, and results, indeed, from the very form and structure of the government. The creating power is three fourths of the states. By their decision, the parties to the compact have agreed to be bound, even to the extent of changing the entire form of the government itself; and it follows of necessity, that, in case of a deliberate and settled difference of opinion between the parties to the compact, as to the extent of the powers of either, resort must be had to their common superior, (that power which may give any character to the Constitution they may think proper,) viz., three fourths of the states.

But, it has been asked, why not compel a state objecting to the constitutionality of a law to appeal to her sister states by a proposition to amend the Constitution? I answer, because such a course would, in the first instance, admit the exercise of an unconstitutional authority, which the states are not bound to submit to, even for a day; and because it would be absurd to suppose that any redress would ever be obtained by such an appeal, even if a state were at liberty to make it. If a majority of both houses of Congress should, from any motive, be induced deliberately to exercise "powers not granted," what prospect would there be of "arresting the progress of the evil," by a vote of three fourths? But the Constiution does not permit a minority to submit to the people a proposition for an amendment of the Constitution. Such a proposition can only come from "two thirds of the two houses of Congress, or the legislatures of two 65

VOL. IV.

thirds of the states." It will be seen, therefore, at once, that a minority, whose constitutional rights are violated, can have no redress by an amendment of the Constitution. When any state is brought into direct collision with the federal government, in the case of an attempt, by the latter, to exercise unconstitutional powers, the appeal must be made by Congress, (the party proposing to exert the disputed powers,) in order to have it expressly conferred; and until so conferred, the exercise of such authority must be suspended. Even in case of doubt, such an appeal is due to the peace and harmony of the government. On this subject our present chief magistrate, in his opening message to Congress, says, “I regard an appeal to the source of power, in cases of real doubt, and where its exercise is deemed indispensable to the general welfare, as among the most sacred of all our obligations. Upon this country, more than any other, has, in the providence of God, been cast the special guardianship of the great principle of adherence to written constitutions. If it fail here, all hope in regard to it will be extinguished. That this was intended to be a government of limited and specific, and not general powers, must be admitted by all; and it is our duty to preserve for it the character intended by its framers. The scheme has worked well. It has exceeded the hopes of those who devised it, and become an object of admiration to the world. Nothing is clearer, in my view, than that we are chiefly indebted for the success of the Constitution, under which we are now acting, to the watchful and auxiliary operation of the state authorities. This is not the reflection of a day, but belongs to the most deeply-rooted convictions of my mind. I cannot, therefore, too strongly or too earnestly, for my own sense of its importance, warn you against all encroachments upon the legitimate sphere of state sovereignty. Sustained by its healthful and invigorating influence, the federal system can never fail."

I have already shown, that it has been fully recognized by the Virginia resolutions of '98, and by Mr. Madison's report on these resolutions, that it is not only "the right but the duty of the states" to "judge of infractions of the Constitution," and to interpose for maintaining within their limits the authorities, rights, and liberties, appertaining to them.

Mr. Jefferson, on various occasions, expressed himself in language equally strong. In the Kentucky resolutions of '98, prepared by him, it is declared that the federal government "was not made the exclusive and final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as the mode and measure of redress."

In the Kentucky resolutions of '99, it is even more explicitly declared 'that the several states which formed the Constitution, being sovereign and independent, have the unquestionable right to judge of its infraction, and that nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy."

But the gentleman says, this right will be dangerous. Sir, I insist that, of all the checks that have been provided by the Constitution, this is by far the safest, and the least liable to abuse.

But there is one point of view in which this matter presents itself to my mind with irresistible force. The Supreme Court, it is admitted, may nuilify an act of Congress, by declaring it to be unconstitutional. Can Congress, after such a nullification, proceed to enforce the law, even if

they should differ in opinion from the court? What, then, would be the effect of such a decision? And what would be the remedy in such a case? Congress would be arrested in the exercise of the disputed power, and the only remedy would be, an appeal to the creating power - three fourths of the states- for an amendment to the Constitution. And by whom must such an appeal be made? It must be made by the party proposing to exercise the disputed power. Now, I will ask whether a sovereign state may not be safely intrusted with the exercise of a power, operating merely as a check, which is admitted to belong to the Supreme Court, and which may be exercised every day by any three of its members. Sir, no idea that can be formed of arbitrary power on the one hand, and abject dependence on the other, can be carried farther than to suppose that three individuals, mere men, subject to like passions with ourselves," may be safely intrusted with the power to nullify an act of Congress, because they conceive it to be unconstitutional; but that a sovereign and independent state even the great state of New York is bound, implicitly, to submit to its operation, even where it violates, in the grossest manner, her own rights, or the liberties of her citizens. But we do not contend that a common case would justify the interposition.

This is the "extreme medicine of the state," and cannot become our daily bread.

Mr. Madison, in his Report, says, "It does not follow, however, that because the states, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior occasions.

"The resolution has, accordingly, guarded against any misapprehensions of its object, by expressly requiring, for such an interposition, the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise of powers not granted by it.'

"But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition, which it contemplates to be solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights, and liberties, appertaining to the states, as parties to the Constitution."

No one can read this without perceiving that Mr. Madison goes the whole length, in support of the principles for which I have been contending.

The gentleman has called upon us to carry out our scheme practically. Now, sir, if I am correct in my view of this matter, then it follows, of course, that, the right of a state being established, the federal government is bound to acquiesce in a solemn decision of a state, acting in its sovereign capacity, at least so far as to make an appeal to the people for an amendment of the Constitution. This solemn decision of a state (made either through its legislature or a convention, as may be supposed to be the proper organ of its sovereign will - a point I do not propose now to diseuss) binds the federal government, under the highest constitutional obligation, not to resort to any means of coercion against the citizens of the dissenting state. How, then, can any collision ensue between the federal and state governments unless, indeed, the former should determine to enforce the law by unconstitutional means?

Sir, I will put the case home to the gentleman. Is there any violation

of the constitutional rights of the states, and the liberties of the citizen, (sanctioned by Congress and the Supreme Court,) which he would believe it to be the right and duty of a state to resist? Does he contend for the doctrine " of passive obedience and non-resistance?" Would he justify an open resistance to an act of Congress, sanctioned by the courts, which should abolish the trial by jury, or destroy the freedom of religion, or the freedom of the press? Yes, sir, he would advocate resistance in such cases; and so would I, and so would all of us. But such resistance would, according to this doctrine, be revolution: it would be rebellion. According to my opinion, it would be just, legal, and constitutional resistance. The whole difference between us, then, consists in this: the gentleman would make force the only arbiter in all cases of collision between the states and the federal government; I would resort to a peaceful remedy — the interposition of the state to "arrest the progress of the evil," until such times as "a convention (assembled at the call of Congress or two thirds of the states) shall decide to which they mean to give an authority claimed by two of their organs." Sir, I say, with Mr. Jefferson, (whose words I have here borrowed,) that "it is the peculiar wisdom and felicity of our Constitution to have provided this peaceable appeal, where that of other nations" (and I may add that of the gentleman) " is at once to force."

Mr. WEBSTER, in some closing remarks, said a few words on the constitutional argument, which the honorable gentleman (Mr. Hayne) labored to reconstruct.

His argument consists of two propositions, and an inference. His propositions are

1. That the Constitution is a compact between the states.

2. That a compact between two, with authority reserved to one to interpret its terms, would be a surrender, to that one, of all power whatever 3. Therefore (such is his inference) the general government does not possess the authority to construe its own powers.

Now, sir, who does not see, without the aid of exposition or detection, the utter confusion of ideas involved in this so elaborate and systematic argument?

The Constitution, it is said, is a compact between states: the states, then, and the states only, are parties to the compact. How comes the general government itself a party? Upon the honorable gentleman's hypothesis, the general government is the result of the compact, the creature of the compact, not one of the parties to it. Yet the argument, as the gentleman has now stated it, makes the government itself one of its own creators. It makes it a party to that compact to which it owes its own existence.

For the purpose of erecting the Constitution on the basis of a compact, the gentleman considers the states as parties to that compact; but as soon as his compact is made, then he chooses to consider the general government, which is the offspring of that compact, not its offspring, but one of its parties; and so, being a party, has not the power of judging on the terms of compact.

If the whole of the gentleman's main proposition were conceded to him that is to say, if I admit, for the sake of the argument, tl at the Constitution is a compact between states, the inferences which he draws from that proposition are warranted by no just reason; because, of the

Constitution be a compact between states, still that Constitution, or that compact, has established a government with certain powers; and whether it be one of those powers, that it shall construe and interpret for itself the terms of the compact in doubtful cases, can only be decided by looking to the compact, and inquiring what provisions it contains on this point. Without any inconsistency with natural reason, the government, even thus created, might be trusted with this power of construction. The extent of its powers, therefore, must still be sought for in the instrument itself.

If the old Confederation had contained a clause, declaring that resolutions of the Congress should be the supreme law of the land, any state law or constitution to the contrary notwithstanding, and that a committee of Congress, or any other body created by it, should possess judicial powers, extending to all cases arising under resolutions of Congress, then the power of ultimate decision would have been vested in Congress under the Confederation, although that Confederation was a compact between states; and for this plain reason— that it would have been competent to the states, who alone were parties to the compact, to agree who should decide in cases of dispute arising on the construction of the compact.

For the same reason, sir, if I were now to concede to the gentleman his principal proposition, viz., that the Constitution is a compact between states, the question would still be, what provision is made, in this compact, to settle points of disputed construction, or contested power, that shall come into controversy; and this question would still be answered, and conclusively answered, by the Constitution itself. While the gentleman is contending against construction, he himself is setting up the most loose and dangerous construction. The Constitution declares that the laws of Congress shall be the supreme law of the land. No construction is necessary here. It declares, also, with equal plainness and precision, that the judicial power of the United States shall extend to every case arising under the laws of Congress. This needs no construction. Here is a law, then, which is declared to be supreme; and here is a power established which is to interpret that law. Now, sir, how has the gentleman met this? Suppose the Constitution to be a compact; yet here are its terms; and how does the gentleman get rid of them? He cannot argue the seal off the bond, nor the words out of the instrument. Here they are. What answer does he give to them? None in the world, sir, except that the effect of this would be to place the states in a condition of inferiority; and because it results, from the very nature of things, there being no superior, that the parties must be their own judges! Thus closely and cogently does the honorable gentleman reason on the words of the Constitution. The gentleman says, if there be such a power of final decisions in the general gov ernment, he asks for the grant of that power. Well, sir, I show him the grant I turn him to the very words - I show him that the laws of Congress are made supreme, and that the judicial power extends, by express words, to the interpretation of these laws. Instead of answering this, he retreats into the general reflection, that it must result from the nature of things that the states, being the parties, must judge for themselves.

I have admitted, that, if the Constitution were to be considered as the creature of the state governments, it might be modified, interpreted, or construed, according to their pleasure. But, even in that case, it would be necessary that they should agree. One, alone, could not interpret it conclusively; one, alone, could not construe it; one, alone, could not modify it. Yet the gentleman's doctrine is, that Carolina, alone, may