ROBERT Y. HAYNE

(1791-1839)

OBERT Y. HAYNE, famous as Calhoun's lieutenant in the Nullification controversy, was born in South Carolina, November Ioth, 1791. He studied law under Langdon Cheves and in 1814 was elected to the South Carolina Legislature, of which, in 1818, he became Speaker. After serving as Attorney-General of the State, he was elected to the United States Senate in 1822. Serving ten years in that body, he retired in 1832, in the midst of his celebrity, to become Governor of South Carolina and to allow his friend and leader, John C. Calhoun, opportunity to succeed him in the Senate. The speech which made Mr. Hayne celebrated was delivered on the Foot Resolution and in reply to Webster. It still retains its historical interest, though supplanted as an exposition of the "Carolina doctrine" by Calhoun's great speech against the Force Bill. Hayne died at Asheville, North Carolina, September 24th, 1839.

ON FOOT'S RESOLUTION

(Peroration of His Speech of January 21st, 1830, Answering Webster)

THE

HE Senator from Massachusetts, in denouncing what he is pleased to call the Carolina doctrine, has attempted to throw ridicule upon the idea that a State has any constitutional remedy, by the exercise of its sovereign authority, against "a gross, palpable, and deliberate violation of the Constitution.” He calls it "an idle" or "ridiculous notion," or something to that effect, and adds that it would make the Union "a mere rope of sand." Now, sir, as the gentleman has not condescended to enter into any examination of the question, and has been satisfied with throwing the weight of his authority into the scale, I do not deem it necessary to do more than to throw into the opposite scale the authority on which South Carolina relies; and there, for the present, I am perfectly willing to leave the controversy. The South Carolina doctrine, that is to say, the doctrine contained in an exposition reported by a committee of the

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legislature in December 1828, and published by their authority, is the good old Republican doctrine of 1798-the doctrine of the celebrated Virginia Resolutions' of that year, and of Madison's Report' of 1799. It will be recollected that the legislature of Virginia, in December 1798, took into consideration the Alien and Sedition Laws, then considered by all Republicans as a gross violation of the Constitution of the United States, and on that day passed, among others, the following resolutions:

"The General Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them."

In addition to the above resolution, the General Assembly of Virginia "appealed to the other States, in the confidence that they would concur with that Commonwealth that the acts aforesaid [the Alien and Sedition Laws] are unconstitutional, and that the necessary and proper measures would be taken by each for co-operating with Virginia in maintaining, unimpaired, the authorities, rights, and liberties reserved to the States respectively, or to the people."

The legislatures of several of the New England States having, contrary to the expectation of the legislature of Virginia, expressed their dissent from these doctrines, the subject came up again for consideration during the session of 1799-1800, when it was referred to a select committee, by whom was made that celebrated report which is familiarly known as 'Madison's Report,' and which deserves to last as long as the Constitution itself. In that report, which was subsequently adopted by the legislature, the whole subject was deliberately re-examined, and the objections urged against the Virginia doctrines carefully considered. The result was that the legislature of Virginia reaffirmed all the principles laid down in the resolutions of 1798, and issued to the world that admirable report which has stamped

the character of Mr. Madison as the preserver of that Constitution which he had contributed so largely to create and establish. I will here quote from Mr. Madison's Report one or two passages which bear more immediately on the point in controversy:

"The resolution, having taken this view of the Federal compact, proceeds to infer that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States who are parties thereto have the right and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them.'

"It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal, superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests upon this legitimate and solid foundation. The States, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority, to decide, in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.

"The resolution has guarded against any misapprehension of its object by expressly requiring for such an interposition 'the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise of powers not granted by it.' It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was established.

"But the resolution has done more than guard against misconstruction by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition which it contemplates to be solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights, and liberties appertaining to the States, as parties to the Constitution.

"From this view of the resolution it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions, and recollecting the genuine source

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and object of the Federal Constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing, even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the State constitutions, as well as a plain denial of the fundamental principles on which our independence itself was declared."

But, sir, our authorities do not stop here. The State of Kentucky responded to Virginia, and on the tenth of November, 1798, adopted those celebrated resolutions, well known to have been penned by the author of the Declaration of American Independence. In those resolutions, the legislature of Kentucky declare that

"The Government created by this compact was not made the ex clusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself as well of infractions as of the mode and measure of redress."

At the ensuing session of the legislature, the subject was reexamined, and on the fourteenth of November, 1799, the resolutions of the preceding year were deliberately reaffirmed, and it was, among other things, solemnly declared: -

"That if those who administer the General Government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, an annihilation of the State governments, and the erection upon their ruins of a general consolidated government, will be the inevitable consequence. That the principles of construction contended for by sundry of the State legislatures, that the General Government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the Government, and not the Constitution, would be the measure of their powers. That the several States who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction, and that a nullification by those sovereignties

of all unauthorized acts done under color of that instrument is the rightful remedy."

Time and experience confirmed Mr. Jefferson's opinion on this all-important point. In the year 1821 he expressed himself in

this emphatic manner:

"It is a fatal heresy to suppose that either our State governments are superior to the Federal, or the Federal to the State; neither is authorized literally to decide which belongs to itself or its copartner in government. In differences of opinion between their different sets of public servants, the appeal is to neither, but to their employers peaceably assembled by their representatives in convention."

The opinion of Mr. Jefferson on this subject has been so repeatedly and so solemnly expressed, that it may be said to have been among the most fixed and settled convictions of his mind.

In the protest prepared by him for the legislature of Virginia, in December 1825, in respect to the powers exercised by the Federal Government in relation to the tariff and internal improvements, which he declares to be "usurpations of the powers retained by the States, mere interpolations into the compact, and direct infractions of it," he solemnly reasserts all the principles. of the Virginia Resolutions of 1798 - protests against "these acts of the Federal branch of the Government as null and void, and declares that, although Virginia would consider a dissolution of the Union as among the greatest calamities that could befall them, yet it is not the greatest. There is one yet greater-submission to a government of unlimited powers. It is only when the hope of this shall become absolutely desperate that further forbearance could not be indulged."

In his letter to Mr. Giles, written about the same time, he says:

"I see, as you do, and with the deepest affliction, the rapid strides with which the Federal branch of our Government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic, and that, too, by constructions which leave no limits to their powers, etc. Under the power to regulate commerce, they assume, indefinitely, that also over agriculture and manufactures, etc. Under the authority to establish post-roads, they claim that of cutting down mountains for the construction of roads and digging canals, etc. And what is our