tion; and it was only by the ratification of the State, that its citizens became subject to the control of the General Government. The ratification of any other, or all the other States, without its own, could create no connection between them and the General Government, nor impose on them the slightest obligation.— Without the ratification of their own State, they would stand in the same relation to the General Government as do the citizens or subjects of any foreign State; and we find the citizens of North Carolina and Rhode Island actually bearing that relation to the Government, for sometime after it went into operation; these States having in the first instance declined to ratify. Nor had the act of any individual the least influence in subjecting him to the control of the General Government, except as it might influence the ratification of the Constitution by his own Ssate. Whetter subject to his control or not, depended wholly on the act of the State. His dissent had not the least weight against the assent of his State, nor his assent against its dissent. It follows as a necessary consequence, that the act of ratification, bound the State as a community, as expressly declared in the article of ratification above quoted, and not the citizens of the State, as individuals; the latter being bound, through their State, and in consequence of the ratification of the former. Anouier, and a highly important consequence, as it regards the subject under investigation, follows with equal certainty; that on a question, whether a particular power, exercised by the General Government, be granted by the Constitution, it belongs to the State, as a member of the Union, in her sovereign ca. pacity, in convention, to determine definitely, as far as her citizens are concerned, the extent of the obligation which she contracted; and if in her opinion, the act exercising the power be unconstitutional, to declare it null and void; which declaration would be obligatory on her citizens. In coming to tilis conclusion, it may be proper to remark, to prevent misrepresentation, that I do not claim for a State the right to abrogate an act of the General Government. It is the Constitution that annuls an unconstitutional act. Such an act is of itself void, and of no effect. What I claim is, the right of the State, as far as its citizens are concerned, to declare the ext{nt of the obligation, and that such declaration is binding on them—a right, when limited to its citizens, flowing directly from the relation of the State to the General Government, on the one side, and its citizens on the other, as alrea. dy explained, and resting on the most plain and

whatever obligations were imposed on the citizens, were imposed by the declaration of the State ratifying the Constitution. A similar declaration, by the same authority, made with equal solemnity, declaring the extent of the obligation, must, as far as they are concerned, be of equal authority. I speak, of course, on the supposition that the right has not been transferred, as it will hereafter be shown that it has not. A citizen would have no more right to question the one than he would have the other declaration. They rest on the same authority; and as he was bound by the declaration of the State assenting to the Constitution, whether he assented or dissented, so would he be equally bound by a declaration, declaring the extent of that assent, whether opposed to or in favor of such declaration. In this conclusion I am supported by analogy. The case of a treaty between sovereigns is strictly analogous. There, as in this case, the State contracts for the citizen or subject; there, as in this, the obligation is imposed by the State, and is independent of his will; and there, as in this, the declaration of the State determining the extent of the obligation contracked, is obligatory on him, as much as the treaty itself. w Having now, I trust, established the very inportant point, that the declaration of a State, as to the extent of the power granted, is obligatory on its citizens, I shall next proceed to consider the effects of such declaration in reference to the General Government; a question which necessarily involves the consideration of the relation between it and the States. It has been shown that the people of the States, acting as distinct and independent communities, are the authors of the Constitution, and that the General Government was organized and ordained by them to execute its powers. The Go vernment, then, with all of its Departments, is, in fact, the agent of the States, constituted to execute their joint will, as expressed in the Constitution. , In using the term agent, I do not intend to derogate, in any degree, from its character as a Government. It is as truly and properly a government as the State governments themselves. I have applied it, simply because it strictly belongs to the relation between the General Government and the States, as, in fact, it does, also, to that between a State and its own Government. Indeed, according to our theory, Governments are in their nature but trusts, and those appointed to administer them, trustees or agents to execute the trust powers. The sovereignty resides elsewhere—in

solid reasons. Passing over what of itself inight be consid:

ered conclusive, the obvious principle, that it belongs to the authority which imposed the ob. ligation to declare its extent, as far as those are concerned on whom the obligation is placed, I shall present a single argument which, of it. self, is decisive. I have already shown that there is nu immediate connexion between the citizens of a State and the General Govern

the people, not in the Government; and with us, the people mean the people of the several States, originally formed into thirteen distinct and independent communities, and now into twenty-four Politically speaking, in reference to our own system, there are no other people. , The General Government, as well as those of the States, is but the organ of their power; the latter that of their respective States, through which are exercised separately that portion of

men, and that the relation between them is

power not delegated by the Constitution, and

through the state. I have also shown, that in the exercise of which each state has a local


and peculiar interest; the former, the joint or- would be is duty, according othe picts

gan of all the States, confederated into one general community, and through which they jointly and concurringly exercise the delegated powers, in which all have a common interest. Thus viewed, the Constitution of the United States, with the Government it created, is truly and strictly the Constitution of each Slate, as much so as its own particular Constitution and Government, ratified by the same authority, in the same mode, and having, as far as its citizens are concerned, its powers and obligations from the same source, differing only in the aspect under which I am considering the subject, in the plighted faith of the State to its co-states, and of which, as far as its citizens are concern. ed, the State, in the last resort, is the exclusive judge. Such, then, is the relation between the State and General Government, in whatever light we may consider the Constitution, whether as a compact between the States, or of the nature of the legislative enactment by the joint and concurring authority of the States, in their high sovereignty. In whatever light it may be viewed, I hold it as necessarily resulting, that in the case of a power disputed between then, the Government, as the agent, has no right to enforce its construction against the construction of the State, as one of the sovereign parties to the Constitution, any more, than the State Go. vernment would have against the people of the state, in their sovereign capacity, the relation being the same between them. That such would be the case between agent and principal, in the ordinary transactions of life, no one will doubt, nor be possible to assign a reason why it is not as applicable to the case of Go. vern:dent as to that of individuals. The prin. ciple, in fact, springs from the relation itself, and is applicable to it in all its forms and chardcters. It may, however, be proper to notice a distinction between the case of a single principal and his agent, and that of several principals and their joint agent, which might otherwise cause some confusion. In both cases, as between the agent and a principal, the con. struction of the principal, whether he be a single principal, or one of several, is equally conclusive; but, in the latter case, both the principal and the agent bear relation to the other principals, which must be taken into the estimate, in order to understand fully all the results which may grow out of the contest for power between them. Though the coustruction of the principal is conclusive against the joint agent, as between them, such is not the case between him and his associates. They both have an equal right of construction, and it would be the duty of the agent to bring the subject before the principal, to be adjusted according to the terms of the instrument of association, and of the principal to submit to such adjustment. In such cases, the contract itself is the law, which must determine the relative rights and Powers of the parties to it. The General Go.

established in such cases, instead of attemplo to enforce its construction of its powers, agint that of the States, to bring the subject best: the States themselves, in the only form with, according to the provision of the Constitutomo can be, by a proposition to amendinthemator prescribed in the instrument, to be acted only them in the only node they can, by expres; granting or withholding the contested powe. Against this conclusion there can be raised to one objection, that the States have surrended, or transferred the right in question. If so be the fact, there ought to be no difficula establishing it. The grant of the powenito gated is contained in a written instrume" drawn up with great care, and adopted who utmost deliberation. It provides that the for ers not granted, are reserved to the States in the people, if it be surrendered or to: red, let then the grant be shown, and the to troversy terminated; and surely, it ought too shown, plainly and clearly shown, belt to States are asked to admit what if trut, wood not only divest them of a right which, unit all its forms, belongs to the principlot on agent, unless surrendered, but which timuthe surrendered without, in effect, and folph: tical purposes, reversing the chool on them; putting the agentin the placrosoft. cipal, and the principal in that oftleto which would degrade the States from ** and sovereign condition which they laye to held, under every form of their existence,” unere subordinate and independent corporalo But, instead of showing any such grant, 14" provision can be found in the Constitutwo wo thorising the General Government tourie"; control whatever over a Sale by force, too by judicial process, or in any other fo most importantomission, intended no and as will be shown in the course of that " marks, omitted by the dictates of the point. est wisdom. The journal and proceedings of the Como: tion which formed the Constitution, in abundant proof that there was in the bo' powerful party, distinguished for ukas” influence, intent on obtaining for the so Government a grant of the very power into tion, and that they attempted to effect” ject in all possible ways, but fortullaleh". out success. The first project of a Duo" tion submitted to the Convention (Gwo dolph's) embraced a propositiontogo" “to negative ail laws contrary, in the " of the National Legislature, to the articles of the Union, or way treaty subsisting under or authority of the Union; and to call suit * force of the Union agains any member of Union alling to fulfil as duty and ruro." thereof.” The next project submitted so Pinckney's) contained similrpo." proposed “ that the legislature of the sold States should have the power to revio" of the several States that may be supposed” usringe the power, exclusively look

vernment is a case of Joint agency—ulle joint agent of the twenty-four sovereign states. It

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ted by Mr. Paterson, of New Jersey, which I do not propose to go into a minute examinaprovided, “if any State, or body of men in any|tion of these provisions. They have been so State, shall oppose or prevent the carrying into frequently and so ably investigated, and it has execution such acts or treaties, [of the Union,] been so clearly shown, that they do not warrant the Federal Executive shall be authorized to the assumption of the power claimed for the call forth the powers of the confederated States, Government, that I do not deem it necessary. or so much thereof as shall be necessary, to en. I shall, therefore, confine myself to a few deforce or compel the obedience to such acts, or tached remarks. observance of such treaties.” Gen. Hamilton’s I have already stated that a distinct proposinext succeeded, which provided that “all laws tion was made to confer the very power in conof the particular States contrary to the Consti-troversy on the Supreme Couri, which failed; tution or the laws of the United States to be which, of itself ought to overrule the assumption utterly void; and the better to prevent such of the power by construction, unless sustained laws being passed, the Governor or President by the most conclusive arguments; but when of each State shall be appointed by the General it is added, that this proposition was moved Government, and shall have a negative on the (20th August) subsequent to the period of adlaws about to be passed, in the State of which oping the provisions above cited, vesting the he is Governor or President.” court with its present powers, (18th July) and At a subsequent period, a proposition was that an effort was made at a still later period, moved and referred to a committee, to provide (23d August) to invest Congress with a negative that “the jurisdiction of the Supreme Court on ali State laws, which, in its opinion, might shall extend to all controversies between the interfere with the general interest and harmony United States and any individual State;” and, of the Union, the argument would seem too at a still later period, it was moved to “grant conclusive against the powers of the court, to power to negative all laws passed by the seve- be overruled by construction, however strong. ral States, interfering, in the opinion of the Le- Passing by, however, this, and also the obgislature, with the general harmony and interest jection, that the terms cases in law and equity, of the Union, provided that two-thirds of the are technical, embracing only questions bemembers of each house assent to the same;” tween parties, amenable to the process of the which, after an ineffectual attempt to commit, court, and of course, excluding questions bewas withdrawn. |tween the State and the General Government; I do not deem it necessary to trace through an argument which has never been answered; the journals of the Convention the fate of these there remains another objection perfectly convarious propositions. It is sufficient, that they clusive. were moved, and failed, to prove conclusively, The construction, which would confer on the in a manner never to be obliterated, that the Supreme Court the power in question, rests on Convention which framed the Constitution was the ground that the Constitution has conferred opposed to granting the power to the General on that tribunal the high and important right Government in any form through any of its De-of deciding on the constitationality of laws. partments, legislative, executive or judicial, to That it possesses this power I do not deny, but coerce or control a State, though proposed in I do utterly, that its conferred by the Constituall conceivable modes, and sustained by the stion, either by the provision above cited, or any most talented and influential members of the other. It is a power derived not from the Conbody. This, one would suppose, ought to stitution, but from the necessity of the case: settie forever the question of the surrender, or and so far from being possessed by the Supreme uransfer of the power, under consideration; and Court exclusively, or peculiarly, it not only besuch in fact would be the case, were the opin- longs to every court of the country, high or ion of a large portion of the community not low, civil or criminal, but to all foreign courts biassed, as in fact it is, by interest. A majori- before which a case may be brought, involving ty have a direct interestin enlarging the powerof. the construction of a law, which may conflict the Governouen", and the interested adhere to with the provisions of the Constitution. The power with a pertinacity which bids defiance to reason is plain. Where there are two sets of truth, though sustained by evidence as conclu-rules prescribed in reference to the same subsive as mathconatical demonstration; and accor-ject, one by a higher, the other by an inferior dingly, the advocates of the powers of the authority, the judicial tribune called in to deGeneral Government, notwithstanding the im- cide on the case, must unavoidably determine, pregnable strength of the proof to the contra-should they conflict, which is the law; and that ry, have boldly claimed on construction, a necessity compels it to decide, that the rule power, the grant of which was so perseveringly prescribed by the inferior power, if, in its opisought and so sternly resisted by the Conven- nian, consistent with that of the higher, is tou. They rest the claim on the provisions in void, be the conflict between the Constitution the Constitution, wouch declare, “that this Cou- and a law, or between a charter and the bySitution and the laws made in pursuance there- laws of a corporation. The principle and of shall be the supreme law of the land,” and source of authority are the same in both cases. that “ the judicial power shall extehu to slogdom necessity, it is restricted withcases in law and equity arising under this Con-in its limits, and cannot pass an inch beyond its stitution, the laws of the United States, and narrow confines of deciding in a case before the treaties made, or which shall be made under court, and of course, between parties amenable heir authority.” to its process, excluding thereby political ques


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tions, which of the two is in reality the law, the act of Congress or the Constitution, when, on their face, they are inconsistent; and yet, from this resulting, limited power derived from necessity, and held in common with every court in the world, which by po-sibility may take cognizance of a case involving the interpretation of our Constituion and laws, it is attempted to confer on the Supreme Court a power which would work a thorough and radical change in our system, and which power was positively refused by the convention. The opinion that the General Government has the right to enforce'its construction of its powers against a State, in any mode whatever, is, in truth, founded on a fundamental misconception of our system. At the bottom of this, and in fact almost every other misconception, as to the relation between the States and the General Government, lurks the radical error, that the latter is a national, and not, as in reality it is, a confederated Government; and that it derives its powers from a higher source than tile States. these impressions without being conscious of it, and who, while they believe themselves to be opposed to consolidation, have infused into their conception of our constitution, almost all the ingredients which enter into that form of Gov. ernment. The striking difference between the present Government, and that under the old confederation, (I speak of governments as distinct from constitutions,) has mainly contributed to this dangerous impression. But, however dissimilar their Governments, the present con“stitution is as far removed from consolidation,and is as strictly and as purely a confederation, as the one which it superceded. Like the old Confederation, it was formed and ratified by State authority. The only difference in this particular is, that one was ratified by the people of the States, the other by the State Governments; one forming more strictly an Union of the State Governments, the other of the States themselves; one, of the agents exercising, the powers of sovereignty, and the other of the sovereigns themselves, but both were unions of political bodies, as distinct fram an union of the people individually. They are indeed both confederations; but the present in a

There are thousands influenced by |

I have now, I trust, conclusively downto a State has a right in her sovereign cipitish Convention, to declare an unconstitutional rol of Congress to be null and void, and that oth declarations would be obligatory on her to: zens, as highly so as the Constitutionistlin' conclusive against the General Governme! which would have no right to enforce sto. struction of its powers against that of the Sr. I next propose to consider the pracial 4 fect of the exercise of this high and importin right, which as the great conservative prook of our system, is known under the variousmon of nullification, interposition, and Stilevelo reference to its operation viewed undertfo. ent aspects, nullification as annullinganuity stitutional act of the General Governmentist as the State is concerned; interosion o throwing the shield of protection between or citizens of a State and the encroachment to the Government; and veto, as arrestry wo. hibiting its unauthorized acts within the into of the State. The practical effect, could the right be to sidered as one fully recognized, woul beflin and simple, and has already,in a greatmaso, been anticipated. If the State his so there must, of necessity, be a crossoir; obligation on the part of the Geolomment to acquiesce in its exercise;andoftoo, it would be its duty to abandon its ove, it least as far as the State is concerned, and to apply to the States themselves, according to the form prescribed in the Constitution, wo tain it by a grant. It granted, acquiso then, would be a duty on the par ash. So, |and, in that event, the contest would tem. nate in converting a doubtful construtfittoo er into one positively granted; but, ** not be granted, no alternative would to for the General Government, hut its prominto abandonment. In either event, the como sy would be closed, and the constitutio a result of the utmost importanceto the * operation of the Government, and the * of the system, and which can never he wo ed, under its present operation, witho' th: recongnition of the right as expetito" shown. From the adoption of the Constitution of

bigher and purer sense than that which it suc-shave had but one continued agitaion of co

ceeded, just as the act of a sovereign is higher and more perfect than that of his agent; and it was doubtless in reference to this difference that the preamble of the constitution, and the address of the Convention, laying the constitution before Congress, speak of consolidating and perfecting the Union; yet this difference, which while it elevated the General Government, in relation to the State Governments, placed it more immediately in relation of the creature and agent of the States themselves, by a nutural misconception, has been the principal cause of the impression so prevalent of the inferiority of the States to the General Government, and of the consequent right of the latter to coerce the former. Raised from below the State Governments

tutional questions, embracing some ofte" important powers exercised by theo" ment; and yet, in spite of all the solo id force of argument displayed in the wro. cussions, backed by the high authority thitti for the Supreme Court, to adjust such to versies, not a single constitutionalquet""" political character, which has ever veto ed during this long period, has been o in the public opinion, except that of the ". constitutionality of the Allen and sediml" and what is remarkable,that was settledgow the decisions of the Supreme Court sk. dency is to increase, and not to dimio" conflict for power. New questions to added, without diminishing the d', who to

it was conceived to be placed above the States themselves.

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tional. It is impossible that the Government|bunal of the country, the State must prevail, can last under this increasing diversity of opi- unless, indeed, jury trial could be eluded, by nion, and growing uncertainty as to its power, the refinement of the court, or by some other in relation to the most important subjects of device, which, however, guarded as it is by legislation; and equally so, that this dangerous the ramparts of the Constitution, would, I hold, state can terminate, without a power some- be impossible. The attempt to elude, should where to'compel, in effect, the Government to lit be made, would itself be uncogstitutional: abandon doubtful constructive powers, or to and, in turn, would be annulled by the sove. convert them into positive grants, by an amend- reign voice of the State. Nor would the right ment of the Constitution; in a word, to substi- of appeal to the Supreme Court, under the Jutute the positive grants of the parties them. |diciary act, avail the General Government. If selves, for the constructive powers interpolated taken, it would but end in a new tra!, and that by the agents. Nothing short 'of this, in a sys-lin another verdict, against the Government; tem constructed as ours is, with a double set of but whether it may be taken, would be optional agents, one for local and the other for general with the State. The Court itself has decided, purposes, can ever terminate the conflict for that a copy of the record is requisite to review power, or give uniformity and stability to its a judgment of a State court, and, if necessary, action. |the State would take the precaution to prevent, Such would be the practical and happy ope-by proper enactments, any means of obtaining ration were the right recognised; but the coel. copy. But if obtained, what would it avail, may be far otherwise, and as the right is not against the execution of the penal enactments only denied, but violently opposed, the Gene- of the State, intended to enforce the declararal Government, so far from acquiescing in its tion of nullification? The judgment of the exercise, and abandoning the power, as it ought, State Court would be pronounced and execumay endeavor, by all the means within its com-lted, before the possibility of a reversal; and mand, to enforce its construction against that of executed, too, without responsibility incurred the State. It is under this aspect of the ques- by any one. tion that I now propose to consider the practi. Beaten before the courts, the General Gocal effect of the exercise of the right, with delvernment would be compelled to abandom its view to determine which of the two, the State unconstitutional pretensions, or resort to force or the General Government, must prevail in the -a resort, the difficulty (I was about to say, conflict, which compels me to revert to some the impossibility) of which, would very soon

of the grounds already established.
I have already shown that the declaration of
nullification would be obligatory on the citizens
of the State, as much so in fact, as its declara.
ration ratifying the Constitution, resting, as it
does, on the same basis. It would to them be
the highest posssible evidence that the power
contested was not granted, and, of course, that
the act of the General Government was uncon-
stitutional. They would be bound, in all the
relations of life, privat; and political, to respect
and obey it; and, when called upon as jury-
men, to render their verdict accordingly, or,
as Judges, to pronounce judgment in confor.
mity to it. The right of jury trial is secured
by the Constitution (thanks to the jealous spi-
rit of liberty doubly secured and fortified) and,
with this inestimable right—inestimable, not
only as an essential portion of the Judicial tri-
bunals of the country, but infinitely more so,
considered as a popular, and still more, a local
representation, in that department of the Go-
vernment which, without it, would be the far.
thest removed from the control of the people;

fu Wy, monifest itself, should folly or madness
ever make the attempt.
In considering this aspect of the controversy,
I pass over the fact, that the General Govern-
ment has no right to resort to force against a
State—to coerce a sovereign member of the
Union—which, I trust, I have established be-
yond all possible doubt. Let it, however, be
determined to use force, and the difficulty
would be insurmountable, unless, indeed, it be
also determined to set aside the constitution, and
to subvert the system to its foundations.
Against whom would it be applied? Con-
gress has, it is true, the right to call forth the
militia “to execute the laws, and suppress in-
surrections;” but there would be no law resist-
ed, unless, indeed, it be called resistance for
the juries to refuse to find, and the courts to
render judgment, in conformity to the wishes
of the General Government; no insurrection to
surpress; no armed force to reduce; not a
sword unsheathed; not a bayonet raised; nune,
absolutely none, on whom force could be used;
except it be on the unarmed citizens, engaged

and, a fit instrument to sap the foundation of the system; with, I repeat, this inestimable right, it would be impossible for the General Government, within the limits of the State, to execute legally the act nullified, or any other passed with a view to enforce it; while, on the other land, the State would be able to enforce legally and peaceably its declaration of nullification. Sustained by its court and juries, it would calmly and quietly, but successfully, meet every effort of the General Government

peacefully and quietly in their daily occupa-
No one would be guilty of treason (“levying
war against the United States, adhereing to
their enemies, giving them aid and comfort,”)
or any other crime, made penal by the Constitu-
tion or the laws of the United States.
To suppose that force could be called in,
implies, indeed, a great mistake, both as to the
nature of our Government and that of the con-
troversy. It would be a legal and constitutional

to enforce its claim of power. The result would be inevitable. Before the judicial tri

contest, a conflict of moral, and not physical force—a trial of constitutional, not military

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