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decide disputes between the State and Federal Judiciary, being also delivered in and twice read, on motion, was ordered to be committed to Messrs. Nelson, Currie, Campbell, Upshur, and Wolfe.
Friday, January 26. Mr. Nelson reported, from the committee to whom was committed the preamble and resolutions on the amendment proposed by the legislature of Pennsylvania, &c. &c. that the committee had, according to order, taken the said preamble, &c. under their consideration, and directed him to report them without any amendment.
And on the question being put thereupon the same was agreed to unanimously.
MR. WEBSTER'S LAST REMARKS.
Mr. Hayne having rejoined to Mr. WEBSTER, especially on the constitutional question
Mr. WEBSTER rose, and, in conclusion, said :
A few words, Mr. President, on this constitutional argument, which the honorable gentleman has labored to reconstruct.
His argument consists of two propositions, and an inference. His propositions are
1. That the Constitution is a compact between the States.
2. That a compact between two, with authority reserved to one to interpret its terms, would be a surrender to that one, of all power whatever.
3. Therefore, (such is his inference) the general government does not possess the authority to construe its own powers.
Now, sir, who does not see, without the aid of exposition or detection, the utter confusion of ideas, involved in this, so elaborate and systematic argument.
The constitution, it is said, is a compact between states; the states, then, and the states only, are parties to the compact. How comes the general government itself a party? Upon the honorable gentleman's hypothesis, the general government is the result of the compact, the creature of the compact, not one of the parties to it. Yet the argument, as the gentleman has now stated it, makes the government itself one of its own creators. It makes it a party to that compact, to which it owes its own existence.
For the purpose of erecting the constitution on the basis of a compact, the gentleman considers the states as parties to that compact; but as soon as his compact is made, then he chooses to consider the general government, which is the offspring of that compact, not its offspring, but one of its parties; and so, being a party, has not the power of judging on the terms of compact. Pray, sir, in what school is such reasoning as this taught?
If the whole of the gentleman's main proposition were conceded to him, that is to say—if I admit for the sake of the argument, that the constitution is a compact between states, the inferences, which he draws from that proposition, are warranted by no just reason. Because, if the constitution be a compact between states, still, that constitution, or that compact, has established a government, with
certain powers; and whether it be one of those powers, that it shall construe and interpret for itself, the terms of the compact, in doubtful cases, is a question which can only be decided by looking to the compact, and inquiring what provisions it contains on this point. Without any inconsistency with natural reason, the government, even thus created, might be trusted with this power of construction. The extent of its powers, therefore, must still be sought for in the instrument itself.
If the old confederation had contained a clause, declaring that resolutions of the Congress should be the supreme law of the land, any state law or constitution to the contrary notwithstanding, and that a committee of Congress, or any other body created by it, should possess judicial powers, extending to all cases arising under resolutions of Congress, then the power of ultimate decision would have been vested in Congress, under the confederation, although that confederation was a compact between states; and, for this plain
reason: that it would have been competent to the states, who alone · were parties to the compact, to agree, who should decide, in cases of dispute arising on the construction of the compact.
For the same reason, sir, if I were now to concede to the gentleman his principal propositions, viz. that the constitution is a compact between states, the question would still be, what provision is made, in this compact, to settle points of disputed construction, or contested power, that shall come into controversy? and this question would still be answered, and conclusively answered, by the constitution itself. While the gentleman is contending against construction, he himself is setting up the most loose and dangerous construction. The constitution declares, that the laws of Congress passed in pursuance of the constitution shall be the supreme law of the land. No construction is necessary here. It declares, also, with equal plainness and precision, that the judicial power of the United States shall extend to every case arising under the laws of Congress. This needs no construction. Here is a law, then, which is declared to be supreme; and here is a power established, which is to interpret that law. Now, sir, how has the gentleman met this? Suppose the constitution to be a compact, yet here are its terms, and how does the gentleman get rid of them? He cannot argue the seal off the bond, nor the words out of the instrument. Here they are—what answer does he give to them? None in the world, sir, except, that the effect of this would be to place the states in a condition of inferiority; and because it results, from the very nature of things, there being no superior, that the parties must be their own judges! Thus closely and cogently does the honorable gentleman reason on the words of the constitution. The gentleman says, if there be such a power of final decision in the general government, he asks for the grant of that power. Well, sir, I show him the grant-I turn him to the very words—I show him that the laws of Congress are made supreme; and that the Judicial power extends, by express words, to the interpretation of these laws. Instead of answering this, he retreats into the general reflection, that it must result from the nature of things, that the states, being parties, must judge for themselves.
I have admitted, that, if the constitution were to be considered as the creature of the state governments, it might be modified, interpreted, or construed, according to their pleasure. But, even in that case, it would be necessary that they should agree. One, alone, could not interpret it conclusively; one, alone, could not construe it; one, alone, could not modify it. Yet the gentleman's doctrine is, that Carolina, alone, may construe and interpret that compact which equally binds all, and gives equal rights to all.
So then, sir, even supposing the constitution to be a compact between the states, the gentleman's doctrine, nevertheless, is not maintainable; because, first, the general government is not a party to that compact, but a government established by it, and vested by it with the powers of trying and deciding doubtful questions; and, secondly, because, if the constitution be regarded as a compact, not one state only, but all the states, are parties to that compact, and one can have no right to fix upon it her own peculiar construction.
So much, sir, for the argument, even if the premises of the gentleman were granted, or could be proved. But, sir, the gentleman has failed to maintain his leading proposition. He has not shown, it cannot be shown, that the constitution is a compact between state governments. The constitution itself, in its very front, refutes that idea: it declares that it is ordained and established by the people of the United States. So far from saying that it is established by the governments of the several states, it does not even say that it is established by the people of the several states; but it pronounces that it is established by the people of the United States, in the aggregate. The gentleman says, it must mean no more than the people of the several states. Doubtless, the people of the several states, taken collectively, constitute the people of the United States; but it is in this, their collective capacity, it is as all the people of the United States, that they establish the constitution. So they declare; and words cannot be plainer than the words used.
When the gentleman says the constitution is a compact between the states, he uses language exactly applicable to the old confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The confederation was, in strictness, a compact; the states, as states, were parties to it. We had no other general government. But that was found insufficient, and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a general government, which should stand on a new basis—not a confederacy, not a league, not a compact between states, but a constitution; a popular government, founded in popular election, directly responsible to the people themselves, and divided into branches, with prescribed limits of power, and prescribed duties. They ordained such a government; they gave it the name of a constitution, and therein they established a distribution of powers between this, their general government, and their several state governments. When they shall become dissatisfied with this distribution, they can alter it. Their own power over their own
instrument remains. But until they shall alter it, it must stand as their will, and is equally binding on the general government and on the states.
The gentleman, sir, finds analogy where I see none. He likens it to the case of a treaty, in which, there being no common superior, each party must interpret for itself, under its own obligation of good faith. But this is not a treaty, but a constitution of government, with powers to execute itself, and fulfil its duties.
I admit, sir, that this government is a government of checks and balances; that is, the House of Representatives is a check on the Senate, and the Senate is a check on the House, and the President a check on both. But I cannot comprehend him, or, if I do, I totally differ from him, when he applies the notion of checks and balances to the interference of different governments. that if we transgress, each state, as a state, has a right to check us. Does he admit the converse of the proposition, that we have a right to check the states? The gentleman's doctrines would give us a sstrange jumble of authorities and powers, instead of governments of separate and defined powers. It is the part of wisdom, I think, to avoid this; and to keep the general government and the state governments, each in its proper sphere, avoiding, as carefully as possible, every kind of interference.
Finally, sir, the honorable gentleman says, that the states will only interfere, by their power, to preserve the constitution. They will not destroy it—they will not impair it—they will only save, they will only preserve, they will only strengthen it! Ah! sir, this is but the old story. All regulated governments, all free governments, have been broken up by similar disinterested and well disposed interference! It is the common pretence. But I take leave of the subject.
IN THE SENATE OF THE UNITED STATES, ON THE APPLICATION
FOR THE ERECTION OF A BREAKWATER AT NANTUCKET. 1828.
On the 8th of March, 1828, the House of Representatives passed a Bill entitled “ An Act making appropriations for Internal Improvements.”—This Bill contained appropriations for sundry objects; among which were the further continuance of the Cumberland road, the removal of obstructions to navigation, and the erection of piers at the mouths of several rivers running into Lake Erie and Lake Ontario, the improvement of the navigation of the Kennebec River, below Hallowell, and for a Lighthouse, on the Brandywine shore, in the Bay of Delaware.
There was also in the Bill the following clause. “ For defraying the erpenses incidental to making examinations and surveys, under the act of the thirtieth of April eighteen hundred and twenty-four, thirty thousand dollars.”_When the Bill came to the Senate, it was referred to the Committee of Finance, who reported, among other amendments, the following.—“Strike out, after the word erpenses, in the above clause, all that follows, and insert other words, so as that the whole clause, when amended as proposed, should read thus—“For defraying the expenses of completing examinations and surveys, already commenced and unfinished, under the act of the thirtieth of April 1824, thirty thousand dollars, provided, that no part of this sum shall be expended upon any other examinations and surveys.”
On this amendment to the bill of the House, the Senate in committee of the whole was equally divided, and the amendment was carried, by the casting vote of the Vice President. The House disagreed to the amendment and returned the bill to the Senate, where it was again referred to the Committee of Finance, and the chairman of that committee, (Mr. Smith of Maryland,) on Friday, the second of May, again reported the bill and amendment, with the following remarks and motion :
“In reporting to the Senate the disagreement of the House of Representatives to the third and fifth amendments of the Senate to the bill making appropriations for internal improvements, and referred to the Committee on Finance, I desire to state
“ 'That the opinion of the committee on the propriety of the amendments, remains unchanged; but as the item to which the third and principal amnendment relates is incorporated in the bill providing for other objects, deemed of immediate urgency and great importance to the public service, which might be materially prejudiced, and finally defeated at this late period of the session, by adhering to the amendment, and prolonging the disagreement between the two Houses : they do not desire to incur those risks, or to produce the delay incident to a renewed and protracted discussion.
“ From these considerations, I report the bill to the Senate; and now move that the Senate recede from their amendments, and concur in the disagreement of the House of Representatives.”
On this motion to recede from the amendment, discussion arose, in which Mr. WEBSTER took part.