JANUARY, 1830.]

Mr. Foot's Resolution—Nullification.

[SENATE.

with a generous zeal, which did not suffer | to which the States are parties, as limited by the them to stop to calculate their interest in the plain sense and intention of the instrument constidispute. Favorites of the mother country, tuting that compact, as no further valid than they possessed of neither ships nor seamen to create are authorized by the grants enumerated in that commercial rivalship, they might have found in compact, and that, in case of a deliberate, palpable, their situation a guarantee that their trade and dangerous exercise of other powers, not granted would be forever fostered and protected by by the said compact, the States who are parties Great Britain. But trampling on all consider thereto have the right, and are in duty bound, to ations, either of interest or of safety, they for maintaining within their respective limits, the interpose for arresting the progress of the evil, and rushed into the conflict, and, fighting for prin- authorities, rights, and liberties, appertaining to ciple, perilled all in the sacred cause of free-them." dom. Never was there exhibited, in the history of the world, higher examples of noble daring, dreadful suffering, and heroic endurance, than by the whigs of Carolina, during that revolution. The whole State, from the mountains to the sea, was overrun by an overwhelming force of the enemy. The fruits of industry perished on the spot where they were produced, or were consumed by the foe. The "plains of Carolina" drank up the most precious blood of her citizens! Black and smoking ruins marked the places which had been the habitations of her children! Driven from their homes, into the gloomy and almost impenetrable swamps, even there the spirit of liberty survived, and South Carolina (sustained by the example of her Sumters and her Marions) proved by her conduct, that, though her soil might be overrun, the spirit of her people was invincible.

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In addition to these resolutions, the General Assembly of Virginia "appealed to the other States, in the confidence that they would concur with that Commonwealth that the acts aforesaid [the alien and sedition laws] are unconstitutional, and that the necessary and proper measures would be taken by each for co-operating with Virginia in maintaining unimpaired the authorities, rights, and liberties, reserved to the States, respectively, or to the people."

The Legislatures of several of the New England States having, contrary to the expectation of the Legislature of Virginia, expressed their dissent from these doctrines, the subject came up again for consideration, during the session of 1799, 1800, when it was referred to a Select Committee, by whom was made that celebrated report which is familiarly known as "Madison's Report," and which deserves to last as long as the constitution itself. In that report, which was subsequently adopted by the Legislature, the whole subject was deliberately re-examined, and the objections urged against the Virginia doctrines carefully considered. The result was, that the Legislature of Virginia re-affirmed all the principles laid down in the resolutions of 1798, and issued to the world that admirable report which has stamped the character of Mr. Madison as the preserver of that constitution which he had contributed so largely to create and establish. I will here quote, from Mr. Madison's report, one or two passages which bear more immediately on the point in controversy:

The Senator from Massachusetts, in denouncing what he is pleased to call the Carolina doctrine, has attempted to throw ridicule upon the idea that a State has any constitutional remedy, by the exercise of its sovereign authority, against a gross, palpable, and deliberate violation of the constitution." He calls it "an idle" or "a ridiculous notion," or something to that effect, and added, it would make the Union "a mere rope of sand." Now, sir, as the gentleman has not condescended to enter into any examination of the question, and has been satisfied with throwing the weight of his authority into the scale, I do not deem it necessary to do more than to throw into the opposite scale the authority on which South Carolina relies, and there, for the present, I am perfectly willing to leave the controversy. The South Carolina doctrine, that is to say, the doctrine contained in an exposition reported by a committee of the Legislature in December, 1828, and published by their authority, is the good old Republican doctrine of '98; the doctrine of the celebrated "Virginia Resolutions" of that year, and of "Madison's Report" of "It appears to your committee to be a plain '99. It will be recollected that the Legislature principle, founded on common sense, illustrated by of Virginia, in December, '98, took into con- common practice, and essential to the nature of comsideration the alien and sedition laws, then pacts, that, where resort can be had to no tribunal considered by all Republicans as a gross viola-superior to the authority of the parties, the parties tion of the Constitution of the United States, and on that day passed, among others, the following resolution:

"The General Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact

"The resolution, having taken this view of the federal compact, proceeds to infer that, in case of other powers, not granted by the said compact, the a deliberate, palpable, and dangerous exercise of States, who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.'"

themselves must be the rightful judges, in the last resort, whether the bargain made, has been pursued

or violated. The Constitution of the United States was formed by the sanction of the States, given by each, in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the constitution, that it rests on this legitimate and solid

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Mr. Foot's Resolution Nullification.

foundation. The States, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows, of necessity, that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must, themselves, decide in the last resort, such questions as may be of sufficient magnitude to require their interposition."

"The resolution has guarded against any misapprehension 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.' It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which

the constitution was established."

[JANUARY, 1830. contained, an annihilation of the State Governments, and the erection, upon their ruins, of a General consolidated Government, will be the inevitable consequence. That the principle and construction contended for, by several of the State Legislatures, that the General Government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the Government, and not the constitution, would be the measure of their powers. That the several States who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and, that a nullification, by those sovereignties, of all unauthorized acts, done under color of that instrument, is the rightful remedy."

"But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous naTime and experience confirmed Mr. Jefferture. It specifies the object of the interposition, son's opinion on this all-important point. In which it contemplates to be, solely, that of arresting the year 1821, he expressed himself in this emthe progress of the evil of usurpation, and of main-phatic manner: "It is a fatal heresy to suptaining the authorities, rights, and liberties, appertaining to the States, as parties to the constitution." "From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions, and recollecting the genuine source and object of the federal constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the constitution, could not justify the parties to it in interposing, even so far as to arrest the progress of the evil, and thereby to preserve the constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the State constitutions, as well as a plain denial of the fundamental principles on which our independence itself was declared."

pose that either our State Governments are superior to the Federal, or the Federal to the State; neither is authorized literally to decide which belongs to itself or its co-partner in Government; in differences of opinion, between their different sets of public servants, the appeal is to neither, but to their employers, peaceably assembled by their representatives in convention." The opinions of Mr. Jefferson, on this subject, have been so repeatedly and so solemnly expressed, that they may be said to have been the most fixed and settled convictions of his mind.

lature of Virginia, in December, 1825, in reIn the protest prepared by him for the Legis spect to the powers exercised by the Federal Government in relation to the Tariff and Internal Improvements, which he declares to be But, sir, our authorities do not stop here." usurpations of the powers retained by the The State of Kentucky responded to Virginia, and, on the 10th of November, 1798, adopted those celebrated resolutions, well known to have been penned by the author of the Declaration of American Independence. In those resolutions, the Legislature of Kentucky declare that the Government created by this compact was not made the exclusive or 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 of the mode and measure of redress."

At the ensuing session of the Legislature, the subject was re-examined, and, on the 14th of November, 1799, the resolutions of the preceding year were deliberately re-affirmed, and it was, among other things, solemnly declared, "that, if those who administer the General Government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein

States, mere interpolations into the compact, and direct infractions of it," he solemnly reasserts all the principles of the Virginia resolutions of '98, protests against "these acts of the Federal branch of the Government as null and void, and declares that, although Virginia would consider a dissolution of the Union as among the greatest calamities that could befall them, yet it is not the greatest. There is one yet greater: submission to a Government of unlimited powers. It is only when the hope of this shall become absolutely desperate, that further forbearance could not be indulged."

In his letter to Mr. Giles, written about the same time, he says:

"I see as you do, and with the deepest affliction, the rapid strides with which the Federal branch of tion of all the rights reserved to the States, and the our Government is advancing towards the usurpaconsolidation in itself of all powers, foreign and do mestic, and that, too, by constructions which leave no limits to their powers, &c. Under the power to regulate commerce, they assume indefinitely that also over agriculture and manufactures, &c. Under the authority to establish post roads, they claim

JANUARY, 1830.]

Mr. Foot's Resolution—Nullification.

that of cutting down mountains for the construction of roads and digging canals, &c. And what is our resource for the preservation of the constitution? Reason and argument? You might as well reason and argue with the marble columns encircling them, &c. Are we then to stand to our arms, with the hot-headed Georgian? No-[and I say no, and South Carolina has said no]-that must be the last resource. We must have patience and long endurance with our brethren, &c., and separate from our companions only, when the sole alternatives left are a dissolution of our Union with them, or submission to a Government without limitation of powers. Between these two evils, when we must make a choice, there can be no hesitation."

Such, sir, are the high and imposing authorities in support of the "Carolina doctrine," which is, in fact, the doctrine of the Virginia resolutions of 1798.

[SENATE.

in conscience to declare, lest the blood of those who shall fall in the execution of this measure shall be on my head, that I consider this to be an act which directs a mortal blow at the liberties of my country; an act containing unconstitutional provisions, to which the people are not bound to submit, and to which, in my opinion, they will not submit."

And the Senator from Massachusetts, himself, in a speech delivered on the same subject, in the other House, said: "This opposition is constitutional and legal; it is, also, conscientious. It rests on settled and sober conviction, that such policy is destructive to the interests of the people, and dangerous to the being of the Government. The experience of every day confirms these sentiments. Men who act from such motives are not to be discouraged by trifling obstacles nor awed by any dangers. They know the limit of constitutional opposition; up to that limit, at their own discretion, they will walk, and walk fearlessly." How "the being of the Government was to be endangered by "constitutional opposition to the embargo," I leave to the gentleman to explain.

Sir, at that day the whole country was divided on this very question. It formed the line of demarcation between the federal and republican parties, and the great political revolution which then took place turned upon the very question involved in these resolutions. That question was decided by the people, and by that decision the constitution was, in the Thus, it will be seen, said Mr. H., that the emphatic language of Mr. Jefferson, "saved at its South Carolina doctrine is the republican doclast gasp." I should suppose, sir, it would re- trine of '98; that it was first promulgated by quire more self-respect than any gentleman the fathers of the faith; that it was mainhere would be willing to assume, to treat light- tained by Virginia and Kentucky in the worst ly doctrines derived from such high sources. of times; that it constituted the very pivot on Resting on authority like this, I will ask gen- which the political revolution of that day tlemen whether South Carolina has not mani- turned; that it embraces the very principles fested a high regard for the Union, when, un- the triumph of which, at that time, saved the der a tyranny ten times more grievous than the constitution at its last gasp, and which New alien and sedition laws, she has, hitherto, gone England statesmen were not unwilling to adopt, no further than to petition, remonstrate, and when they believed themselves to be the vicsolemnly to protest against a series of measures tims of unconstitutional legislation. Sir, as to which she believes to be wholly unconstitu- the doctrine that the Federal Government is tional, and utterly destructive of her interests? the exclusive judge of the extent, as well as Sir, South Carolina has not gone one step fur- the limitations of its powers, it seems to me to ther than Mr. Jefferson himself was disposed be utterly subversive of the sovereignty and to go, in relation to the very subject of our independence of the States. It makes but litpresent complaints; not a step further than tle difference, in my estimation, whether Conthe statesmen from New England were dis-gress or the Supreme Court are invested with posed to go under similar circumstances; no farther than the Senator from Massachusetts himself once considered as within "the limits of a constitutional opposition." The doctrine that it is the right of a State to judge of the violations of the constitution on the part of the Federal Government, and to protect her citizens from the operation of unconstitutional laws, was held by the enlightened citizens of Boston, who assembled in Faneuil Hall, on the 25th January, 1809. They state, in that celebrated memorial, that "they looked only to the State Legislature, who were competent to devise relief against the unconstitutional acts of the General Government. That your power [say they] is adequate to that object, is evident from the organization of the confederacy."

A distinguished Senator from one of the New England States, (Mr. Hillhouse,) in a speech delivered here, on a bill for enforcing the embargo, declared: "I feel myself bound

this power. If the Federal Government, in all or any of its departments, are to prescribe the limits of its own authority, and the States are bound to submit to the decision, and are not to be allowed to examine and decide for themselves, when the barriers of the constitution shall be overleaped, this is practically "a Government without limitation of powers." The States are at once reduced to mere petty corporations, and the people are entirely at your mercy. I have but one word more to add. In all the efforts that have been made by South Carolina to resist the unconstitutional laws which Congress has extended over them, she has kept steadily in view the preservation of the Union, by the only means by which she believes it can be long preserved—a firm, manly, and steady resistance against usurpation. The measures of the Federal Government have, it is true, prostrated her interests, and will soon involve the whole South in irretrievable ruin.

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Mr. Foot's Resolution—Nullification.

But even this evil, great as it is, is not the chief ground of our complaints. It is the principle involved in the contest-a principle which, substituting the discretion of Congress for the limitations of the constitution, brings the States and the people to the feet of the Federal Government, and leaves them nothing that they can call their own. Sir, if the measures of the Federal Government were less oppressive, we should still strive against this usurpation. The South is acting on a principle she has always held sacred-resistance to unauthorized taxation. These, sir, are the principles which induced the immortal Hampden to resist the payment of a tax of twenty shillings. Would twenty shillings have ruined his fortune? No; but the payment of half twenty shillings, on the principle on which it was demanded, would have made him a slave. Sir, if, in acting on these high motives, if, animated by that ardent love of liberty which has always been the most prominent trait in the Southern character, we should be hurried beyond the bounds of a cold and calculating prudence, who is there, with one noble and generous sentiment in his bosom, that would not be disposed, in the language of Burke, to exclaim, "You must pardon something to the spirit of liberty!"

WEDNESDAY, January 27.

[JANUARY, 1830.

ings of Massachusetts! If he means that I spoke with dissatisfaction or disrespect of the ebullitions of individuals in South Carolina, it is true. But, if he means that I had assailed the character of the State, her honor, or patriotism; that I had reflected on her history or her conduct; he had not the slightest ground for any such assumption. I did not even refer, I think, in my observations, to any collection of individuals. I said nothing of the recent conventions. I spoke in the most guarded and careful manner, and only expressed my regret for the publication of opinions which I presumed the honorable member disapproved as much as myself. In this it seems I was mistaken. I do not remember that the gentleman has disclaimed any sentiment, or any opinion, of a supposed anti-union tendency, which on all, or any of the recent occasions, has been expressed. The whole drift of his speech has been rather to prove that, in divers times and manners, sentiments equally liable to my objec tion have been promulgated in New England. And one would suppose that his object, in this reference to Massachusetts, was to find a precedent to justify proceedings in the South, were it not for the reproach and contumely with which he labors, all along, to load these, his own chosen precedents. By way of defending South Carolina from what he chooses to think an attack on her, he first quotes the example of Massachusetts, and then denounces that example in good set terms. This twofold purpose, not very consistent with itself, one would think, was exhibited more than once in the course of his speech. He referred, for inMr. WEBSTER said: In carrying his warfare, stance, to the Hartford Convention. Did he such as it was, into New England, the honor- do this for authority, or for a topic of reable gentleman all along professes to be acting proach? Apparently for both: for he told us on the defensive. He elects to consider me as that he should find no fault with the mere fact having assailed South Carolina, and insists that of holding such a convention, and considering he comes forth only as her champion, and in and discussing such questions as he supposes her defence. Sir, said Mr. W., I do not admit were then and there discussed: but what renthat I made any attack whatever on South dered it obnoxious, was the time in which it Carolina. Nothing like it. The honorable was holden, and the circumstances of the member, in his first speech, expressed opinions country, then existing. We were in war, he in regard to revenue, and some other topics, said, and the country needed all our aid; the which I heard both with pain and with sur- hand of Government required to be strengthprise. I told the gentleman that I was aware ened, not weakened; and patriotism should that such sentiments were entertained out of have postponed such proceedings to another the Government, but had not expected to find day. The thing itself, then, is a precedent; them advanced in it; that I knew there were the time and manner of it only, a subject of persons in the South who speak of our Union censure. Now, sir, I go much further, on this with indifference, or doubt, taking pains to point, than the honorable member. Supposmagnify its evils, and to say nothing of its ben- ing, as the gentleman seems to, that the Hartefits; that the honorable member himself, I ford Convention assembled for any such purwas sure, could never be one of these; and I pose as breaking up the Union, because they regretted the expression of such opinions as he thought unconstitutional laws had been passed, had avowed, because I thought their obvious ten- or to consult on that subject, or to calculate dency was to encourage feelings of disrespect the value of the Union; supposing this to be to the Union, and to weaken its connection. their purpose, or any part of it, then I say the This, sir, is the sum and substance of all I said meeting itself was disloyal, and was obnoxious on the subject. And this constitutes the attack to censure, whether held in time of peace or which called on the chivalry of the gentleman, time of war, or under whatever circumstances. in his opinion, to harry us with such a foray, The material question is the object. Is dissoamong the party pamphlets and party proceed-lution the object? If it be, external circum

Mr. Foot's Resolution Nullification.
The Senate resumed the consideration of Mr.
Foor's resolution.

Mr. Foot's Resolution—Nullification.

stances may make it a more or less aggravated | homage due to American talent, to elevated case, but cannot affect the principle. I do not patriotism, to sincere devotion to liberty and hold, therefore, sir, that the Hartford Conven- the country; or if I see an uncommon endowtion was pardonable, even to the extent of the ment of heaven-if I see extraordinary cagentleman's admission, if its objects were really pacity and virtue in any son of the South-and such as have been imputed to it. Sir, there if, moved by local prejudice, or gangrened by never was a time, under any degree of excite-State jealousy, I get up here to abate the tithe ment, in which the Hartford Convention, or of a hair from his just character and just fame, any other convention, could maintain itself one may my tongue cleave to the roof of my moment in New England, if assembled for any mouth! such purpose as the gentleman says would have Sir, let me recur to pleasing recollections; been an allowable purpose. To hold conven- let me indulge in refreshing remembrances of tions to decide questions of constitutional law! the past; let me remind you that, in early To try the binding validity of statutes, by votes times, no States cherished greater harmony, in a convention! Sir, the Hartford Conven- both of principle and feeling, than Massachution, I presume, would not desire that the hon-setts and South Carolina. Would to God, that orable gentleman should be their defender or harmony might again return! Shoulder to advocate, if he puts their case upon such un-shoulder they went through the revolutiontenable and extravagant grounds.