FEBRUARY, 1833.] Revenue Collection Bill—Nullification-Powers of the Federal Judiciary.

if they do not, there is no way for this Government to compel them, unless by a resort to force, which was not intended.

The President relies on this clause: "This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding," to prove the State courts bound to sustain the United States laws. This is not denied; but not when those laws are in violation of the constitution; and it was not intended that the State judges should have their decisions questioned any more by federal judges, than federal judges should have their opinions questioned by State judges-both were to be final in their sphere. State courts are of general jurisdiction, nothing presumed out of their jurisdiction; federal courts limited. Every thing must be proven to give jurisdiction. Upon general principles, there would be more propriety in the State courts reversing the federal decisions, than the converse, because all courts of limited jurisdiction may be kept within their province by courts of general jurisdiction.

The President, in his proclamation, says, the laws, constitution, and treaties, are the supreme law of the land. This is not a correct view of the constitution. The President seems to consider a law above the constitution, and the treaties subject to it. Now, I understand it to be exactly different. The treaties are not required to be made in pursuance of the constitution, but the laws are.

A treaty may become necessary, impairing, in some instance, the constitution; and it is incident to the war power. The treaty-making power may fairly be considered as an independent substantive one, involving the highest political rights; and, when sanctioned by twothirds of the Senate, binding on the constituted authorities of the United States and the States. And here I will remark, there seems no ground to suppose that the terms "law of the land," mean any thing more than that the constitution, and laws of the United States made in pursuance thereof, and treaties, are, by this clause, made the law of the land of the States, not of the United States; they have no land but the public land; the lex terræ referred to here is the local law; and the federal laws are made a part of the local law, and to be locally administered. So much for the argument of the Senator from Pennsylvania, who seeks to enlarge the powers of the United States by this clause. The last clause, (of the ordinance,) the subject of secession, has been misunderstood by some, and misrepresented by others. The constitution ality of secession, or whether it shall be peaceable or not, is not involved in the principles laid do yn. It is predicated on the assumption of a belligerent posture by the Federal Government

[SENATE.

towards South Carolina. It is not true that any attempt on the part of the General Government to enforce the revenue law is made the condition upon which the secession shall take place. The exception is a very broad one-any attempt, except by the "civil institutions" of the country. This most material qualification has been left out by the President, when adverting to this subject in the proclamation.

This latter clause is considered another violation of the constitution of the United States. It is only the declaration of a purpose, and not the execution of one. There is nothing to be considered but the abstractions contained therein. He said, upon the general right to secede, he would only state what his opinions were; the convention of South Carolina would determine for themselves. He did not think, as a political principle, the Federal Government could recognise this right, simply because no Government, unless it is so agreed upon in its constitution, can recognise that which may lead to its own dissolution. Social compacts, from their nature, imply a perpetuity; political compacts, such as our federal system, do so likewise. The constitution contains stipulations of a binding character to associate, but none to secede. Even admitting the most indubitable and extensive sovereignty to be recognised as belonging to the States, still the Federal Government could not admit the right of the States to secede. Yet if a State shall be constrained, under any circumstances, which I trust may never occur, to discuss this question, whether the circumstances upon which she places her rights will justify her, must of course be for her consideration, not mine. I can scarcely conceive of a state of facts in which secession would not follow a state of things making it immaterial to inquire whether it is peaceable or revolutionary. There are many things which Government cannot formally admit, which necessity forces it to acquiesce in. Thus, for instance, the absolute unqualified right to emigrate cannot be admitted by Government, since the admission of this right might operate exceedingly harsh on the residue of the community, if pushed to extremity; although the Government may have the right to guard against its own dissolution, or an unjust withdrawal of individuals from the common burdens, yet, still, this would be an arbitrary power, and must be recurred to only in the very last resort. To arrest a citizen and confine him, because he proposes to emigrate, would in most involve the Government in more trouble and expense than the detention would compensate for. A father cannot admit the right of a daughter to marry without his consent; yet, if she does marry, he must submit, and make the most of the new relationship of his child. So of suicide: no Government can admit the right of any one to take his own life; yet, if he will destroy himself, you cannot punish him.

cases

I consider that a State has the same right to secede that a citizen has to emigrate. It is, in

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Revenue Collection Bill—Nullification-Powers of the Federal Judiciary. [FEBRUARY, 1833.

fact, only a different mode of doing the same thing. Every citizen of a State may emigrate, and thus destroy the State; in that event, the United States could not take possession of the soil. The Federal Government cannot, in the abstract, admit of secession; nor can a State admit in the abstract the right of emigration, unless covenanted for, as in Connecticut. Yet if a State will secede, and a citizen will emigrate, there is no way to prevent them, but by the exercise of such arbitrary power as will shock the moral sense of a people accustomed to live in a free Government. To make war on a State to keep her in the Union, would be but the extension of the right of hanging a man to prevent his emigration. The States must keep their citizens by wise and liberal policy, wholesome and benevolent laws; and the United States must keep the States from seceding in the same way. The use of force may show the tyrant, but cannot prevent the act.

After all, this ordinance can be considered only in the nature of a lease entry, and ouster, to try title with the manufacturers.

I have thus attempted to prove that our ordinance does not, in any one instance, violate the constitution of the United States.

I had intended to comment on the provisions of this bill, but I will content myself by simply stating the positions. Other gentlemen have discussed them. I will only remark that the precedents referred to are laws requiring the use of force without the body of any State, and which in one instance the President refused to enter, because it was at war with the rights of the State and the first principles of liberty; I mean the Indian intercourse law in the case of Georgia.

The bill is unconstitutional, because it confers the war power on the President.-1st and 8th section of the constitution.

It subjects a citizen to punishment when he has been guilty of no crime, by seizing his property, and compelling him to pay cash duties. 5th article of amendment.

It violates the rights of the people of the State, so far as to give a preference to other ports.-9th section.

It deprives the citizens of South Carolina of the same rights as citizens of other States.-5th

section.

It places the military of the United States above the civil authority of a State.

It confers on the President legislative powers to shut up the port of Charleston.

It gives federal courts jurisdiction of cases which do not arise under the laws and constitution.-2d section, 3d article.

It subjects, without trial or process of law, citizens to be arrested and deprived of their liberty.

It punishes the freedom of speech and of the press.

It authorizes the President to consider the Legislature of a State as a mob, and, by issuing his proclamation, to disperse them by force.

It imposes cruel and unjust fines, and indirectly forfeits the office of State officers, who must obey their own laws, or be disfranchised. It substitutes armed force for the judicial tribunals of the country. It makes a district court an appellate court over the State courts, as to habeas corpus.

It compels persons to prosecute suits in the federal courts, where the court must only nonsuit the party for want of jurisdiction, or take jurisdiction upon the suggestion of a defendant, not warranted by law; thereby making the jurisdiction of the court to depend on the error or wickedness of all defendants.

I have attempted to prove that a State has a right to judge in the last resort of a violation of the constitution; that the proceedings of the State of South Carolina violate no provision of the constitution; that the means resorted to to protect her reserved rights are for her judgment alone; that, strong as they appear, they are warranted by the usurpations of this Government; that the questions presented to the descendants of a glorious ancestry, are liberty or slavery; the constitution with the Union, or the Union without a constitution; that we do not propose to secede, except this Government treats us as a public enemy, and drives us to the necessity of choosing between the halter and the bayonet; that you have the physical right, not the moral one, to pass the bill now under consideration; that it is the assertion of your rights by force against an organized Government, and is therefore war; that, in utter contempt of the fundamental principles of the Government, in derogation of the theory of federalism itself, you substitute force for law, the sword for the ermine; that the sacred principles of justice require you to reduce the taxes, and relieve a patriotic and a suffering people from poverty and oppression.

Knowing as I do (and which is too well attested by the events of the day for any honorable Senator to be ignorant of) that a deep and settled sense of discontent pervades the great mass of the people of South Carolina; that the sober, calm, patriotic population of Virginia, South Carolina, Georgia, Alabama, and Mississippi, revolt at this system of protection, as an invasion of their constitutional rights, I cannot help expressing a deep solicitude that this bill, in its present offensive form, may not receive the sanction of the present Congress.

I shall not run any parallel between this controversy and the revolutionary struggle. The doctrine upon which we rest our rights do not involve such principles. Sir, I regret that suspicions of the personal hatred of the President towards the people of South Carolina should, in the opinion of her public authorities, have rendered it necessary to arm in protection of their personal rights, as well as in defence of their fundamental laws.

Sir, placing myself in a purely selfish position, there is no honorable Senator who has higher motives to preserve the peace and good order

FEBRUARY, 1833.]

Modification of the Tariff-Compromise Bill.

[SENATE

of society. I have nothing to gain, every thing | unfortunate Mary. The regicide court had the to lose by civil commotion.

If the first clause of this bill is retained and passed, I have substantial, well-grounded fears of the consequences. The exception in the last clause in the ordinance is a very extensive one, yet I am not prepared to say this bill will make a case without the exception. If the Senator from Pennsylvania, or any other Senator, supposes that both or either of the representatives of South Carolina on this floor hold that State in the palm of their hands, it is a great mistake. Non nostrum tantas componere lites. The political power of that State is now in the hands of intelligent and independent planters, who think for themselves, and act accordingly. What course will be taken upon the passage of this bill, and omission to modify the tariff, I am not prepared to say. From an article in the leading paper at the capital of that State, one exercising much influence, and reflecting a respectable portion of public opinion, it seems but little attention will be paid to the interference of Virginia, at least in the opinion of that writer. This article, although written with great ability, I am sure does injustice to the motives of our elder and much respected sister. Be that as it may, every motive of benevolence, justice, and prudence, urge us to abstain from rash or unskilful legislation. Who will try the strength of the diamond by the hammer and the anvil? To that impertinent curiosity which wishes to test the virtue of the Union, I would refer to the fate of Anselmo. Believe, me sir, the experiment is a useless, and may prove a fatal

one.

power to overrule the plea to its jurisdiction, by Charles the First. Bonaparte had the power to poison his prisoners at Jaffa. The question I make is, as to your right-moral right-by force, to compel the people of South Carolina to disobey their oaths and violate their most sacred obligations to their State Government.

It may be asked, if this bill be passed, what rights are left to South Carolina? She has the right to slink from her position, and, like a thievish slave, submit to the lash of a master. Nay, she has the further right left her-that right which Lucretia had, after she was dishonored. She has the right left her, which Virginius had, after the decree was pronounced which made his daughter a slave. She has the right which Leonidas had, to dispute the passage of the Persian army at the Straits of Thermopyla. She has the right to resist unconstitutional taxation, as her fathers did; and she has the reserved right, which no Government can take away, nor tyranny destroy-the glorious right to live free or die. Adjourned.

TUESDAY, February 12.

Modification of the Tariff-Compromise Bill. Mr. CLAY rose, and addressed the Senate to the following effect:

I yesterday, sir, gave notice that I should ask leave to introduce a bill to modify the various acts imposing duties on imports. I, at the same I fear interested and malevolent persons have time added, that I should, with the permission lent themselves to the basest and most profligate of the Senate, offer an explanation of the prinpurposes, in misrepresenting both the President ciple on which that bill is founded. I owe, sir, and the dominant party in South Carolina to an apology to the Senate for this course of each other. I know that a very strong convic-action, because, although strictly parliamentary, tion prevails that the Chief Magistrate mixes up personal with public considerations on this topic; that he seeks to indulge in the passion of revenge, and imbrue his hands in the blood of some of the public men of that State. And I know, moreover, that before this shall happen, a generous and spirited population will come to their rescue. The people will not permit their public functionaries, acting under their command, and clothed with the panoply of their power, to be led like criminals to the charnelhouse. Before this will take place, many a brave man will perish. What Senator can desire to see the States pass under the yoke? How long since this body has surrendered their independence to the high behests of the Executive? Balfour and Rawdon have not contended, in the pages of history, for the honor of the execution of Hayne. If blood and carnage flow from this bill, the Senate, in after times, will not be emulous of the share they had in passing it.

Sir, I do not deny the power to pass such a bill. Cain had the power to kill his brother. Elizabeth had the power to take the life of the VOL. XII.-6

it is nevertheless out of the usual practice of this body; but it is a course which I trust that the Senate will deem to be justified by the interesting nature of the subject. I rise, sir, on this occasion, actuated by no motives of a private nature, by no personal feelings, and for no personal objects; but exclusively in obedience to a sense of the duty which I owe to my country. I trust, therefore, that no one will anticipate on my part any ambitious display of such humble powers as I may possess. It is sincerely my purpose to present a plain, unadorned, and naked statement of facts connected with the measure which I shall have the honor to propose, and with the condition of the country. When I survey, sir, the whole face of our country, I behold all around me evidences of the most gratifying prosperity-a prospect which would seem to be without a cloud upon it, were it not that through all parts of the country there exist great dissensions and unhappy distinctions, which, if they can possibly be relieved and reconciled by any broad scheme of legislation adapted to all interests, and regarding the feelings of all sections, ought

Modification of the Tariff-Compromise Bill.

to be quieted; and, leading to which object, any | liberation, the fruit of nine months' labor-bemeasure ought to be well received.

FEBRUARY, 1833.]

Modification of the Tariff-Compromise Bill.

[SENATE.

thought it ought to be brought back again, and | and the gradual reduction of duties shall take placed by the side of other descriptions of wool-place which is contemplated by the first section lens, and made subject to the same reduction of duty as proposed by this section.

Having next read through the third section of the bill, Mr. C. said, that, after the expiration of a term of years, this section laid down a rule by which the duties were to be reduced to the revenue standard which had been so long and so earnestly contended for. Until otherwise directed, and in default of provision being made for the wants of the Government in 1842, a rule was thus provided for the rate of duties thereafter: Congress being, in the mean time, authorized to adopt any other rule which the exigencies of the country or its financial condition might require. That is to say, if, instead of the duty of 20 per cent. proposed, 15 or 17 per cent. of duty was sufficient, or 25 per cent. should be found necessary, to produce a revenue to defray the expenses of an economical administration of the Government, there was nothing to prevent either of those rates, or any other, from being fixed upon; whilst the rate of 20 per cent. was introduced to guard against any failure on the part of Congress to make the requisite provision in due season.

This section of the bill, Mr. C. said, contained also another clause, suggested by that spirit of harmony and conciliation which he prayed might preside over the councils of the Union at this trying moment. It provided (what those persons who are engaged in manufactures have so long anxiously required for their security) that duties shall be paid in ready money; and we shall thus get rid of the whole of that credit system into which an inroad was made in regard to woollens, by the act of the last session. This section further contained a proviso, that nothing in any part of this act should be construed to interfere with the freest exercise of the power of Congress to lay any amount of duties, in the event of war breaking out between this country and any foreign Power.

of this bill, we shall have settled two (if not three) of the great questions which have agitated this country-that of the tariff, of the public lands, and, I will add, of internal improvement also. For, if there should still be a surplus revenue, that surplus might be applied, until the year 1842, to the completion of the works of internal improvement already commenced; and, after 1842, a reliance for all funds for purposes of internal improvement should be placed upon the operation of the land bill, to which he had already referred.

It was not his object, Mr. C. said, in referring to that measure in connection with that which he was about to propose, to consider them as united in their fate, being desirous, partial as he might be to both, that each should stand or fall upon its own intrinsic merits. If this section of the bill, adding to the number of free articles, should become law, along with the reduction of duties proposed by the first section of the bill, it was by no means sure that we should have any surplus revenue at all. He had been astonished, indeed, at the process of reasoning by which the Secretary of the Treasury had arrived at the conclusion that we should have a surplus revenue at all, though he admitted that such a conclusion could be arrived at in no other way. But what was this process? Duties of a certain rate now exist; the amount which they produce is known; the Secretary, proposing a reduction of the rate of duty, supposes that the duties will be reduced in proportion to the amount of the reduction of the duty. Now, Mr. C. said, no calculation could be more uncertain than that. Mr. C. would now take a view of some of the objections which would be made to the bill. It might be said that the act was prospective; that it bound our successors; and that we had no power thus to bind them. It was true that the act was prospective, and so was almost every act which we ever passed; but we could repeal Mr. C. having then read the fourth section of it the next day. It was the established usage the bill, said that one of the considerations to give all acts a prospective operation. In strongly urged for a reduction of the tariff at every tariff law there were some provisions this time was, that the Government was likely which go into operation immediately, and others to be placed in a dilemma by having an over- at a future time. Each Congress legislated acflowing revenue; and this apprehension was cording to their own views of propriety; their the ground of an attempt totally to change the acts did not bind their successors, but created a protective policy of the country. The section species of public faith which would not raslily which he had read, Mr. C. said, was an effort be broken. But, if this bill should go into opto guard against this evil, by relieving alto-eration, as he hoped, even against hope, that it gether from duty a portion of the articles of import now subject to it. Some of these, he said, would, under the present rate of duty upon them, produce a considerable revenue; the article of silks alone would probably yield half a million of dollars per annum. If it were possible to pacify present dissensions, and let things take their course, he believed that no difficulty need be apprehended. If, said he, the bill which this body passed at the last session of Congress, and has again passed at this session, shall pass the other House, and become a law,

might, he had not a doubt that it would be adhered to by all parties. There was but one contingency which would render a change necessary, and that was the intervention of a war, which was provided for in the bill. The hands of Congress were left untied in this event, and they would be at liberty to resort to any mode of taxation which they might propose. But, if we suppose peace to continue, there would be no motive for disturbing the arrangement, but, on the contrary, every motive to carry it into effect. In the next place, it will be objected to