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and none with authority to bind anybody else, and this consti tutional law the only bond of their union! What is such a State of things but a mere connection during pleasure, or, to use the phraseology 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 another of the South Carolina addresses, having premised that the crisis requires “all the concentrated energy of passion,” an attitude of open resistance to the laws of the Union is advised. Open resistance to the laws, then, is the constitutional remedy, the conservative power of the State, which the South Carolina doctrines teach for the redress of political evils, real or imaginary. And its authors further say that, appealing with confidence to the Constitution itself to justify their opinions, they cannot consent to try their accuracy by the courts of justice. In one sense indeed, Sir, this is assuming an attitude of open resistance in favour of liberty. But what sort of liberty? The liberty of establishing their own opinions, in defiance of the opinions of all others; the liberty of judging and of deciding exclusively themselves, in a matter in which others have as much right to judge and decide as they ; the liberty of placing their own opinions above the judgment of all others, above the laws, and above the Constitution. This is their liberty, and this is the fair result of the proposition contended for by the honourable gentleman. Or, it may be more properly said, it is identical with it, rather than a result from it. Resolutions, Sir, have been recently passed by the legislature of South Carolina. I need not refer to them : they go no further than the honourable gentleman himself has gone, and I hope not so far. I content myself, therefore, with debating the matter with him. And now, Sir, what I have first to say on this subject is, that at no time, and under no circumstances, has New England, or any State in New England, or any respectable body of persons in New England, or any public man of standing in New England, put forth such a doctrine as this Carolina doctrine. New England has studied the Constitution in other schools, and under other teachers. She looks upon it with other regards, and deems more highly and reverently both of its just authority and its utility and excellence. The history of her legislative proceedings may be traced. The ephemeral effusions of temporary bodies, called together by the excitement of the occasion, may be hunted up : they have been hunted up. The opinions and votes of her public men, in and out of Congress, may be explored. It will all be in vain. The Carolina doctrine can derive from her neither countenance nor support. She rejects
it now ; she always did reject it; and, till she loses her senses, she always will reject it. The honourable member has referred to expressions on the subject of the embargo law, made in this place, by an honourable and venerable gentleman, now favouring us with his presence.” 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. An 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 practised 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 legislatures? Certainly not. No such sentiment ever escaped his lips. Let us follow up, Sir, this New England opposition to the embargo laws; let us trace it, till we discern the principle which controlled and governed New England throughout the whole course of that opposition. We shall then see what similarity there is between the New England school of constitutional opinions and this modern Carolina school. The gentleman, I think, read a petition from some single individual, addressed to the legislature of Massachusetts, asserting the Carolina doctrine; that is, the right of State interference to arrest the laws of the Ljnion. The fate of that petition shows the sentiment of the legislature. It met no favour. The opinions of Massachusetts were very different. Misgoverned, wronged, oppressed, as she felt herself to be, she still held fast her integrity to the Union. The gentleman may find in her proceedings much evidence of dissatisfaction with the measures of government, and great and deep dislike to the embargo: all this makes the case so much the stronger for her; for, notwithstanding all this dissatisfaction and dislike, she still claimed no right to sever the bonds of the Union. There was heat, and there was anger in her political feeling. Be it so ; but neither her heat nor her anger be
4 This “venerable gentleman” was Senator Hillhouse, of Connecticut.
trayed her into infidelity to the government. The gentleman labours to prove that she disliked the embargo as much as South Carolina dislikes the tariff, and expressed her dislike as strongly. Be it so : but did she propose the Carolina remedy? did she threaten to interfere, by State authority, to annul the laws of the Union? That is the question for the gentleman's consideration. No doubt, Sir, a great majority of the people of New England conscientiously believed the embargo law of 1807 unconstitutional ; * as conscientiously, certainly, as the people of South Carolina hold that opinion of the tariff. They reasoned thus: Congress has power to regulate commerce; but here is a law, they said, stopping all commerce, and stopping it indefinitely. The law is perpetual; that is, it is not limited in point of time, and must of course continue until it shall be repealed by some other law. It is as perpetual, therefore, as the law against treason or murder. Now, is this regulating commerce, or destroying it? Is it guiding, controlling, giving the rule to commerce, as a subsisting thing, or is it putting an end to it altogether? Nothing is more certain than that a majority in New England deemed this law a violation of the Constitution. The very case required by the gentleman to justify State interference had then arisen. Massachusetts believed this law to be “a deliberate, palpable, and dangerous exercise of a power not granted by the Constitution.” Deliberate it was, for it was long continued ; palpable she thought it, as no words in the Constitution gave the power, and only a construction, in her opinion most violent, raised it; dangerous it was, since it threatened utter ruin to her most important interests. Here, then, was a Carolina case. How did Massachusetts deal with it? It was, as she thought, a plain, manifest, palpable violation of the Constitution, and it brought ruin to her doors. Thousands of families, and hundreds of thousands of individuals, were beggared by it. While she saw and felt all this, she saw and felt also, that, as a measure of national policy, it was perfectly futile; that the country was no way benefited by that which caused so much individual distress; that it was efficient only for the production of evil, and all that evil inflicted on ourselves. In such a case, under such circumstances, how did Massachusetts demean herself? Sir, she remonstrated, she memorialized, she addressed herself to the general government, not exactly “with the concentrated energy of passion,” but with her own strong sense, and the energy of sober conviction. But she did not interpose the arm of her own power to arrest the law, and break the embargo. Far from it. Her principles bound her to two things; and she followed her principles, lead where they might. First, to submit to every constitutional law of Congress; and, secondly, if the constitutional validity of the law be doubted, to refer that question to the decision of the proper tribunals. The first principle is vain and ineffectual without the second. A majority of us in New England believed the embargo law unconstitutional ; but the great question was, and always will be, in such cases, Who is to decide this? Who is to judge between the people and the government? And, Sir, it is quite plain, that the Constitution of the United States confers on the government itself, to be exercised by its appropriate department, and under its own responsibility to the people, this power of deciding ultimately and conclusively upon the just extent of its own authority. If this load not been done, we should not have advanced a single step beyond the old Confederation. Being fully of opinion that the embargo law was unconstitutional, the people of New England were yet equally clear in the opinion (it was a matter they did not doubt upon) that the question, after all, must be decided by the judicial tribunals of the United States. Before those tribunals, therefore, they brought the question. Under the provisions of the law, they had given bonds, to millions in amount, and which were alleged to be for. feited. They suffered the bonds to be sued, and thus raised the question. In the old-fashioned way of settling disputes, they went to law. The case came to hearing, and solemn argument; and he who espoused their cause, and stood up for them against the validity of the embargo Act, was none other than that great man, of whom the gentleman has made honourable mention, Samuel Dexter. He was then, Sir, in the fulness of his knowledge and the maturity of his strength. He had retired from long and distinguished public service here, to the renewed pursuit of professional duties; carrying with him all that enlargement and expansion, all the new strength and force, which an acquaintance with the more general subjects discussed in the national councils is capable of adding to professional attainment, in a mind of true greatness and comprehension. He was a lawyer, and he was also a statesman. He had studied the Constitution, when he filled public station, that he might defend it; he had examined its principles, that he might maintain them. More than all men, or at least as much as any man, he was attached to the general government and to the union of the States. His feelings and opinions all ran in that direction. A question of constitutional law, too, was, of all subjects, that one which was best suited to his talents and learning. Aloof from technicality, and unfettered by artificial rule, such a question gave opportunity for that deep and clear analysis, that mighty grasp of principle, which so much distinguished his higher efforts. His very statement was argument; his inference seemed demonstration. The earnestness of his own conviction wrought conviction in others. One was convinced, and believed, and assented, because it was gratifying, delightful, to think, and feel, and believe, in unison with an intellect of such evident superiority. Mr. Dexter, Sir, such as I have described him, argued the New England cause. He put into his effort his whole heart, as well as all the powers of his understanding; for he had avowed, in the most public manner, his entire concurrence with his neighbours on the point in dispute. He argued the cause: it was lost, and New England submitted. The established tribunals pronounced the law constitutional, and New England acquiesced. Now, Sir, is not this the exact opposite of the doctrine of the gentleman from South Carolina? According to him, instead of referring to the judicial tribunals, we should have broken up the embargo by laws of our own ; we should have repealed it, quoad New England; for we had a strong, palpable, and oppressive case. Sir, we believed the embargo unconstitutional ; but still that was matter of opinion, and who was to decide it? We thought it a clear case; but, neverthe. less, we did not take the law into our own hands, because we did not wish to bring about a revolution, nor to break the Union: for I maintain that, between submission to the decision of the constituted tribunals and revolution, or disunion, there is no hiddle ground; there is no ambiguous condition, half allegiance,
5 This famous embargo law was prompted, as a measure of defence, by the sierce commercial war carried on between Great Britain and Napoleon. The former sought with her Orders in Council, the latter, by his Berlin and Milan Decrees, each in cssect interdicting the other from all commerce with neutral powers. As Great Britain was then mistress of the seas, and as Napolcon had all the continent of Europe under his soot, the effect of that war was to cut off the whole foreign trade of the United States. And the purpose of the cmbargo law was to retaliate on both of the European belligerents by totally excluding their ships from all the American ports. This completed the work which the Orders and Decrees asoresaid had begun. I quote from Mr. G. T. Curtis's Life of Daniel Webster: “No measure of the Federal Government, since the adoption of the Constitution, had cver appeared, to most of thoso on whose interests it directly operated, so sudden, so unnecessary, and so oppressive, as the Embargo. It fell upon the Eastern States with a terrific weight. Six towns in New England possessed more than a third of the tonnage of the whole Union. At one blow, this great mass of shipping was rendered almost valueless. The numerous classes, who were dependent on its active employment for their livelihood, were suddenly deprived of their long-accustomed means of earning their daily bread.”—Perhaps I ought to add that, to meet the exigency, President Jefferson called an extra session of Congress in October, 1807; on the 18th of December, sent Congress a message recommending the Embargo; and the bill to that effect became a law on the 22d of the same month. This was sudden indeed!