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tion; and it was only by the ratification of the whatever obligations were imposed on the citi-
Such an act is of itself void, and of no selves. I have appied it, simply because it effect. What I claim is, the right of the State, strictly belongs to the relation between the as far as its citizens are concerned, to declare the General Government and the States, as, in fact, extent of the obligation, and that such declaration it does, also, to that between a State and its is binding on them—a right, when limited to its own Government. Indeed, according to our citizens, Howing directly from the relation of theory, Governments are in their mature but the State to the General Government, on the trusts, and those appointed to administer them, one side, and its citizens on the other, as alrea. trustees or agents is execute the trust pow. dy explained, and resting on the most plain anders. The sovereignty resides elsewhere in solid reasons.
the people, not in the Government; and with Passing over what of itself might be consid: us, the people mean the people of the several ered conclusive, the obvious principle, that it Slutes, originally formed into thirteen distinct beloogs to the authority which imposed the ob. and independent communities, and now into ligation to declare its extent, as far as those are twenty.four Politically speaking, in reference concerned on whom the obligation is placed, 1/10 our own system, there are no other people. sball present a single argument which, of it. The General Government, as well as those of self, is decisive. I have already shown that the States, is but the organ of their power; the there is nu immediate connexion between the latter that of their respective States, through citizens of a State and the General Govern. which are exercised separately that portion of men, and tbat 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 its duty, according to the principles gan of all the States, confederated into one established in such cases, instead of a temple general community, and through which they to enforce its construction of its powers, against jointly and concurringly exercise the delegated that of the States, to bring the subject before powers, in which all have a common interest. the States themselves in the only foren elich, Thus viewed, the Constitution of the United according to the provision of the Constitution it States, with the Government it created, is truly can be, by a proposition to amend in the matthet and strictly the Constitution of each Slate, as prescribed in the instrument, to be acted on by much so as its own particular Consitution and them in the only mode they can, by expressly Government, ratified by the same authority, in granting or withbuilding the contested pover
. the same mode, and having, as far as its citizens Against this conclusion there can be raised but are concerned, its powers and obligations from one objection, that the States have surrendered the same source, differing only in the aspect or 'transferred the riglit in question. If ser under which I am considering the subject, in be the fact, there ought to be no dificulty a the plighted faith of the State to its co-Stales, establishing it. The grant of the powers dels and of which, as far as its citizens are concern. gated is contained in a written instrument
, ed, the State, in the last resort, is the exclu. drawn up with great care, and adopted with the sive judge.
utmost deliberation. It provides that the por Such, then, is the relation between the State ers not granted, are reserved to the States and and General Government, in whatever light we the people, If it be surrendered or transfer may consider the Constitution, whether as a red, let then the grant be shown, and the come compact between the States, or of the nature troversy terminated; and surely, it ought to be of the legislative enactment by the joint and shown, plainly and clearly shown, telute de concurring authority of the States, in their lugh States are asked to admit what if true, would sovereignty. In whatever light it may be not only divest them of a right which, under viewed, I hold it as necessarily resulting, that all its forms, belongs to the principal orar bis in the case of a power disputed between them, agent, unless surrendered, but which camat be the Government, as the agent, has no right to surrendered without, in effect, and for all pracenforce its construction against the construction lical purposes, reversing the relation between of the State, as one of the sovereign parties to them; putting the agent in the place of the price the Constitution, any more than the State Gocipal, and the principal in that of the agents and vernment would have against the people of the which would degradie ine States from the bigda State, in their sovereign capacity, the relation and sovereign condition which they have eser being the same between them. That such held, under every form of their existence, to be would be the case between agent and principal, inere subordinate and independent corporations
, in the ordinary transactions of life, no one will But, instead of showing any such grant, tot a doubl, nor will.iĉ be possible to assign a reason provision can be found am the Constitutun, quwhy it is not as applicable to the case of Go.thorising the General Government to exercise ang verurnent as to that of individuals. The prin control whatever over a Sale by force, toy veto, ciple, in fact, springs from the relation itself, by judicial process, or in any other formand is applicable to it in all its forms and charac- most important omission, intended, not accidentale ters. li may, however, be proper to notice a and as will be shown in the course of these te distinction between the case of a single prin- märks, omilled by the dictates of the profound. cipal and his agent, and that of several princi- est wisuum. paüls and their joint agent, which might other The journal and proceedings of the Conven, wise cause some contusion. In both cases, astion which formed the Constillution, afford between the agent and a principal, the con. abundant proof that there was in the body struction of the principal, whether he be a powertul party, distinguished for talents and single principal, or one of several, is equally influence, intent on obtaining for the Greneral conclusive; but, in the latter case, both the Government a grant of the very power in ques principal and the agent bear relation to the tion, and that they altempted to effect this oba Other principals, which must be taken into the jeci in all possible ways, but fortunately wit estimate, in order to understand fully all the out success. The first project of a Consilu results which may grow out of the contest for tion submitted to the Convention (Gov. Benpower between thein. Though the construc- dolph's) embraced a proposition to grant paks
? tion of the principal is conclusive against the "to negative ail laws contrary, in the opinor joint agent, as between them, such is not the of the National Legislature, to the articles of case between him and his associates. They the Union, or wy treaty subsisting under tide both have an equal right of construction, and it authority of the Union; and to call fun the would be the duty of the agent to bring the force of the Union againsz any member of the subject before the principal
, 10 be adjusted Union failing to finitils duty under the articla according to the terms of the instrument of thereof." The next project submitted Coats association, and of the principal to submit to Pinckney's) contained a similar provision de such adjustment. In such cases, the contract itself is the law, States should bave the püwer to revise the last
propused" that the Legislature of tire Ufolled which must determine the relative righis and of the several states that may be supposed to powers of the parties to it. The General Go- fringe the powers exclusively delegated by Feroment is a case of joint: agency--the joint this Constitution to Congress, and to hegative agent of the twenty-four sovereign States. li'and annul sucb as do." "The best was subtrik
ted by Mr. Paterson, of New Jersey, which I do not propose to go into a minute examina-
couit with its present power3, (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 commiitee, to provide (23d August) to invest Congress with a negative that "the jurisdiction of the Supreme Court on all State laws, which, in its opinion, might shall extend to al 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 negalive all laws passed by tie seve-be overruled by construction, however strong. ral States, interfering, in the opinion of the Le. Passing by, however, this, and also the ob. gislature, with the general harmony and interes! jec:ion, 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 Gorernment; 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 tion, either by the provision above cited, or any most talented and influential members of the other. It is a power derived not frora the Con. body. This, one would suppose, ought to stitution, but from the necessity of the case; settle forever the question of the surrender, er and so far from being possessed by the Supreme transfer 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, higlior son of a large portion of the cominunity 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 ly have a direct interestin enlarging the power of the construction of a law, which may conflict the Government, and the interested adhere to with the provisions of the Constitution. The power with a pertinacity which buis defiance to reason is plain. Where there are two sets of trut), though sustained by evidence as conclu- rules prescribed in reference to the same subsive as mathematical demonstration; and accor. ject, one by a higher, the other by an inferior dingl., the advocates of the powers of the authority, the judicial tribune callea 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 cumpels it to decide, that the rule power, the grant of wluch was so perseveringly prescribed by the inferior power, if, in its opisought and 20 sternly resisted by the Conven- nian, consistent with that of the higher, is t .. They eat the claim on the provisions in void, be the conflict between the Constitution the Constitution, which declare, " that this Con- 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 juicial power shall extend to all Being derived from necessity, it is restricted with. cases 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.
tions, which of the two is in reality the law, the I have now, I trust, conclusively shown that act of Congress or the Constitution, when, on a State has a right in her sorereign capacitya their face, they are inconsistent; and yet, from Convention, to declare an unconstitutional act this resulting, limited power derived from ne- of Congress to be null and void, and that sich cessity, and held in common with every court in declarations would be obligatery on her ctie the world, which by po-sibility may take cog- zens, as highly so as the Constitution itself
, and nizance of a case involving the interpretation of conclusive against the General Government our Constitu ion and laws, it is attempted to which would have no right to enforce its conconfer on the Supreme Court a power which struction of its powers against that of the Siste
, would work a thorough and radical change in I next propose to consider the practical efour system, and which power was positively re- fect of the exercise of this high and important fused by the convention.
right, which as the great conservative principe The opinion that the General Government of our system, is known under the various names has the right to enforce its construction of its of nullification, interposition, and State veto in powers against a State, in any mode whatever, reference to its operation viewed under difesa is, in truth, founded on a fundamental miscon- ent aspects, nullification as annulling an uncos ception of our system. At the bottom of this, stitutional act of the General Government as for and in fact almost every other misconception, as the State is concerned; interposition » as to the relation between the States and the throwing the shield of protection between the General Government, lurks the radical error, citizens of a State and the encroachments of that the latter is a national, and not, as in reali- the Government; and veto, as arresting or er: ty it is, a confederated Government; and that it hibiting its unauthorized acts within the fiets derives its powers from a higher source than of the State. the States. There are thousands influenced by The practical effect, could the right be reti these impressions without being conscious of it, sidered as one fully recognized, would be plain and who, while they believe themselves to be and simple, and has already, in a great measure
, opposed to consolidation, have infused into their been anticipated. If the State has a rigat
, conception of our constitution, almost all the there must, of necessity, be a corresponding ingredients which enter into that form of Gov. obligation on the part of the General Goreneroinent. The striking difference between the ment to acquiesce in its exercise; and of course, present Government, and that under the old it would be its duty to abandon its power
, at confederation, (I speak of governments as dis- least as far as the State is concerned, and to tinct from constitutions,) has mainly contributed apply to the States themselves, according to to this dangerous impression. But, however the form prescribed in the Constitution
, to ob. dissimilar their Governments, the present con- tain it by a grant. It granted, acquiescence, stitution is as far removed from consolidation, and then, would be a duty on the part of the State
; is as strictly and as purely a confederation, as and, in that event, ihe contest wouhl terzi. the one which it superceded.
nate in converting a doubtful constructive po Like the old Confederation, it was formed er into one positively granted; but, shveld! and ratified by State authority. The only dif- not be granted, no alternative would remaja ference in this particular is, that one was ratified for the General Government, hut its permanent by the people of the States; the other by the abandonment. In either event, the controverState Governments; one forming more strictly sy would be closed, and the Constitution fired
; an Union of the State Governments, the other a result of the utmost importance to the steady of the States themselves; one, of the agents ex. operation of the Government
, ani the stability ercising the powers of sovereignty, and the of the system, and which can never be attait other of tlie sovereigns themselves, but both ed, under its present operation, without the were unions of political bodies, as distinct from recongnition of the right as experience is an union of the people individually. They are shown. indeed both confederations, but the present in a From the adoption of the Constitution ? bigher and purer sense than that which it suc- have bad but one continued agita ion of coste ceeded, just as the act of a sovereign is higher tutional questions, embraciog some of the cause and more perfect than that of his agent; and it important puwers exercised by the Governo was doubtless in reference to this difference ment; and yet, in spite of all the abilty a that the preamble of the constitution, and the force of argument displayed in the various disaddress of the Convention, laying the constitu- cussions, backed by the high authority clared 'tion before Congress, speak of consolidating and for the Supreme Court, to adjust sucha contro perfecting the Union; yet this difference, which versies, not a single constitutional question while it elevated the General Government, in political character, which has ever been agter relation to the State Governments, placed it ed during this long period, has been sekrå more immediately intelation of the creature and in the public opinion, except that of the *** agent of the States themselves, by a nutural mis- constitutionality of the Alien and Sedition Law conception, has been the principal cause of the and what is remarkable that was settled opsie impression so prevalent of the inferiority of the the decisions of the Supreme Court. The tem States to the General Government, and of the dency is to increase, and not to dimialah als consequent right of the latter to coerce the for. conflict for power. New questions are yestly mer. İlaised from below the State Governments added, without diminishing the old
, while the it was conceived to be placed above the states contest becomes more obstinate as the last torm themselves.
creases; and, what is highly ominous, Dort
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 rela ion 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, world, I hold, state can terminate, without a power some- be impossible. The attempt to elude, should where to compel, in effect, the Government to it be made, would itself be unconstitutional; abandon doubtful constructive powers, or 10 and, in turn, would be annulled by the sove. convert them into po-itive 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 tr al, and that by the agents. Nothing short of this, in a sys- in 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. oy proper enactments, any means of obtaining ration were the right recognised; but tne case a 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- ted, 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 the vernment would be compelled to abandon its view to determine which of the two, the State unconstitutional pretensions, or resort to force or the General Government, must prevail is the --a resort, the difficulty (I was about to say, condict, which compels me to revert to some the impossibility) of which, would very soon of the grounds already established.
fully minifest itself, should folly or madness I have already shown that the declaration of ever make the attempt. nullification would be obligatory on the citizens In considering this aspect of the controversy, of the State, as much so in fact, as its declara. I pass over the fact, that the General Govern ration ratifying the Constitution, resting, as it ment has no right to resort to force against a does, on the same basis. It would to them be State-o coerce a sovereign member of the the highest possible evidence that the power Union-which, I trust, I have established becontested was not granted, and, of course, that yond all possible doubt. Let it, however, be the act of the General Governmcar was uncon determin.d to use force, and the difficulty stitutional. They would be bound, in all the would be insurmountable, unless, indeed, it be relations of life, private and political, to respect also determined to set aside the constitution, and and obey it; and, when called upon as jury- to subvert the system to its foundations. men, to render their verdict accordingly, or, Against whom would it be applied? Con. as Judges, to pronounce judgment in confor- gress has, it is true, the right to call forth the mity to it. The right of jury trial is secured militia ''to execute the laws, and suppress inby ihe Constitution (ihanks to the jealous sp - surrections;" but there would be no law resistsit of liberty doubly secured and fortified) and, ed, unless, indeed, it be called resistance for with this inestimable right-inestimablé, 100 the juries to refuse to find, and the courts to only as an essential portion of the Judicial tri- render julgment, in conformity to the wishes bunals of the country, but infinitely more so, of the General Government; nö insurrection to considered as a popular, and still more, a local surpress; no armed force to reduce; not a representation, in that department of the Go- sword unsheathed; not a bayonet raised; nune, vernment whichi, without it, would be the far. absolutely none, on whom force could be used; and, a fit instrument to sap the foundation of peacefully and quietly in their daily occupathe system; with, I repeat, this inestimable tions. right, it would be impossible for the General No one would be guilty of treason (“levying Government, within the limits of the State, to war against the United States, adhereing to execute legally the act nullified, or any other their enemies, giving them aid and comfort,") passed with a view to enforce it; while, on the or any other crime, made penal by the Constituother liand, the State would be able to enforce tion or the laws of the United States. legally and peaceably its declaration of nullifica. To suppose that force could be called ill, tion. Sustained by its court and juries, it implies, indeed, a great mistake, both as to the would calmly and quietly, but successfully, nature of our Government and that of the conmeet every effort of the General Government troversy. It would be a legal and constitutional to enforce its claim of power. The result contest, a conflict of moral, and not physical would be inevitable. Before the judicial tri- force - trial of constitutional, not military