THAT NEXT DAY—JANUARY 26, 1830—found Washington abuzz in a way it hadn’t been for years. Not since the Missouri debate had emotions in Congress been so engaged; not since the War of 1812 had the integrity, even existence, of the Union seemed so imperiled. The personal aspect of the quarrel—face-to-face combat in the political genre the age most revered—made it chillingly delicious. Hayne had issued a challenge; Webster had no choice but to accept it.
The House had scheduled business for that morning, but none was conducted. Members left their chamber to find seats in the Senate. The outer doors opened to visitors at nine, three hours before the scheduled start of the Senate session. Within minutes every spot was filled. Journalists and stenographers elbowed close to where Webster would stand, to take down his words. Printing presses awaited the transcript.
Webster felt the tension of the others but showed little himself. The weight of expectation lay upon him, but it seemed to concentrate his energies rather than distract or disperse them. He wore a blue coat and a buff vest—the colors of the army of the Revolutionary War—with a white cravat, and his appearance arrested the attention of all in the room. “Time had not thinned nor bleached his hair; it was as dark as the raven’s plumage, surmounting his massive brow in ample folds,” Charles March recalled. “His eyes, always dark and deep-set, enkindled by some glowing thought, shone from beneath his somber, overhanging brow like lights, in the blackness of night, from a sepulchre.”
Webster rose and looked to the chair. “Mr. President,” he said, nodding to John Calhoun, and then turned to the rest of the chamber. “When the mariner has been tossed for many days in thick weather, and on an unknown sea, he naturally avails himself of the first pause in the storm, the earliest glance of the sun, to take his latitude, and ascertain how far the elements have driven him from his true course. Let us imitate this prudence, and, before we float farther on the waves of this debate, refer to the point from which we departed, that we may at least be able to conjecture where we now are.” He asked for a reading of the Foot resolution. The clerk repeated the query about public lands.
Webster nodded knowingly. “We have thus heard, sir, what the resolution is, which is actually before us for consideration; and it will readily occur to every one that it is almost the only subject about which something has not been said in the speech, running through two days, by which the Senate has been now entertained by the gentleman from South Carolina. Every topic in the wide range of our public affairs, whether past or present—every thing, general or local, whether belonging to national politics, or party politics, seems to have attracted more or less of the honorable member’s attention, save only the resolution before us. He has spoken of every thing but the public lands. They have escaped his notice. To that subject, in all his excursions, he has not paid even the cold respect of a passing glance.”
Webster twitted Hayne further. He explained that he hadn’t been expecting to be in the Senate when Hayne spoke. “It so happened that it would have been convenient for me to be elsewhere,” he said. “The honorable member, however, did not incline to put off the discussion to another day. He had a shot, he said, to return, and he wished to discharge it. That shot, sir, which it was kind thus to inform us was coming, that we might stand out of the way, or prepare ourselves to fall before it, and die with decency, has now been received. Under all advantages, and with expectation awakened by the tone which preceded it, it has been discharged, and has spent its force. It may become me to say no more of its effect, than that, if nobody is found, after all, either killed or wounded by it, it is not the first time, in the history of human affairs, that the vigor and success of the war have not quite come up to the lofty and sounding phrase of the manifesto.”
Webster noticed the chuckles of Northern senators but pretended not to. He professed hurt that Hayne had made things so personal by saying that he—Webster—had assailed the South and slavery without cause. There was no basis for such an assertion, Webster said. “I did not utter a single word which any ingenuity could torture into an attack on the slavery of the South. I said, only, that it was highly wise and useful in legislating for the northwestern country, while it was yet a wilderness, to prohibit the introduction of slaves: and added, that I presumed, in the neighboring state of Kentucky, there was no reflecting and intelligent gentleman, who would doubt, that if the same prohibition had been extended, at the same early period, over that commonwealth, her strength and population would, at this day, have been far greater than they are.” Smiling slightly, Webster went on, “If these opinions be thought doubtful, they are, nevertheless, I trust, neither extraordinary nor disrespectful.”
Webster accounted Hayne and the South too quick to cry meddling in their internal affairs. This suggested a worrisome hypersensitivity; it was also specious. Abolitionists were a fringe element in the North, with no influence on the men who made decisions. “There is not, and never has been, a disposition in the North to interfere with these interests of the South,” Webster said. “Such interference has never been supposed to be within the power of government; nor has it been, in any way, attempted. It has always been regarded as a matter of domestic policy, left with the states themselves, and with which the federal government had nothing to do.”
Webster observed that Hayne had charged him with contradiction in supporting the tariff of 1828 after previously opposing the tariff. He acknowledged that he had changed his mind, but not so dramatically as South Carolinians had. They now threatened to secede over the tariff, yet little more than a decade earlier they had been in favor. The tariff of 1816 had received the hearty support of South Carolina’s votes. “But for those votes, it could not have passed in the form in which it did pass; whereas, if it had depended on Massachusetts votes, it would have been lost.”
Such inconsistency, however, had not diminished Webster’s respect for South Carolina. “I claim part of the honor, I partake in the pride, of her great names. I claim them for countrymen, one and all. The Laurenses, the Rutledges, the Pinckneys, the Sumpters, the Marions—Americans, all—whose fame is no more to be hemmed in by state lines than their talents and patriotism were capable of being circumscribed within the same narrow limits.”
Even so, he couldn’t forget his own state. “Mr. President, I shall enter on no encomium upon Massachusetts—she needs none. There she is—behold her, and judge for yourselves. There is her history—the world knows it by heart. The past, at least, is secure. There is Boston, and Concord, and Lexington, and Bunker Hill—and there they will remain forever. The bones of her sons, falling in the great struggle for independence, now lie mingled with the soil of every state, from New England to Georgia; and there they will lie forever. And, sir, where American liberty raised its first voice, and where its youth was nurtured and sustained, there it still lives, in the strength of its manhood, and full of its original spirit.”
WEBSTER STOPPED AND looked around the Senate. His halting let the members know the preliminaries were over. He held the silence, then turned to the fundamental purpose for which he spoke. “It is to state, and to defend, what I conceive to be the true principles of the Constitution under which we are here assembled,” he said.
He outlined the case Hayne had made for South Carolina. “I understand the honorable gentleman from South Carolina to maintain, that it is a right of the state legislatures to interfere, whenever, in their judgment, this government transcends its constitutional limits, and to arrest the operation of its laws. I understand him to maintain this right, as a right existing under the Constitution; not as a right to overthrow it, on the ground of extreme necessity, such as would justify violent revolution. I understand him to maintain an authority, on the part of the states, thus to interfere, for the purpose of correcting the exercise of power by the general government, of checking it, and of compelling it to conform to their opinion of the extent of its powers. I understand him to maintain, that the ultimate power of judging of the constitutional extent of its own authority is not lodged exclusively in the general government, or any branch of it; but that, on the contrary, the states may lawfully decide for themselves, and each state for itself, whether, in a given case, the act of the general government transcends its power. I understand him to insist that if the exigency of the case, in the opinion of any state government, require it, such state government may, by its own sovereign authority, annul an act of the general government which it deems plainly and palpably unconstitutional.”
He paused again, now to permit Hayne to object to this characterization of his position. Hayne did not.
Webster then began to dismantle the South Carolinian’s argument, point by point. He distinguished between natural rights and constitutional rights. “We, sir, who oppose the Carolina doctrine, do not deny that the people may, if they choose, throw off any government, when it become oppressive and intolerable, and erect a better in its stead. We all know that civil institutions are established for the public benefit, and that when they cease to answer the ends of their existence, they may be changed.” This was the natural right of revolution. But it was not what Hayne was asserting. Hayne was claiming for the states a constitutional right to nullify federal law. “I understand the gentleman to maintain, that, without revolution, without civil commotion, without rebellion, a remedy for supposed abuse and transgression of the powers of the general government lies in a direct appeal to the interference of the state governments.”
At this point Hayne did interject, only to agree. He said he argued for the “right of constitutional resistance.” In case of a violation of the Constitution by the national government, the states could interpose. And this interposition was constitutional.
“So, sir, I understood the gentleman, and am happy to find that I did not misunderstand him,” Webster continued. His tone acquired a sarcastic note. “What he contends for, is, that it is constitutional to interrupt the administration of the Constitution itself, in the hands of those who are chosen and sworn to administer it, by the direct interference, in form of law, of the states, in virtue of their sovereign capacity.”
Webster granted that the people were not bound to obey unconstitutional laws, and that they might disobey them without overturning the government. But he differed with Hayne on who would decide unconstitutionality. This was the crux of the whole argument. “The great question is, whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws?” Hayne contended the prerogative was the states’. Webster asserted that it lay with the federal government, in particular the federal judiciary.
Deciding the question required probing the nature of the national government and the source of its power. “Whose agent is it?” asked Webster. “Is it the creature of the state legislatures, or the creature of the people?” Different answers yielded different conclusions. “If the government of the United States be the agent of the state governments, then they may control it, provided they can agree in the manner of controlling it. If it be the agent of the people, then the people alone can control it, restrain it, modify, or reform it.”
Webster took his stand with the people. “It is, sir, the people’s Constitution, the people’s government; made for the people; made by the people; and answerable to the people.” The people of America had created the national government and made it sovereign. “The people of the United States have declared that this Constitution shall be the supreme law. We must either admit the proposition, or dispute their authority.”
Hayne had contended that the states determined constitutionality, and that they did so individually. Webster examined how this must work in practice. “In Carolina, the tariff is a palpable, deliberate usurpation; Carolina, therefore, may nullify it, and refuse to pay the duties. In Pennsylvania, it is both clearly constitutional, and highly expedient; and there, the duties are to be paid. And yet we live under a government of uniform laws, and under a Constitution, too, which contains an express provision, as it happens, that all duties shall be equal in all the states! Does not this approach absurdity? If there be no power to settle such questions, independent of either of the states, is not the whole Union a rope of sand? Are we not thrown back again, precisely, upon the old Confederation?” The people had rejected the Confederation by ratifying the Constitution, whose central point was to prevent the states from vetoing measures enacted for the common national good. “The people had had quite enough of that kind of government, under the Confederacy,” Webster said.
He asked his listeners to consider how nullification might proceed in practice. He chose the case of the tariff, to which South Carolina so objected. “If we do not repeal it, (as we probably shall not) she will then apply to the case the remedy of her doctrine. She will, we must suppose, pass a law of her legislature, declaring the several acts of Congress, usually called the tariff laws, null and void, so far as they respect South Carolina or the citizens thereof.” Up to this point, the fight would be all on paper. But it would soon enter the world of men and arms.
Webster sketched the scenario. “The collector at Charleston is collecting the duties imposed by these tariff laws; he, therefore, must be stopped. The collector will seize the goods if the tariff duties are not paid. The state authorities will undertake their rescue: the marshal, with his posse, will come to the collector’s aid, and here the contest begins. The militia of the state will be called out to sustain the nullifying act.” Speaking as an aside, Webster again taunted Hayne: “They will march, sir, under a very gallant leader: for I believe the honorable member himself commands the militia of that part of the state.”
The militia commander would explain his cause, Webster said. “He will raise the nullifying act on his standard and spread it out as his banner! It will have a preamble, bearing that the tariff laws are palpable, deliberate and dangerous violations of the Constitution!” The militia commander would march his men to the customhouse. He would order the collector to cease collecting the tariff duties.
The collector would weigh the matter. “Here would ensue a pause, for they say that a certain stillness precedes the tempest.” The collector and his clerks would have questions for the militia commander. “They would inquire whether it was not somewhat dangerous to resist a law of the United States. What would be the nature of their offense, they would wish to learn, if they, by military force and array, resisted the execution in Carolina of a law of the United States, and it should turn out, after all, that the law was constitutional?”
How would Commander Hayne reply? “He would answer, of course, treason. No lawyer could give any other answer.”
The collectors would ask how he proposed to defend them. “We are not afraid of bullets, but treason has a way of taking people off, that we do not much relish.”
The commander would reply, “Look at my floating banner. See there the nullifying law!”
“Is it your opinion, gallant commander,” they would say, “that if we should be indicted for treason, that same floating banner of yours would make a good plea in bar?”
“South Carolina is a sovereign State,” he would reply.
“That is true. But would the judge admit our plea?”
“These tariff laws are unconstitutional, palpably, deliberately, dangerously.”
“That all may be so; but if the tribunals should not happen to be of that opinion, shall we swing for it? We are ready to die for our country, but it is rather an awkward business, this dying without touching the ground! After all, that is a sort of hemp-tax, worse than any part of the tariff.”
Webster smiled slightly and paused. Then he turned more serious again. He concluded his scenario: “Mr. President, the honorable gentleman would be in a dilemma, like that of another great general. He would have a knot before him, which he could not untie. He must cut it with his sword. He must say to his followers, defend yourselves with your bayonets; and this is war—civil war.”
WEBSTER LET THE ominous syllables hang in the air for several seconds. Hayne and the South Carolinians steered clear of this possible consequence of their course, but Webster wanted the Senate to look it in the eye.
Then he sketched another path. Hayne played on fear; Webster asserted hope. “The people have preserved this, their own chosen Constitution, for forty years, and have seen their happiness, prosperity, and renown, grow with its growth, and strengthen with its strength,” he said. “It is to that Union we owe our safety at home, and our consideration and dignity abroad. It is to that Union that we are chiefly indebted for whatever makes us most proud of our country.” The Union had been forged in the fires of adversity, in the ruined finances and disordered commerce of the decade after the Revolution, and it had turned the nation around. “Under its benign influences, these great interests immediately awoke, as from the dead, and sprang forth with newness of life. Every year of its duration has teemed with fresh proofs of its utility and its blessings; and, although our territory has stretched out wider and wider, and our population spread farther and farther, they have not outrun its protection or its benefits.”
The nullifiers complained of the cost of the tariff; they contended that the Union threatened liberty; they said they would choose liberty over the Union. Webster rejoined that the cost was nothing beside the benefits the Union provided, that the Union was liberty’s stoutest defense, and that the alternative to the Union was not liberty but chaos. Returning to the question of civil war, he trembled to consider what it might entail. “When my eyes shall be turned to behold, for the last time, the sun in Heaven, may I not see him shining on the broken and dishonored fragments of a once glorious Union; on states dissevered, discordant, belligerent; on a land rent with civil feuds, or drenched, it may be, in fraternal blood!”
No, Webster prayed, not that. Instead: “Let their last feeble and lingering glance, rather behold the gorgeous ensign of the Republic, now known and honored throughout the earth, still full high advanced, its arms and trophies streaming in their original luster, not a stripe erased or polluted, nor a single star obscured—bearing for its motto, no such miserable interrogatory as ‘What is all this worth?’ Nor those other words of delusion and folly, ‘Liberty first, and Union afterwards’—but every where, spread all over in characters of living light, blazing on all its ample folds, as they float over the sea and over the land, and in every wind under the whole Heavens, that other sentiment, dear to every true American heart—‘Liberty and Union, now and forever, one and inseparable!’ ”
THE ROOM FELL hushed when Webster finished. Not a word was uttered; hardly a soul stirred. John Calhoun, in the chair, became disconcerted by the silence and the approbation it implied. He swung the gavel and demanded “Order,” though no more orderly place existed within fifty miles.
Nearly all present, even those disagreeing with Webster, were mesmerized. Charles March had watched the Massachusetts delegation while Webster told of their state’s glorious part in American history. “Their feelings were strained to the highest tension,” March recounted. “And when the orator, concluding his encomium upon the land of their birth, turned, intentionally or otherwise, his burning eye full upon them—they shed tears like girls!” The intensity mounted throughout the chamber as Webster came to his end. “The exulting rush of feeling with which he went through the peroration threw a glow over his countenance, like inspiration. Eye, brow, each feature, every line of the face seemed touched, as with a celestial fire. All gazed as at something more than human. So Moses might have appeared to the awe-struck Israelites as he emerged from the dark clouds and thick smoke of Sinai, his face all radiant with the breath of divinity!” By the time he wrote his memoir, March had witnessed many speeches. But he never saw anything like this. “No one who was not present can understand the excitement of the scene,” he said. “No one who was can give an adequate description of it.”
Robert Hayne was a proud man, but he wasn’t deaf and blind. That night Andrew Jackson held a levee at the executive mansion. Webster and Hayne were both there. Hayne approached Webster, who offered his hand and asked, “How are you this evening, Colonel?”
“None the better for you, sir,” said Hayne with a rueful smile.