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John Taylor, of Caroline, Va., who used in for that I think I have shown to be impossible, with the his day to speak and write “as one having ise, and because the people have retained in their own
powers which the Legislature may safely use and exerauthority” in the old Jeffersonian Republican hands the power of controlling and directing the Legis party, in an essay entitled “New Views of the lature, by their immediate and mediate elections of Constitution,” says:
President, Senate, and House of Representatives.--Sos
ib., page 78. The perseverance of the gentleman in favor of a National Government proves that the subject was tho
Mr. Cocke, of Tennessee, on the same subroughly considered; and the solemn preference of the ject, said: Federal form demonstrates that no construction by We have been told that the nation is to look up to which the preference will be frustrated can be just. these immaculate judges to protect their liberties; to Its basis was State sovereignty, compatible with a fede protect
the people against themselves.-16., page 75. ral limited Government, but incompatible with a supreme National Government. Hence State Sovereignty
In the House, Robert Williams, of Nortb ras denied by the gentlemen who proposed a National Carolina, said: Government. This sovereignty is the foundation of all
If this doctrine is to extend to the length gentlemen the powers reserved to the States. Unless they are sus. bained by it, they are baseless. State legislative, ex contend, then is the sovereignty of the Government to be ecutive, and judicial powers, must all or none flow from the other departments of the Government may do, they
swallowed up in the vortex of the Judiciary. Whatever this source. All are necessary to sustain the State Republican Governments. Subject either to a master,
can undo. You may pass a law, but they can annulpis. and the others become subject to the same
master. It will not the people be astonished to hear that their laws he State judicial power, as flowing from State sov: I depend upon the will of the judges, who are themselves seignty, is not independent, State legislative and ex. independent of all law ?-16., pages 581, 532. scutive power cannot be independent, because all rest upon the same foundation; and because if a supreme federal Judiciary can control State Courts, it can also
John Randolph, of Roanoke, said : control State Legislatures and Executives. Thus a But, sir, if you pass the law, the judges are to put their federal form of Government would be rejected, though veto upon it by declaring it unconstitutional. Here is a It was established, and a National Government would be new power, of a dangerous and uncontrollable nature, established, though it was rejected.
contended for. The decision of a constitutional question The legal features of the Constitution, in relation to must rest somewhere. Shall it be confided to men imjudges, is expressed in the sixth article: "The Con- mediately responsible to the people, or to those who are stitution is the supreme law of the land, and the irresponsible ? for the responsibility by impeachment is judges in every State are to be bound thereby." little less than a name. From whom is a corrupt decision Can the judgments of the Federal court be a suo most to be feared ? . To me it appears that the power preme law over this supreme law? Is there no dif- which has the right of passing, without appeal, on the ference between the supremacy of a Federal court validity of your laws, is your sovereign. But, over inferior Federal courts, and the supremacy of the sir, are we not as deeply interested in the true exposition Constitution over all courts ? The supremacy of the of the Constitution as the judges can be ? With all due Constitution is a guaranty of the independent powers, deference to their talents, is not Congress as capable of within their respective spheres, allowed by the Federal forming a correct opinion as they are ? Are not its ist to the State and Federal Governments. A supre- members acting under a responsibility to public opinion, macy in the court might abridge or alter these spheres. which can ar will check their aberrations from duty ! The State judges are bound by the Constitution and by Let a case, not an imaginary one, be stated : Congrese an oath to obey the supremacy of the Constitution, and violates the Constitution by fettering the press; the judi. not even required to obey the supremacy of the Federal cial corrective is applied to; far from protecting the court. Why are all the departments of the State and liberty of the citizen, or the letter of the Constitution Federal Governments equally bound to obey the supre- you find them outdoing the legislature in zeal; pressing. macy of the Constitution ? Because the State and Fe- the common law of England to their service where the deral Governments were considered as checking or sedition law did not apply. Suppose your reliance had balancing departments. Had either been considered as been altogether on this broken staff, and not on the elecsubordinate to a supremacy in the other, it would have tive principle! Your press might have been enchained been tyrannical to require it by an oath to support the till doomsday, your citizens incarcerated for life, and. supremacy of the Constitution, and also to break that where is your remedy? But if the construction of the oath by yielding to the usurped supremacy of the other. Constitution is left with us, there are no longer limits to
our power; and this would be true, if an appeal did not During the administration of John Adams, lie through the elections, from us to the nation, to whom the Judiciary system was remodeled in such alone, and not a few privileged individuals, it belongs to way as to create a large number of Circuit in their inquisitorial capacity, the Supreme Court, re
decide, in the last resort, on the Constitution. Judgeships, and to make the Supreme Court lieved from the tedious labor of investigating judicial simply a Court of Appeal from the inferior points by the law of the last session, may easily direct the jurisdictions. After the election of Mr. Jeffer. Executive, by mandamus, in what mode it is their
pleasure that we should execute his functions. They will son, with a Republican (Democratic) majority also have more leisure to attend to the legislature, and. in Congress the act was repealed.
forestall, by inflammatory pamphlets, their decisions on. During the debate in the Senate, wbich was public, we shall retain the right of debating, but not of
all important questions ; whilst, for the amusement of the protracted, on this repeal bill, Mr. Jackson voting.–18., pages 661, 662. of Georgia, said:
We have been asked if we are afraid of having an Nathaniel Macon, of North Carolina, said: army of judges ? For myself, I am more afraid of an army of judges under the patronage of the President, We have heard much about the judges, and the neces.. than of an army of soldiers. The former can do us sity of their independence. I will state one fact, to show more harm. They may deprive us of our liberties, if that they have power as well as independence. Soon attached to the Executive, from their decisions ; and after the establishment of the Federal Courts, they issued: from the tenure of office contended for, we cannot re- a writ-not being a professional man, I shall not undermove them; while the soldier, however he may act, is take to give its name-to the Supreme Court of North. enlisted, or if not enlisted, only subsisted for two years ; Carolina, directing a case then depending in the State whilst the judge is enlisted for life, for his salary cannot Court to be brought into the Federal Court. The State: be taken from him.-See Annals of Congress, 1801-2, judges refused to obey the summons, and laid the whole
proceedings before the legislature, who appioved their During the same discussion, Mr. Mason, of conduct, and, as well as I remember, unnnimously,
and this in that day was not called disorganizing.-ibi. Virginia, said :
The objects of courts of law, as I understand them, are to settle questions of right between suitors, to enforce obedience to the laws, and to protect the citizens
John Bacon, of Massachusetts, said: against the oppressive use of power in the Executive The Judiciary bare no more right to prescribe, direct ožices. Not to protect them against the Legislature, or control the acts of the other departments of the Govo
ernment, than the other departments of the Govern preme Court of the United States annulled the ment have to prescribe or direct those of the Judiciary.Ib., page 988.
judgment in the State court, and issued a man
date to the Superior Court of Georgia, to carry THE SEDITION LAW.
its judgment of reversal into execution. Judgo When the case of Matthew Lyon was before Benning proceeds : the United States Senate in 1818, on petition
Now, what did Georgia do on receipt of this special asking indemnity for a fine imposed upon him mandate? Through every department of her government under the Sedition Law, John J. Crittenden, of she treated the mandate and the writ of error with con. Kentucky, said:
tempt the most profound. She did not even protest
against jurisdiction, as she had done in the case of ChisThe judiciary is a valuable part of the Government, and holm's executors; but she kept Worcester and Butler in ought to be highly respected, but is not infallible. The the penitentiary, and she executed, in the Creek nation, Constitution is our guide-our supreme law. Blind homage the laws, for violating which they had been put in the can never be rendered by freemen to any power. In all penitentiary. cases of alleged violations of the Constitution, it was for Congress to make a just discrimination. Benton's
Judge Benning, in delivering his opinion, says Abridgment, vol. 6, page 184.
further: Nathaniel Macon, of North Carolina, on the It was not only in this case that Georgia occupied this same day said :
position; she did it in two other cases, and those, cases of
life and death: the case of Tassels, and that of Graves. According to some gentlemen, we were to regard the One of these happened before those of Worcester and Judiciary more than the law, and both more than the Con. Butler, namely, in 1830; the other afterward, in 1834. stitution. It was a inisfortune the judges were not equal The Supreme Court had issued writs of error in each of in infallibility to the God who made them. The truth these cases, on the application of the defendants to the was, if the judge was a party-man out of power, he would State of Georgia ; but, as the cases are not reported, it is be a party-man in. The office would not change human to be presumed that these writs never got back to the nature. He had no doubt that the Sedition Law, and the Supreme Court; or that, if they ever did, it was too late. proceedings under it, had more effect in revolutionizing It is certain that Georgia hung the applicants for the writ. the Government than all its other acts. He well remembered the language of the times—pay your taxes, but In the Tassels case, the legislature passed don't speak against government.-Ibid., page 187.
these, among other resolutions : Hon. James Barbour, of Virginia, made a re- Resobed, That the State of Georgia will never so far port on the subject of the petition, of which the compromit her sovereignty, as an independent State, as to following is an extract:
become a party to the case sought to be made before the
Supreme Court of the United States by the writ in ques The first question that naturally presents itself in the tion. investigation is, was the law constitutional ? The com- Resolved, That his excellency the Governor be, and he mittee have no hesitation in pronouncing, in their opin and every other officer of this state is hereby, requested ions, it was not.
and enjoined to disregard any and every mandate and The committee are aware that, in opposition to this process that has been or shall be served on him or them, view of the subject, the decision of some of the judges of purporting to proceed from the Chief Justice or any Assothe Supreme Court, sustaining the constitutionality of the ciate Justice of the Supreme Court of the United tates, law, has been frequently referred to, as sovereign and for the purpose of arresting the execution of any of the conclusive of the question.
criminal laws of this State. The committee entertain a high respect for the purity and intelligence of the Judiciary. But it is a rational re
Similar resolutions were passed, as to the spect, limited by a knowledge of the frailty of human na- case of Graves, by the legislature of 1834. ture, and the theory of the Constitution, which declares, not only that Judges may err in opinion, but also may
PENNSYLVANIA. commit crimes, and hence has provided a tribunal for the trial of offenders.
The Supreme Court of Pennsylvania, in the
case of the Commonwealth v. Cobbett, gave a GEORGIA.
unanimous opinion in 1794, from which the fol. In the case of Paddleford, Fay, & Company lowing is an extract: v. the Mayor and Aldermen of the city of Sa
If a State should differ with the United States about the vannah, Judge Benning, in delivering the opin- construction of them, there is no common umpire but the ion of the court, recited two or three cases in people, who should adjust the affair by making amendwhich the State of Georgia had acted in disre. In such a case, the Constitution of the United States is
ments in the constitutional way, or suffer from the defect. gard of the decisions of the Supreme Court of federal; it is a league or treaty made by the individual the United States. In the case of Chisholm, States as one party, and all the States as another party,
When two nations differ about the meaning of any clause, executor, against Georgia, the Supreme Court sentence, or word, in a treaty, neither has an exclusive of the United States
right to decide it; they endeavor to adjust the matter by Ordered, that unless the said State shall either in due negotiation; but if it cannot be thus accomplished, each form appear, or show cause to the contrary, in this court, ence be had to the mediation of other nations, and arbi
has a right to retain its own interpretation, until a referby the first day of next term, judgment by default shall be tration, or the fate of war. There is no provision in the entered against the said State.
The reporter adds, in a note, that “in February term, Constitution that in such a case the judges of the Supreme 1794, judgment was rendered for the plaintits, and a writ Court of the United States shall control and be conclusive; of inquiry awarded. The writ, however, was not sued out neither can the
Congress by a law confer that power. and executed ; so that this cause, and all of the other suits Respublica v. Cobbett, 3 Dallas's Reports, page 475. against States, were swept at once from the records of the
VIRGINIA. court by the amendment of the Federal Constitution."
Georgia treated the court with contempt in respect to The Court of Appeals of Virginia, in 1814, in this case. Her position was, that the court had no juris- the case of Hunter v. Martin, devisee of Fair. diction of her as a party.—Georgiu Reports, vol. 14, fax, entered the following unanimous opinion,
The Judge proceeds to say, that " in this after full argument:, position Georgia triumphed," and that the judg. The court is unanimously of opinion that the appellate mont against her “ fell dead."
power of the Supreme Court of the United States does not The Judge next cites the case of Worcester Constitution of the United States; that so much of the
extend to this court, under a sound construction of the and Butler, who had settled on the Cherokee twenty-fifth section of the act of Congress to establish the lands in Georgia, contrary to the laws of the judicial courts of the United States as extends the appelBtate, and for which offense they were sent to in pursuance of the Constitution of the United States;
late jurisdiction of the Supreme Court to this court is not the penitentiary. On a writ of error, the Su-l that the writ of error in this case was improvidently at
lowed under the authority of that act; that the proceed the Queen of Scots, the judges were instructed to conIngs thereon in the Supreme Court were coram non demn her, and by their sentence she ca.ne to the block. judice in relation to this court; and that obedience to its | This horrid deed was covered by the cloak of judicial mandate be declined by this court.
proceedings. When Charles I., determined to change In times of violent party excitement, agitating the the religion of Scotland, he made use of the Court of whole nation, to expect that judges will be entirely ex. High Commission to effect the object. By the same judi empt from its influence, argues a profound ignorance of cial power, the advocates for the doctrines of the Re mankind. Although clothed with the ermine, they are formation have so often been divested of their religious still men, and carry into the judgment seat the passions privileges, and doomed to seal with their blood that re. and motives common to their kind. Their decisions on ligion which bore them triumphantly through the vale of party questions reflect their individual opinions, which death. frequently betray them unconsciously into error. To The short, though splendid history of this Government balance the judgment of a whole people by that of two or furnishes nothing that can induce us to look with a very three men, no matter what may be their official elevation, favorable eye to the Federal Judiciary as a safe deposi. is to exalt the creature of the Constitution above its ! tory of our liberties. When a law was enacted in viola creator, and to assail the foundation of our political ! tion of a vital principle of the Constitution, that which fabric; which is, that the decision of the people is infal- was designed to secure the freedom of speech and of the lible, from which there is no appeal but to Heaven. --See press, the victims of its operation looked in vain to the Benton's Abridgment, vol. 6, pages 660, 661.
judges to arrest the progress of usurpation, If this Mahlon Dickerson, of New-Jersey, said:
power could ever be exercised to any good purpose, it
would be, on such occcasions, to declare the law uncon. But I must beg leave to differ from the honorable gen- stitutional which aims a deadly blow at the vital princi. tleman (Mr. Walker, of Georgia) when he informs us that ples of freedom; but, so far as the transactions of that our independent Judiciary is the bulwark of the liberties day are detailed in our public records, it appears that of the people. By which he must mean, defenders of the the Judiciary was a willing instrument of Federal usurpeople against the oppressions of the Government. From pation. That law was executed in all the rigor of the what I witnessed in the years 1798, 1799, and 1800, I never spirit which dictated it. The turbulence of faction found shall, I never can, consider our Judiciary as the bulwark ( no moderation there; and the people found relief only of the liberties of the people. The people must look out in their own power. The exercise of their elective fran. for other bulwarks for their liberties. -See ib., page 701. chise removed the evil, and this is their only safe depen.
dence. RICHARD M. JOHNSON, OF KENTUCKY.
GEN. JACKSON, Mr. Johnson, who was elected Vice-President of the United States by the Democratic party, son's message vetoing the bill for rechartering
The following is an extract from Gen. Jackrepresented Kentucky in the United States the Bank of the United States. It may be Senate in 1822. I find in Benton's Abridg. found on page 438 of the Senate Journal for ment of the Debates of Congress, vol. 7, page the first session of the Twenty-second Congress, 145, an elaborate speech of Mr. Johnson upon a and is in these words : resolution offered by him, proposing an amend
If the opinion of the Supreme Court covered the ment of the Constitution. His proposition was
whole ground of this act, it ought not to control the coto amend the Constitution by referring all cases ordinate authorities of this Government. The Congress, in which a State may be a party to the final the Executive, and the Court, must each for itself bo
Each adjudication of the Senate. In the course of public officer, who takes an oath to support the Consti:
guided by its own opinion of the Constitution. his remarks, he says:
tution, swears that he will support it as he understands
it, and not as it is understood by others. It is as much At this time there is, unfortunately, a want of confi- the
duty of the House of Representatives, of the Senate, dence in the Federal Judiciary, in cases that involve and of the President, to decide upon the constitutionalpolitical power; and this distrust my be carried to other ity of any bill or resolution which may be presented to cases, such as the lawyers call meum et tuum.
them for passage or approval, as it is of the supreme Courts also, like cities and villages, or like legislative judges, when it may be brought before them for judicial bodies, will sometimes have their leaders; and it may decision. The opinion of the judges has no more author. happen, that a single individual will be the prime cause ity over Congress than the opinion of Congress over the of a decision to overturn the deliberate act of a whole judges; and, on that point, the President is independ. State, or of the United States; yet, we are admonished
ent of both. The authority of the Supreme Court must to receive their opinions as the ancients did the re
not, therefore, be permitted to control the Congress or sponses of the Delphic oracle, or the Jews, with more
the Executive when acting in their legislative capacities, propriety, the communications from Heaven, delivered but to have only such influence as the force of their by Urim and Thummim, to the High Priest of God's reasoning may deserve. chosen people, from the sanctum sanctorum. Other causes of difference might be multipliad to a tedious extent; but enough has been said to show that judges, who, like other men, are subject to the frailties, the passions,
THE OTHER SIDE OF THE QUESTION. the partialities, and antipathies, incident to human na
MR. WEBSTER'S VIEWS. ture, should not be exempted from responsibility on account of their superior integrity, learning, and capacity; The other side of this question was lucidly or that their decisions should be subject to revision by and ably stated by the late Daniel Webster, in a some competent tribunal, responsible to the people. It is believed that this is the opinion of that great and good speech delivered before the U. S. Senate, on the man who penned the Declaration of Independence, and 27th of January, 1830, in the famous debate who now enjoys, in the shades of Monticello, the bless- between Mr. W. and Mr. Hayne, of South Care ings of the principles which contains.
It was the judgment of a court that doomed the im- olina, on Foot's Resolution, as follows: mortal Soc:ates to drink the hemlock. When the Roman Mr. Hayne having rejoined to Mr. Webster, tyrant could no longer use a hired soldiery to immolate especially on the constitutional question, Mr. the victims of his jealousy, he resorted to courts of law. When Henry viil, of England, would exercise cruei Webster rose, and, in conclusion, said: despotism under the forms of a free Constitution, the A few words, Mr. President, on this constitutional arguarmy, the court, and the Parliament, were the potent ment, which the honorable gentleman has labored to reengines that sustained him. When Mary, his daughter, construct. compelled the Protestants to seal their testimony at the His argument consists of two propositions and an inferstake, the court gave sanction to the murderous deeds. His propositions are : Her sister and successor, Elizabeth, created the Court of 1st. That the Constitution is a compact between the High Commission, and formally invested it with inquisi- States. torial power. She also supported the arbitrary edicts of 2d. That a compact between two, with authority rethe star Chamber. The Puritans, because obnoxious to served to one to interpret its terins, would be a surrender the free exercise of the prerogatives of the Crown, were to that one of all power whatever. imp isoned and dispersed by process of law, and the 3d. Therefore, (such is his inference,) the General Gov. judges were the supporters of her despotic power. ernment does not possess the authority to construe its own When she would destroy her unfortunate kinswoman, powers.
Now, sir, who does not see, without the aid of exposition that they should agree. One alone could not interpret it or detection, the utter confusion of ideas involved in this conclusively; one alone could not construe it; one alone so eiaborate and systematic argument.
could not modify it. Yet the gentleman's doctrine is, that The Constitution, it is said, is a compact between States; Carolina alone may construe and interpret that compact the States, then, and the States only, are parties to the which equally binds all, and gives equal rights to all. compact. How comes the General Government itself a
So, then, sir, even supposing the Constitution to be a party? Upon the honorable gentleman's hypothesis, the compact between the States, the gentleman's doctrine, nov: General Government is the result of the compact, the crea ertheless, is not maintainable; because, first, the General ture of the compact, not one of the parties to it. Yet the Government is not a party to that compact, but a governargument, as the gentleman has now stated it, makes the ment established by it, and vested by it with the powers Government itself one of its own creators. It makes it a of trying and deciding doubtful questions; and secondly, party to that compact to which it owes its own existence. because, if the Constitution be regarded as a compact, not
For the purpose of erecting the Constitution on the ba- one State only, but all the States, are parties to that com. sis of a compact, the gentleman considers the States as pact, and one can have no right to fix upon it her own peparties to that compact; but as soon as his compact is culiar construction. made, then he chooses to consider the General Govern- So much, sir, for the argument, even if the premises of ment, which is the offspring of that compact, not its off the gentleman were granted, or could be proved, But, spring, but one of its parties; and so being a party, with sir, the gentleman has failed to maintain his leading proout the power of judging on the terms of compact. Pray, position. He has not shown, it cannot be shown, that the sir, in what school is such reasoning as this taught ? Constitution is a compact between State Governments.
If the whole of the gentleman's main proposition were The Constitution itself, in its very front, refutes that idea; conceded to him, that is to say, if I admit for the sake of it declares that it is ordained and established by the peo the argument, that the Constitution is a compact between ple of the United States. So far from saying that it is States, the inferences which he draws from that proposi- established by the governments of the several States, it tion are warranted by no just reasoning. If the Constitu- does not even say that it is established by the people of the tion be a compact between States, still that Constitution, several States, but it pronounces that it is established by or that compact, has established a government, with cer- the people of the United States, in the aggregate. The tain powers; and whether it be one of those powers, that gentleman says, it must mean no more than the people of it shall construe and interpret for itself the terms of the the several States. Doubtless, the people of the several compact, in doubtful cases, is a question which can only States, taken collectively, constitute the people of the be decided by looking to the compact, and inquiring what United States; but it is in this, their collective capacity, it provisions it contains on this point. Without any inconsist- is as all the people of the United States, that they establish ency with natural reason, the Government even thus crea- the Constitution. So they declare; and words cannot be ted might be trusted with this power of construction. The plainer than the words used. extent of its powers, therefore, must still be sought for in When the gentleman says the Constitution is a comthe instrument itself.
pact between the States, he uses language exactly apIf the Old Confederation had contained a clause, declar- plicable to the old Confederation. He speaks as if he ing that Resolutions of the Congress should be the supreme were in Congress before 1789. He describes fully that law of the land, any State law or Constitution to the con- old state of things then existing. The Confederation was, trary notwithstanding, and that a Committee of Congress, in strictness, a compact; the States, as States, were paror any other body created by it, should possess judicial ties to it. We had no other general government. But powers extending to all cases arising under resolutions of that was found insufficient, and inadequate to the public Congress, then the power of ultimate decision would have exigencies. The people were not satisfied with it, and been vested in Congress under the Confederation, although undertook to establish a better. They undertook to form that Confederation was a compact between States; and for a General Government, which should stand on a new this plain reason, that it would have been competent to the basis; not a confederacy, not a league, not a compact States, who alone were parties to the compact, to agree between States, but a Constitution; a popular governwho should decide in cases of dispute arising on the con- ment, founded in popular election, directly responsible to struction of the compact.
the people themselves, and divided into branches with For the same reason, sir, if I were now to concede to the prescribed limits of power, and prescribed duties. They gentleman his principal proposition, namely, that the Con- ordained such a government, they gave i the name of stitution is a compact between States, the question would a Constitution, and therein established & distribution of still be, what provision is made, in this compact, to settle power between this, their General Government, and their points of disputed construction, or contested power, that several State governments. When they shall become disshall come into controversy? And this question would satisfied with this distribution, they can alter it. Their still be answered, and conclusively answered, by the Con- own power over their own instrument remains. But unstitution itself.
til they shall alter it, it must stand as their will, and is While the gentleman is contending against construction, equally binding on the General Government and on the he himself is setting up the most loose and dangerous con- States. struction. The Constitution declares, that the laws of Com The gentleman, sir, finds analogy where I see none. gress passed in pursuance of the Constitution shall bs He likens it to the case of a treaty, in which, there being the supreme lawo of the land. No construction is necessary no common superior, each party must interpret for himhere. It declares, also, with equal plainness and precision, self, under its own obligation of good faith. But this is tut the judicial power of the United States shall exc- not a treaty, but a constitution of government, with tend to every case arising under the laro8 of Congress. powers to execute itself, and fulfill its duties. This needs no construction. Here is a law, then, which is I admit, sir, that this government is a government of declared to be supreme; and here is a power established, checks and balances; that is, the House of Representatives which is to interpret that law. Now, sir, how has the gen. is a check upon the Senate, and the Senate is a check on tleman met this ? Suppose the Constitution to be a com. the House, and the President a check on both. But I canpact, yet here are its terms; and how does the gentleman not comprehend, or, if I do, I totally differ from him, when get rid of them? He cannot argue the seal off the bond, he applies the notion of checks and balances to the internor the word out of the instrument. Here they are; what ference of different governments. He argues that if we answer does he give to them? None in the world, sir, ex. transgress our constitutional limits, each State, as a cept that the effect of this would be to place the States in State, has a right to check us. Does he admit the cona condition of inferiority; and that it results from the very verse of the proposition, that we have a right to check nature of things, there being no superior, that the parties the States ? The gentleman's doctrines would give us a must be their own judges ! Thus closely and cogently does strange jumble of authorities and powers, instead of the honorable gentleman reason on the words of the Con- governments of separate and defined powers. It is the stitution. The gentleman says, if there be such a power part of wisdom, I think, to avoid this, and to keep the of final decision in the General Government, he asks for General Government and the State Government each the grant of that power. Well, sir, I show him the grant. in its proper sphere, avoiding as carefully as possible I turn him to the very words. I show him that the laws every kind of interference. of Congress are made supreme; and that the judicial Finally, sir, the honorable gentleman says, that the power extends, by express words, to the interpretation of States will only interfere, by their power, to preserve the these laws. Instead of answering this, he retreats into Constitution. They will not destroy it, they will not impair the general reflection, that it must result from the nature it; they will only save, they will only preserve, they
will of things, that the states, being parties, must judge for only strengthen it. Ah! sir, this is but the old story. All re themselves.
gulated governments, all free governments, have beer I have admitted, that, if the Constitution were to be con. broken by similar disinterested and well disposed inter aidered as the creature of the State Governments, it might ference. It is the common pretence. But I take leavı be modified, interpreted, or construed according to their of the subject, pleasure. But, even in that case, it would be necessary
GEN. CASS ON POPULAR SOVEREIGNTY.
LETTER TO A. O. P. NICHOLSON.
cal institutions, if I may so speak, whether they have re.
ference to Slavery or to any other relations, domestic or WASHINGTON, Dec. 24, 1847.
public, are left to local authority, either original or derivaDEAR SIR: I have received your letter, and shall an- tive. Congress has no right to say there shall be Slavery swer it as frankly as it is written.
in New-York, or that there shall be no Slavery in Georgia; You ask me whether I am in favor of the acquisition of nor is there any other human power, but the people of Mexican territory, and what are my sentiments with those States, respectively, which can change the relations regard to the Wilmot Proviso.
existing therein; and they can say, if they will, we will I have so often and so explicitly stated my views of have Slavery in the former, and we will abolish it in the the first question, in th · Senate, that it seems almost un- latter. necessary to repeat t em here. As you request it, how- In various respects, the Territories differ from the States. ever, I shall briefly g ve thein.
Some of their rights are inchoate, and they do not possess I think, then, that no peace should be granted to Mex. the peculiar attributes of sovereignty. Their relation to ico, till a reasonalile indemnity is obtained for the inju. the General Government is very imperfectly defined by ries which she has done us. The territorial extent of the Constitution; and it will be found, upon examination, this indemnity is, in the first instance, a subject of Execu- that in that instrument the only grant of power concerntive consideration. There the Constitution has placed ing them is conveyed in the phrase, “ Congress shall have t, and there I am willing to leave it; not only because I the power to dispose of and make all needful rules and re have full confidence in its judicious exercise, but because, gulations respecting the territory and other property beo the ever-varying circumstances of a wai, it would be longing to the United States." Certainly this phraseology ndiscreet, by a public declaration, to commit the coun- is very loose, if it were designed to include in the grant try to any line of indemnity, which might otherwise be the whole power of legislation over persons, as well as enlarged, as the obstinate injustice of the enerny pro- things. The expression, the "territory and other prolongs the contest with its loss of blood and treasure. perty,” fairly construed, relates to the public lands, as
It appears to me, that the kind of metaphysical mag- such; to arsenals, dockyards, forts, ships, and all the và nanimity which would reject all indemnity at the close of a rious kinds of property which the United States may and bloody and expensive war, brought on by a direct attack must possess. upon our troops by the enemy, and preceded by a suc- But surely the simple authority to dispose of and regio cession of unjust acts for a series of years, is as unwor late these does not extend to the unlimited power of legis thy of the age in which we live, as it is revolting to the lation; to the passage of all laros, in the most general common sense and practice of mankind. It would con- acceptation of the word, which, by the by, is carefully exduce but little to our future security, or, indeed to our cluded from the sentence. And, indeed, if this were so it present reputation, to declare that we repudiate all would render unnecessary another provision of the Conexpectation of compensation from the Mexican Govern- stitution, which grants to Congress the power to legislate, ment, and are fighting, not for any practical result, but with the consent of the States, respectively, over all places for some vague, perhaps pbilanthropic object, which purchased for the " erection of forts, magazines, arsenals, escapes my penetration, and must be defined by those dockyards,” etc. These being the "property" of the who assume this new principle of national intercommu- United States, if the power to make "needful rules and nication, All wars are to be deprecated, as well by the regulations concerning" them includes the general power statesman as by the philanthropist. They are great of legislation, then the grant of authority to regulate “the evils; but there are greater evils than these, and submis- territory and other property of the United States
is unsion to injustice is among them. The nation which should limited, wherever subjects are found for its operation, and refuse to defend its rights and its honor when assailed, its exercise needed no auxiliary provision. If, on the would soon have neither to defend; and, when driven other hand, it does not include such power of legislation to war, it is not by professions of disinterestedness and over the “other property” of the United States, then it declarations of magnanimity that its rational objects can does not include it over their “territory;" for the same be best obtained, or other nations taught a lesson of for- terms which grant the one grant the other.“ Territory" bearance-the strongest security for permanent peace is here classed with property, and treated as such; and We are at war with Mexico, and its vigorous prosecution the object was evidently to enable the General Governis the surest means of its speedy termination, and ample ment, as a property-holder--which, from necessity, it must indemnity the surest guaranty against the recurrence of be-to manage, preserve and“ dispose of” such property such injustice as provohed it.
as it might possess, and which authority is essential almost The Wilmot Proviso has been before the country some to its being. But the lives and persons of our citizens time. It has been repeatedly discussed in Congress and with the vast variety of objects connected with them, canby the public press. I am strongly impressed with the not be controlled by an authority which is merely called opinion, that a great change has been going on in the into existence for the purpose of making rules and regro public mind upon this subject, in my own as well as oth- lations for the disposition and management of proers; and that doubts are resolving themselves into con- perty. victions, that the principle it involves should be kept out Such, it appears to me, would be the construction put of the National Legislature, and left to the people of the upon this provision of the Constitution, were this question confederacy in their respective local governments. now first presented for consideration, and not controiled
The whole subject is a comprehensive one, and fruitful by imperious circumstances. The original ordinance of of important consequences. It would be ill-timed to dis- the Congress of the Confederation, passed in 1787, and cuss it here. I shall not assume that responsible task, but which was the only act upon this subject in force at the shall confine myself to such general views as are néces- adoption of the Constitution, provided a complete frame sary to the fair exhibition of my opinion.
of government for the country north of the Ohio, while in We may well regret the existence of Slavery in the a territorial condition, and for its eventual admission in Southern States, and wish they had been saved from its separate States into the Union. And the persuasion that introduction. But there it is, not by the act of the present this ordinance contained within itself all the necessary generation; and we must deal with it as a great practical means of execution, probably prevented any direct referquestion, involving the most momentous consequences.ence to the subject in the Constitution, further than vestWe have neither the right nor the power to touch it where ing in Congress the right to admit the States formed under it exists; and if we had both, their exercise, by any means it into the Union. However, circumstances arose, which heretofore suggested, mnight lead to results which no wise required legislation, as well over the territory north of man would willingly encounter, and which no good man the Ohio, as over other territory, both within and without could contemplate without anxiety.
the original Union, ceded to the General Government, The theory of our Government presupposes that its va and, at various times, a more enlarged power has been rious members have reserved to themselves the regulation exercised over the Territories -- meaning thereby the of all subjects relating to what may be termed their inter-different Territorial Governments – than is conveyed nal police. They are sovereign within their boundaries, by the limited grant referred to. How far an existing except in those cases where they have surrendered to the necessity may have operated in producing this legisla General Government a portion of their rights, in order to tion, and thus extending, by rather a violent implicagive effect to the objects of the Union, whether these con- tion, powers not directly given, I know not. But cercern foreign nations or the several States themselves. Lo- tain it is that the principle of interference should not be