Mr. President: -
I know not which is most objectionable, the provisions of the bill, or the temper in which its adoption has been urged. If the extraordinary powers with which the bill proposes to clothe the Executive, to the utter prostration of the Constitution and the rights of the States, be calculated to impress our minds with alarm at the rapid progress of despotism in our country, the zeal with which every circumstance calculated to misrepresent or exaggerate the conduct of Carolina in the controversy is seized on with a view to excite hostility against her, but too plainly indicates the deep decay of that brotherly feeling which once existed between these States, and to which we are indebted for our beautiful federal system, and by the continuance of which alone it can be preserved. It is not my intention to advert to all these misrepresentations; but there are some so well calculated to mislead the mind as to the real character of the controversy, and to hold up the State in a light so odious, that I do not feel myself justified in permitting them to pass unnoticed.
Among them one of the most prominent is the false statement that the object of South Carolina is to exempt herself from her share of the public burdens, while she participates in the advantages of the Government. If the charge were true - if the State were capable of being actuated by such low and unworthy motives, mother as I consider her, I would not stand up on this floor to vindicate her conduct. Among her faults, - and faults I will not deny she has, - no one has ever yet charged her with that low and most sordid of vices, - avarice. Her conduct on all occasions has been marked with the very opposite quality. From the commencement of the Revolution - from its first breaking out at Boston till this hour, no State has been more profuse of its blood in the cause of the country; nor has any contributed so largely to the common treasury in proportion to wealth and population. She has, in that proportion, contributed more to the exports of the Union - on the exchange of which with the rest of the world the greater portion of the public burden has been levied - than any other State. No: the controversy is not such as has been stated; the State does not seek to participate in the advantages of the Government without contributing her full share to the public treasury. Her object is far different. A deep constitutional question lies at the bottom of the controversy. The real question at issue is: Has this Government a right to impose burdens on the capital and industry of one portion of the country, try, not with a view to revenue, but to benefit another? And I must be permitted to say that, after the long and deep agitation of this controversy, it is with surprise that I perceive so strong a disposition to misrepresent its real character. To correct the impression which those misrepresentations are calculated to make, I will dwell on the point under consideration for a few moments longer.
The Federal Government has, by an express provision of the Constitution, the right to lay on imposts. The State has never denied or resisted this right, nor even thought of so doing. The Government has, however, not been contented with exercising this power as she had a right to do, but has gone a step beyond it, by laying imposts, not for revenue, but protection. This the State considers as an unconstitutional exercise of power - highly injurious and oppressive to her and the other staple States, and has, accordingly, met it with the most determined resistance. I do not intend to enter, at this time, into the argument as to the unconstitutionality of the protective system. It is not necessary. It is sufficient that the power is nowhere granted; and that, from the journals of the convention which formed the Constitution, it would seem that it was refused. In support of the journals, I might cite the statement of Luther Martin, which has already been referred to, to show that the convention, so far from conferring the power on the Federal Government, left to the State the right to impose duties on imports, with the express view of enabling the several States to protect their own manufactures Notwithstanding this, Congress has assumed, without any warrant from the Constitution, the right of exercising this most important power, and has so exercised it as to impose a ruinous burden on the labor and capital of the State, by which her resources are exhausted, the enjoyments of her citizens curtailed, the means of education contracted, and all her interests essentially and injuriously affected. We have been sneeringly told that she is a small State; that her population does not much exceed half a million of souls, and that more than one-half are not of the European race. The facts are so. I know she never can be a great State, and that the only distinction to which she can aspire must be based on the moral and intellectual acquirements of her sons. To the development of these much of her attention has been directed; but this restrictive system which has so unjustly exacted the proceeds of her labor, to be bestowed on other sections, has so impaired her resources that, if not speedily arrested, it will dry up the means of education, and with it deprive her of the only source through which she can aspire to distinction.
There is another misstatement as to the nature of the controversy, so frequently made in debate, and so well calculated to mislead, that I feel bound to notice it. It has been said that South Carolina claims the right to annul the Constitution and laws of the United States; and to rebut this supposed claim the gentleman from Virginia has gravely quoted the Constitution, to prove that the Constitution, and the laws made in pursuance thereof, are the supreme laws of the land - as if the State claimed the right to act contrary to this provision of the Constitution. Nothing can be more erroneous: her object is not to resist laws made in pursuance of the Constitution, but those made without its authority, and which encroached on her reserved powers. She claims not even the right of judging of the delegated powers, but of those that are reserved, and to resist the former when they encroach upon the latter. I will pause to illustrate this important point.
All must admit that there are delegated and reserved powers, and that the powers reserved are reserved to the States respectively. The powers, then, of the system are divided between the General and the State governments; and the point immediately under consideration is, whether a State has any right to judge as to the extent of its reserved powers, and to defend them against the encroachments of the General Government. Without going deeply into this point at this stage of the argument, or looking into the nature and origin of the Government, there is a simple view of the subject which I consider as conclusive. The very idea of a divided power implies the right on the part of the State for which I contend. The expression is metaphorical when applied to power. Every one readily understands that the division of matter consists in the separation of the parts. But in this sense it is not applicable to power. What, then, is meant by a division of power? I cannot conceive of a division, without giving an equal right to each to judge of the extent of the power allotted to each. Such right I hold to be essential to the existence of a division; and that to give to either party the conclusive right of judging, not only of the share allotted to it, but of that allotted to the other, is to annul the division and to confer the whole power on the party vested with such right.
But it is contended that the Constitution has conferred on the Supreme Court the right of judging between the States and the General Government. Those who make this objection overlook, I conceive, an important provision of the Constitution. By turning to the tenth amended article, it will be seen that the reservation of power to the States is not only against the powers delegated to Congress, but against the United States themselves, and extends, of course, as well to the judiciary as to the other departments of the government. The article provides that all powers not delegated to the United States, or prohibited by it to the States, are reserved to the States respectively, or to the people. This presents the inquiry: What powers are delegated to the United States? They may be classed under four divisions: First, those that are delegated by the States to each other, by virtue of which the Constitution may be altered or amended by three-fourths of the States, when, without which, it would have required the unanimous vote of all; next, the powers conferred on Congress; then, those on the President; and, finally, those on the judicial department - all of which are particularly enumerated in the parts of the Constitution which organize the respective departments. The reservation of powers to the States is, as I have said, against the whole, and is as full against the judicial as it is against the executive and legislative departments of the government meet. It cannot be claimed for the one without claiming it for the whole, and without, in fact, annulling this important provision of the Constitution.
Against this, as it appears to me, conclusive view of the subject, it has been urged that this power is expressly conferred on the Supreme Court by that portion of the Constitution which provides that the judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority. I believe the assertion to be utterly destitute of any foundation. It obviously is the intention of the Constitution simply to make the judicial power commensurate with the law-making and treaty-making powers; and to vest it with the right of applying the Constitution, the laws, and the treaties, to the cases which might arise under them, and not to make it the judge of the Constitution, the laws, and the treaties themselves. In fact, the power of applying the laws to the facts of the case, and deciding upon such application, constitutes, in truth, the judicial power. The distinction between such power and that of judging of the laws will be perfectly apparent when we advert to what is the acknowledged power of the court in reference to treaties or compacts between sovereigns. It is perfectly established that the courts have no right to judge of the violation of treaties; and that in reference to them their power is limited to the right of judging simply of the violation of rights under them; and that the right of judging of infractions belongs exclusively to the parties themselves, and not to the courts: of which we have an example in the French treaty, which was declared by Congress null and void, in consequence of its violation by the government of France. Without such declaration, had a French citizen sued a citizen of this country under the treaty the court could have taken no cognizance of its infraction; nor, after such a declaration, would it have heard any argument or proof going to show that the treaty had not been violated.
The declaration, of itself, is conclusive on the court. But it will be asked how the court obtained the power to pronounce a law or treaty unconstitutional, when it comes in conflict with that instrument. I do not deny that it possesses the right; but I can by no means concede that it was derived from the Constitution. It had its origin in the necessity of the case. Where there are two or more rules established, one from a higher, the other from a lower authority, which may come into conflict in applying them to a particular case, the judge cannot avoid pronouncing in favor of the superior against the inferior. It is from this necessity, and this alone, that the power which is now set up to overrule the rights of the States against an express provision of the Constitution was derived. It had no other origin. That I have traced it to its true source will be manifest from the fact that it is a power which, so far from being conferred exclusively on the Supreme Court, as is insisted, belongs to every court - inferior and superior - State and general - and even to foreign courts.