COLLOQUY IX.

SUBJECT CONTINUED — WEBSTER'S SPEECH BEFORE THE SUPREME COURT — HIS 
LETTER TO BARING BROTHERS & CO — HIS CAPON SPRINGS SPEECH — THE SUPREME 
COURT ON STATE SOVEREIGNTY — INTERNATIONAL COMITY — DIFFERENCE BETWEEN 
THE UNION OF THE STATES AND THE UNION OF ENGLAND AND SCOTLAND — 
EXPOSITION OF THE CONSTITUTION BY THE SENATE IN 1838 — CALHOUN'S 
PRINCIPLES OF 1833 SUSTAINED BY TWO THIRDS OF THE STATES IN 1838 — 
EXPOSITION OF THE CONSTITUTION BY THE SENATE IN 1860 — JEFFERSON DAVIS.

PROF. NORTON. Well, Mr. Stephens, we are all ready to resume the subject 
we were last upon. That was the modification of Mr. Webster's opinions 
upon the issue between him and Mr. Calhoun in their great debate which 
we have been reviewing.

MR. STEPHENS. Yes, I have just looked up the argument of Mr. Webster, 
before the Supreme Court of the United States, to which I referred. I 
will first call your attention to that, and then some other expressions 
of opinion by him, bearing on the same subject. The case the Court had 
under consideration was the _The Bank of Augusta_ vs. _Earle_. In this 
case the nature of the General Government and the nature of the State 
Governments in their relations to each other; came up for adjudication. 
This was in January, 1839, six years after the discussion with Mr. 
Calhoun in the Senate. Here is what he then said:*

* 13 _Peters's Reports_, p. 559.

"But it is argued, that though this law of comity exists as between 
independent Nations, it does not exist between the States of this Union. 
That argument appears to have been the foundation of the judgment in the 
Court below.

"In respect to this law of comity, it is said, States are not Nations; 
they have no National Sovereignty; a sort of residuum of Sovereignty is 
all that remains to them. The National Sovereignty, it is said, is 
conferred on this Government, and part of the municipal Sovereignty. The 
rest of the municipal Sovereignty belongs to the States. Notwithstanding 
the respect which I entertain for the learned Judge, who presided in 
that Court, I cannot follow in the train of his argument. I can make no 
diagram, such as this, of the partition of National character between 
the State and General Governments. I cannot map it out, and say, so far 
is National, and so far municipal; and here is the exact line where the 
one begins and the other ends. We have no second La Place, and we never 
shall have, with his _Mechanique Politique_, able to define and describe 
the orbit of each sphere in our political system with such exact 
mathematical precision. There is no such thing as arranging these 
Governments of ours by the laws of gravitation, so that they will be 
sure to go on forever without impinging. These institutions are 
practical, admirable, glorious, blessed creations. Still they were, when 
created, experimental institutions; and if the Convention which framed 
the Constitution of the United States had set down in it certain general 
definitions of power, such as have been alleged in the argument of this 
case, and stopped there, I verily believe that in the course of the 
fifty years which have since elapsed, this Government would have never 
gone into operation.

"Suppose that this Constitution had said, in terms after the language of 
the Court below — all National Sovereignty shall belong to the United 
States; all municipal Sovereignty to the several States. I will say, 
that however clear, however distinct, such a definition may appear to 
those who use it, the employment of it, in the Constitution, could only 
have led to utter confusion and uncertainty. _I am not prepared to say 
that the States have no National Sovereignty_. The laws of some of the 
States — Maryland and Virginia, for instance — provide punishment for 
treason. The power thus exercised is, certainly, not municipal. Virginia 
has a law of alienage; that is, a power exercised against a foreign 
nation. Does not the question necessarily arise, when a power is 
exercised concerning an alien enemy — enemy to whom? The law of escheat, 
which exists in all the States, is also the exercise of a _great 
Sovereign power_.

"The term 'Sovereignty' does not occur in the Constitution at all. _The 
Constitution treats States as States_, and the United States as the 
United States; and, by a _careful enumeration_, declares all _the 
powers_ that are granted to the United States, and _all the rest are 
reserved to the States_. If we pursue, to — the extreme point, the 
powers granted, and the powers reserved, the powers of the General and 
State Governments will be found, it is to be feared, impinging, and in 
conflict. Our hope is, that the prudence and patriotism of the States, 
and the wisdom of this Government, will prevent that catastrophe. For 
myself, I will pursue the advice of the Court in Deveaux's case; I will 
avoid nice metaphysical subtilties, and all useless theories; I will 
keep my feet out of the traps of general definition; I will keep my feet 
out of all traps; I will keep to things as they are,. and go no further 
to inquire what they might be, if they were not what they are. _The 
States of this Union, as States, are subject to all the voluntary and 
customary laws of Nations._"

[Mr. Webster here referred to, and quoted a passage from _Vattel_ (page 
61), which, he said, clearly showed, that States connected together as 
are the States of this Union, must be considered as much component parts 
of the law of Nations as any others.]*

* See _Vattel_, here quoted, ante, p. 170.

"If, for the decision of any question, the proper rule is to be found in 
the law of Nations, that law adheres to the subject. It follows the 
subject through, no matter into what place, high or low. You cannot 
escape the law of Nations in a case where it is applicable. The air of 
every judicature is full of it. It pervades the Courts of law of the 
highest character, and the Court of pie poudre; aye, even the 
constable's Court. It is part of the universal law. It may share the 
glorious eulogy pronounced by Hooker upon law itself: that there is 
nothing so high as to be beyond the reach of its power, nothing so low 
as to be beneath its care. If any question be within the influence of 
the law of Nations, the law of Nations is there. If the law of comity 
does not exist between the States of this Union, how can it exist 
between a State and the subjects of any foreign Sovereignty?"

In this carefully prepared argument Mr. Webster significantly says: that 
in the Constitution nothing is said about "Sovereignty." This is all 
important. He admitted, in the debate with Mr. Calhoun, that the States 
were Sovereign before the Constitution was adopted. In this argument he 
holds the position that the powers delegated to the United States in the 
Constitution are specific and limited, and that all not delegated are 
reserved to the States. He states distinctly, that the Constitution 
treats the States as States. If the States, then, were Sovereign 
anterior to the Constitution, and Sovereignty was not delegated or 
parted with by them in it, as it could not have been, as the 
Constitution is silent upon the subject, then of course it is still 
reserved to the States. If the Sovereignty of the States was not 
delegated or parted with in the Constitution, was it not of necessity 
retained by them? He clearly so argues. This is the inevitable 
conclusion from the rules of inexorable logic. The decision of the 
Supreme Court in this case was on the line of his argument, and fully 
sustains his position. They say,

"It has, however, been supposed that the rules of comity between foreign 
Nations do not apply to the States of this Union; that they extend to 
one another no other rights than those which are given by the 
Constitution of the United States; and that the Courts of the General 
Government are not at liberty to presume, in the absence of all 
legislation on the subject, that a State has adopted the comity of 
Nations towards the other States, as a part of its jurisprudence; or 
that it acknowledges any rights, but those which are secured by the 
Constitution of the United States. The Court think otherwise. The 
intimate Union of these States, as members of the same great political 
family; the deep and vital interests which bind them so closely 
together; should lead us, in the absence of proof to the contrary, to 
presume a greater degree of comity, and friendship, and kindness towards 
one another, than we should be authorized to presume between foreign 
Nations. And when (as without doubt must occasionally happen) the 
interest or policy of any State requires it to restrict the rule, it has 
but to declare its will, and the legal presumption is at once at an end. 
But until this is done, upon what grounds could this Court refuse to 
administer the law of international comity between these States? _They 
are Sovereign States_; and the history of the past, and the events which 
are daily occurring, furnish the strongest evidence that they have 
adopted towards each other the laws of comity in their fullest extent. * 
*

"But it cannot be necessary to pursue the argument further. We think it 
is well settled, that by the law of comity among Nations, a corporation 
created by _one Sovereignty_ is permitted to make contracts in another, 
and to sue in its Courts; _and that the same law of comity prevails 
among the several Sovereignties of this Union_."

I read this decision of the Court, not only to show that the Court 
sustained this view presented by Mr. Webster, in 1839, which was a great 
modification of the view expressed by him in 1833, that you have read, 
but to show that it has been decided, solemnly adjudicated by the 
highest Judicial tribunal in this country, that Sovereignty is still 
retained by the several States of the Union under the Constitution.

JUDGE BYNUM. The Court in that case barely held that the law of 
international comity obtained between the States of our Union, as the 
same doctrine is held by the British Courts between Scotland and 
England, and yet no one there holds that Scotland is separately 
Sovereign from England, or that Scotland could dissolve the Compact of 
their Union.

MR. STEPHENS. The cases are totally different. There is no analogy 
between them. The decision was not made on any such view. The 
Sovereignties of England and Scotland are not united by Compact at all. 
The separate Sovereignties of these countries became united by a union 
of the Crowns of both, by regular descent in the person of James VI, of 
Scotland, who became James I, of England, upon the death of Elizabeth. 
The declaratory Act of the Parliaments of both, setting forth the fact 
of the Union thus resulting, and the respective rights of each, under 
it, distinctly states that the two Kingdoms thereafter shall be created 
into one Kingdom by the name of Great Britain. This was but the 
declaration of a unity of Sovereignty, which had occurred by the union 
of Crowns by descent, and not one of Compact at all. This distinction is 
clearly drawn by Blackstone in his Commentaries.* That was what he 
called an "_Incorporate Union_," which was very different from a 
_Federate alliance_."

* _Blackstone's Commentaries_, vol. i, p. 97, note E

But the difference between the Union of the Sovereignties of England and 
Scotland and the Federal Union of these States, is fully set forth by 
Judge Washington, of the Supreme Court of the United States, in the 
Circuit Court of the Eastern District of Pennsylvania, in the case of 
_Lonsdale_ vs. _Brown_. This decision was made In 1821. In delivering 
the opinion the judge says, "The Union between England and Scotland is, 
politically speaking, as intimate as between England and Wales, or 
between the different counties of either. They form one Kingdom; are 
subject to the same Government; and are represented in the same 
legislative body; and although the laws and customs of Scotland in force 
at the time of the Union were suffered to continue, yet they are 
alterable by the Parliament of Great Britain, even as they relate to 
private rights; if the alteration should be deemed for the evident 
utility of the people of Scotland.

"How different is the Union of these States? They are, in their separate 
political capacities, Sovereign and independent of each other, except so 
far as they have united for their common defence and for National 
purposes. They have each a Constitution and form of Government, with all 
the attributes of Sovereignty. As to matters of National concern they 
form one Government, are subject to the same laws, and may emphatically 
be denominated one people. In all other respects, they are as distinct 
as different forms of Government and different laws can render them. It 
is true, that the citizens of each State are entitled to all the 
privileges and immunities of citizens in every other State; that the 
Sovereignty of the States in relation to fugitives from justice, and 
from service, is limited; and that each State is bound to give full 
faith and credit to the public acts, records and judicial proceedings of 
her sister States. But these privileges and disabilities are mere 
creatures of the Constitution; and it is quite fair to argue that the 
framers of that instrument deemed it necessary to secure them by express 
provisions.

"In the case of _Warder_ vs. _Arrell_, 2 Wash. Rep. 282, the question, 
in part, was, whether the tender laws of Pennsylvania, where the 
contract was made, ought to be regarded by the Courts of Virginia, where 
the suit was brought? and throughout the opinions delivered by the 
judges, Pennsylvania was treated as a foreign country. The president of 
the Court is express upon this point. He observes that, in cases of 
contracts, the laws of a foreign country where the contract is made must 
govern. The same principle applies, though with no greater force, to the 
different States of America; for though they form a Confederated 
Government, yet the several States retain their individual 
Sovereignties, _and with respect to their municipal laws, are to each 
other foreign_."*

* _Peters's Reports_, vol. ii. App. pp. 689, 690.

But in further proof of the modification of the views of Mr. Webster on 
the subject, I refer to his celebrated letter to the Barings, in London, 
written the same year. Here it is. In it he uses this language:

"'Your first inquiry is, whether the Legislature of one of the States 
has legal and Constitutional power to contract loans at home and 
abroad?'

"To this I answer, 'that the Legislature of a State has such power'; and 
how any doubt could have arisen on this point it is difficult for me to 
conceive. Every State is an independent, Sovereign, political community, 
except in so far as certain powers, which it might otherwise have 
exercised, have been conferred on a General Government, established 
under a written Constitution, and exerting its authority over the people 
of all the States. This General Government is a limited Government. Its 
powers are specific and enumerated. All powers not conferred upon it 
still remain with the States and with the people. The State 
Legislatures, on the other hand, possess all usual and; extraordinary 
powers of Government, subject to any limitations which may be imposed by 
their own Constitutions, and, with the exception, as I have said, of the 
operation on those powers of the Constitution of the United States. The 
powers conferred on the General Government cannot of course be exercised 
by any individual State; nor can any State pass any law which is 
prohibited by the Constitution of the United States. * * *

"The security for State loans is the plighted faith of the State, as a 
political Community. It rests on the same basis as other contracts with 
established Governments — the same basis, for example, as loans made in 
the United States under the authority of Congress; that is to say, the 
good faith of the Government making the loan, and its ability to fulfil 
its engagements. * * *

"It has been said that the States cannot be sued on these bonds. But 
neither could the United States be sued, nor, as I suppose, the Crown of 
England, in a like case. Nor would the power of suing; probably, give 
the creditor any substantial additional security. The solemn obligation 
of a Government, arising on its own acknowledged bond, would not be 
enhanced by a judgment rendered on such bond. If it either could not, or 
would not, make provision for paying the bond, it is not probable that 
it could or would make provision for satisfying the judgment."*

* _Niles's National Register_, vol. lvii, pp. 273-274.

He here distinctly states that every State is an Independent, Sovereign, 
political Community, except in so far as certain powers, which it might 
otherwise have exercised, have been conferred on a General Government by 
a written Constitution, containing certain specified powers. This 
language is substantially identical with the language of the first 
Article of the old Confederation.

An important fact in this connection, to be borne in mind, is that there 
was no vote taken on Mr. Calhoun's Resolutions, in the Senate, in 1833. 
The matter rested there with the discussion. The controversy that gave 
rise to it was amicably adjusted, as we shall see. The subject of the 
discussion, however, was taken up by the press, by public speakers, by 
the State Legislatures, and by the people generally. The great 
discussions of 1798, 1799 and 1800, were revived. Old landmarks of 
principles were traced. The rapid strides of the Federal Government 
towards consolidation were again stopped.

Mr. Calhoun had, on the 28th of December, 1837, renewed the subject in 
the Senate. He then brought forward another set of Resolutions on the 
same subject, covering the same ground, embodying the same principles, 
and pressed them to a vote. These Resolutions are as follows:

"I. _Resolved_, That in the adoption of the Federal Constitution, the 
States adopting the same acted, severally, as free, independent, and 
Sovereign States; and that each, for itself, beer its own voluntary 
assent, entered the Union with the view to its increased security 
against all dangers, _domestic_ as well as foreign, and the more perfect 
and secure enjoyment of its advantages, natural, political, and social.

"II. _Resolved_, That, in delegating a portion of their powers to be 
exercised by the Federal Government, the States retained, severally, the 
exclusive and sole right over their own domestic institutions and 
police, to the full extent to which those powers were not thus 
delegated; and are alone responsible for them; and that any 
intermeddling of any one or more States, or a combination of their 
citizens, with the domestic institutions and police of the others, on 
any ground, political, moral, or religious, or under any pretext 
whatever, with the view to their alteration or subversion, is not 
warranted by the Constitution, tending to endanger the domestic peace 
and tranquillity of the States interfered with, subversive of the 
objects for which the Constitution was formed, and, by necessary 
consequence, tending to weaken and destroy the Union itself.

"III. _Resolved_, That this Government was instituted and adopted by the 
several States of this Union as a common agent, in order to carry into 
effect the powers which they had delegated by the Constitution for their 
mutual security and prosperity; and that in fulfilment of this high and 
sacred trust, this Government is bound so to exercise its powers, as not 
to interfere with the stability and security of the domestic 
institutions of the States that compose this Union; and that it is the 
solemn duty of the Government to resist, to the extent of its 
Constitutional power, all attempts by one portion of the Union to use it 
as an instrument to attack the domestic institutions of another, or to 
weaken or destroy such institutions.

"IV. _Resolved_, That domestic slavery, as it exists in the Southern and 
Western States of this Union, composes an important part of their 
domestic institutions, inherited from their ancestors, and existing at 
the adoption of the Constitution, by which it is recognized as 
constituting an important element in the apportionment of powers among 
the States, and that no change of opinion or feeling, on the part of the 
other States of the Union in relation to it, can justify them or their 
citizens in open and systematic attacks thereon, with the view to its 
overthrow; and that all such attacks are in manifest violation of the 
mutual and solemn pledge to protect and defend each other, given by the 
States respectively, on entering into the Constitutional Compact which 
formed the Union, and as such are a manifest breach of faith, and a 
violation of the most solemn obligations.

"V. _Resolved_, That the interference by the citizens of any of the 
States, with the view to the abolition of slavery in this District, is 
endangering the rights and security of the people of the District; and 
that any act or measure of Congress designed to abolish slavery in this 
District, would be a violation of the faith implied in the cessions by 
the States of Virginia and Maryland, a just cause of alarm to the people 
of the slaveholding States, and have a direct and inevitable tendency to 
disturb and endanger the Union.

"_And resolved_, That any attempt of Congress to abolish slavery in any 
Territory of the United States in which it, exists, would create serious 
alarm, and just apprehension, in the States sustaining that domestic 
institution; would be a violation of good faith towards the inhabitants 
of any such territory who have been permitted to settle with, and hold 
slaves therein, because the people of any such Territory have not asked 
for the abolition of slavery therein; and because when any such 
Territory shall be admitted into the Union as a State, the people 
thereof will be entitled to decide that question exclusively for 
themselves."*

* _Congressional Globe and Appendix_, 2d S., 25th Congress, p. 98.

The first of these Resolutions, which distinctly affirms the great truth 
set forth in the first of his series in 1833, passed the Senate by the 
large majority of thirty-two to thirteen, on the third of January, 1838. 
Congressional Globe, Second Session, Twenty-fifth Congress, page 74. 
This was certainly the highest authoritative exposition of the subject 
that could be given. It was the amplest vindication of the merits of Mr. 
Calhoun's argument in 1833. His argument and Mr. Webster's had gone to 
the country, and this was the verdict of the States upon the issue 
presented by them. More than two to one of the Senate of the United 
States affirmed most positively and solemnly that the Union of the 
States was Federal, and that in entering into it under the Constitution, 
the States did so severally as free, independent, Sovereign Powers That 
the Union was one of States, formed by States, and not by the people in 
the aggregate as one nation.

But upon an analysis of the vote upon this Resolution, and the others of 
the series, this authoritative exposition derives increased importance. 
For if we look at the vote by States, it will be seen that eighteen 
States voted for this Resolution, while only six voted against it. One 
was divided, and one did not vote.* More than two thirds of the States 
give this construction to the character of the Government in 1838. It is 
true, Mr. Webster was then in the Senate, and did not vote for it. But 
he did not take up the gauntlet thrown down by Calhoun for another 
contest in debate on the principles thus re-announced. Mr. Clay, 
however, voted for it, which shows his understanding of the nature of 
the Government.

* _Ayes_, — Alabama, Arkansas, Connecticut, Georgia, Illinois, Kentucky, 
Louisiana, Mississippi, Missouri, Michigan, Maine, North Carolina, New 
Hampshire, New York, South Carolina, Pennsylvania, Tennessee, Virginia, 
18. _Nays_, — Delaware, Indiana, Massachusetts, New Jersey, Rhode 
Island, Vermont, 6. _Divided_, — Ohio, 1. _Not voting_, — Maryland, 1.

On the second of these Resolutions, the vote stood thirty-one to nine on 
the _per capita_ vote. By States the vote was twenty States for it, only 
four against, one divided, and one not voting.†

† _Ayes_. — Alabama. Arkansas, Connecticut, Delaware, Georgia, Illinois, 
Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, New 
Hampshire, North Carolina, New York, South Carolina, Tennessee, 
Virginia, Pennsylvania and Maryland, 20. _Nays_. — Indiana, 
Massachusetts, New Jersey, Vermont, 4. _Divided_, — Ohio, 1. _Not 
voting_, — Rhode Island. 1.

Three fourths of the States voted for this Resolution, enough to have 
amended the Constitution according to its provision, if they had been in 
Convention for that purpose.

The vote on the third Resolution was thirty-one to eleven. By States the 
vote was sixteen in favor and only four against it; three were divided, 
and three not voting. A large majority of the States thus expressly 
affirmed that the Federal Government was nothing but a common agent of 
the States, and held all its powers by delegation and in trust.

On the fourth Resolution, the vote stood thirty-four for it, and only 
five against it. By States the vote was eighteen for it, and only two 
against it, while two were divided, and four not voting.

On the fifth Resolution, the vote was thirty-six to eight. This 
Resolution was slightly amended, on motion of Mr. Clay, from what it was 
when at first introduced. On the second clause of it, the vote by States 
was nineteen for it, three only against it; three divided, and one not 
voting.

These votes all show conclusively how the Constitution was then 
understood by the "ambassadors of the States," as Mr. Ames, in the 
Massachusetts Convention, had styled the Senators. This is the 
construction of it they put on perpetual record. Could any man desire an 
ampler vindication of the correctness of his position than Mr. Calhoun 
had of the truth of his principles, of 1833, thus declared by two thirds 
of the States themselves, through their ambassadors in the Senate, five 
years afterwards.

It was after these Resolutions had been passed, after the discussions 
that had ensued between 1833 and 1838, after the revival of the 
principles of 1798-99-1800, which had slumbered so long on these 
subjects, that Mr. Webster, in 1839, made the speech he did, before the 
Supreme Court of the United States, and wrote the letter he did to the 
Baring Brothers & Co., touching the nature of the Government, in both of 
which he fully admits that the States are Sovereign, except in so far as 
they have delegated specific Sovereign powers. But "Sovereignty" itself, 
as he says, not being mentioned in the Constitution, must, as a 
necessary result, remain with the States, or the people thereof.

But besides all this, as a further proof of Mr. Webster's change of 
views as to the Constitution being a Compact between the States, I cite 
you to a later speech made by him at Capon Springs, in Virginia, on the 
28th June, 1851. Here it is.* In this he says:

* _Pamphlet Copy_.

"The leading sentiment in the toast from the Chair is the Union of the 
States. THE UNION OF THE STATES! What mind can comprehend the 
consequences of that Union, past, present, and to come? The Union of 
these States is the all-absorbing topic of the day; on it all men write, 
speak, think, and dilate, from the rising of the sun to the going down 
thereof. And yet, gentlemen, I fear its importance has been but 
insufficiently appreciated."

Further on he says:

"How absurd it is to suppose that when different parties enter into a 
Compact for certain purposes, either can disregard any one provision, 
and expect, nevertheless, the other to observe the rest! I intend, for 
one, to regard, and maintain, and carry out, to the fullest extent, the 
Constitution of the United States, which I have sworn to support in all 
its parts and all its provisions. It is written in the Constitution:

"'NO PERSON HELD TO SERVICE OR LABOR IN ONE STATE, UNDER THE LAWS 
THEREOF, ESCAPING INTO ANOTHER, SHALL, IN CONSEQUENCE OF ANY LAW OR 
REGULATION THEREIN, BE DISCHARGED FROM SUCH SERVICE OR LABOR, BUT SHALL 
BE DELIVERED UP ON CLAIM OF THE PARTY TO WHOM SUCH SERVICE OR LABOR MAY 
BE DUE.'

"That is as much a part of the Constitution as any other, and as equally 
binding and obligatory as any other on all men, public or private. And 
who denies this? None but the abolitionists of the North. And pray what 
is it they will not deny? They have but the one idea; and it would seem 
that these fanatics at the North and the secessionists at the South, are 
putting their beads together to derive means to defeat the good designs 
of honest and patriotic men. They act to the same end and the same 
object, and the Constitution has to take the fire from both sides.

"I have not hesitated to say, and I repeat, that if the Northern States 
refuse, wilfully and deliberately, to carry into effect that part of the 
Constitution which respects the restoration of fugitive slaves, and 
Congress provide no remedy, the South would no longer be bound to 
observe the Compact. A bargain cannot be broken on one side and still 
bind the other side. I say to you, gentlemen, in Virginia, as I said on 
the shores of Lake Erie and in the city of Boston, as I may say again, 
in that city or elsewhere in the North, that you of the South have as 
much right to receive your fugitive slaves, as the North has to any of 
its rights and privileges of navigation and commerce."

Again, said he: "I am as ready to fight and to fall for the 
Constitutional rights of Virginia, as I am for those of Massachusetts."

In this speech Mr. Webster distinctly held that the Union was a Union of 
States. That the Union was founded upon Compact. And that a Compact 
broken on one side could not continue to bind the other.

That this speech shows a modification of the opinions expressed in his 
speech of 1833, must be admitted by all. He had grown older and wiser. 
The speech of 1851, was in his maturer years, after the nature of the 
Government had been more fully discussed by the men of his own 
generation than it had been in 1830 and 1833. He was too great a man and 
had too great an intellect not to see the truth when it was presented, 
and he was too honest and too patriotic a man, not to proclaim a truth 
when he saw it, even to an unwilling people. In this quality of moral 
greatness I often thought Mr. Webster had the advantage of his great 
contemporaries, Messrs. Clay and Calhoun. Not that I would be understood 
as saying that they were not men of great moral courage, for both of 
them showed this high quality in many instances, but that they never 
gave the world such striking exhibitions of it as he did. It was the 
glory of his life that his was put to a test, in this particular, that 
theirs never was. On no occasion that I am aware of did Mr. Clay ever 
take a position which he did not know that he would be sustained in by 
the people of Kentucky. So with Mr. Calhoun, as to South Carolina. I do 
not say that they might not have done it if a sense of duty had required 
it, but they were either so fortunate or so unfortunate as never to have 
that issue presented to them.

Webster, on the contrary, often passed this ordeal, and that he passed 
it with unflinching firmness is one of the grandest features in the 
general grandeur of his character. Even his detractors have been 
constrained to render him unwilling homage in this respect.

Theodore Parker, in his tirade on his character, after his death, is an 
illustration of this. He graphically described, if you recollect, his 
position, in Faneuil Hall, when he returned to give an account of his 
stewardship to his constituents, in 1842. Webster, you know, had 
remained in President Tyler's cabinet after Mr. Tyler had come to an 
open breach with the Whig party. This was exceedingly displeasing to the 
Whigs of Massachusetts. His object in so remaining, however, was to 
preserve peace with England by effecting a settlement of the North 
Eastern Boundary question. This he saw a prospect of accomplishing, and 
this, by remaining, he had accomplished. But even this great act could 
not atone for his disregard of the wishes of his party. They were in the 
main disaffected, displeased, and indignant. The opposition had assumed 
a hostile attitude. The crisis in his affairs was gloomy enough. The 
political elements were gathering against him from every point. The 
storm had been brewing for some time. Denunciations opened from every 
quarter. All this Parker vividly described, on the occasion alluded to, 
and then said (I quote from memory): "The clouds had thickened into 
blackness all around, and over him, and hurled their thunders fearfully 
upon his devoted head! But there he stood in Faneuil Hall and thundered 
back again! It was the ground lightning from his Olympian brain!"

This figure was not too exaggerated for the occasion. It gave a truthful 
representation of the majesty of the man whom he was endeavoring to 
depreciate, disparage, and defame. In rendering this homage he was but 
reenacting the part of the Prophet of Aram, who went out to curse, but 
was constrained to honor instead.

This was not the only instance in which Mr. Webster exhibited this 
highest quality of human nature.

On this point you will excuse me for repeating what I said on another 
occasion:

"One of the highest exhibitions of the moral sublime the world ever 
witnessed, was that of Daniel Webster, when, in an open barouche in the 
streets of Boston, he proclaimed, in substance, to a vast assembly of 
his constituents — unwilling hearers — that 'they had conquered an 
uncongenial clime; they had conquered a sterile soil; they had conquered 
the winds and currents of the Ocean; they had conquered most of the 
elements of nature; but they must yet learn to conquer their 
prejudices!' I know of no mole fitting incident or scene in the life of 
that wonderful man, '_Clarus et vir Flortissimus_,' for perpetuating the 
memory of the true greatness of his character, on canvas or in marble, 
than a representation of him as he then and there stood and spoke! It 
was an exhibition of moral grandeur surpassing that of Aristides when he 
said, 'O! Athenians, what Themistocles recommends would be greatly to 
your interests, but it would be unjust!'"

Such exhibitions of moral outrage his great rivals never gave — never 
had occasion, perhaps, to give. But you see the estimation in which I 
hold Mr. Webster. I did entertain for him the highest esteem and 
admiration I did not agree with him in his exposition of the 
Constitution in 1833, but I did fully and cordially agree with him in 
his exposition in 1839, and 1851. According to that the Constitution was 
and is a Compact between the States.

But to return from this digression. Whether Mr. Webster ever did or did 
not modify the opinions expressed in the speech you have read is not the 
question before us. That is, what is the true construction of the 
Constitution on the point under immediate consideration. We have seen 
the exposition of the Supreme Court of the United States, which Mr. 
Webster maintained was the final arbiter, and we have seen the 
exposition of the United States Senate, that is the exposition of the 
States themselves by their ambassadors in 1839. Now, in addition to 
this, I wish to call your special attention to a like exposition by the 
same high authority, as late as 1860, not twelve months before the war 
began.

Mr. Jefferson Davis, of whom and about whom we shall have much to say as 
we proceed, submitted to the Senate, on the 29th of February, a series 
of resolutions, declaratory of the principles of the Government on the 
very subjects out of which the war sprung. He was then Senator from 
Mississippi. These Resolutions passed the Senate May 24, 1860. Here they 
are. I call your special attention to the first and second of these.

"1. _Resolved_, That, in the adoption of the Federal Constitution, the 
States adopting the same, acted severally as free and independent 
Sovereignties, delegating a portion of their powers to be exercised by 
the Federal Government for the increased security of each against 
dangers, domestic as well as foreign; and that any intermeddling by any 
one or more States, or by a combination of their citizens, with the 
domestic institutions of the others, on any pretext whatever, political, 
moral, or religious, with a view to their disturbance or subversion, is 
in violation of the Constitution, insulting to the States so interfered 
with, endangers their domestic peace and tranquillity — objects for 
which the Constitution was formed — and, by necessary consequence, tends 
to weaken and destroy the Union itself.

"2. _Resolved_. That negro Slavery, as it exists in fifteen States of 
this Union, composes an important portion of their domestic 
institutions, inherited from their ancestors, and existing at the 
adoption of the Constitution, by which it is recognized as constituting 
an important element in the apportionment of powers among the States, 
and that no change of opinion or feeling on the part of the 
non-slaveholding States of the Union, in relation to this institution, 
can justify them or their citizens in open or covert attacks thereon, 
with a view to its overthrow; and that all such attacks are in manifest 
violation of the mutual and solemn pledge to protect and defend each 
other, given by the States respectively on entering into the 
Constitutional Compact which formed the Union, and are a manifest breach 
of faith, and a violation of the most solemn obligations.

"3. _Resolved_, That the Union of these States rests on the equality of 
rights and privileges among its members; and that it is especially the 
duty of the Senate, which represents the States in their Sovereign 
capacity, to resist all attempts to discriminate either in relation to 
persons or property in the Territories, which are the common possessions 
of the United States, so as to give advantages to the citizens of one 
State which are not equally assured to those of every other State.

"4. _Resolved_, That neither Congress nor a Territorial Legislature, 
whether by direct legislation or legislation of an indirect and 
unfriendly character, possesses power to annul or impair the 
Constitutional right of any citizen of the United States, to take his 
slave property into the, common Territories, and there hold and enjoy 
the same while the territorial condition remains.

"5. _Resolved_, That, if experience should at any time prove that the 
Judicial and Executive authority do not possess means to insure adequate 
protection to Constitutional rights in a Territory, and if the 
Territorial Government should fail or refuse to provide the necessary 
remedies for that purpose, it will be the duty of Congress to supply 
such deficiency.

"6. _Resolved_, That the inhabitants of a Territory of the United 
States, when they rightfully form a Constitution to be admitted as a 
State into the Union, may, then, for the first time, like the people of 
a State, when forming a new Constitution, decide for themselves whether 
slavery, as a domestic institution, shall be maintained or prohibited 
within their jurisdiction; and 'they shall be admitted into the Union, 
with or without slavery, as their Constitution may prescribe at the time 
of their admission.'

"7. _Resolved_, That the provision of the Constitution for the rendition 
of fugitives from service or labor, with out the adoption of which the 
Union could not have been formed, and the laws of 1793 and 1850, which 
were enacted to secure its execution, and the main features of which, 
being similar, bear the impress of nearly seventy years of sanction by 
the highest judicial authority, should be honestly and faithfully 
observed and maintained by all who enjoy the benefits of our Compact of 
Union, and that all acts of individuals or of State Legislatures to 
defeat the purpose or nullify the requirements of that provision, and 
the laws made in pursuance of it, are hostile in character, subversive 
of the Constitution, and revolutionary in their effect."

These Resolutions decidedly affirmed that the Constitution was formed by 
States — independent Sovereignties — that the Government established by 
it is a Federal Government — one founded on Compact, and that any 
interference, openly or covertly, directly or indirectly, by any of the 
States or their citizens, with the black population in any other of the 
States, or with the domestic institutions of any of the States against 
their own internal. policy, would be a manifest breach of plighted faith 
— and, further, that all acts of the individual citizens of any of the 
States, as well as of the Legislatures of any of the States, intended to 
defeat or nullify that clause of the Constitution requiring the 
rendition of fugitives from service, were hostile to and subversive of 
the Constitution itself.

JUDGE BYNUM. Though these Resolutions did pass the Senate, the vote on 
them was nothing but a party vote. Mr. Davis, in introducing them, was 
but paving the way for his subsequent course. This was but part of his 
scheme of Secession, which he and his associates had been concocting for 
years. Every Republican in the Senate, at the time, voted against these 
Resolutions, while every Democrat, in like manner, voted for them.

MR. STEPHENS. So you might say of Mr. Calhoun's motives and intentions, 
in 1838. Such motives, I know, have been attributed to him. Now, I think 
all accusations of this kind were exceedingly unjust to him, and so, I 
think in this case, you do great injustice to Mr. Davis.

You are mistaken in saying that the vote upon these Resolutions was a 
strict party vote. Here is the vote. There were thirty-six Senators in 
favor of the first Resolution and only nineteen against it;* nearly two 
to one on the per capita vote. Among the yeas I see James A. Pearce, 
Anthony Kennedy and John J. Crittenden. When were they ever considered 
or looked upon as Democrats in the sense in which you use that term? 
They certainly did not belong to the same political organization with 
Mr. Davis at that time, and had no sympathy with its bare party objects. 
While the _per capita_ vote is so striking, if we look at it by States 
it will appear even more so.† From a view of it, in this respect, it 
appears that nineteen States voted for the first Resolution, only ten 
voted against it, while two were divided, and two did not vote. Had the 
two absent States, Delaware and Illinois, been present, the vote would 
have been twenty for it, ten against it, and three divided; for Douglas, 
of Illinois, would have voted for it, and Trumbull of the same State 
would have voted against it. Would it not have been a strange spectacle 
to see twenty of the thirty-three States in Senatorial Council, taking 
the initiative step for a dismemberment of the Union? Is such a 
supposition reasonable? Can any one suppose that these States, acting 
through their Senators, could have had any such design? Does not the 
object of these Resolutions clearly appear to have been just the 
reverse? Was not this simply but earnestly to declare the nature of the 
Government, and the only way in which the Union, under it, could be 
preserved? The vote on the seventh Resolution, looking to the _per 
capita_ vote, or the vote by States, is' equally striking. On the _per 
capita_ the yeas were thirty-six, and nays six. By States the vote was 
twenty for the Resolution, and only four against it. One State divided, 
and eight not voting.**

* _Yeas_. — Messrs. Benjamin, Bigler, Bragg, Bright, Brown, Chestnut, C. 
C. Clay, Clingman, Crittenden, Davis, Fitzpatrick, Green, Gwin, Hammond, 
Hemphill, Hunter, Iverson, Johnson, of Arkansas, Johnson, of Tennessee, 
Kennedy, Lane, of Oregon, Latham, Mallory, Mason, Nicholson, Pearce, 
Polk, Powell, Pugh, Rice, Sebastian, Slidell, Thompson, of New Jersey, 
Toombs, Wigfall and Yulee, — 36. _Nays_, — Messrs. Bingham, Chandler, 
Clark, Collamer, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, 
Hale, Hamlin, Harlan, King, Simmons, Sumner, Ten Eyck, Wade, and Wilson, 
— 19.

† Vote by States on the first Resolution:

_Yeas_, — Alabama, Arkansas, California, Florida, Georgia, Indiana, 
Kentucky, Louisiana, Missouri, Mississippi, Minnesota, Maryland, North 
Carolina, Oregon, Pennsylvania, South Carolina, Texas, Tennessee, and 
Virginia, — 19. _Nays_, — Connecticut, Iowa, Maine, Massachusetts, 
Michigan, New York, New Hampshire, Rhode Island, Vermont, and Wisconsin, 
— 10. _Divided_, — Ohio and New Jersey, — 2. _Not voting_, — Delaware 
and Illinois, — 2.

** Vote on the seventh Resolution:

_Yeas_, — Alabama, Arkansas, California, Florida, Georgia, Indiana, 
Kentucky, Louisiana, Missouri, Maryland, Minnesota, Mississippi, New 
Jersey, North Carolina, Oregon, Pennsylvania, South Carolina, Texas, 
Tennessee, and Virginia, — 20. _Nays_, — Massachusetts, Michigan, New 
Hampshire, and Vermont, — 4. _Divided_, — Ohio, — 1. — _Not voting_, — 
Connecticut, Delaware, Iowa, Illinois, Maine, New York, Rhode Island and 
Wisconsin, — 8.

An important fact, in connection with these Resolutions, should ever be 
borne in mind. That is that every one of these ten States, whose 
Senators voted against them, had, by their State Legislatures, as we 
shall see, openly and intentionally disregarded their obligations, under 
that clause of the Constitution, which required the rendition of 
fugitives from service, and which acts, on their part, a large majority 
of the States thus by their resolves declared to be a breach of their 
plighted faith. Indeed, all these ten States were then under the 
influence of those who held that the Constitution was but "a Covenant 
with Death and an agreement with Hell."* Is it just or fair to Mr. Davis 
to say that he was meditating or planning Secession at that time, any 
more than it was the design of the nineteen States which actually agreed 
with him in the sentiments of the Resolutions?

* _Lunt's Origin of the War_. p. 109.

Is it not more in accordance with strict justice, to say nothing of that 
charity which should ever be exercised in investigations of this sort, 
to suppose that his object was to preserve the Union by having all the 
members to conform their action to its plain and unmistakable 
provisions? If there were any _dis_-union sentiments then existing to 
whom should they be rightly attributed? Should they be attributed to 
those States and those Senators who were for maintaining the Union on 
the principles upon which it was formed, or those who were for 
maintaining a Government, barely, upon totally different principles? 
Three of these Resolutions of the series offered by Mr. Davis, and which 
passed the Senate, I am frank to say, I thought, at the time, though not 
then in public life, and still think, ought not to have been brought 
forward.

MAJOR HEISTER. Which ones are they?

MR. STEPHENS. The fourth, fifth, and sixth.

PROF. NORTON. These are the ones that relate to the doctrine of Popular 
or Squatter Sovereignty, as it was called. What objections had you to 
them?

MR. STEPHENS. My objections related solely to the policy of introducing 
them. They presented questions which tended to divide and thus weaken 
the Constitutional Party — the State Rights, State Sovereignty Party — 
the great party throughout the country, everywhere, whatever cognomen 
its various subdivisions bore, which was for maintaining the 
Constitution, and the Union under it, as it was made and handed down to 
them from their ancestors. It seemed to me to be exceedingly inexpedient 
and impolitic as a matter of statesmanship to divide those thus 
cordially united on the more essential and vital principles of the 
Government, upon questions of so little practical importance, especially 
at such a crisis as that was in public affairs. The new 
Anti-Constitutional Party, as it might in my view very properly be 
styled, was then thoroughly organized under the old but misapplied name 
of Republican, and it should have been a matter of the utmost importance 
with the real friends of the Constitution, and Union under it, not to 
divide their ranks upon such questions as those embraced in these three 
Resolutions. This, in short, was my view of that subject. The only hope 
of the new party was in a division of its opponents. In case this 
division should become complete and irreconcileable I saw that a rupture 
of that party was an inevitable result, and with its rupture a rupture 
of the Union, upon the principles upon which it was formed, seemed to me 
to be equally inevitable. I am equally frank in stating that there were 
some amongst us who meant to use this question for no purpose whatever, 
but to produce such a rupture both of the party and of the Union. I did 
not, however, then or now, think that Mr. Davis belonged to that class. 
No man, in my opinion, which I give you candidly, is less understood at 
the North, and perhaps to a great extent, at the South, too, than Mr. 
Davis, on this question. I may be wrong, but I assure you I never 
regarded him as a Secessionist, properly speaking; that is, I always 
regarded him as a strong Union man in sentiment, so long as the Union 
was maintained on the principles upon which it was founded. He was, 
without doubt, a thorough State Rights, State Sovereignty man. He 
believed in the right of Secession; but what I mean to say is, that in 
my opinion, he was an ardent supporter of the Union on the principles, 
as he understood them, upon which, and for which, the Union was formed.. 
There were, as I have said, many public men amongst us who after these 
Resolutions passed the Senate, and after the Presidential canvass was 
opened upon them, and the various issues presented in the Party 
platforms of the day, as we shall see, who were openly for Secession in 
case Mr. Lincoln should be elected upon the principles on which he was 
nominated. But Mr. Davis, as far as I know or believe, did not belong 
even to this class. If he was in favor of Secession barely upon the 
grounds of Mr. Lincoln's election, I am not aware of it. He certainly 
made no speech nor wrote any letter for the public during that canvass 
that indicated such views or purposes. I never saw a word from him 
recommending Secession as the proper remedy against threatening dangers 
until he joined in the general letter of the Southern Senators and 
Representatives in Congress to their States, advising them to take that 
course.

This was in December, 1860, and not until after it was ascertained in 
the Committee of the Senate, on Mr. Crittenden's proposition for 
quieting the apprehensions and alarm of the Southern States from the 
accession of Mr. Lincoln to power, that the Republicans, his supporters, 
would not agree to that measure. It is well known that he and Mr. Toombs 
both declared their willingness to accept the adoption of Mr. 
Crittenden's measure as a final settlement of the controversy between 
the States and sections, if the party coming into power would agree to 
it in the same spirit and with the same assurance. It was after it was 
known that this party would not enter into any such settlement, or give 
any assurance for the future, that Mr. Davis joined other Southern 
Senators and Representatives advising the Southern States to secede, as 
the proper remedy for what he and they considered impending dangers to 
their rights, security, and future welfare. There is nothing in Mr. 
Davis's life, or public conduct, that I am aware of, that affords just 
grounds for believing that he ever desired a separation of the States, 
if the principles of the Union, under the Constitution, had been 
faithfully adhered to by all the Parties to it. These were the 
sentiments of all his speeches, in Congress and out of it, as far as I 
have ever seen, even down to his last most touching leave-taking address 
to the Senate!

But all this is digressing from the matter before us. We shall have 
enough of these questions hereafter. The point we are now considering is 
not the object or motive of Mr. Davis in offering these Resolutions. It 
is the exposition actually made by the Senate of the United States, 
nineteen States to ten States, of the real nature and character of the 
Government. Mr. Davis was but the instrument, the draftsman, through 
whom this overwhelming majority of the States announced for themselves 
the nature of the bonds of their Union! This exposition was as late as 
1860, and substantially the same that had been given by the same August 
Body of ambassadors representing their Sovereignty in 1838, twenty-two 
years before! That exposition was that the Constitution is a Compact 
between Sovereign States.

So, after this very long talk, wandering the while far from the point, 
we finally return to the same place at which we had arrived before 
taking up Mr. Webster's speech. We now stand just where we did then. We 
have gone through with his great argument and Mr. Calhoun's reply, to 
which no rejoinder was ever made. We have seen that the Senate, by a 
nearly three fourths vote of the States, in 1838, and by a vote of 
nearly two to one, in 1860, sustained that construction of the 
Constitution which was set forth in the first of Mr. Calhoun's 
Resolutions in 1833, and which I maintain. The decisions of the Supreme 
Court referred to, sustain the same view also. We have seen further, 
that Mr. Webster himself, in his riper years, held that the Union was 
"_a Union of States_." That it was founded upon "Compact," and that "a 
bargain cannot be broken on one side and still bind the other side."

Does it not, therefore, clearly appear from these high authorities, and 
even upon the authority of Mr. Webster himself, that the Government of 
the United States is a Federal Government, or as Washington styled it, a 
Confederated Republic? What further, if any thing, have you to say 
against this as an indisputably established conclusion?