Commentaries on the Constitution of the United States (1833)by Joseph L. Story Power to Borrow Money and Regulate CommerceSec. 1050.Sec. 1051.Sec. 1052.Sec. 1053.Sec. 1054.Sec. 1055.Sec. 1056.Sec. 1057.Sec. 1058.Sec. 1059.Sec. 1060.Sec. 1061.Sec. 1062.Sec. 1063.Sec. 1064.Sec. 1065.Sec. 1066.Sec.1067.Sec. 1068.Sec. 1069.Sec. 1070.Sec. 1071.Sec. 1072.Sec. 1073.Sec. 1074.Sec. 1075.Sec. 1076.Sec. 1077.Sec. 1078.Sec. 1079.Sec. 1080.Sec. 1081.Sec. 1082.Sec. 1083.Sec. 1084.Sec. 1085.Sec. 1086.Sec. 1087.Sec. 1088.Sec. 1089.Sec. 1089.Sec. 1090.Sec. 1091.Sec. 1092.Sec. 1093.Sec. 1094.Sec. 1095.Sec. 1096.
FOOTNOTES

     1.    Article 9.
     2.    1 Tuck. Black. Comm. App. 245, 246; The Federalist, No. 41.
     3.    Weston v. City Council of Charleston, 2 Peters's R. 449, 468.
     4.    Gibbons v. Ogden, 9 Wheat. R. 1, 225, Johnson J.'s Opinion; Brown v. Maryland, 12 Wheat. R. 445, 446.
     5.    The Federalist, No. 4, 7, 11, 22, 37.
     6.    Brown v. State of Maryland, 12 Wheat. R. 419, 445, 446; 1 Tucker's Black. Comm. App. 248 to 252; 1 Amer. Museum, 8, 272, 273, 281, 282, 288; 2 Amer. Museum, 263 to 276; Id. 371, 372; The Federalist, No. 7, 11, 22; Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; 5 Marshall's Life of Washington, ch. 2, p. 74 to 80; 2 Pitkin's Hist. 189, 192.
     7.    The Federalist, No. 7. 11, 12, 22, 41, 42.
     8.    Journal of Convention, 220, 257, 260, 356, 378.
     9.    Gibbons v. Ogden, 9 Wheat. R. 189.
   10.    9 Wheat. R. 196.
   11.    Gibbons v. Ogden, 9 Wheat. 189, 190; Id. 229, 230.
   12.    9 Wheat. R. 190, 191; Id. 215, 216, 217; Id. 229, 230; 1 Tucker's Black. Comm. App. 249 to 252.
   13.    12 Wheat. R. 446.
   14.    1 Tucker's Black. Comm. App. 247, 248, 249.
   15.    9 Wheat. R. 191.
   16.    9 Wheat. R. 191, 215, 216; North River Steamboat Company v. Livingston, 3 Cowen's R. 713.
   17.    9 Wheat. 193; 1 Kent's Comm. Lect. 19, p. 404, 405; The Brigantine William, 2 Hall's Law Journal, 265; Sergeant on Const. ch. 28, p. 290, 86.
   18.    9 Wheat. 193, 215, 216, 217; Id. 226; 12 Wheat. R. 446, 447; North River Steamboat Company v. Livingston, 3 Cowen's R. 713.
   19.    Gibbons v. Ogden, 9 Wheaton's R. 1, 201; Ib. 224; Ib. 225 to 228. See Mr. Verplank's letter to Col. Drayton in 1831; Resolves of Congress, 14th Oct. 1774, (1 Journal of Congress, 27); 2 Marshall's Life of Washington, (in five volumes,) p. 77, 81; Dr. Franklin's Examination, before the house of commons, in 1766; Dickerson's Farmer's Letters, No. 2, 1767; 1 Jefferson's Corresp. 7; Burke's Speech on American Taxation, 1774.
   20.    Gibbons v. Ogden, 9 Wheaton's R. 194.
   21.    Gibbons v. Ogden, 9 Wheaton's R. 194, 195, 196; Brown v. Maryland, 12 Wheaton, 446, 447.
   22.    See the Federalist, No. 6, 7, 11, 12, 22, 41, 42; N. R. Steamboat Company v. Livingston, 3 Cowen's R. 713.
   23.    12 Wheaton's R. 448, 449; 9 Wheaton, 199 to 204.
   24.    The Federalist, No. 42; 1 Tuck. Black. Comm. App. 247 to 252.
   25.    See President Monroe's Exposition and Message, 4 May, 1822, p. 31, 32.
   26.    The Federalist, No. 42, 22.
   27.    The Federalist, No. 42.
   28.    The Federalist, No. 11, 12.
   29.    See the opinion of Mr. Justice Johnson, 9 Wheaton's R. 224 to 228.
   30.    In the convention, it was moved to amend the article, so as to give to congress "the sole and exclusive" power; but the proposition was rejected by the vote of six states against five. a
     a.    Journal of Convention, 220, 270.
   31.    Gibbons v. Ogden, 9 Wheaton's R. 1; Brown v. Maryland, 12 Wheaton's R. 419, 445. 446; 1 Tucker's Black. Comm. App, 180, 309; N. R. Steam Boat Company v. Livingston, 3 Cowen's R. 713.
   32.    9 Wheaton's R. 196, 198, 209; Id. 227, 228.
   33.    Wheaton's R. 199, 200.
   34.    9 Wheaton's R. 201, 202; 1 Jefferson's Corresp. 7; The Federalist, No. 56; 12 Wheaton's R. 446, 447.
   35.    9 Wheaton's R. 201, 202.
   36.    See Corfield v. Cargill, 4 Wash. Cir. R. 371, 379, etc.
   37.    9 Wheaton's R. 203 to 207, 209.
   38.    9 Wheaton's R. 207, 208, 209.
   39.    1 Kent's Comm. Lect 19, p. 404, 410, 411. See also Rawle on the Constitution, ch. 9, p. 81 to 84; Sergeant on Const. ch. 98, p. 291, 292.
— There is a very able and candid review of the whole subject by Mr. Chancellor Kent in his excellent commentaries. (1 Kent's Comm. Lect. 19, p. 404.) I gladly avail myself of this, as well as of all other occasions, to recommend his learned labours to those, who seek to study the law, or the constitution, with a liberal and enlightened spirit.
   40.    9 Wheaton's R. 197 to 204.
   41.    Brown v. State of Maryland, 12 Wheaton's R. 419, 445 to 447; 9 Wheaton's R. 197. etc. — Mr. Justice Thompson dissented from this doctrine, as will be seen in his opinion in 12 Wheaton's R. 449, etc.
   42.    Wilson v. Blackbird Creek Company, 2 Peters's R. 245.
   43.    Gibbons v. Ogden, 9 Wheat. R. 189 to 198; Id. 211 to 215; 1 Tuck. Black. Comm. App. 247 to 249; Id. 250.
   44.    1 Tuck. Black. Comm. App. 252.
   45.    9 Wheat. R. 203, 204, 205, 206, 207, 208; 1 Tuck. Black Comm. App. 251, 252.
   46.    9 Wheat. R. 214, 915 to 221.
   47.    9 Wheat. R. 191, 192; 1 Kent's Comm. Lect. 19, p. 404, 405.
   48.    1 Tuck. Black. Comm. App. 249, 251; 9 Wheat. R. 208, 209.
   49.    Mr. Hamilton, in his celebrated argument on the national bank, (23d Feb. 1791,) enumerates the following as within the power to regulate commerce, viz. the regulation of policies of insurance, of salvage upon goods found at sea, and the disposition of such goods; the regulation of pilots; and the regulation of bills of exchange drawn by one merchant upon a merchant of another state; and, of course, the regulation of foreign bills of exchange.b
   b.    1 Hamilton's Work's, 134.
   50.    Sergeant on Const. Law ch. 28, (ch. 30, 2d edit.)
   51.    See 1 Elliot's Debates, 144.
   52.    See Address of the Philadelphia Free Trade Convention, in September and October 1831.
   53.    A proposition was referred to the committee of Details and Revision "to establish public institutions, rewards, and immunities, for the promotion of agriculture, commerce, trade, and manufactures." The committee never reported on it. Journ. of Convention, p. 261.
   54.    The above arguments and reasoning have been gathered, as far as could be, from documents admitted to be of high authority by those, who maintain the restrictive doctrine. See the Exposition and Protest of the South Carolina legislature, in Dec. 1828, attributed to Mr. Vice President Calhoun; the Address of the Free Trade Convention at Philadelphia, in Oct. 1831, attributed to Mr. Attorney General Berrien; the Oration of the Hon. Mr. Drayton, on the 4th of July, 1831; and the Speech of Mr. Senator Hayne, 9th of Jan. 1832 — See also 4 Jefferson's Corresp. 421.
   55.    See Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; Mr. Verplanck's Letter to Col. Drayton, in 183 1; Address of the New-York Convention in favour of Domestic Industry, November, 1831, p. 12, 13, 14 9 Wheat. K. 202; 1 Pitk. Hist. ch. 3, p. 93 to 106.
   56.    1 American Museum, 16.
   57.    1 Elliot's Debates, 74, 75, 76, 77, 115; 3 Elliot's Debates, 31, 32, 33; 2 Amer. Museum, 371, 372, 373; 3 Amer. Museum, 62, 554, 556, 557; The Federalist, No. 12, 41; 1 Tuck. Black. Comm. App. 237, 238; 1 American Museum, 16, 282, 289, 429, 432; Id. 434, 436; Hamilton's Report on Manufactures, in 1791; 4 Elliot's Debates, App. 351 to 354.
   58.    See Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; 4 Elliot's Debates, App. 345.
   59.    Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; 4 Elliot's Debates, App. 345.
   60.    See the Federalist, No. 11, 12.
   61.    See Mr. Jefferson's Report on the Fisheries, 1st Feb. 1791, 10 Amer. Mus. App. 1, etc., 8, etc.
   62.    See Mr. Williamson's Speech in Congress, 8 Amer. Mus. 140.
   63.    See 1 Lloyd's Deb. 17, 19, 22, 23, 24, 26, 27, 28, 31, 34, 39, 43, 46, 47, 50, 51, 52, 55, 64 to 69, 71, 72, 74 to 83, 94, 95, 97. 109, 116, 145, 160, 161, 211, 212, 243, 244, 254; Id. 144, 183, 194, 206, 207. See also 5 Marshall's Wash. ch. 3, p. 189, 190.
   64.    See 1 Lloyd's Deb. 24, 160, 161, 243, 244; 4 Elliot's Deb. App. 351, 351.
   65.    See Grimke's Speech, in Dec. 1828, p. 58, 59, 63.
   66.    Act. of 4th July, 1789.
   67.    It is not a little remarkable, that the culture of cotton was just then beginning in South Carolina; and her statesmen then thought a protecting duty to aid agriculture was in all respects proper, and constitutional. 1 Lloyd's Deb. 79; Id. 210, 211, 212, 244.
   68.    Hamilton's Report on Manufacturers, in 1791.
   69.    The Federalist, No. 10, 35, 41.
   70.    See 4 Elliot's Debates, App. 353, 354.
   71.    4 Jefferson's Correspondence, 280, 281; 1 Pitkin's Hist. ch. 3, p. 93 to 106.
   72.    The foregoing summary has been principally abstracted from the Letter of Mr. Madison to Mr. Cabell, 18th Sept. 1828; 4 Elliot's Deb. 345; Mr. Grimke's Speech in Dec. 1898, in the South Carolina senate; Mr. Huger's Speech in the South Carolina legislature, in Dec. 1830; Address of the New York Convention of the Friends of Domestic Industry, in Oct. 1831; Mr. Verplanck's Letter to Col. Drayton, in 1831; Mr. Clay's Speech in the senate, in Feb. 1839; Mr. Edward Everett's Address to the American Institute, in Oct. 1831; Mr. Hamilton's Report on Manufactures, in 1791; Mr. Jefferson's Report on the Fisheries, in 1791. See, also, 4 Jefferson's Correspondence, 280, 281.
   73.    Journal of Convention, p. 961.
   74.    Journal of Convention, p. 222.
   75.    Journal of Convention, 222. 285, 286, 293, 358, 387. See, also, 3 American Museum, 62, 419, 420; 2 American Museum, 553; 2 Pitkin's Hist. 261.
   76.    Journal of Convention, 306.
   77.    See The Federalist, No. 22; 1 Tucker's Black. Comm. App. 253, 375.
   78.    1 Tucker's Black. Comm. App. 253, 375.
   79.    Journal of Convention, 220, 260, 356.
   80.    Art. 9.
   81.    Worcester v. State of Georgia, 6 Peters's R. 515; Johnson v. McIntosh, 8 Wheat. R. 543; Journal of Congress, 3 August, 1787, 12th vol. p. 81 to 86.
   82.    Ibid.
   83.    The Federalist, No. 42; 1 Tuck. Black. Comm. App. 253; 12 Jour. of Congress, 3 August, 1787, p. 81 to 84.
   84.    Worcester v. The State of Georgia, 6 Peters's R. 515; 12 Journ. of Congress, 3 August, 1787, p. 81 to 84.
   85.    Johnson v. McIntosh, 8 Wheat. R. 543; Fletcher v. Peck, 6 Cranch, 146, 147, per Johnson J.; The Cherokee Nation v. Georgia, 5 Peters's R 1; Worcester v. The State of Georgia, 6 Peters's R. 515; Jackson v. Goodell, 20 Johnson's R. 193; 3 Kent's Comm. Lect. 50, p. 303 to 318.
   86.    Worcester v. State of Georgia, 6 Peters's R. 515; Journ. of Congress, 3 August, 1787, vol. 12, p. 81 to 84. — Mr. Blunt, in his valuable Historical Sketch of the Formation of the Confederacy, etc. has given a very full view of the ante-revolutionary, as well as post-revolutionary authority exercised in regard to the Indian tribes. See Blunt's Historical Sketch, etc. (New-York, 1825.) Mr. Jefferson's opinion was, that the United States had no more than a right of pre-emption of the Indian lands, not amounting to any dominion, or jurisdiction, or permanent authority whatever; and that the Indians possessed a full, undivided, and. independent sovereignty. 4 Jefferson's Corresp. 478.
   87.    Rawle on the Constitution, ch. 9, p. 84. See also 1 Tuck. Black. Comm. App. 254; 1 Kent's Comm. Lect. 50, p. 508 to 318.
   88.    The Cherokee Nation v. Georgia, 5 Peters's R. 1, 16, 17; Jackson v. Goodell, 20 John. R. 193; 3 Kent's Comm. Lect. 50. p. 308 to 318. In the first volume of Bioren & Duane's edition of the laws of the United States, there will be found a history of our Indian Treaties and Laws regulating Intercourse and Trade with the Indians. 1 United States Laws, 597 to 620.
   89.    While this sheet was passing through the press, President Jackson's Proclamation of the 10th of December, 1832, concerning the recent Ordinance of South Carolina on the subject of the tariff, appeared. That document contains a most elaborate view of several questions, which have been discussed in this and the preceding volume, especially respecting the supremacy of the laws of the Union; the right of the judiciary to decide upon the constitutionality of those laws; and the total repugnancy to the constitution of the modern doctrine of nullification asserted in that ordinance. As a state paper it is entitled to very high praise for the clearness, force, and eloquence, with which it has defended the rights and powers of the national government. I gladly copy into these pages some of its important passages, as among the ablest commentaries ever offered upon the constitution.

"Whereas, a convention assembled in the state of South Carolina have passed an ordinance, by which they declare, 'That the several acts and parts of acts of the congress of time United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and more especially,' two acts for the same purpose passed on the 29th of May, 1828, and on the 14th of July, 1832, are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof, and are null and void, and no law,' nor binding on the citizens of that state or its officers: and by the said ordinance, it is further declared to be unlawful for any of the constituted authorities of the state, or of the United States, to enforce the payment of the duties imposed by the said acts within the same state, and that it is the duty of the legislature to pass such laws, as may be necessary to give full effect to the said ordinance:

"And whereas, by the said ordinance, it is further ordained, that in no ease of law or equity, decided in the courts of said state, wherein shall be drawn in question the validity of the said ordinance, or of the acts of the legislature, that may be passed to give it effect, or of the said laws of the United States, no appeal shall be allowed to the Supreme Court of the United States, nor shall any copy of the record be permitted or allowed for that purpose, and that any person attempting to take such appeal shall be punished as for a contempt of court: "And, finally, the said ordinance declares, that the people of South Carolina will maintain the said ordinance at every hazard; and that they will consider the passage of any act by congress, abolishing or closing the ports of the said state, or otherwise obstructing the tree ingress or egress of vessels to and from the said ports, or any other act of the federal government to coerce the state, shut up her ports, destroy or harass her commerce, or to enforce the said acts otherwise, than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union; and that the people of the said state will thenceforth hold themselves absolved from all further obligation to maintain or preserve their political connexion with the people of the other states, and will forthwith proceed to organize a separate government, and do all ether acts and things, which sovereign and independent states may of right do:

"And whereas, the said ordinance prescribes to the people of South Carolina a course of conduct, in direct violation of their duty, as citizens of the United States, contrary to the laws of their country, subversive of its constitution, and having for its object the destruction of the Union, — that Union, which, coeval with our political existence, led our fathers, without any other ties to unite them, than those of patriotism and a common cause, through a sanguinary struggle to a glorious independence, — that sacred Union, hitherto inviolate, which, perfected by our happy constitution, has brought us, by the favour of Heaven, to a state of prosperity at home, and high consideration abroad, rarely, if ever, equalled in the history of nations. To preserve this bond of our political existence from destruction, to maintain inviolate this state of national honour and prosperity, and to justify the confidence my fellow-citizens have reposed in me, I, Andrew Jackson, President of the United States, have thought proper to issue this my Proclamation, stating my views of the constitution and laws, applicable to the measures adopted by the convention of South Carolina, and to the reasons they have put forth to sustain them, declaring the course, which duty will require me to pursue, and, appealing to the understanding end patriotism of the people, warn them of the consequences, that must inevitably result from an observance of the dictates of the convention.

"Strict duty would require of me nothing more, than the exercise of those powers, with which I am now, or may hereafter be, invested, for preserving the peace of the Union, and for the execution of the laws. But the imposing aspect, which opposition has assumed in this case, by clothing itself with state authority, and the deep interest, which the people of the United States must all feel in preventing a resort to stronger measures, while there is a hope, that any thine, will be yielded to reasoning and remonstrance, perhaps demand, and will certainly justify, a full exposition to South Carolina end the nation of the views I entertain of this important question, as well as a distinct enunciation of the course, which my sense of duty will require me to pursue.

"The ordinance is founded, not on the indefeasible right of resisting acts, which are plainly unconstitutional and too oppressive to be endured; but on the strange position, that any one state may not only declare an act of congress void, but prohibit its execution, — that they may do this consistently with the constitution, — that the true construction of that instrument permits a state to retain its place in the Union, and yet be bound by no other of its laws, than those it may choose to consider as constitutional. It is true, they add, that to justify this abrogation of a law, it must be palpably contrary to the constitution; but it is evident, that to give the right of resisting laws of that description, coupled with the uncontrolled right to decide, what laws deserve that character, is to give the power of resisting all laws. For, as by the theory there is no appeal, the reasons alleged by the state, good or bad, must prevail. If it should be said, that public opinion is a sufficient check against the abuse of this power, it may be asked, why it is not deemed a sufficient guard against the passage of an unconstitutional act by congress. There is, however, a restraint in this last case, which makes the assumed power of a state more indefensible, and which does not exist in the other. There are two appeals from an unconstitutional act passed by congress, — one to the judiciary, the other to the people, and the states. There is no appeal from the state decision in theory, and the practical illustration shows, that the courts were closed against an application to review it, both judges and jurors being sworn to decide in its favour. But reasoning on this subject is superfluous, when our social compact in express terms declares, that the laws of the United States, the constitution, and treaties made under it, are the supreme law of the land; and for greater caution adds, 'that the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.' And it may be asserted without fear of refutation, that no federative government could exist without a similar provision. Look for a moment to the consequence. If South Carolina considers the revenue laws unconstitutional, and has a right to prevent their execution in the pert of Charleston, there would be a clear constitutional objection to their collection in every other port, and no revenue could be collected any where; for all imposts must be equal. It is no answer to repeat, that an unconstitutional law is no law, so long as the question of its legality is to be decided by the state itself; for every law, operating injuriously upon any local interest, will be perhaps thought, and certainly represented, as unconstitutional, and, as has been shown, there is no appeal.

"If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy. The excise law in Pennsylvania; the embargo and non-intercourse law in the Eastern states; the carriage tax in Virginia, were all deemed unconstitutional, and were more unequal in their operation, than say or the laws now complained or; but fortunately none or those states discovered, that they had the right now claimed by South Carolina. The war, into which we were forced, to support the dignity of the nation and the right or our citizens, might have ended in defeat and disgrace, instead or victory and honour. If the states, who supposed it a ruinous and unconstitutional measure, had thought they possessed the right of nullifying the act, by which it was declared, and denying supplies for its prosecution. Hardly and unequally, as those measures bore upon several members of the Union, to the legislatures of none did this efficient and peaceable remedy, as it is called, suggest itself. The discovery of this important feature in our constitution was reserved to the present day. To the statesmen or South Carolina belongs the invention; and upon the citizens of that state will unfortunately fail the evils of reducing it to practice.

"If the doctrine of a state veto upon the laws of the Union carries with it internal evidence or its impracticable absurdity our constitutional history will also afford abundant proof, that it would have been repudiated with indignation, had it been proposed to form a feature in our government.

"In our colonial state, although dependent on another power, we very early considered ourselves, as connected by common interest with each other. Leagues were formed for common defence, and before the Declaration of Independence we were known in our aggregate character, as The United Colonies of America. That decisive and important step was taken jointly. We declared ourselves a nation by at joint, not by several acts; and when the terms of our confederation were reduced to form, it was in that of a solemn league of several states, by which they agreed, that they would collectively form one nation, for the purpose of conducting some certain domestic concerns, and all foreign relations in the instrument forming that union is found an article, which declares, that 'every state shall abide by the determinations of congress on all questions, which by that confederation should be submitted to them.

"Under the confederation, then, no state could legally annul a decision of the congress, or refuse to submit to its execution; but no provision was made to enforce these decisions. Congress made requisitions, but they were not complied with. The government could not operate on individuals. They had no judiciary; no means of collecting revenue.

"But the defects of the confederation need not be detailed. Under its operation we could scarcely be called a nation. We had neither prosperity at home, nor consideration abroad. This state of things could not be endured; and our present happy constitution was formed, but formed in vain, if this fatal doctrine prevails. It was formed for important objects, that are announced in the preamble, made in the name and by the authority or the people of the United States, whose delegates framed, and whose conventions approved it. The most important among these objects, that. which is placed first in rank, on which all the others rest, is, 'form a more perfect Union.' Now, is it possible, that even if there were no express provision giving supremacy to the constitution and laws of the United States over those of the states, it can be conceived, that an instrument, made for the purpose of 'forming a more perfect Union,' than that of the confederation, could be so constructed by the assembled wisdom of our country, as to substitute for that confederation a form of government dependent for its existence on the local interest, the party spirit of a state, or of a prevailing faction in a state? Every man of plain. unsophisticated understanding, who hears the question, will give such an answer, as will preserve the Union. Metaphysical subtlety, in pursuit of an impracticable theory, could alone have devised one, that is calculated to destroy it.

"I consider, then, the power to annul a law or the United States, assumed by one state, incompatible with the existence of the Union; contradicted expressly by the letter of the constitution; unauthorized by its spirit; inconsistent with every principle, on which it was founded; and destructive of the great object, for which it was formed.

"After this general view of the leading principle, we must examine the particular application of it, which is made in the Ordinance.

"The preamble rests its justification on these grounds: — It assumes as a fact, that the obnoxious laws, although they purport to be laws for raising revenue, were, in reality, intended for the protection of manufactures, which purpose it asserts to be unconstitutional; that the operation of these laws is unequal; that the amount raised by them is greater than is required by the wants of the government; and finally, that the proceeds are to be applied to objects unauthorized by the constitution. These are the only causes alleged to justify an open opposition; to the laws of the country, and a threat of seceding from the Union, if any attempt should be made to enforce them. The first virtually acknowledges, that the law in question was passed under a power expressly given by the constitution, to lay and collect imposts; but its constitutionality is drawn in question from the motives of those, who passed it. However apparent this purpose may be in the present case, nothing can be more dangerous, than to admit the position, that an unconstitutional purpose, entertained by the members, who assent to a law enacted under a constitutional power, shall make that law void; for how is that purpose to be ascertained? Who is to make the scrutiny? How often may bad purposes be falsely imputed? In how many cases are they concealed by false professions? In how many is no declaration of motive made? Admit this doctrine, and you give to the states an uncontrolled right to decide; and every law may be annulled under this pretext. If, therefore, the absurd and dangerous doctrine should be admitted, that a state may annul an unconstitutional law, or one that it deems such, it will not apply to the present case.

"The next objection is, that the laws in question operate unequally. This objection may be made, with truth, to every law that has been or can he passed. The wisdom of man never yet contrived a system of taxation, that would operate with perfect equality. If the unequal operation of a law makes it unconstitutional, and if all laws of that description may be abrogated by any state for that cause, then, indeed, is the federal constitution unworthy of the slightest. effort for its preservation. We have hitherto relied on it, as the perpetual bond of our union. We have received it, as the work of the assembled wisdom of the nation. We have trusted to it, as the sheet-anchor of our safety in the stormy times of conflict with a foreign or domestic foe. We have looked to it with sacred awe, as the palladium of our liberties, and with all the solemnities of religion have pledged to each other our lives and fortunes here, and our hopes of happiness hereafter, in its defence and support. Were we mistaken, my countrymen, in attaching this importance to the constitution of our country? Was our devotion paid to the wretched, inefficient, clumsy contrivance, which this new doctrine would make it? Did we pledge ourselves to the support of an airy nothing, a bubble, that must be blown away by the first breath of disaffection? Was this self-destroying, visionary theory, the work of the profound statesmen, the exalted patriots, to whom the task of constitutional reform was entrusted?

"Did the name of Washington sanction, did the states deliberately ratify such an anomaly in the history of fundamental legislation? No. We were not mistaken. The letter of this great instrument is free from this radical fault: its language directly contradicts the imputation: its spirit, its evident intent, contradicts it. No, we did not err! Our constitution does not contain the absurdity of giving power to make laws, anti another power to resist them. The sages, whose memory will always be reverenced, have given us a practical, and, as they hoped, a permanent constitutional compact. The father of his country did not affix his revered name to so palpable an absurdity. Nor did the states, when they severally ratified it, do so under the impression, that a veto on the laws of the United States was reserved to them, or that they could exercise it by implication. Search the debates in all their conventions, examine the speeches of the most zealous opposers of federal authority; look at the amendments, that were proposed; they are all silent; not a syllable uttered, not a vote given, not a motion made to correct the explicit supremacy given to the laws of the Union over those of the states, or to show that implication, as is now contended, could defeat it. No; we have not erred! The constitution is still the object of our reverence, the bond of our Union, our defence in danger, and the source of our prosperity in peace. It shall descend, as we have received it, uncorrupted by sophistical construction, to our posterity; and the sacrifices of local interest, of state prejudices, of personal animosities, that were made to bring it into existence, will again be patriotically offered for its support.

"The two remaining objections made by the Ordinance to these laws are, that the sums intended to be raised by them are greater, than are required, and that the proceeds will be unconstitutionally employed.

"The constitution has given expressly to congress the right of raising revenue, and of determining the sum the public exigencies will require. The states have no control over the exercise of this right, other than that, which results from the power of changing the representatives, who abuse it, and thus procure redress. Congress may undoubtedly abuse this discretionary power, but the same may be said of others, with which they are vested. Yet the discretion must exist somewhere. The constitution has given it to the representatives of all the people, checked by the representatives of the states, and by the executive power. The South Carolina construction gives it to the legislature or the convention of a single state, where neither the people of the different states, nor the states in their separate capacity, nor the chief magistrate elected by the people, have any representation. Which is the most discreet disposition of the power? I do not ask you, fellow citizens, which is the constitutional disposition; that instrument speaks a language not to be misunderstood. But if you were assembled in general convention, which would you think the safest depository of this discretionary power in the last resort? Would you add a clause, giving it to each or the states, or would you sanction the wise provisions already made by your constitution? If this should be the result of your deliberations, when providing for the future, are you, can you be ready to risk all, that we hold dear, to establish, for a temporary and a local purpose, that, which you must acknowledge to be destructive and even absurd, as a general provision? Carry out the consequences of this right vested in the different states, and yes must perceive, that the crisis your conduct presents at this day would recur, whenever any law of the United States displeased any of the states, and that we should soon cease to be a nation.

"The Ordinance, with the same knowledge of the future, that characterizes a former objection, tells you, that the proceeds of the tax will be unconstitutionally applied. If this could be ascertained with certainty, the objection would, with more propriety, be reserved for the law so applying the proceeds; but surely cannot be urged against the laws levying the duty.

"These are the allegations contained in the Ordinance. Examine them seriously, my fellow citizens, — judge for yourselves. I appeal to you to determine, whether they are so clear, so convincing, as to leave no doubt of their correctness; and even if you should come to this conclusion, how far they justify the reckless, destructive course, which you are directed to pursue. Review these objections, and the conclusions drawn from them, once more. What are they? Every law, then, for raising revenue, according to the South Carolina Ordinance, may be rightfully annulled, unless it be so framed, as no law ever will or can be framed. Congress have a right to pass law for raising revenue, and each state has a right to oppose their execution, two rights directly opposed to each other; — and yet is this absurdity supposed to be contained in an instrument, drawn for the express purpose of avoiding collisions between the states and the general government, by an assembly of the most enlightened statesmen and purest. patriots ever embodied for a similar purpose.

"In vain have these sages declared, that congress shall have power to lay and collect taxes, duties, imposts, and excises; in vain have they provided, that they shall have power to pass laws, which shall be necessary and proper to carry those powers into execution; that those laws and that constitution shall be the 'supreme law of the land, and that the judges in every state shall be bound thereby, any thing in the constitution and law, of any state to the contrary notwithstanding.' In vain have the people of the several states solemnly sanctioned these provisions, made them their paramount law, End individually sworn to support them whenever they were called on to execute any office. Vain provisions! ineffectual restrictions! vile profanations of oaths! miserable mockery of legislation! if the bare majority of the voters in any one state may, On a real or supposed knowledge of the intent, with which a law has been passed, declare themselves free from its operation, — say here it gives too little, there too much, and operates unequally, — here it suffers articles to be free, that ought to be taxed,.— there it taxes those, that ought to be free in this case the proceeds are intended to be applied to purposes, which we do not approve, in that the amount raised is more than is wanted. Congress, it is true, are invested by the constitution with the right or deciding these questions according to their sound discretion; congress is composed of the representatives of all the states, and of all the people of all the states; but we, part of the people of one state, to whom the constitution has given no power on the subject, from whom it has expressly taken it away, — we, who have solemnly agreed, that this constitution shall be our law, — we. most of whom have sworn to support it, — we now abrogate this law, and swear, and force others to swear, that it shall not be obeyed; — and we do this, not because congress have no right to pass such laws; this we do not allege; but because they have passed them with improper views. They are unconstitutional, from the motives of those, who passed them. which we can never with certainty know, from their unequal operation, although it is impossible, from the nature of things, that they should be equal, and from the disposition which we presume may be made of their proceeds, although that disposition has not been declared. This is the plain meaning of the ordinance in relation to laws, which it abrogates for alleged unconstitutionality. But it does not stop there. It repeals, in express terms, an important part of the constitution itself, and of laws passed to give it effect, which have never been alleged to be unconstitutional. The constitution declares, that the judicial powers of the United States extend to cases arising under the laws of the United State, and that such laws, the constitution and treaties, shall be paramount to the state constitutions and laws. The judiciary act prescribes the mode, by which the cue may be brought before a court of the United States by appeal, when a state tribunal shall decide against this provision of the constitution. The ordinance declares, that there shall be no appeal — makes the state law paramount to the constitution and laws of the United States — forces judges and jurors to swear, that they will disregard their provisions; and even makes it penal in a suitor to attempt relief by appeal. It further declares, that it shall not be lawful for the authorities of the United States, or of that state, to enforce the payment of duties imposed by the revenue laws within its limits.

"Here is a law of the United States, not even pretended to be unconstitutional, repealed by the authority of a small majority of the voters of a single state. Here is a provision of the constitution, which is solemnly abrogated by the same authority.

"On such expositions and reasonings, the ordinance grounds not only an assertion of the right to annul the laws, of which it complains, but to enforce it by threat of seceding from the Union, if any attempt is made to execute them.

"This right to secede is deduced from the nature of the constitution, which they say is a compact between sovereign states, who have preserved their whole sovereignty, and therefore are subject to no superior; that because they made the compact, they can break it, when, in their opinion, it has been departed from by the other states. Fallacious as this course of reasoning is, it enlists state pride, and finds advocates in the honest prejudices of those, who have not studied the nature of our government sufficiently to see the radical error, on which it rests.

"The people of the United States formed the constitution, acting through the state legislatures in making the compact, to meet and discuss its provisions, and acting in separate conventions, when they ratified those provisions; but the terms used in its construction, show it to be a government, in which the people of all the states collectively are represented. We are one People in the choice of president and vice-president. Here the states have no other agency, than to direct the mode, in which the votes shall be given. The candidates having the majority of all. the votes are chosen. The electors of a majority of states may have given their votes for one candidate, and yet another may be chosen. The people, then, and not the states, are represented in the executive branch.

"In the house of representatives there is this difference, that the people of one state do not, as in the case of president and vice-president, all vote for the same officers. The people of all the states do not vote for all the members, each state electing its own representatives. But this creates no material distinction. When chosen, they are all representatives or the United States, not representatives of the particular state from whence they come. They are paid by the United States, not by the state; nor are they accountable to it for any act done in the performance or their legislative functions; and however they may in practice, as it is their duty to do, consult and prefer the interests of their particular constituents, when they come in conflict with any other partial or local interest, yet it is their first and highest duty, as representatives of the United States, to promote the general good.

"The constitution of the United States, then, forms a government, not a league; and whether it be formed by compact between the states or in any other manner, its character is the same. It is a government, in which all the people are represented, which operates directly on the people individually, not upon the states; they retained all the power they did not grant. But each state having expressly parted with so many powers, as to constitute jointly with the other states a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation; and any injury to that unity is not only a breach, which would result from the contravention of a compact; but it is an offence against the whole Union To say, that any state may at pleasure secede from the Union, is to say, that the United States were not a nation; because it would be a solecism to contend, that any part or a nation might dissolve its connexion with the other parts, to their injury or ruin, without committing any offence. Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right, is confounding the meaning of terms; and can only be done through gross error, or to deceive those, who are willing to assert a right, but would pause before 'they made a revolution, or incur the penalties consequent on a failure.

"Because the Union was formed by compact, it is said the parties to that compact may, when they feel themselves aggrieved, depart from it; but it is precisely because it is a compact, that they cannot. A compact is an agreement, or binding obligation. It may, by its terms, have a sanction or penalty for its breach, or it may not. If it contains no sanction, it may be broken with no other consequence, than moral guilt: if it have a sanction, then the breach incurs the designated or implied penalty. A league between independent nations, generally, has no sanction, other than a moral one; or, if it should contain a penalty, as there is no common superior, it cannot be enforced. A government, on the contrary, always has a sanction, express or implied; and in our case, it is both necessarily implied, and expressly given. An attempt by force of arms to destroy a government, is an offence, by whatever means the constitutional compact may have been formed; and such. government has the right, by the law of self-defence, to pass acts for punishing the offender, unless that right is modified, restrained, or resumed by the constitutional act. In our system, although it is modified in the case of treason, yet authority is expressly given to pass all laws necessary to carry its powers into effect, and under this grant provision has been made for punishing acts, which obstruct the due administration or the laws.

"It would seem superfluous to add any thing to show the nature of that Union, which connects us; but as erroneous opinions on this subject are the foundation of doctrines the most destructive to our peace, I must give some further development to my views on this subject. No one, fellow citizens, has a higher reverence for the reserved rights of the states, than the magistrate, who now addresses you. No one would make greater personal sacrifices, or official exertions to defend them from violation; but equal care must be taken to prevent, on their pert, an improper interference with, or resumption of the rights they have vested in the nation. The line has not been so distinctly drawn, as to avoid doubts in some cases of the exercise of power. Men of the best intentions, and soundest views may differ in their construction of some parts of the constitution; but there are others, on which dispassionate reflection can leave no doubt. Of this nature appears to be the assumed right of secession. It rests, as we have seen, on the alleged undivided sovereignty of the states, and on their having formed, in this sovereign capacity, a compact, which is called the constitution. From which, because they made it, they have the right to secede. Both of these positions are erroneous, and some of the arguments to prove them so have been anticipated.

"The states severally have not retained their entire sovereignty. It has been shown, that, in becoming parts of a nation, not members of a league, they surrendered many of their essential parts of sovereignty. The right to make treaties, declare war, levy taxes, exercise exclusive judicial and legislative powers, were all of them functions of sovereign power. The states, then, for all these important purposes, were no longer sovereign. The allegiance of their citizens was transferred, in the first instance, to the government of the United States; they became American citizens, and owed obedience to the constitution of the United Staten, and to laws made in conformity with the powers it vested in congress. This last position has not been, and cannot be denied. How, then. can that state be said to be sovereign and independent, whose citizens owe obedience to laws not made by it, and whose magistrates are sworn to disregard those laws, when they come in conflict with those passed by another? What shows conclusively. that the states cannot be said to have reserved an undivided sovereignty, is, that they expressly ceded the right to punish treason; not treason against their separate power, but treason against the United States. Treason is an offence against sovereignty, and sovereignty must reside with the power to punish it. But the reserved rights of the states are not less sacred, because they have, for their common interest, made the general government the depositary of these powers.

"The unity our political character, (us has been shown for another purpose) commenced with its very existence. Under the royal government we had no separate character; our opposition to its oppressions began as United Colonies. We were the United States under the confederation, and the name was perpetuated, and the Union rendered more perfect by the Federal constitution. In none of these stages did we consider ourselves in any other light, than as forming one nation. Treaties and alliances were made in the name of all. Troops were raised for the joint defence. How, then, with all these proofs, that under all changes of our position we had, for designated purposes and with defined powers, created National governments; how is it, that the most perfect of those several modes of Union should now be considered as a mere league, that may he dissolved at pleasure? It is from an abuse of terms. 'Compact' is used, as synonymous with 'league,' although the true term is not employed, because it would at once show the fallacy of the reasoning. It would not do to say, that our constitution was only a league; but it is laboured to prove it a compact, (which in one sense it is,) and then to argue, that, as a league is a compact, every compact between nations must of course he a league, and that from such an engagement every sovereign power has a right to recede. But it has been shown, that in this sense the states are not sovereign, and that even if they were, and the national constitution had been formed by compact, there would be no right in any one state to exonerate itself from its obligations.

"So obvious are the reasons, which forbid this secession, that it is necessary only to allude to them. The Union was Formed for the benefit of all. It was produced by mutual sacrifices of interests and opinions. Can those sacrifices be recalled? Can the states, who magnanimously surrendered their title to the territories of the West, recall the grant? Will the inhabitants of the inland states agree to pay the duties, that may be imposed without their assent, by those on the Atlantic or the Gulf, for their own benefit? Shall there be a free port in one state, and onerous duties in another? No one believes, that any right exists, in a single state, to involve the others in these and countless other evils, contrary to the engagements solemnly made. Every one must see, that the other states, in self-defence, must oppose at all hazards.

"These are the alternatives, that are presented by the convention: A repeal of all the acts for raising revenue, leaving the government without the means of support; or an acquiescence in the dissolution of our Union by the secession of one of its members. When the first was proposed, it was known, that it could not be listened to for a moment. It was known, if force was applied to oppose the execution of the laws, that it must be repelled by force; that congress could not, without involving itself in disgrace, and the country in ruin, accede to the proposition; and yet, if this is not done on a given day, or if any attempt is made to execute the laws, the state is, by the ordinance, declared to be out of the Union. The majority of a convention assembled for the purpose have dictated these terms, or rather this rejection of all terms, in the name of the people of South Carolina. It is true, that the governor of the state speaks of the submission of their grievances to a convention of all the states, which, he says, they 'sincerely and anxiously seek and desire.' Yet this obvious and constitutional mode of obtaining the sense of the other states, on the construction of the federal compact, and amending it, if necessary, has never been attempted by those, who have urged the state on to this destructive measure. The state right have proposed to call for a general convention to the other states; and congress, if a sufficient number of them concurred, must have called it. But the first magistrate of South Carolina, when he expressed a hope, that, 'on a review by congress and the functionaries of the general government of the merits of the controversy,' such a convention will be accorded to them, must have known, that neither congress, nor any functionary of the general government, has authority to call such a convention, unless it be demanded by two thirds of the states. This suggestion, then, is another instance of the reckless inattention to the provisions of the constitution, with which this crisis has been madly hurried on; or of the attempt to persuade the people, that a constitutional remedy had been sought and refused. If the legislature of South Carolina 'anxiously desire' a general convention to consider their complaints, why have they not made application for it, in the way the constitution points out? The assertion, that they 'earnestly seek' it, is completely negatived by the omission."