WEBSTER AND HAYNE.

In the renewed friendly relations at the dinner-table and in the lecture-room, the North of late has had the pleasure of listening to the speeches and discourses of Southern orators, soldiers, and politicians, who, while asserting their loyalty to the Union, claim that that Union was a compact between independent sovereign States, from which each of these independent sovereign States had an undoubted right to secede; our Southern brethren, beaten in the trial of arms, persistently insist that they fought for the right.

Besides Jefferson Davis’ History of the Confederacy, as bitter to some of its generals as to the North, the Vice-President of that government, of high repute for ability and reasoning powers, Alexander H. Stephens, published two ponderous volumes to prove not only that the South could secede, but that it was obligatory, if it wished to retain its equality and freedom, alleging as the principal reason the wrongful infringement of the right of the South to take its “peculiar property,” slaves, into all the territories of the Union, the common property of all the States. Recently was published Semmes’ Career of the Sumter and Alabama, abusive of the Yankee and of Northern friends like Buchanan, insisting on the justice and necessity of secession, and asserting the tyranny and mean oppression of the North. We have had also a republication of Governor Tazewell’s Review of President Jackson’s Proclamation against Nullification; and generally the dedication of statues and decorating of the graves of the soldiers of the Confederacy have been taken as occasions to show the justice of the lost cause.

It is to be hoped that few agree with General Early’s declamation at Winchester as to those of the South who changed their opinion as to secession: “The Confederate who has deserted since the war is infinitely worse than the one who deserted during the war.”

The same opinion as to the right of secession has been very generally held by British politicians; and that opinion to a great extent prevailed, and to-day prevails, in the English army and navy. Mr. John Morley, in his life of Burke, in reference to Burke’s speeches denouncing the conduct of Great Britain towards us as colonies, says that “the current of opinion was then precisely similar in England in the struggle to which the United States owed its existence, as in the great civil war between the Northern and Southern States of the American Union”; “people in England convinced themselves, some after careful examination, others on hearsay, that the South had a right to secede.”

Lord Coleridge, who served as one of the British commissioners in the Geneva arbitration, in an address recently delivered at Exeter on Sir Stafford Northcote, says:

Even Mr. Bryce, a most learned author, whose opinion in this matter has great weight, intimates that the seceding States legally may have been right.[1]

Lord Wolseley, in his article in Macmillan’s Magazine on the life of Lee, extolling him as the greatest general of his age and the most perfect man,[2] informs us that each State possessed the right both historically and legally under the Constitution to leave the Union at its will. Apparently he did not know that January 23, 1861, Lee wrote to his son: “Secession is nothing but revolution.” “It” (the Constitution) “is intended for perpetual union, so expressed in the preamble, and for the establishment of a government not a compact, and which can only be dissolved by revolution or the assent of all the people in convention assembled. It is idle to talk of secession.”[2]

Possibly in time the North may be of the same opinion as to Lee’s transcendent ability as a general. No one doubts now his great soldierly attainments and the worth of his private character, but for the sake of the existence of our nation, may it never believe he fought for the right.

Very generally and very fortunately for the country our Southern fellow-citizens, except their historians, some of their politicians, and a few whom they call unreconstructed rebels, concede that the right of secession has been put to the arbitrament of war and decided against the South forever. Now they tell us that none are more loyal and will march more willingly under the Stars and Stripes than those who fought so bravely to the bitter end under the flag of the Confederacy. Even Jefferson Davis, in the conclusion of his history, concedes that the result of the war has shown that secession is impracticable. It is difficult, however, to understand how might has made right, and the conquest of the richer and more populous North over the weaker South has settled forever the right or wrong of the matter. The North does not believe in the sneering maxim of Frederick the Great, that the Almighty is on the side of the heavier battalions.

Nor need we go to the South or to our English military critics for this opinion as to the Northern right. In a recent short life of Webster written for the American Statesmen series, a distinguished Republican politician and historian, Henry Cabot Lodge, in criticising the greatest speech of our greatest orator, Webster’s in reply to Hayne, on South Carolina’s nullification doctrines, makes these astounding statements:

This is a declaration of the right of secession at the inception of our government and that every one held that belief. If this be correct, with such a right the Union was no enduring tie, but was a mere rope of sand.

He adds that the weak places in Webster’s armor were historical in nature. In support of this opinion, he instances the Virginia and Kentucky resolves in 1799, and the Hartford convention of 1814; a few disloyal, some might say treasonable, acts and declarations; and then tells us a confederacy had grown into a nation, and that Mr. Webster set forth the national conception of the Union; and the principles, which he made clear and definite, went on broadening and deepening and carried the North through the civil war and preserved the national life. A singular result from a speech, if it were so fundamentally and historically wrong.

If Mr. Lodge, and those who agree with him, and there are some at the North who do, be right, and Hayne got the better of Webster in that celebrated contest, the nullification doctrines and acts of South Carolina were constitutionally sound and legal; and if South Carolina were right in her nullification, the secession of the South, thirty years afterwards, was also right.

We do not concede that nullification and secession have been barred because the course of events has been such that independent sovereign States have grown into a nation; nor do we admit that the Union and its indissolubility depend only on the result of an appeal to arms. We claim with Webster that nullification and secession were entirely indefensible constitutionally, and also in the light of history at the time of the foundation of our Constitution, and ever since.

There can be no doubt of the effect of Webster’s speeches at the time of their delivery; they aroused the national pride of the people, and the whole country, except portions of the South, responded.

It was in this nullification controversy that Webster won the title of the Great Expounder of the Constitution; he was then at his prime, physically and mentally. Always carefully dressed, when he made his speeches, in the blue coat with brass buttons, buff waistcoat, and white cravat of the Whigs of Fox’s time; his large frame, his massive head with dark, straight hair, and deep set and, in debate, luminous black eyes; his superb swarthy complexion brightened with brilliant color that is even in women so handsome; his grand and rich voice; his emphatic delivery;—all served to make him the most impressive of orators.

It was often said by his contemporaries at the bar that unless Webster wholly believed in the justice of the cause he was maintaining he could not argue well. He was not like some of the greatest advocates, whose ability and ingenuity are only fully brought forth when they have to contend with the difficulties of a weak and almost desperate case.

Hayne, his antagonist, was an able, eloquent, and accomplished orator. His speech did not create that enthusiasm at the South that Webster’s did at the North; but his own State pertinaciously adhered to its doctrine of nullification and saw no defeat to its champion.

There were no less than three speeches of Hayne’s—one of them, the second, running through two days—and the same number of replies by Webster. The debate took place in the Senate in January, 1830; it arose on an amended resolution originally offered by Mr. Foote as to the expediency of limiting or hastening the sales of the public lands. South Carolina was then threatening to declare the existing tariff null and void, and to pass laws preventing the United States from collecting duties in its ports. Hayne urged that the government should dispose of the public lands and after paying the national debt with the proceeds should get rid of the remainder, so that there should not be a shilling of permanent revenue; he looked with alarm on the consolidation of the government. To get the support of the West against the East, he accused the East of a narrow policy towards the West as to the public lands and the tariff, “the accursed tariff,” as he termed it, which kept multitudes of laborers in the East to the detriment of the West. In his second speech, Hayne not only attacked the East and its policy as to the public lands and support of the tariff, but went further and “carried the war into Africa,” as he styled it, reading speeches, pamphlets, and sermons, showing, as he claimed, the disloyalty of New England in the war of 1812.

He maintained that the United States had exceeded the powers granted to it by the Constitution in making the existing tariff, which protected the manufacturing industry of the East, only a section of the country, and compelled the non-manufacturing States to pay tribute to it; that the United States government was a compact between independent sovereign States; that each of the States, being an independent sovereign, had a right in its own sovereign capacity to decide whether laws made by the United States exceeded the powers given it by the Constitution, and if a State held a law made by the United States was not authorized by the Constitution, it could treat it as null and void; that the existing tariff was a clear and palpable violation of the Constitution, and that South Carolina could and would pass laws forbidding and preventing the collection in its territory of the duties levied under it.

Before taking up Webster’s constitutional argument, we will give a brief account of his answer to the attack made on himself and the East.

Webster, in his great speech, the second in reply to Hayne, alluding to Hayne’s allegation that he, Webster, had slept upon his first speech, said, “he must have slept upon it, or not slept at all”: and he assured him that he did sleep on it and slept soundly.

One of the most stinging and dramatic events that ever occurred in the Senate-chamber, as a distinguished Senator from Maine has told the writer, was the manner in which Webster turned upon his opponents the taunt of Hayne, that the ghost of the murdered coalition, like Banquo’s, would not down at their bidding, and had brought up him and his friends to defend themselves. Webster replied that it was not the friends but the enemies of the murdered Banquo, at whose bidding the spirit would not down. The ghost of Banquo, like that of Hamlet, was an honest ghost; then turning on and pointing to Calhoun, who, as Vice-President in Jackson’s first administration, was presiding over the Senate, and whose reputed ambition to succeed as President had signally failed, he asked:

Calhoun showed his emotion and moved in his chair. In a speech made three years afterwards, when a Senator, he denied that he had aspired after the presidency.

Webster defended at great length, and successfully, the policy of the East as to the public lands, internal improvements, and the tariff. He showed that Calhoun himself was originally in favor of internal improvements, and that he voted for tariffs; that in 1816 a protective tariff (denounced as such) was supported by South Carolina votes and was opposed by Massachusetts; that under the tariffs of 1816, 1824, 1828, which were protective tariffs and had become the policy of the country, Massachusetts became interested in manufacturing; so he, Mr. Webster, in 1828 supported a protective tariff, though in 1816 and 1824 he had opposed it.

As to Hayne’s “carrying the war into the enemy’s country by attacking Massachusetts,” Webster asks: “Has he disproved a fact, refuted a proposition, weakened an argument, maintained by me?” And “what sort of a war has he made of it? Why, sir, he has stretched a drag net over the whole surface of perished pamphlets, indiscreet sermons, frothy paragraphs, and fuming popular addresses; over whatever the pulpit in its moments of alarm, the press in its heats, and parties in their extravagance, have severally thrown off in times of general excitement and violence.”

Webster, declining to separate these accusations and answer them, asks: “But what had this to do with the controversy on hand; why should New England be abused for holding opinions as dangerous to the Union as those which he now holds? Why does he find no fault with those opinions recently promulgated in South Carolina?”

Then Webster, noticing Hayne’s eulogium of South Carolina, instead of attacking her, puts himself on the higher plane of a common national pride and patriotism.

Then Webster refers to the great harmony of principle and feeling formerly existing between the two States. “Shoulder to shoulder they went through the revolution, hand in hand they stood round the administration of Washington and felt his own great arm lean on them for support.”

It was one of those great efforts delivered on the spur of the moment, which, though not written out, had been thought and studied beforehand. The bitter invective, the grand patriotic words for our National Union, which make the heart beat and quicken the blood, came from the genius of the orator. Dr. Francis Lieber, a most competent judge, wrote: “To test Webster’s oratory, which has been very attractive to me, I read a portion of my favorite speeches of Demosthenes and then read, always aloud, parts of Webster’s; then returned to the Athenian, and Webster stood the test.”[3] The question of the supremacy of the government of the Union over that of the States was familiar to Webster; he had taken part in the argument of the cases before the Supreme Court involving that issue, and well knew the decisions of Marshall, its great chief. There is no such thing “as extemporaneous acquisition,” as Webster himself said of his speech. Its views and arguments have been adopted by our jurists, and by Bancroft, Hildreth, Fiske, and all of our old Northern historians. Webster was probably a more diligent student than Mr. Lodge gives him credit for; his habit being to rise in the early morn and work then. The writer of this has heard him say that he had read through all the volumes of Hansard’s Parliamentary Debates.

In giving Webster’s argument on the question of nullification, we will use his speech in reply to Hayne, and his subsequent speech in answer to Calhoun, delivered three years later, in 1833.

He showed, as we shall see, that by adopting the Constitution a national government was formed, with legislative authority to make laws that should be supreme within the powers granted in the Constitution, with an Executive to carry out those laws, and a supreme Judicial Department that should decide all questions arising under those laws, and whether they were within the granted powers, whose decision no State could question.

After disposing of the personal attack on himself and that against the East, Webster took up that against the Union; he went back to its formation, treating it historically. Under the confederacy made between the States the whole power of the government was in the Continental Congress. Though it could make war and peace, it could raise troops and obtain its revenues only through the action of the several States; it could not even regulate commerce and had no coercive power over the States; its executive powers were exercised by committees and officers appointed by the Congress. This Continental Congress carried the country safely through the revolution; but during the few years afterwards,—without the rights and powers essential to an effective government, without a Judiciary and a responsible Executive, the States quarrelling amongst themselves and struggling with internal troubles—its authority became so weakened that it inspired respect neither at home nor abroad[4]; and the people of all the States, finding the necessity of a stronger government, the separate States entered into a convention to form one.

The first resolution of this convention was, that the government of the United States ought to consist of a Supreme Legislature, Judiciary, and Executive; this showed the power that it intended to give the government.

The declaration in the preamble of the Constitution they formed, set forth: “We, the PEOPLE of the United States, in order to form a more perfect Union,” etc., “do ordain and establish this Constitution for the United States of America.”[5] It was not that the States or the people of the separate States made the Constitution, but it was the people of the whole United States, and the acceptance of this Constitution was submitted to conventions of each State, chosen by the people, and not to the State governments and legislatures.

It was from Webster’s declaration, “It is the people’s Constitution, the people’s government; made for the people; made by the people and answerable to the people,” that Lincoln took the closing words of his short immortal Gettysburg address, and applied them to the national soldiers who had there died for the Union: “That this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.”

Webster referred to contemporary history, to the writings of the Federalist, to the debates in the conventions, to the publications of friends and foes, as all agreeing in the statement that a change had been made from a confederacy of States to a different system, to a national government. The writers of the Federalist say:

And amongst all the ratifications by the States, there is not one which speaks of the Constitution as a compact between States. “They say they ordain and establish it; we do not speak of ordaining leagues and compacts.” He argued that the Constitution that was formed was not a league, confederacy, or compact between States, but a government proper, creating direct relations between itself and individuals of the States. It punished all crimes committed against the United States. It had power to tax individuals, in any mode and to any extent, and it possessed the power of demanding from individuals military service. “It does not call itself a compact; it uses the word compact but once and that is when it declares that the States shall enter into no compact. It does not call itself a league or a confederacy but it declares itself a constitution.” “A constitution is the fundamental regulation which determines the manner in which the public authority is to be executed,”[6] “the very being of the political society.” It says, this Constitution shall be the law of the land, anything in any State constitution to the contrary notwithstanding; “and it speaks of itself, too, in plain contradistinction from a confederation; for it says that all debts contracted and all engagements entered into by the United States shall be as valid under this Constitution as under the confederation; it does not say as valid under this compact, or this league, or this confederation.”

“Again the Constitution speaks of that political system which is established as the Government of the United States. Is it not doing strange violence to language to call a league or compact between sovereign powers a government?”

The United States Government thus originated from the people, as did the State governments. It is created for one purpose, the State governments for another; it has its own powers, they have theirs. There is no more authority with them to arrest the operation of a law of Congress, than with Congress to arrest the operation of their laws.

It was an Union among the States that should last for all time. It contains provisions for its amendment, none for its abandonment at any time. It declares that new States may come into it, but it does not declare that old States may go out.

The Government was brought into existence for the very purpose of imposing certain salutary restraints on the State governments: it gave the United States sovereign powers over the States; it could make war, it could coin money, it could make treaties; it prohibited a State from making war, coining money, or making treaties; it gave the United States the exclusive power to make citizens. The people erected this Government; they gave it a Constitution, and in that Constitution they enumerated the powers they bestowed; they made it a limited Government; they defined its authority. They did not leave it to the States to carry out the legal action—the application of law to individuals—as the Confederacy did. In the Constitution itself it declared the Constitution and the laws of the United States, made in pursuance thereof, shall be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. No State law is to be valid which comes in conflict.

Having enumerated the specified powers of the Government, it gives to Congress as a distinct and substantive clause, the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or office thereof.

Who is to decide when a controversy arises between the laws of a State and the United States? The claim of South Carolina is that instead of one tribunal we are to have four and twenty, as many tribunals as States; that each State is at liberty to decide as to the constitutionality of an act for itself and none bound to respect the decision of others.

We must bear in mind that this discussion was on the power of South Carolina while remaining in the Union to declare the laws of the United States null and void, and her own laws preventing their execution valid. A singular claim that a State could enjoy the benefits of the Union and at the same time disobey its laws; this is nullification which Mr. Webster had to combat. His argument, however, applies equally strongly to the claim of the right of secession. Indeed he says in his speech in reply to Calhoun:

“Therefore, since any State before she can prove her right to dissolve the Union, must show her authority to undo what has been done, no State is at liberty to secede on the ground that the other States have done nothing but accede. She must show that she has a right to reverse what has been ordained, to unsettle and overthrow what has been established, to reject what the people have adopted, and to break up what they have ratified, because these are the terms which express the transactions which have actually taken place. In other words, she must show her right to make a revolution.”