COLLOQUY VIII.

CALHOUN ON THE CONSTITUTION — COMMENTS.

MR. STEPHENS. Following your example, I said I would read Mr. Calhoun's 
speech in reply to the main and leading ideas of Mr. Webster in the 
speech made by him which you have just read.

Here is that reply of Mr. Calhoun, or so much as bears upon the points 
at issue between them. It was delivered in the Senate, on the 26th of 
February, 1833.*

* _Niles's Register_, vol. xliii, _Sup._, p. 229.

* * * * * *

"The Senator from Massachusetts," said Mr. Calhoun, "in his argument 
against the Resolutions, directed his attack almost exclusively against 
the first; on the ground, I suppose, that it was the basis of the other 
two, and that, unless the first could be demolished, the others would 
follow of course. In this he was right. As plain and as simple as the 
facts contained in the first are, they cannot be admitted to be true 
without admitting the doctrines for which I, and the State I represent, 
contend. He commenced his attack with a verbal criticism on the 
Resolution, in the course of which he objected strongly to two words, 
'Constitutional' and 'accede.' To the former, on the ground that the 
word, as used (Constitutional Compact), was obscure — that it conveyed 
no definite meaning — and that Constitution was a noun-substantive, and 
not an adjective. I regret that I have exposed myself to the criticism 
of the Senator. I certainly did not intend to use any expression of 
doubtful sense, and if I have done so, the Senator must attribute it to 
the poverty of my language, and not to design I trust, however, that the 
Senator will excuse me, when the comes to hear my apology. In matters of 
criticism, authority is of the highest importance, and I have an 
authority of so high a character, in this case, for using the expression 
which he considers so obscure and so unconstitutional, as will justify 
me even in his eyes. It is no less than the authority of the Senator 
himself — given on a solemn occasion (the discussion on Mr. Foote's 
Resolution), and doubtless with great deliberation, after having duly 
weighed the force of the expression."

[Here Mr. Calhoun read from Mr. Webster's speech, in the debate on the 
Foote Resolutions, in 1830.]

"'Nevertheless, I do not complain, nor would I countenance any movement 
to alter this arrangement of representation. It is the original bargain 
— the Compact — let it stand — let the advantage of it be fully enjoyed. 
The Union itself is too fill of benefits to be hazarded in propositions 
for changing its original basis. I go for the Constitution, as it is, 
and for the Union, as it is. But I am resolved not to submit, in 
silence, to accusations, either against myself, individually, or against 
the North, wholly unfounded and unjust — accusations which impute to us 
a disposition to evade the CONSTITUTIONAL COMPACT, and to extend the 
power of the Government over the internal laws and domestic condition of 
the States.'

"It will be seen by this extract," proceeded Mr. Calhoun, "that the 
Senator not only used the phrase 'Constitutional Compact,' which he now 
so much condemns, but, what is still more important, he calls the 
Constitution a Compact — a bargain — which contains important 
admissions, having a direct and powerful bearing on the main issue, 
involved in the discussion, as will appear in the sequel. But, strong as 
his objection is to the word 'Constitutional,' it is still stronger to 
the word 'accede,' which, he thinks, has been introduced into the 
Resolution with some deep design, as I suppose, to entrap the Senate 
into an admission of the doctrine of State Rights. Here, again, I must 
shelter myself under authority. But I suspect the Senator, by a sort of 
instinct (for our instincts often strangely run before our knowledge), 
had a prescience, which would account for his aversion for the word, 
that this authority was no less than Thomas Jefferson himself, the great 
apostle of the doctrines of State Rights. The word was borrowed from 
him. It was taken from the Kentucky Resolution, as well as the substance 
of the resolution itself. But I trust I may neutralize whatever aversion 
the authorship of this word may have excited in the mind of the Senator, 
by the introduction of another authority — that of Washington, himself — 
who, in his speech to Congress, speaking of the admission of North 
Carolina into the Union, uses this very term, which was repeated by the 
Senate in their reply. Yet, in order to narrow the ground between the 
Senator and myself as much as possible, I will accommodate myself to his 
strange antipathy against the two unfortunate words, by striking them 
out of the Resolution, and substituting, — in their place, those very 
words which the Senator himself has designated as Constitutional 
phrases. In the place of that abhorred adjective 'Constitutional,' I 
will insert the very noun substantive 'Constitution;' and, in the place 
of the word 'accede,' I will insert the word 'ratify,' which he 
designates as the proper term to be used.

"As proposed — to be amended, the Resolution would
read:

"'Resolved, That the people of the several States composing these 
United States are united as parties to a Compact, under the title of the 
Constitution of the United States, which the people of each State 
ratified as a separate and Sovereign community, each binding itself by 
its own particular ratification; and that the Union of which the said 
Compact is the bond, is a Union _between_ the States ratifying the 
same.'

"Where, sir, I ask, is that plain case of revolution? Where that hiatus, 
as wide as the globe, between the premises and the conclusion, which the 
Senator proclaimed would be apparent, if the Resolution was reduced into 
Constitutional language? For my part, with my poor powers of conception, 
I cannot perceive the slightest difference between the Resolution, as 
first introduced, and as it is proposed to be amended in conformity to 
the views of the Senator. And, instead of that hiatus between the 
premises and conclusion, which seems to startle the imagination of the 
Senator, I can perceive nothing but a continuous and solid surface, 
sufficient to sustain the magnificent superstructure of State Rights. 
Indeed, it seems to me that the Senator's vision is distorted by the 
medium through which he views every thing connected with the subject; 
and that the same distortion which has presented to his imagination this 
hiatus, as wide as the globe, where not even a fissure exists, also 
presented that beautiful and classical image of a strong man struggling 
in a bog, without the power of extricating himself, and incapable of 
being aided by any friendly hand; while, instead of struggling in a bog, 
he stands on the everlasting rock of truth.

"Having now noticed the criticisms of the Senator, I shall proceed to 
meet and repel the main assault on the Resolution. He directed his 
attack against the strong point, the very horn of the citadel of State 
Rights. The Senator clearly perceived that, if the Constitution be a 
Compact, it was impossible to deny the assertions contained in the 
Resolutions, or to resist the consequences which I had drawn from them, 
and, accordingly, directed his whole fire against that point; but, after 
so vast an expenditure of ammunition, not the slightest impression, so 
far as I can perceive, has been made. But to drop the simile, after a 
careful examination of the notes which I took of what the Senator said, 
I am now at a loss to know whether, in the opinion of the Senator, our 
Constitution is a Compact or not, though the almost entire argument of 
the Senator was directed to that point. At one time he would seem to 
deny directly and positively that it was a Compact, while at another lie 
would appear, in language not less strong, to admit that it was.

"I have collated all that the Senator has said upon this point; and, 
that what I have stated may not appear exaggerated, I will read his 
remarks in juxtaposition. He said that:

"'The Constitution means a Government, not a Compact.' 'Not a 
Constitutional Compact, but a Government.' 'If Compact, it rests on 
plighted faith, and the mode of redress would be to declare the whole 
void.' 'States may secede, if a League or Compact.'

"I thank the Senator for these admissions, which I intend to use 
hereafter.

"'The States agreed that each should participate in the Sovereignty of 
the other.'

"Certainly, a very correct conception of the Constitution; but where did 
they make that agreement but by the Constitution, and how could they 
agree but by Compact?

"'The system, not a Compact between States in their Sovereign capacity, 
but a Government proper, founded on the adoption of the people, and 
creating individual relations between itself and the citizens.'

"This, the Senator lays down as a leading, fundamental principle to 
sustain his doctrine, and, I must say, with strange confusion and 
uncertainty of language; not, certainly, to be explained by any want of 
command of the most appropriate words on his part.

"'It does not call itself a Compact, but a Constitution. The 
Constitution rests on Compact, but it is no longer a Compact.'

"I would ask, to what Compact does the Senator refer, as that on which 
the Constitution rests? Before the adoption of the present Constitution, 
the States had formed but one Compact, and that was the old 
Confederation; and, certainly, the gentleman does not intend to assert 
that the present Constitution rests upon that. What, then, is his 
meaning? What can it be, but that the Constitution itself is a Compact? 
And how will his language read, when fairly interpreted, but that the 
Constitution was a Compact, but is no longer a Compact? It had, by some 
means or another, changed its nature, or become defunct.

"He next states that —

"'A man is almost untrue to his country who calls the Constitution a 
Compact.'

"I fear the Senator, in calling it a Compact, a bargain, has called down 
this heavy denunciation on his own head. He finally states that —

"'It is founded on Compact, but not a Compact.' 'It is the result of a 
Compact.'

"To what are we to attribute this strange confusion of words? The 
Senator has a mind of high order, and perfectly trained to the most 
exact use of language. No man knows better the precise import of the 
words he uses. The difficulty is not in him, but in his subject. He who 
undertakes to prove that this Constitution is not a Compact, undertakes 
a task which, be his strength ever so great, must oppress him by its 
weight. Taking the whole of the argument of the Senator together, I 
would say that it is his impression that the Constitution is not a 
Compact, and will now proceed to consider the reason which he has 
assigned for this opinion.

"He thinks there is an incompatibility between Constitution and Compact. 
To prove this, he adduces the words 'ordain and establish,' contained in 
the preamble of the Constitution. I confess I am not capable of 
perceiving in what manner these words are incompatible with the idea 
that the Constitution is a Compact. The Senator will admit that a single 
State may ordain a Constitution; and where is the difficulty, where the 
incompatibility, of two States concurring in ordaining and establishing 
a Constitution? As between the States themselves, the instrument would 
be a Compact; but in reference to the Government, and those on whom it 
operates, it would be ordained and established — ordained and 
established by the joint authority of two, instead of the single 
authority of one.

"The next argument which the Senator advances to show that the language 
of the Constitution is irreconcilable with the idea of its being a 
Compact, is taken from that portion of the instrument which imposes 
prohibitions on the authority of the States. He said that the language 
used, in imposing the prohibitions, is the language of a superior to an 
inferior; and that, therefore, it was not the language of a Compact, 
which implies the equality of the parties. As a proof, the Senator 
cited. several clauses of the Constitution which provide that no State 
shall enter into treaties of alliance and confederation, lay imposts, 
etc., without the assent of Congress. If lie had turned to the Articles 
of the old Confederation, which he acknowledges to have been a Compact, 
he would have found that those very prohibitory Articles of the 
Constitution were borrowed from that instrument; that the language, 
which he now considers as implying superiority, was taken _verbatim_ 
from it. If lie had extended his researches still further, he would have 
found that it is the habitual language used in treaties, whenever a 
stipulation is made against the performance of any act. Among many 
instances, which I could cite, if it were necessary, I refer the Senator 
to the celebrated treaty negotiated by Mr. Jay with Great Britain, in 
1793, in which the very language used in the Constitution is employed.

"To prove that the Constitution is not a Compact, the Senator next 
observes that it stipulates nothing, and asks, with an air of triumph, 
'Where are the evidences of the stipulations between the States?' I must 
express my surprise at this interrogatory, coming from so intelligent a 
source. Has the Senator never seen the ratifications of the Constitution 
by the several States? Did he not cite them on this very occasion? Do 
they contain no evidence of stipulations on the part of the States? Nor 
is the assertion less strange that the Constitution contains no 
stipulations.

"So far from regarding it in the light in which the Senator regards it, 
I consider the whole instrument but a mass of stipulations. What is that 
but a stipulation to which the Senator refers when he states, in the 
course of his argument, that each State had agreed to participate in the 
Sovereignty of the others.

"But the principal argument on which the Senator relied to show that the 
Constitution is not a Compact, rests on the provision, in that 
instrument, which declares that 'this Constitution, and laws made in 
pursuance thereof, and treaties made under their authority, are the 
supreme laws of the land:' He asked, with marked emphasis, 'Can a 
Compact be the supreme law of the land?' His argument, in fact, as 
conclusively proves that treaties are not Compacts as that the 
Constitution is not a Compact. I might rest the issue on this decisive 
answer; but, as I desire to leave not a shadow of doubt on this 
important point, I shall follow the gentleman in the course of his 
reasoning.

"He defines a Constitution to be a fundamental law, which organizes the 
Government, and points out the mode of its action. I will not object to 
the definition, though, in my opinion, a more appropriate one, or, at 
least, one better adapted to American ideas, could be given. My 
objection is not to the definition, but to the attempt to prove that the 
fundamental laws of a State cannot be a Compact, as the Senator seems to 
suppose. I hold the very reverse to be the case; and that, according to 
the most approved writers on the subject of Government, these very 
fundamental laws which are now stated not only not to be Compacts, but 
inconsistent with the, very idea of Compacts, are held invariably to be 
Compacts; and, in that character, are distinguished from the ordinary 
laws of the country. I will cite a single authority, which is full and 
explicit on this point, from a writer of the highest repute.

"Burlamaqui says, vol. ii, part 1, chap. i, sees. 35, 36, 37, 38:

"'It entirely depends upon a free people to invest the Sovereigns, whom 
they place over their heads, with an authority either absolute or 
limited by certain laws. These regulations, by which the supreme 
authority is kept within bounds, are called _the fundamental laws of the 
State_. The fundamental laws of a State, taken in their full extent, are 
not only the decrees by which the entire body of the nation determine 
the form of Government, and the manner of succeeding to the Crown, but 
are likewise covenants between the people and the person on whom they 
confer the Sovereignty, which regulate the manner of governing, and by 
which the supreme authority is limited.

"'These regulations are called fundamental laws, because they are the 
basis, as it were, and foundation of the State on which the structure of 
the Government is raised, and, because the people look upon these 
regulations as their principal strength and support.

"'The name of laws, however, has been given to these regulations in an 
improper and figurative sense, for, properly speaking, they are real 
covenants. But as these covenants are obligatory between the contracting 
parties, they have the force of laws themselves.'

"The same, vol. ii, part 2, ch. i, sees. 19 and 22, in part.

"'The whole body of the nation, in whom the supreme power originally 
resides, may regulate the Government by a fundamental law, in such 
manner, as to commit the exercise of the different parts of the supreme 
power to different persons or bodies, who may act independently of each 
other in regard to the rights committed to them, but still subordinate 
to the laws from which those rights are derived.

"'And these fundamental laws are real covenants, or what the civilians 
call _pacta conventa_, between the different orders of the republic, by 
which they stipulate that each shall have a particular part of the 
Sovereignty, and that this shall establish the form of Government. It is 
evident that, by these means, each of the contracting parties acquires a 
right, not only of exercising the power granted to it, but also of 
preserving that original right.'

"A reference to the Constitution of Great Britain, with which we are 
better acquainted than with that of any other European Government, will 
show that that is a Compact. Magna Charta may certainly be reckoned 
among the fundamental laws of that kingdom. Now, although it did not 
assume, originally, the form of a Compact, yet, before the breaking up 
of the meeting of the Barons which imposed it on King John, it was 
reduced into the form of a covenant, and duly signed by Robert 
Fitzwalter and others, on the one part, and the King on the other.

"But we have a more decisive proof that the Constitution of England is a 
Compact, in the resolution of the Lords and Commons, in 1688, which 
declared:

"'King James the Second, having endeavored to subvert the Constitution 
of the kingdom, by breaking the original contract between the King and 
people, and having, by the advice of Jesuits and other wicked persons, 
violated the fundamental law, and withdrawn himself out of the kingdom, 
hath abdicated the Government, and that the throne is thereby become 
vacant.'

"But why should I refer to writers upon the subject of Government, or 
inquire into the Constitution of foreign States, when there are such 
decisive proofs that our Constitution is a Compact? On this point the 
Senator is estopped. I borrow from the gentleman, and thank him for the 
word. His adopted State, which he so ably represents on this floor, and 
his native State, the States of Massachusetts and New Hampshire, both 
declared, in their ratification of the Constitution, that it was a 
Compact. The ratification of Massachusetts is in the following words:"

[Here Mr. Calhoun called special attention to the ratification of the 
State of Massachusetts, in which the Constitution is spoken of as a 
"SOLEMN COMPACT."]*

* _Ante_, p. 233. 

"The ratification of New Hampshire is taken from that of Massachusetts, 
and almost in the same words. But proof, if possible, still more 
decisive, may be found in the celebrated resolutions of Virginia on the 
alien and sedition law, in 1798,† and the responses of Massachusetts and 
the other States. These resolutions expressly assert that the 
Constitution is a Compact between the States, in the following language:

† See _Appendix_ E.

"'That this Assembly doth explicitly and peremptorily declare, that it 
VIEWS THE POWERS OF THE FEDERAL GOVERNMENT, AS RESULTING FROM THE 
COMPACT, TO WHICH THE STATES ARE PARTIES, AS LIMITED BY THE PLAIN SENSE 
AND INTENTION OF THE INSTRUMENT CONSTITUTING THAT COMPACT, AS NO FARTHER 
VALID THAN THEY ARE AUTHORIZED BY THE GRANTS ENUMERATED IN THAT COMPACT; 
AND THAT IN CASE OF A DELIBERATE, PALPABLE, AND DANGEROUS EXERCISE OF 
OTHER POWERS NOT GRANTED BY THE SAID COMPACT, THE 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.

"'That the General Assembly doth also express its deep regret that a 
spirit has, in sundry instances, been manifested by the Federal 
Government to enlarge its powers by forced constructions of the 
Constitutional Charter, which defines them; and that indications have 
appeared of a design to expound certain general phrases (which, having 
been copied from the very limited grant of powers in the former Articles 
of Confederation, were' the less liable to be misconstrued), so as to 
destroy the meaning and effect of the particular enumeration which 
necessarily explains and limits the general phrases, and so as to 
CONSOLIDATE THE STATES, BY DEGREES, INTO ONE SOVEREIGNTY, THE OBVIOUS 
TENDENCY AND INEVITABLE RESULT OF WHICH WOULD BE, TO TRANSFORM THE 
PRESENT REPUBLICAN SYSTEM OF THE UNITED STATES INTO AN ABSOLUTE, OR, AT 
BEST, A MIXED MONARCHY!'

"They were sent to the several States. We have the replies of Delaware, 
New York, Connecticut, New Hampshire, Vermont, and Massachusetts, not 
one of which contradicts this important assertion on the part of 
Virginia; and, by their silence, they all acquiesce in its truth. The 
case is still stronger against Massachusetts, which expressly recognizes 
the fact that the Constitution is a Compact."

[Here Mr. Calhoun read from the answer of Massachusetts, in which the 
Constitution is called a _solemn Compact_.]

"Now, I ask the Senator himself — I put it to his candor to say, if 
South Carolina be estopped on the subject of the protective system, 
because Mr. Burke and Mr. Smith proposed a moderate duty on hemp, or 
some other article, I know not what, nor do I care, with a view of 
encouraging its production (of which motion, I venture to say, not one 
individual in a hundred in the State ever heard), whether he and 
Massachusetts, after this clear, full, and solemn recognition that the 
Constitution is a Compact (both on his part and that of his State), be 
not forever estopped or this important point?

"There remains one more of the Senator's arguments, to prove that the 
Constitution is not a Compact, to be considered. He says it is not a 
Compact, because it is a Government; which he. defines to be an 
organized body, possessed of the will and power to execute its purposes 
by its own proper authority; and which, he says, bears not the slightest 
resemblance to a Compact. But I would ask the Senator, Whoever 
considered a Government, when spoken of as the agent to execute the 
powers of the Constitution, and distinct from the Constitution itself, 
as a Compact? In that light it would be a perfect absurdity. It is true 
that, in general and loose language, it is often said that the 
Government is a Compact, meaning the Constitution which created it, and 
vested it with authority to execute the powers contained in the 
instrument; but when the distinction is drawn between the Constitution 
and the Government, as the Senator has done, it would be as ridiculous 
to call the Government a Compact, as to call an individual, appointed to 
execute the provisions of a contract, a contract; and not less so to 
suppose that there could be the slightest resemblance between them. In 
connection with this point, the Senator, to prove that the Constitution 
is not a Compact, asserts that it is wholly independent of the State, 
and pointedly declares that the States have not a right to touch a hair 
of its head; and this, with that provision in the Constitution that 
three-fourths of the States have a right to alter, change, amend, or 
even to abolish it, staring him in the face.

"I have examined all of the arguments of the Senator intended to prove 
that the Constitution is not a Compact; and I trust I have shown, by the 
clearest demonstration, that his arguments are perfectly inconclusive, 
and that his assertion is against the clearest and most solemn evidence 
— evidence of record, and of such a character that it ought to close his 
lips forever.

"I turn now to consider the other, and, apparently. contradictory aspect 
in which the Senator presented this part of the subject: I mean that in 
which he states that the Government is founded in Compact, but is no 
longer. a Compact. I have already remarked, that no other interpretation 
could be given to this assertion, except that the Constitution was once 
a Compact, but is no longer so. There was a vagueness and indistinctness 
in this part of the Senator's argument, which left me altogether 
uncertain as to its real meaning. If he meant, as I presume he did, that 
the Compact is an executed, and not an executory one — that its object 
was to create a Government, and to invest it with proper authority — and 
that, having executed this office, it had performed its functions, and, 
with it, had ceased to exist, then we have the extraordinary avowal 
that, the Constitution is a dead letter — that it had ceased to have any 
binding effect, or any practical influence or operation.

"It has, indeed, often been charged that the Constitution has become a 
dead letter; that it is continually violated, and has lost all its 
control over the Government; but no one has ever before been bold enough 
to advance a theory on the avowed basis that it was an executed, and, 
therefore, an extinct instrument. I will not seriously attempt to refute 
an argument, which, to me, appears so extravagant. I had thought that 
the Constitution.was to endure forever; and that, so far from its being 
an executed contract, it contained great trust powers for the benefit of 
those who created it, and of all future generations, — which never could 
be finally executed during the existence of the world, if our Government 
should so long endure.

"I will now return to the first Resolution, to see how the issue stands 
between the Senator from Massachusetts and myself. It contains three 
propositions. First, that the Constitution is a Compact; second, that it 
was formed by the States, constituting distinct communities; and, 
lastly, that it is a, subsisting and binding Compact between the States. 
How do these three propositions now stand? The first, I trust, has been 
satisfactorily established; the second, the Senator has admitted, 
faintly, indeed, but still he has admitted it to be true. This admission 
is something. It is so much gained by discussion. Three years ago even 
this was a contested point. But I cannot say that I thank him for the 
admission; we owe it to the force of truth. The fact that these States 
were declared to be free and independent States at the time of their 
independence; that they were acknowledged to be so by Great Britain in 
the treaty which terminated the war of the Revolution, and secured their 
independence; that they were recognized in the same character in the old 
Articles of the Confederation; and, finally, that the present 
Constitution was formed by a Convention of the several States; 
afterwards submitted to them for their respective ratifications, and was 
ratified by them separately, each for itself, and each, by its own act, 
binding its citizens, — formed a body of facts too clear to be denied, 
and too strong to be resisted.

"It now remains to consider the third and last proposition contained in 
the Resolution, — that it is a binding and a subsisting Compact between 
the States. The Senator was not explicit on this point. I understood 
him, however, as asserting that, though formed by the States, the 
Constitution was not binding between the States as distinct communities, 
but between the American people in the aggregate; who, in consequence of 
the adoption of the Constitution, according to the opinion of the 
Senator, became one people, at least to the extent of the delegated 
powers. This would, indeed, be a great change. All acknowledge that, 
previous to the adoption of the Constitution, the States constituted 
distinct an independent communities, in full possession of their 
Sovereignty; and, surely, if the adoption of the Constitution was 
intended to effect the great and important change in their condition 
which the theory of the Senator supposes, some evidence of it ought to 
be found in the instrument itself. It professes to be a careful and full 
enumeration of all the powers which the States delegated, and of every 
modification of their political condition. The Senator said that he 
looked to the Constitution in order to ascertain its real character; 
and, surely, he ought to look to the same instrument in order to 
ascertain what changes were, in fact, made in the political condition of 
the States and the country. But, with the exception of 'we, the people 
of the United States,' in the preamble, he has not pointed out a single 
indication in the Constitution, of the great change which as he 
conceives, has been effected in this respect.

"Now, sir, I intend to prove, that the only argument on which the 
gentleman relies on this point, must utterly fail him. I do not intend 
to go into a critical examination of the expression of the preamble to 
which I have referred. I do not deem it necessary. But if it were, it 
might be easily shown that it is at least as applicable to my view of 
the Constitution as to that of the Senator; and that the whole of his 
argument on this point rests on the ambiguity of the term thirteen 
United States; which may mean certain territorial limits, comprehending 
within them the whole of the States and Territories of the Union. In 
this sense, the people of the United States may mean _all_ the people 
living within these limits, without reference to the States or — 
Territories in which they may reside, or of which they may be citizens; 
and it is in this sense only, that the expression gives the least 
countenance to the argument of the Senator.

"But it may also mean, _the States united_, which inversion alone, 
without further explanation, removes the ambiguity to which I have 
referred. The expression ill this sense, obviously means no more than to 
speak of the people of the several States in their united and 
confederated capacity; and, if it were requisite, it might be shown that 
it is only in this sense that the expression is used in the 
Constitution. But it is not necessary. A single argument will forever 
settle this point. Whatever may be the true meaning of the expression, 
it is not applicable to the condition of the States as they exist under 
the Constitution, but as it was under the old Confederation, before its 
adoption. The Constitution had not yet been adopted, and the States, in 
ordaining it, could only speak of themselves in the condition in which 
they then existed, and not in that in which they would exist under the 
Constitution. So that, if the argument of the Senator proves any thing, 
it proves, not (as he supposes) that the Constitution forms the American 
people into an aggregate mass of individuals, but that such was their 
political condition before its adoption, under the old Confederation, 
directly contrary to his argument in the previous part of this 
discussion.

"But I intend not to leave this important point, the last refuge of 
those who advocate consolidation, even on this conclusive argument. I 
have shown that the Constitution affords not the least evidence of the 
mighty change of the political condition of the States and the country, 
which the Senator supposed it effected; and I intend now, by the most 
decisive proof, drawn from the instrument itself, to show that no such 
change was in tended, and that the people of the States are united under 
it as States, and not as individuals. On this point there is a very 
important part of the Constitution entirely and strangely overlooked by 
the Senator in this debate, as it is expressed in the first Resolution, 
which furnishes conclusive evidence not only that the Constitution is a 
Compact, but a subsisting Compact, binding between the States. I allude 
to the seventh Article, which provides that the ratification of the 
Conventions of nine States shall be sufficient for the establishment of 
this Constitution '_between the States_ so ratifying the same.' Yes, 
'_between the States_.' These little words mean a volume. Compacts, not 
laws, bind _between_ States; and it here binds, not as between 
individuals, but between _the States_: the States _ratifying_; implying, 
as strong as language can make it, that the Constitution is what I have 
asserted it to be — a Compact, ratified. by the States, and a subsisting 
Compact, binding the States ratifying it.

"But, sir, I will not leave this point, all-important in establishing 
the true theory of our Government, on this argument alone, as 
demonstrative and conclusive as I hold it to be. Another, not much less 
powerful, but of a different character, may be drawn from the tenth 
amended Article, which provides that the powers not delegated to the 
United States by the Constitution, nor prohibited by it to the States, 
are reserved to the States respectively or to the people. The Article of 
Ratification, which I have just cited, informs us that the Constitution, 
which delegates powers, was ratified by the States, and is binding 
between them. This informs us to whom the powers are delegated, — a most 
important fact in determining the point immediately at issue between the 
Senator and myself. According to his views, the Constitution created a 
union between individuals, if the solecism may be allowed, and that it 
formed, at least to the extent of the powers delegated, one people, and 
not a Federal Union of the States, as I contend; or, to express the same 
idea differently, that the delegation of powers was to the American 
people in the aggregate (for it is only by such delegation that they 
could be constituted one people), and not to the _United States_, — 
directly contrary to the Article just cited, which declares that the 
powers are delegated to the United States. And here it is worthy of 
notice, that the Senator cannot shelter himself under the ambiguous 
phrase, 'to the people of the United States,' under which he would 
certainly have taken refuge, had the Constitution so expressed it; but 
fortunately for the cause of truth and the great principles of 
Constitutional liberty for which I am contending, 'people,' is omitted: 
thus making the delegation of power clear and unequivocal to the _United 
States_, as distinct political communities, and conclusively proving 
that all the powers delegated are reciprocally delegated by the States 
to each other, as distinct political communities.

"So much for the delegated powers. Now, as all admit, and as it is 
expressly provided for in the Constitution, the _reserved_ powers are 
reserved 'to the States _respectively_, or to the people.' None will 
pretend that, as far as they are concerned, we are one people, though 
the argument to prove it, however absurd, would be far more plausible 
than that which goes to show that we are one people to the extent of the 
delegated powers. This reservation 'to the people' might, in the hands 
of subtle and trained logicians, be a peg to hang, a doubt upon; and had 
the expression 'to the people' been connected, as fortunately it is not, 
with the delegated instead of the reserved powers, we should not have 
heard of this in the present discussion.

"I have now established, I hope, beyond the power of controversy, every 
allegation contained in the first Resolution — that the Constitution is 
a Compact formed by the people of the several States, as distinct 
political communities, and subsisting and binding between the States in 
the same character; which brings me to the consideration of the 
consequences which may be fairly deduced, in reference to the character 
of our political system, from these established facts.

"The first and most important is, they conclusively establish that ours 
is a Federal system — a system of States arranged in a Federal Union, 
each retaining its distinct existence and Sovereignty. Ours has every 
attribute which belongs to a Federative System. It is founded on 
Compact; it is formed by Sovereign communities, and is binding between 
them in their Sovereign capacity. I might appeal, in confirmation of 
this assertion, to all elementary writers on the subject of Government, 
but will content myself with citing one only. Burlamaqui, quoted with 
approbation by Judge Tucker, in his Commentary on Blackstone, himself a 
high authority, says:"

[Here Mr. Calhoun quotes from Tucker's Blackstone as follows]:

"'Political bodies, whether great or small, if they are constituted by a 
people formerly independent, and under no civil subjection, or by those 
who justly claim independence from any civil power they were formerly 
subject to, have the civil supremacy in themselves, and are in a State 
of equal right and liberty with respect to all other States, whether 
great or small. No regard is to be had in this matter to names, whether 
the body-politic be called a kingdom, an empire, a principality, a 
dukedom, a country. a republic, or free town. If it can exercise justly 
all the essential parts of civil power within itself, independently of 
any other person or body-politic, — and no other has any right to 
rescind or annul its acts, — it has the civil supremacy, how small 
soever its territory may be, or the number of its people, and has all 
the rights of an independent State.*

* _Vattel_, B. I, c. i, § 4. 

"'This independence of States, and their being distinct political bodies 
from each other, is not obstructed by any alliance or confederacies 
whatsoever, about exercising jointly any parts of the supreme powers, 
such as those of peace and war, in league offensive and defensive. Two 
States, notwithstanding such treaties, are separate bodies, and 
independent.†

† _Vattel_, B. I, c. i, § 10.

"'These are, then, only deemed politically united, when some one person 
or council is constituted with a right to exercise some essential powers 
for both, and to hinder either from exercising them separately. If any 
person or council is empowered to exercise all these essential powers 
for both, they are then one State:‡ such is the State of England and 
Scotland, since the Act of Union made at the beginning of the eighteenth 
century, whereby the two kingdoms were incorporated into one, all parts 
of the supreme power of both kingdoms being thenceforward united, and 
vested in the three Estates of the realm of Great Britain; by which 
entire coalition, though both kingdoms retain their ancient laws and 
usages in many respects, they are as effectually united and 
incorporated, as the several petty kingdoms, which composed the 
heptarchy, were before that period.

‡ _Vattel_, B. I, c. i, § 10.

"'But when only a portion of the supreme civil power is vested in one 
person or council for both, such as that of peace and war, or of 
deciding controversies between different States, or their subjects, 
while each, within itself, exercises other parts of the supreme power, 
independently of all the others — in this case they are called _Systems 
of States_, which Burlamaqui defines to be an assemblage of perfect 
Governments, strictly united by some common bond, so that they seem to 
make but a single body with respect to those affairs which interest them 
in common, though each preserves its Sovereignty, full and entire, 
independently of all others. And in this case, he adds, the Confederate 
States engage to each other only to exercise, with common consent, 
certain parts of the Sovereignty, especially that which relates to their 
mutual defence against foreign enemies. But each of the Confederates 
retains an entire liberty of exercising, as it thinks proper, those 
parts of the Sovereignty which are not mentioned in the treaty of Union, 
as parts that ought to be exercised in common.* And of this nature is 
the American Confederacy, in which each State has resigned the exercise 
of certain parts of the supreme civil power which they possessed before 
(except in common with the other States included in the Confederacy), 
reserving to themselves all their former powers, which are not delegated 
to the United States by the common bond of Union.

* _Burlamaqui_, B. ii, Part ii, c. i, § 40-44.

"'A visible distinction, and not less important than obvious, occurs to 
our observation, in comparing these different kinds of Union. The 
kingdoms of England and Scotland are united into one kingdom; and the 
two contracting States, by such an incorporate Union, are, in the 
opinion of Judge Blackstone, totally annihilated, without any power of 
revival; and a third arises from their conjunction, in which all the 
rights of Sovereignty, and particularly that of Legislation, are vested. 
From whence he expresses a doubt, whether any infringements of the 
fundamental and essential conditions of the Union would, of itself, 
dissolve the Union of those kingdoms; though he readily admits that, in 
the case of a _Federate_ alliance, such an infringement would certainly 
rescind the Compact between the Confederated States. In the United 
States of America, on the contrary, each State retains its own 
antecedent form of Government; its own laws, subject to the alteration 
and control of its own Legislature only; its own executive officers and 
council of State; its own courts of Judicature, its own judges, its own 
magistrates, civil officers, and officers of the militia; and, in short, 
its own civil State, or body politic, in every respect whatsoever. And 
by the express declaration of the 12th article of the amendments to the 
Constitution, the powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people. In Great Britain, a new _civil 
State_ is created by the annihilation of two antecedent civil States; in 
the American States, a general _Federal_ council and administration is 
provided, for the joint exercise of such of their several powers as can 
be more conveniently exercised in that mode than any other, leaving 
their _civil State_ unaltered; and all the other powers, which the 
States antecedently possessed, to be exercised by them respectively, as 
if no Union or connection were established between them.

"'The ancient Achaia seems to have been a Confederacy founded upon a 
similar plan; each of those little States had its distinct possessions, 
territories, and boundaries; each had its Senate or Assembly, its 
magistrates and judges; and every State sent Deputies to the General 
Convention, and had equal weight in all determinations. And most of the 
neighboring States which, moved by fear of danger, acceded to this 
Confederacy, had reason to felicitate themselves.

"'These Confederacies, by which several States are united together by a 
perpetual league of alliance, are chiefly founded upon this 
circumstance, that each particular people choose to remain their own 
masters, and yet are not strong enough to make head against a common 
enemy. The purport of such an agreement usually is, that they shall not 
exercise some part of the Sovereignty, there specified, without the 
general consent of each other. For the leagues, to which these systems 
of States owe their rise, seem distinguished from others (so frequent 
among different States), chiefly by this consideration, that, in the 
latter, each confederate people determine themselves, by their own 
judgment, to certain mutual performances; yet so that, in all other 
respects, they design not, in the least, to make the exercise of that 
part of the Sovereignty, whence these performances proceed, dependent on 
the consent of their allies, or to retrench any thing from their full 
and unlimited power of governing their own States. Thus, we see that 
ordinary treaties propose, for the most part, as their aim, only some 
particular advantage of the States thus transacting — their interests 
happening, at present, to fall in with each other — but do not produce 
any lasting union as to the chief management of affairs. Such was the, 
treaty of alliance between America and France, in the, year 1778, by 
which, among other articles, it was agreed that neither of the two 
parties should conclude either truce or peace with Great Britain, 
without the formal consent of the other, first obtained, and whereby 
they mutually engaged not to lay down their arms until the independence 
of the United States should be formally or tacitly assured by the treaty 
or treaties which should terminate the war. Whereas, in these 
confederacies of which we are now speaking, the contrary is observable, 
they being established with this design, that the several States shall 
forever link their safety, one with another; and, in order to their 
mutual defence, shall engage themselves not to exercise certain parts of 
their Sovereign power, otherwise than by a common agreement and 
approbation. Such were the stipulations, among others, contained in the 
Articles of Confederation and perpetual Union between American States, 
by which it was agreed that no State should, without the consent of the 
United States, in Congress assembled, send any embassy to, or receive 
any embassy from, or enter into any conference, agreement, alliance or 
treaty with, any king, prince or State; nor keep up any vessels of war, 
or body of forces, in time of peace; nor engage in any war, without the 
consent of the United States in Congress assembled, unless actually 
invaded; nor grant commissions to any ships of war, or letters of marque 
and reprisal, except after a declaration of war by the United States in 
Congress assembled, with several others; yet each State, respectively, 
retains its Sovereignty, freedom and independence, and every power, 
jurisdiction and right which is not expressly delegated to the United 
States in Congress assembled. The promises made in these two cases, here 
compared, run very differently; in the former, thus: I will join you, in 
this particular war, as a confederate, and the manner of our attacking 
the enemy shall be concerted by our common advice; nor will we desist 
from war, till the particular end thereof, the establishment of the 
independence of the United States, be obtained in the latter, thus: None 
of us who have entered into this alliance, will make use of our right as 
to the affairs of war and peace, except by the general consent of the 
whole confederacy. We observed before that these Unions submit only some 
certain parts of the Sovereignty to mutual direction; for it seems 
hardly possible that the affairs of different States should have so 
close a connection, as that all and each of. them should look on it as 
their interest to have no part of the chief Government exercised without 
the general concurrence. The most convenient method, therefore, seems to 
be, that the particular States reserve to themselves all those branches 
of the supreme authority, the management of which can have little or no 
influence in the affairs of the rest.'"

"'If we compare our present system," continued Mr. Calhoun, "with the 
old Confederation, which all acknowledge to have been _Federal_ in its 
character, we shall find that it possesses all the attributes which 
belong to that form of Government as fully and completely as that did. 
In fact, _in this particular_, there is but a single difference, and 
that not essential, as regards the point immediately under 
consideration, though very important in other respects. The 
Confederation was the act of the State Governments, and formed a union 
of Governments. The present Constitution is the act of the States 
themselves, or, which is the same thing, of the people of the several 
States, and forms a union of them as Sovereign communities. The States, 
previous to the adoption of the Constitution, were as separate and 
distinct political bodies as the Governments which represent them, and 
there is nothing in the nature of things to prevent them from uniting 
under a Compact, in a Federal Union, without being blended in one mass, 
any more than uniting the Governments themselves, in like manner, 
without merging them in a single Government. To illustrate what I have 
stated by reference to ordinary transactions, the Confederation was a 
contract between agents — the present Constitution a contract between 
the principals themselves; or, to take a more analogous case, one is a 
League made by ambassadors; the other, a League made by Sovereigns — the 
latter no more tending to unite the parties into a single Sovereignty 
than the former. The only difference is in the solemnity of the act and 
the force of the obligation. * *

"We will now proceed to consider some of the conclusions which 
necessarily follow from the facts and positions already established. 
They enable us to decide a question of vital importance under our 
system: Where does Sovereignty reside? If I have succeeded in 
establishing the fact that ours is a Federal system, as I conceive I 
conclusively have, that fact of itself determines the question which I 
have proposed. It is of the very essence of such it system, that the 
Sovereignty is in the parts, and not in die whole; or, to use the 
language of Mr. Palgrave, 'The parts are the units in such a system, and 
the whole the multiple; and not the whole the unit and the parts the 
fractions.' Ours, then, is a Government of twenty-four Sovereignties, 
united by a Constitutional Compact, for the purpose of exercising 
certain powers through a common Government as their joint agent, and not 
a Union of the twenty-four Sovereignties into one, which, according to 
the language of the Virginia Resolutions, already cited, would form a 
Consolidation. And here I must express my surprise that the Senator from 
Virginia should avow himself the advocate of these very Resolutions, 
when he distinctly maintains the idea of a Union of the States in one 
Sovereignty, which is expressly condemned by these Resolutions as the 
essence of a Consolidated Government.

"Another consequence is equally clear, that, whatever modifications 
were, made in the condition of the States under the present 
Constitution, they extended only to the exercise of their powers by 
Compact, and not to the Sovereignty itself, and are such as Sovereigns 
are competent to make: it being a conceded point, that it is competent 
to them to stipulate to exercise their powers in a particular manner, or 
to abstain altogether from their exercise, or to delegate them to 
agents, without in any degree impairing Sovereignty itself. The plain 
state of:the facts, as regards our Government, is, that these States 
have agreed by Compact to exercise their Sovereign powers jointly,. as 
already stated; and that, for this purpose, they have ratified the 
Compact in their Sovereign capacity, thereby making it the Constitution 
of each State, in nowise distinguished from their own separate 
Constitutions, but in the super-added obligation of Compact — of faith 
mutually [1ledged to each other. In this Compact, they have stipulated, 
among other things, that it may be amended by three fourths of the 
States: that is, they have conceded to each other by Compact the right 
to add new powers or to subtract old, by the consent of that proportion 
of the States,'without requiring, as otherwise would have been the case, 
the consent of all: a modification no more inconsistent, as has been 
supposed, with their Sovereignty, than any other contained in the 
Compact. In fact, the provision to which I allude furnishes strong 
evidence that the Sovereignty is, as I contend, in the States severally, 
as the amendments are effected, not by any one three fourths, but by any 
three fourths of the States, indicating that the Sovereignty is in each 
of the States.

"If these views be correct, it follows, as a matter of course, that the 
allegiance of the people is to their several States, and that treason 
consists in resistance to the joint authority of the _States_ united, 
not, as has been absurdly contended, in resistance to the Government of 
the United States, which, by the provision of the Constitution, has only 
the right of punishing. * *

"Having now said what I intended in relation to my first Resolution, 
both in reply to the Senator from Massachusetts, and in vindication of 
its correctness, I will now proceed to consider the conclusions drawn 
from it in the second Resolution — that the General Government is not 
the exclusive and final judge of the extent of the powers delegated to 
it, but that the States, as parties to the Compact, have a right to 
judge, in the last resort, of the infractions of the Compact, and of the 
mode and measure of redress.

"It can scarcely be necessary, before so enlightened at body, to premise 
that our system comprehends two distinct Governments — the General and 
State Governments, which, properly considered, form but one — the former 
representing the joint authority of the States in their Confederate 
capacity, and the latter that of each States separately. I have premised 
this fact simply with a view of presenting distinctly the answer to the 
argument offered by the Senator from Massachusetts to prove that the 
General Government has a final and exclusive right to judge, not only of 
delegated powers, but also of those reserved to the States. That 
gentleman relies for his main argumi.ent on the assertion that a 
Government, which he defines to be an organized body, endowed with both 
will, and power, and authority in _proprio vigore_ to execute its 
purpose, has a right inherently to judge of its powers. It is not my 
intention to comment upon the definition of the Senator, though it would 
not be difficult to show that his ideas of Government are not very 
American. My object is to deal with the conclusion, and not the 
definition. Admit then, that the Government has the right of judging of 
its powers, for which he contends. Now, then, will he withhold, upon his 
own principle, the right of judging from the State Governments, which he 
has attributed to the General Government? If it belongs to me, on his 
principle, it belongs to both; and if to both, when they differ, the 
veto, so abhorred by the Senator, is the necessary result: as neither, 
if the right be possessed by both, can control the other.

"The Senator felt the force of this argument, and, in order to sustain 
his main position, he fell back on that clause of the Constitution which 
provides that 'this Constitution, and the laws made in pursuance 
thereof, shall be the supreme law of the land.'

"This is admitted; no one has ever denied that the Constitution, and the 
laws made in _pursuance_ of it, are of Paramount authority. But it is 
equally undeniable that laws _not_ made in pursuance are not only not of 
Paramount authority, but are of no authority whatever, being of 
themselves null and void; which presents the question, who are to judge 
whether the laws be or be not pursuant to the Constitution?* and thus 
the difficulty, instead of being taken away, is removed but one step 
further back. This the Senator also felt, and has attempted to overcome, 
by setting up, on the part of Congress and the judiciary, the final and 
exclusive right of judging, both for the Federal Government and the 
States, as to the extent of their respective powers. That I may do full 
justice to the gentleman, I will give his doctrine in his own words. He 
states, —

* This, according to Martin's proposition was just what was refused to 
the General Government. See _ante_, p. 46.

"'That there is a supreme law, composed of the Constitution, the laws 
passed in pursuance of it, and the treaties; but in cases coming before 
Congress, not assuming the shape of cases in law and equity, so as to be 
subjects of judicial discussion, Congress must interpret the 
Constitution so often as it has occasion to pass laws; and in cases 
capable of assuming a judicial shape, the Supreme Court must be the 
final interpreter.'

"Now, passing over this vague and loose phraseology, I would ask the 
Senator upon what principle can he concede this extensive power to the 
Legislative and Judicial departments, and withhold it entirely from the 
Executive? If one has the right it cannot be withheld from the other. I 
would also ask him on what principle — if the departments of the General 
Government are to possess the right of judging, finally and 
conclusively, of their respective powers — on what principle can the 
same right be withheld from the State Governments, which, as well as the 
General Government, properly considered, are but departments of the same 
general system, and form together, properly speaking, but one 
Government? This was a favorite idea of Mr. Macon, for whose wisdom I 
have a respect increasing with my experience, and who I have frequently 
heard say, that most of the misconceptions and errors in relation to our 
system, originated in forgetting that they were but parts of the same 
system. I would further tell the Senator, that, if this right be 
withheld from the State Governments; if this restraining influence, by 
which the General Government is confined to its proper sphere, be 
withdrawn, then that department of the Government from which he has 
withheld the right of judging of its own powers (the Executive), will, 
so far from being excluded, become the _sole_ interpreter of the powers 
of the Government. It is the _armed_ interpreter, with powers to execute 
its own construction, and with out the aid of which the construction of 
the other departments will be impotent.

"But I contend that the States have a far clearer right to the sole 
construction of their powers than any of the departments of the Federal 
Government call have. This power is expressly reserved, as I have stated 
on another occasion, not only against the several departments of the 
General Government, but against the United States themselves. I will not 
repeat the arguments which I then offered on this point, and which 
remain unanswered, but I must be permitted to offer strong additional 
proof of the views then taken, and which, if I am not mistaken, are 
conclusive on this point. It is drawn from the ratification of the 
Constitution by Virginia, and is in the following words:

"'We, the Delegates of the people of Virginia, duly elected in pursuance 
of a recommendation from the General Assembly, and now met in 
Convention, having fully and freely investigated and discussed the 
proceedings of the Federal Convention, and being prepared, as well as 
the most mature deliberation hath enabled us, to decide thereon, do, in 
the name and in behalf of the people of Virginia, declare and make known 
that the powers granted under the Constitution, being derived from the 
people of the United States, may be resumed by them, whensoever the same 
shall be perverted to their injury or oppression, and that every power 
not granted thereby remains with them, and at their will; that, 
therefore, no right, of any denomination, can be cancelled, abridged, 
restrained, or modified, by the Congress, by the Senate or House of 
Representatives, acting in any capacity, by the President, or any 
department or officer of the United States, except in those instances in 
which power is given by the Constitution for those purposes; and that, 
among other essential rights, the liberty of conscience, and of the 
press, cannot be cancelled, abridged, restrained, or modified by any 
authority of the United States. With these impressions, with a solemn 
appeal to the Searcher of all hearts for the purity of our intentions, 
and under the conviction that whatsoever imperfections may exist in the 
Constitution ought rather to be examined in the mode prescribed therein, 
than to bring the Union in danger by a delay, with the hope of obtaining 
amendments previous to the ratifications, — We, the said Delegates, in 
the name and in the behalf of the people of Virginia, do, by these 
presents, assent to and ratify the Constitution recommended, on the 17th 
day of September, 1787, by the Federal Convention for the Government of 
the United States, hereby announcing to all those whom it may concern, 
that the said Constitution is binding upon the said people, according to 
an authentic copy hereto annexed, in the words following,' etc.

"It thus appears that this sagacious State (I fear, however, that her 
sagacity is not so sharp-sighted now as formerly) ratified the 
Constitution, with an explanation as to her reserved powers; that they 
were powers subject to her own will, and reserved against every 
department of the General Government — Legislative, Executive, and 
Judicial — as if she had a prophetic knowledge of the attempts now made 
to impair and destroy them: which explanation can be considered in no 
other light than as containing a condition on which she ratified, and, 
in fact, making part of the Constitution of the United States — 
extending as well to the other States as herself. I am no lawyer, and it 
may appear to be presumption in me to lay down the rule of law which 
governs in such cases, in a controversy with so distinguished an 
advocate as the Senator from Massachusetts. But I shall venture to lay 
it down as a rule in such cases, which I have no fear that the gentleman 
will contradict, that, in case of a contract between several partners, 
if the entrance of one on condition be admitted, the condition enures to 
the benefit of all the partners. But I do not rest the argument simply 
upon this view Virginia proposed the tenth amended article, the one in 
question, and her ratification must be at least received as the highest 
evidence of its true meaning and interpretation.

"If these views be correct — and I do not see how they can be resisted — 
the rights of the States to judge of the extent of their reserved powers 
stands on the most solid foundation, and is good against every 
department of the General Government; and the judiciary is as much 
excluded from an interference with the reserved powers as the 
Legislative or Executive departments. To establish the opposite, the 
Senator relies upon the authority of Mr. Madison, in the _Federalist_, 
to prove that it was intended to invest the Court with the power in 
question. In reply, I will meet Mr. Madison with his own opinion, given 
on a most solemn occasion, and backed by the sagacious Commonwealth of 
Virginia. The opinion to which I allude will be found in the celebrated 
Report of 1799, of which Mr. Madison was the author. It says:

"'But it is objected, that the JUDICIAL AUTHORITY is to be regarded as 
_the sole expositor of the Constitution in the last resort_; and it may 
be asked for what reason the declaration by the General Assembly, 
supposing it to be theoretically true, could be required at the present 
day, and in so solemn a manner.

"'On this objection it might be observed, _first_, that there may be 
instances of usurped power, which the forms of the Constitution would 
never draw within the control of the Judicial department; _secondly_, 
that, if the decision of the judiciary be raised above the authority of 
the Sovereign parties to the Constitution, the decisions of the other 
departments, not carried by the forms of the Constitution before the 
judiciary, must be equally authoritative and final as the decisions of 
this department. But the proper answer to this objection is, that the 
Resolution of the General Assembly relates to those great and 
extraordinary cases in which all the forms of the Constitution may prove 
ineffectual against infractions dangerous to the essential rights of the 
parties to it. The Resolution supposes that dangerous powers, not 
delegated, may not only be usurped and executed by the other 
departments, but that the Judicial department, also, may exercise or 
sanction dangerous powers beyond the grant of the Constitution; and, 
consequently, that the ultimate right of the parties to the Constitution 
to judge whether the Compact was dangerously violated, must extend to 
violations by one delegated authority as well as by another; by the 
judiciary as well as by the executive or the Legislature.'"*

* See _Appendix_ E.

"But why should I waste words in reply to these or any other 
authorities, when it has been so clearly established that the rights of 
the States are reserved against each and every department of the 
Government, and no authority in opposition can possibly shake a position 
so well established? Nor do I think it necessary to repeat the argument 
which I offered when the bill was under discussion, to show that the 
clause in the Constitution which provides that the judicial power shall 
extend to all cases in law or equity arising under this Constitution, 
and to the laws and treaties made under its authority, has no bearing on 
the point in controversy; and that even the boasted power of the Supreme 
Court to decide a law to be unconstitutional, so far from being derived 
from this or any other portion of the Constitution, results from the 
necessity of the case — where two rules of unequal authority come in 
conflict — and is a power belonging to all courts, superior and 
inferior, State and General, Domestic, and Foreign.

"I have now, I trust, shown satisfactorily, that there is no provision 
in the Constitution to authorize the General Government, through any of 
its departments, to control the action of a State within the sphere of 
its reserved powers; and that, of course, according to the principle 
laid down by the Senator from Massachusetts himself, the Government of 
the States, as well as the General Government, has the right to 
determine the extent of their respective powers, without the right on 
the part of either to control the other. The necessary result is the 
veto, to which he so much objects; and to get clear of which, he 
informed us, was the object for which the present Constitution was 
formed. I know not whence lie has derived his information, but my 
impression is very different, as to the immediate motives which led to 
the formation of that instrument. I have always understood that the 
principle was, to give to Congress the power to regulate commerce, to 
lay impost duties, and to raise a revenue for the payment of the public 
debt and the expenses of the Government; and to subject the action of 
the citizens, individually, to the operation of the laws, as a 
substitute for force. If the object had been to get clear of the veto of 
the States, as the Senator states, the Convention, certainly, performed 
their work in a most bungling manner. There was, unquestionably, a large 
party in that body, headed by men of distinguished talents and 
influence, who commenced early and worked earnestly to the last, to 
deprive the States — not directly, for that would have been too bold an 
attempt, but indirectly — of the veto. The good sense of the Convention, 
however, put down every effort, however disguised and perseveringly 
made. I do not deem it necessary to give, from the journals, the history 
of these various and unsuccessful attempts — though it would afford a 
very instructive lesson. It is sufficient to say that it was attempted, 
by proposing to give to Congress power to annul the acts of the States 
which they might deem inconsistent with the Constitution; to give to the 
President the power of appointing the Governors of the States, with a 
view of vetoing State laws through his authority; and, finally, to give 
the judiciary the power to decide controversies between the States and 
the General Government; all of which failed — fortunately for the 
liberty of the country — utterly and entirely failed; and in this 
failure we have the strongest evidence, that it was not the intention of 
the Convention to deprive the States of the veto power. Had the attempt 
to deprive them of this power been directly made, and failed, every one 
would have seen and felt, that it would furnish conclusive evidence in 
favor of its existence. Now, I would ask, what possible difference can 
it make in what form this attempt was made? Whether by attempting to 
confer on the General Government a power incompatible with the exercise 
of the veto on the part of the States, or by attempting directly to 
deprive them of the right to exercise it? We have thus direct and strong 
proof that, in the opinion of the Convention, the States, unless 
deprived of it, possess the veto power — or, what is another name for 
the same thing, the right of Nullification. I know that there is a 
diversity of opinion among the friends of State Rights in regard to this 
power, which I regret, as I cannot but consider it as a power essential 
to the protection of the minor and local interests of the community, and 
the liberty and the Union of the country. It is the very shield of State 
Rights, and the only power by which that system of injustice against 
which we have contended for more than thirteen years can be arrested: a 
system of hostile Legislation — of plundering by law, which must 
necessarily lead to a conflict of arms, if not prevented.

"But I rest the right of a State to judge of the extent of its reserved 
powers, in the last resort, on higher grounds — that the Constitution is 
a Compact, to which the States are parties in their Sovereign capacity; 
and that, as in all other cases of Compact between parties having no 
common umpire, each has a right to judge for itself. To the truth of 
this proposition, the Senator from Massachusetts has himself assented, 
if the Constitution itself be a Compact — and that it is, I have shown, 
I trust, beyond the possibility of a doubt. Having established this 
point, I now claim, as I stated I would do, in the course of the 
discussion, the admissions of the Senator, and, among them, the right of 
Secession and Nullification, which he conceded would necessarily follow 
if the Constitution be, indeed, a Compact.

"I have now replied to the arguments of the Senator from Massachusetts 
so far as they directly apply to the Resolutions, and will, in 
conclusion, notice some of his general and detached remarks. To prove 
that ours is a consolidated Government, and that there is an immediate 
connection between the Government and the citizen, he relies on the fact 
that the laws act directly on individuals. That such is the case I will 
not deny; but I am very far from conceding the point that it affords the 
decisive proof, or even any proof at all, of the position which the 
Senator wishes to maintain. I hold it to be perfectly within the 
competency of two or more States to subject their citizens, in certain 
cases, to the direct action of each other, without surrendering or 
impairing their Sovereignty. I recollect, while I was a member of Mr. 
Monroe's cabinet, a proposition was submitted by the British Government 
to permit a mutual right of search and seizure, on the part of each 
Government, of the citizens of the other, on board of vessels engaged in 
the slave trade, and to establish a joint tribunal for their trial and 
punishment. The proposition was declined, not because — it would impair 
the Sovereignty of either, but on the ground of general expediency, and 
because it would be incompatible with the provisions of the Constitution 
which establish the judicial power, and which provisions require the 
judges to be appointed by the President and Senate. If I am not 
mistaken, propositions of the same kind were made and acceded to by some 
of the Continental powers.

"With the same view the Senator cited the suability of the States as 
evidence of their want of Sovereignty; at which I must express my 
surprise, coming from the quarter it does. No one knows better than the 
Senator that it is perfectly within the competency of a Sovereign State. 
to permit itself to be sued. We have on the Statute-book a standing law, 
under which the United States may be sued in certain land cases. If the 
provision in the Constitution on this point proves any thing, it proves, 
by the extreme jealousy with which the right of suing a State is 
permitted, the very reverse of that for which the Senator contends.

"Among other objections to the views of the Constitution for which I 
contend, it is said that they are novel. I hold this to be a great 
mistake. The novelty is not on my side,, but on that of the Senator from 
Massachusetts. The doctrine of Consolidation which he maintains is of 
recent growth. It is not the doctrine of Hamilton, Ames, or any of the 
distinguished Federalists of the period, all of whom strenuously 
maintained the Federative character of the Constitution, though they 
were accused of supporting a system of policy which would necessarily 
lead to Consolidation. The first disclosure of that doctrine was in the 
case of M'Culloch; in which the Supreme Court held the doctrine, though 
wrapped up in language somewhat indistinct and ambiguous. The next, and 
more open avowal, was by the Senator of Massachusetts himself, about 
three years ago, in the debate on Foote's resolution. The first official 
annunciation of the doctrine was in the recent proclamation of the 
President, of which the bill that has recently passed this body is the 
bitter fruit.

"It is further objected by the Senator from Massachusetts, and others, 
against the doctrine of State Rights; as maintained in this debate, 
that, if it should prevail, the peace of the country would be destroyed. 
But what if it should not prevail? Would there be peace? Yes, the peace 
of despotism: that peace which is enforced by the bayonet and the sword; 
the peace of death, where all the vital functions of liberty have 
ceased. It is this peace which the doctrine of State Sovereignty may 
disturb by that conflict, which, in every tree State, if properly 
organized, necessarily exists between liberty and power; but which, if 
restrained within proper limits, gives a salutary exercise to our moral 
and intellectual, faculties. In the case of Carolina, which has caused 
all this discussion, who does not see. if the effusion of blood be 
prevented, that the excitement, the agitation, and the inquiry which it 
has caused, will be followed by the most beneficial consequences? The 
country had sunk into avarice, intrigue, and electioneering — from which 
nothing but some such event could rouse it, or restore those honest and 
patriotic feelings which had almost disappeared under their baneful 
influence. What Government has ever attained power and distinction 
without such conflicts? Look at the degraded state of all those nations 
where they have been put down by the iron arm of the Government.

"I, for my part, have no fear of any dangerous conflict, under the 
fullest acknowledgment of State Sovereignty: the very fact that the 
States may interpose will produce moderation and justice. The General 
Government will abstain from the exercise of any power in which they may 
suppose three fourths of the States will not sustain them; while, on the 
other hand, the States will not interpose but on the conviction that 
they will be supported by one fourth of their co-States. Moderation and 
justice will produce confidence, attachment and patriotism; and these, 
in turn, will offer most powerful barriers against the excess of 
conflicts between the States and the General Government.

"'But we are told that, should the doctrine prevail, the present system 
would be as bad, if not worse, than the old Confederation. I regard the 
assertion only a.e evidence of that extravagance of declaration in 
which, from excitement of feeling, we so often indulge. Admit the power, 
and still the present system would be as far removed from the weakness 
of the old Confederation as it would be from the lawless and despotic 
violence of consolidation. So far from being the same, the difference 
between the Confederation and the present Constitution would still be 
most strongly marked. If there were no other distinction, the fact that 
the former required the concurrence of the States to execute its acts, 
and the latter, the act of a State to arrest them, would make a 
distinction as broad as the ocean. In the former, the _vis inertiζ_ of 
our nature is in opposition to the action of the system. Not to act was 
to defeat. In the latter the same principle is on the opposite side — 
action is required to defeat. He who understands human nature will see, 
in this fact alone, the difference between a feeble and illy-contrived 
Confederation, and the restrained energy of a Federal system. Of the. 
same character is the objection that the doctrine will be the source of 
weakness. If we look to mere organization and physical power as the. 
only source of strength, without taking into the estimate the operation 
of moral causes, such would appear to be the fact; but if we take into 
the estimate the latter, we shall find that those Governments have the 
greatest strength in which power has been most efficiently checked. The 
Government of Rome furnishes a memorable example. There, two independent 
and distinct powers existed — the people acting by Tribes, in which the 
Plebeians prevailed, and by Centuries, in which the Patricians ruled. 
The Tribunes were the appointed representatives of the one power, and 
the Senate of the other; each possessed of the authority of checking and 
overruling one another, not as departments of the Government, as 
supposed by the Senator from Massachusetts, but as independent powers, — 
as much so as the State and General Governments. A shallow observer 
would perceive, in such an organization, nothing but the perpetual 
source of anarchy, discord, and weakness; and yet experience has proved 
that it was the most powerful Government that ever existed; and reason 
teaches that this power was derived from the very circumstances which 
hasty reflection would consider the cause of weakness. I will venture an 
assertion, which may be considered extravagant, but in which history 
will fully bear me out, that we have no knowledge of any people where 
the power of arresting the improper acts of the Government, or what may 
be called the negative power of Government, was too strong, — except 
Poland, where every freeman possessed a veto. But even there, although 
'it existed in so extravagant a form, it was the source of the highest 
and most lofty attachment to liberty, and the most heroic courage: 
qualities that more than once saved Europe from the domination of the 
crescent and cimeter. It is worthy of remark, that the fate of Poland 
is not to be attributed so much to the excess of this negative power of 
itself, as to the facility which it afforded to foreign influence in 
controlling its political movements.

"I am not surprised that, with the idea of a perfect Government which 
the Senator from Massachusetts has formed — a Government of an absolute 
majority, unchecked and unrestrained, operating through a representative 
body — he should be so much shocked with what he is pleased to call the 
absurdity of the State _veto_. But let me tell him that his scheme of a 
perfect Government, as beautiful as he conceives it to be, though often 
tried, has invariably failed, — has always run, whenever tried, through 
the same uniform process of faction, corruption, anarchy, and despotism. 
He considers the representative principle as the great modern 
improvement in legislation, and of itself sufficient to secure liberty. 
I cannot regard it in the light in which he does. Instead of modern, it 
is of remote origin, and has existed, in greater or less perfection, in 
every free State, from the remotest antiquity. Nor do I consider it as 
of itself sufficient to secure liberty, though I regard it as one of the 
indispensable means — the means of securing the people against the 
tyranny and oppression of their _rulers_. To secure liberty, another 
means is still necessary — the means of securing the different portions 
of society against the injustice and oppressions of each other, which 
can only be effected by _veto_, interposition, or Nullification, or by 
whatever name the restraining or negative power of Government may be 
called."

This is quite enough of Mr. Calhoun's reply. I have read all of it that 
bears directly upon the main points in issue between them. On these 
points never was a man more completely answered than Mr. Webster was. 
The argument is a crusher, an extinguisher, an annihilator!

PROF. NORTON. Where is Mr. Webster's rejoinder?

MR. STEPHENS. He made none. He followed with a few remarks only, 
disavowing any personal unkind feelings to Mr. Calhoun, explaining how 
he had used the term "Constitutional Compact," in 1830; and attempting 
to parry one or two of the blows, but he never made any regular set 
reply or rejoinder. He never came back at his opponent at all on the 
real questions at issue. Mr. Calhoun stood master of the arena. This 
speech of his was not answered then, it has not been answered since, and 
in my judgment never will be, or can be answered while truth has its 
legitimate influence, and reason controls the judgment of men!

The power and force of this speech must have been felt by Mr. Webster 
himself. He was a man of too much reason and logic not to have felt it. 
This opinion I am the more inclined to from the fact, that he not only 
did not attempt a general reply to it at the time, but from the further 
fact, that in after life he certainly, to say the least of it, greatly 
modified the opinions held by him in that debate.

PROF. NORTON. To what do you refer?

MR. STEPHENS. I refer specially to a speech made by him before the 
Supreme Court of the United States, in 1839, and to his speech at Capon 
Springs, in Virginia, in 1851, as well as some other matters. But, if it 
is agreeable to all, we will suspend the investigation for the present, 
take our evening's walk, and resume the subject to-morrow. Reading aloud 
is much more exhausting than talking, even with the same tone of voice.