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John Taylor, of Caroline, Va., who used in his day to speak and write "as one having authority" in the old Jeffersonian Republican party, in an essay entitled "New Views of the Constitution," says:

for that I think I have shown to be impossible, with the sise, and because the people have retained in their own powers which the Legislature may safely use and exerhands the power of controlling and directing the Legislature, by their immediate and mediate elections of President, Senate, and House of Representatives.-See ib., page 78.

Mr. Cocke, of Tennessee, on the same subject, said:

We have been told that the nation is to look up to these immaculate judges to protect their liberties; to protect the people against themselves.-Ib., page 75. In the House, Robert Williams, of North Carolina, said:

The perseverance of the gentleman in favor of a National Government proves that the subject was thoroughly considered; and the solemn preference of the Federal form demonstrates that no construction by which the preference will be frustrated can be just. Its basis was State sovereignty, compatible with a federal limited Government, but incompatible with a supreme National Government. Hence State Sovereignty was denied by the gentlemen who proposed a National 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 susained by it, they are baseless. State legislative, ex- contend, then is the sovereignty of the Government to be swallowed up in the vortex of the Judiciary. Whatever ecutive, and judicial powers, must all or none flow from the other departments of the Government may do, they this source. All are necessary to sustain the State Recan undo. You may pass a law, but they can annulit. publican Governments. Subject either to a master, and the others become subject to the same master. If Will not the people be astonished to hear that their laws the State judicial power, as flowing from State Sov- depend upon the will of the judges, who are themselves reignty, is not independent, State legislative and ex-independent of all law?—Ib., pages 581, 532. cutive 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 control State Legislatures and Executives. Thus a federal form of Government would be rejected, though It was established, and a National Government would be established, though it was rejected.

The legal features of the Constitution, in relation to judges, is expressed in the sixth article: "The Constitution is the supreme law of the land, and the judges in every State are to be bound thereby." Can the judgments of the Federal court be a supreme law over this supreme law? Is there no difference between the supremacy of a Federal court over inferior Federal courts, and the supremacy of the Constitution over all courts? The supremacy of the Constitution is a guaranty of the independent powers, within their respective spheres, allowed by the Federalist to the State and Federal Governments. A supremacy in the court might abridge or alter these spheres. The State judges are bound by the Constitution and by an oath to obey the supremacy of the Constitution, and not even required to obey the supremacy of the Federal court. Why are all the departments of the State and Federal Governments equally bound to obey the supremacy of the Constitution? Because the State and Federal Governments were considered as checking or balancing departments. Had either been considered as subordinate to a supremacy in the other, it would have been tyrannical to require it by an oath to support the supremacy of the Constitution, and also to break that oath by yielding to the usurped supremacy of the other.

During the administration of John Adams, the Judiciary system was remodeled in such way as to create a large number of Circuit Judgeships, and to make the Supreme Court simply a Court of Appeal from the inferior jurisdictions. After the election of Mr. Jefferson, with a Republican (Democratic) majority in Congress the act was repealed.

During the debate in the Senate, which was protracted, on this repeal bill, Mr. Jackson of Georgia, said:

We have been asked if we are afraid of having an army of judges? For myself, I am more afraid of an army of judges under the patronage of the President, than of an army of soldiers. The former can do us more harm. They may deprive us of our liberties, if attached to the Executive, from their decisions; and from the tenure of office contended for, we cannot remove them; while the soldier, however he may act, is enlisted, or if not enlisted, only subsisted for two years; whilst the judge is enlisted for life, for his salary cannot be taken from him.-See Annals of Congress, 1801-2, page 47.

John Randolph, of Roanoke, said:

But, sir, if you pass the law, the judges are to put their veto upon it by declaring it unconstitutional. Here is a new power, of a dangerous and uncontrollable nature, contended for. The decision of a constitutional question must rest somewhere. Shall it be confided to men immediately responsible to the people, or to those who are irresponsible? for the responsibility by impeachment is little less than a name. From whom is a corrupt decision most to be feared? To me it appears that the power which has the right of passing, without appeal, on the validity of your laws, is your sovereign. But, sir, are we not as deeply interested in the true exposition of the Constitution as the judges can be? With all due deference to their talents, is not Congress as capable of forming a correct opinion as they are? Are not its members acting under a responsibility to public opinion, which can and will check their aberrations from duty? Let a case, not an imaginary one, be stated: Congress violates the Constitution by fettering the press; the judi cial corrective is applied to; far from protecting the liberty of the citizen, or the letter of the Constitution you find them outdoing the legislature in zeal; pressing. the common law of England to their service where the sedition law did not apply. Suppose your reliance had been altogether on this broken staff, and not on the elective principle? Your press might have been enchained till doomsday, your citizens incarcerated for life, and where is your remedy? But if the construction of the Constitution is left with us, there are no longer limits to our power; and this would be true, if an appeal did not lie through the elections, from us to the nation, to whom alone, and not a few privileged individuals, it belongs to decide, in the last resort, on the Constitution. In their inquisitorial capacity, the Supreme Court, relieved from the tedious labor of investigating judicial points by the law of the last session, may easily direct the Executive, by mandamus, in what mode it is their pleasure that we should execute his functions. They will also have more leisure to attend to the legislature, and forestall, by inflammatory pamphlets, their decisions on. public, we shall retain the right of debating, but not of all important questions; whilst, for the amusement of the voting.-1b., pages 661, 662.

Nathaniel Macon, of North Carolina, said:

We have heard much about the judges, and the neces sity of their independence. I will state one fact, to show that they have power as well as independence. Soon after the establishment of the Federal Courts, they issued: a writ-not being a professional man, I shall not undertake to give its name to the Supreme Court of North. Carolina, directing a case then depending in the State Court to be brought into the Federal Court. The State: judges refused to obey the summons, and laid the whole proceedings before the legislature, who approved their During the same discussion, Mr. Mason, of conduct, and, as well as I remember, unanimously ;, and this in that day was not called disorganizing.-Lb. Virginia, said: page 711.

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 against the oppressive use of power in the Executive offices. Not to protect them against the Legislature,

John Bacon, of Massachusetts, said:

The Judiciary have no more right to prescribe, direct or control the acts of the other departments of the Gov

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.


When the case of Matthew Lyon was before the United States Senate in 1818, on petition asking indemnity for a fine imposed upon him under the Sedition Law, John J. Crittenden, of Kentucky, said:

The judiciary is a valuable part of the Government, and ought to be highly respected, but is not infallible. The Constitution is our guide-our supreme law. Blind homage can never be rendered by freemen to any power. In all cases of alleged violations of the Constitution, it was for Benton's Congress to make a just discrimination. Abridgment, vol. 6, page 184.

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Nathaniel Macon, of North Carolina, on the same day said:

According to some gentlemen, we were to regard the Judiciary more than the law, and both more than the Constitution. It was a misfortune the judges were not equal in infallibility to the God who made them. The truth was, if the judge was a party-man out of power, he would be a party-man in. The office would not change human nature. He had no doubt that the Sedition Law, and the proceedings under it, had more effect in revolutionizing the Government than all its other acts. He well remembered the language of the times-pay your taxes, but don't speak against government.-Ibid., page 187.

Hon. James Barbour, of Virginia, made a report on the subject of the petition, of which the following is an extract:

The first question that naturally presents itself in the investigation is, was the law constitutional? The committee have no hesitation in pronouncing, in their opinions, it was not.

The committee are aware that, in opposition to this view of the subject, the decision of some of the judges of the Supreme Court, sustaining the constitutionality of the law, has been frequently referred to, as sovereign and conclusive of the question.

The committee entertain a high respect for the purity and intelligence of the Judiciary. But it is a rational respect, limited by a knowledge of the frailty of human nature, and the theory of the Constitution, which declares, not only that Judges may err in opinion, but also may commit crimes, and hence has provided a tribunal for the trial of offenders.


In the case of Paddleford, Fay, & Company v. the Mayor and Aldermen of the city of Savannah, Judge Benning, in delivering the opinion of the court, recited two or three cases in which the State of Georgia had acted in disregard of the decisions of the Supreme Court of the United States. In the case of Chisholm, executor, against Georgia, the Supreme Court of the United States

Ordered, that unless the said State shall either in due form appear, or show cause to the contrary, in this court, by the first day of next term, judgment by default shall be entered against the said State.

The reporter adds, in a note, that "in February term, 1794, judgment was rendered for the plaintiff, and a writ of inquiry awarded. The writ, however, was not sued out and executed; so that this cause, and all of the other suits against States, were swept at once from the records of the court by the amendment of the Federal Constitution."

Georgia treated the court with contempt in respect to this case. Her position was, that the court had no jurisdiction of her as a party.—Georgia Reports, vol. 14,

page 479.

The Judge proceeds to say, that "in this position Georgia triumphed," and that the judgment against her "fell dead."

The Judge next cites the case of Worcester and Butler, who had settled on the Cherokee lands in Georgia, contrary to the laws of the State, and for which offense they were sent to the penitentiary. On a writ of error, the Su

judgment in the State court, and issued a mandate to the Superior Court of Georgia, to carry its judgment of reversal into execution. Judge Benning proceeds:

Now, what did Georgia do on receipt of this special mandate? Through every department of her government she treated the mandate and the writ of error with contempt the most profound. She did not even protest against jurisdiction, as she had done in the case of Chisholm's executors; but she kept Worcester and Butler in the penitentiary, and she executed, in the Creek nation, the laws, for violating which they had been put in the penitentiary.

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Judge Benning, in delivering his opinion, says further:

It was not only in this case that Georgia occupied this position; she did it in two other cases, and those, cases of life and death: the case of Tassels, and that of Graves. One of these happened before those of Worcester and Butler, namely, in 1880; the other afterward, in 1834. The Supreme Court had issued writs of error in each of these cases, on the application of the defendants to the State of Georgia; but, as the cases are not reported, it is to be presumed that these writs never got back to the Supreme Court; or that, if they ever did, it was too late. It is certain that Georgia hung the applicants for the writ. In the Tassels case, the legislature passed these, among other resolutions:

Resolved, That the State of Georgia will never so far compromit her sovereignty, as an independent State, as to become a party to the case sought to be made before the Supreme Court of the United States by the writ in question.

Resolved, That his excellency the Governor be, and he and every other officer of this State is hereby, requested and enjoined to disregard any and every mandate and process that has been or shall be served on him or them, purporting to proceed from the Chief Justice or any Associate Justice of the Supreme Court of the United States, for the purpose of arresting the execution of any of the criminal laws of this State.

Similar resolutions were passed, as to the case of Graves, by the legislature of 1834.


The Supreme Court of Pennsylvania, in the case of the Commonwealth v. Cobbett, gave a unanimous opinion in 1798, from which the following is an extract:

If a State should differ with the United States about the construction of them, there is no common umpire but the people, who should adjust the affair by making amendments in the constitutional way, or suffer from the defect. In such a case, the Constitution of the United States is federal; it is a league or treaty made by the individual States as one party, and all the States as another party. When two nations differ about the meaning of any clause, sentence, or word, in a treaty, neither has an exclusive right to decide it; they endeavor to adjust the matter by negotiation; but if it cannot be thus accomplished, each has a right to retain its own interpretation, until a reference be had to the mediation of other nations, and arbitration, or the fate of war. There is no provision in the Constitution that in such a case the judges of the Supreme Court of the United States shall control and be conclusive; neither can the Congress by a law confer that power.Respublica v. Cobbett, 3 Dallas's Reports, page 475.


The Court of Appeals of Virginia, in 1814, in the case of Hunter v. Martin, devisee of Fairfax, entered the following unanimous opinion, after full argument :,

The court is unanimously of opinion that the appellate power of the Supreme Court of the United States does not extend to this court, under a sound construction of the Constitution of the United States; that so much of the twenty-fifth section of the act of Congress to establish the judicial courts of the United States as extends the appellate jurisdiction of the Supreme Court to this court is not in pursuance of the Constitution of the United States; that the writ of error in this case was improvidently al

lowed under the authority of that act; that the proceed ings thereon in the Supreme Court were coram non judice in relation to this court; and that obedience to its mandate be declined by this court.

In times of violent party excitement, agitating the whole nation, to expect that judges will be entirely exempt from its influence, argues a profound ignorance of mankind. Although clothed with the ermine, they are still men, and carry into the judgment seat the passions and motives common to their kind. Their decisions on party questions reflect their individual opinions, which frequently betray them unconsciously into error. To balance the judgment of a whole people by that of two or three men, no matter what may be their official elevation, is to exalt the creature of the Constitution above its creator, and to assail the foundation of our political fabric; which is, that the decision of the people is infallible, from which there is no appeal but to Heaven.-See Benton's Abridgment, vol. 6, pages 660, 661.

Mahlon Dickerson, of New-Jersey, said: But I must beg leave to differ from the honorable gentleman (Mr. Walker, of Georgia) when he informs us that our independent Judiciary is the bulwark of the liberties of the people. By which he must mean, defenders of the people against the oppressions of the Government. From what I witnessed in the years 1798, 1799, and 1800, I never shall, I never can, consider our Judiciary as the bulwark of the liberties of the people. The people must look out for other bulwarks for their liberties.-See ib., page 701.

the Queen of Scots, the judges were instructed to condemn her, and by their sentence she cane to the block. This horrid deed was covered by the cloak of judicial proceedings. When Charles I., determined to change the religion of Scotland, he made use of the Court of High Commission to effect the object. By the same judi cial power, the advocates for the doctrines of the Re formation have so often been divested of their religious privileges, and doomed to seal with their blood that religion which bore them triumphantly through the vale of death.

The short, though splendid history of this Government furnishes nothing that can induce us to look with a very favorable eye to the Federal Judiciary as a safe deposi tory of our liberties. When a law was enacted in viola tion of a vital principle of the Constitution, that which was designed to secure the freedom of speech and of the press, the victims of its operation looked in vain to the judges to arrest the progress of usurpation. If this power could ever be exercised to any good purpose, it would be, on such occcasions, to declare the law unconstitutional which aims a deadly blow at the vital principles of freedom; but, so far as the transactions of that day are detailed in our public records, it appears that the Judiciary was a willing instrument of Federal usurpation. That law was executed in all the rigor of the spirit which dictated it. The turbulence of faction found no moderation there; and the people found relief only in their own power. The exercise of their elective franchise removed the evil, and this is their only safe dependence.


RICHARD M. JOHNSON, OF KENTUCKY. Mr. Johnson, who was elected Vice-President The following is an extract from Gen. Jackof the United States by the Democratic party, son's message vetoing the bill for rechartering represented 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 amendment of the Constitution. His proposition was to amend the Constitution by referring all cases in which a State may be a party to the final adjudication of the Senate. In the course of his remarks, he says:

At this time there is, unfortunately, a want of confidence in the Federal Judiciary, in cases that involve political power; and this distrust my be carried to other cases, such as the lawyers call meum et tuum.

Courts also, like cities and villages, or like legislative bodies, will sometimes have their leaders; and it may happen, that a single individual will be the prime cause of a decision to overturn the deliberate act of a whole State, or of the United States; yet, we are admonished to receive their opinions as the ancients did the responses of the Delphic oracle, or the Jews, with more propriety, the communications from Heaven, delivered by Urim and Thummim, to the High Priest of God's chosen people, from the sanctum sanctorum. Other causes of difference might be multiplied 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 partialities, and antipathies, incident to human nature, should not be exempted from responsibility on account of their superior integrity, learning, and capacity; or that their decisions should be subject to revision by some competent tribunal, responsible to the people. It is believed that this is the opinion of that great and good man who penned the Declaration of Independence, and who now enjoys, in the shades of Monticello, the blessings of the principles which it contains.

It was the judgment of a court that doomed the im

mortal Socrates to drink the hemlock. When the Roman

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the supreme judges, when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress over the judges; and, on that point, the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.



The other side of this question was lucidly and ably stated by the late Daniel Webster, in a speech delivered before the U. S. Senate, on the 27th of January, 1830, in the famous debate between Mr. W. and Mr. Hayne, of South Carolina, on Foot's Resolution, as follows:

Mr. Hayne having rejoined to Mr. Webster, especially on the constitutional question, Mr. Webster rose, and, in conclusion, said:

His argument consists of two propositions and an inference. His propositions are:

1st. That the Constitution is a compact between the

tyrant could no longer use a hired soldiery to immolate the victims of his jealousy, he resorted to courts of law. When Henry VIII, of England, would exercise cruel 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 potentment, 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 stake, the court gave sanction to the murderous deeds. Her sister and successor, Elizabeth, created the Court of High Commission, and formally invested it with inquisi-States. torial power. She also supported the arbitrary edicts of the Star Chamber. The Puritans, because obnoxious to the free exercise of the prerogatives of the Crown, were imp isoned and dispersed by process of law, and the judges were the supporters of her despotic power. When she would destroy her unfortunate kinswoman,

2d. That a compact between two, with authority reserved to one to interpret its terms, would be a surrender to that one of all power whatever.

3d. Therefore, (such is his inference,) the General Gov. ernment does not possess the authority to construe its own powers.

Now, sir, who does not see, without the aid of exposition or detection, the utter confusion of ideas involved in this so elaborate and systematic argument.

The Constitution, it is said, is a compact between States; the States, then, and the States only, are parties to the compact. How comes the General Government itself a party? Upon the honorable gentleman's hypothesis, the General Government is the result of the compact, the crea ture of the compact, not one of the parties to it. Yet the argument, as the gentleman has now stated it, makes the Government itself one of its own creators. It makes it a party to that compact to which it owes its own existence. For the purpose of erecting the Constitution on the basis of a compact, the gentleman considers the States as parties to that compact; but as soon as his compact is made, then he chooses to consider the General Government, which is the offspring of that compact, not its off spring, but one of its parties; and so being a party, without the power of judging on the terms of compact. Pray, sir, in what school is such reasoning as this taught?

that they should agree. One alone could not interpret t conclusively; one alone could not construe it; one alone could not modify it. Yet the gentleman's doctrine is, that Carolina alone may construe and interpret that compact which equally binds all, and gives equal rights to all. So, then, sir, even supposing the Constitution to be a compact between the States, the gentleman's doctrine, novertheless, is not maintainable; because, first, the General Government is not a party to that compact, but a government established by it, and vested by it with the powers of trying and deciding doubtful questions; and secondly, because, if the Constitution be regarded as a compact, not one State only, but all the States, are parties to that compact, and one can have no right to fix upon it her own peculiar construction.

So much, sir, for the argument, even if the premises of the gentleman were granted, or could be proved, But, sir, the gentleman has failed to maintain his leading proposition. He has not shown, it cannot be shown, that the Constitution is a compact between State Governments. The Constitution itself, in its very front, refutes that idea; it declares that it is ordained and established by the people of the United States. So far from saying that it is does not even say that it is established by the people of the several States; but it pronounces that it is established by the people of the United States, in the aggregate. The gentleman says, it must mean no more than the people of the several States. Doubtless, the people of the several States, taken collectively, constitute the people of the United States; but it is in this, their collective capacity, it is as all the people of the United States, that they establish the Constitution. So they declare; and words cannot be plainer than the words used.

If the whole of the gentleman's main proposition were conceded to him, that is to say, if I admit for the sake of the argument, that the Constitution is a compact between 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 Constitution be a compact between States, still that Constitution, or that compact, has established a government, with certain powers; and whether it be one of those powers, that it shall construe and interpret for itself the terms of the compact, in doubtful cases, is a question which can only be decided by looking to the compact, and inquiring what provisions it contains on this point. Without any inconsistency with natural reason, the Government even thus created might be trusted with this power of construction. The extent of its powers, therefore, must still be sought for in the instrument itself.

If the Old Confederation had contained a clause, declaring that Resolutions of the Congress should be the supreme law of the land, any State law or Constitution to the contrary notwithstanding, and that a Committee of Congress, or any other body created by it, should possess judicial powers extending to all cases arising under resolutions of Congress, then the power of ultimate decision would have been vested in Congress under the Confederation, although that Confederation was a compact between States; and for this plain reason, that it would have been competent to the States, who alone were parties to the compact, to agree who should decide in cases of dispute arising on the construction of the compact.

For the same reason, sir, if I were now to concede to the gentleman his principal proposition, namely, that the Constitution is a compact between States, the question would still be, what provision is made, in this compact, to settle points of disputed construction, or contested power, that shall come into controversy? And this question would still be answered, and conclusively answered, by the Constitution itself.

While the gentleman is contending against construction, he himself is setting up the most loose and dangerous construction. The Constitution declares, that the laws of Congress passed in pursuance of the Constitution shall be the supreme law of the land. No construction is necessary here. It declares, also, with equal plainness and precision, that the judicial power of the United States shall ex tend to every case arising under the laws of Congress. This needs no construction. Here is a law, then, which is declared to be supreme; and here is a power established, which is to interpret that law. Now, sir, how has the gentleman met this? Suppose the Constitution to be a compact, yet here are its terms; and how does the gentleman get rid of them? He cannot argue the seal off the bond, nor the word out of the instrument. Here they are; what answer does he give to them? None in the world, sir, except that the effect of this would be to place the States in a condition of inferiority; and that it results from the very nature of things, there being no superior, that the parties must be their own judges! Thus closely and cogently does the honorable gentleman reason on the words of the Constitution. The gentleman says, if there be such a power of final decision in the General Government, he asks for the grant of that power. Well, sir, I show him the grant. I turn him to the very words. I show him that the laws of Congress are made supreme; and that the judicial power extends, by express words, to the interpretation of these laws. Instead of answering this, he retreats into the general reflection, that it must result from the nature of things, that the States, being parties, must judge for themselves.

I have admitted, that, if the Constitution were to be considered as the creature of the State Governments, it might be modified, interpreted, or construed according to their pleasure. But, even in that case, it would be necessary

When the gentleman says the Constitution is a compact between the States, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the States, as States, were parties to it. We had no other general government. But that was found insufficient, and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a General Government, which should stand on a new basis; not a confederacy, not a league, not a compact between States, but a Constitution; a popular government, founded in popular election, directly responsible to the people themselves, and divided into branches with prescribed limits of power, and prescribed duties. They ordained such a government, they gave the name of a Constitution, and therein established & distribution of power between this, their General Government, and their several State governments. When they shall become dissatisfied with this distribution, they can alter it. Their own power over their own instrument remains. But until they shall alter it, it must stand as their will, and is equally binding on the General Government and on the States.

The gentleman, sir, finds analogy where I see none. He likens it to the case of a treaty, in which, there being no common superior, each party must interpret for himself, under its own obligation of good faith. But this is not a treaty, but a constitution of government, with powers to execute itself, and fulfill its duties.

I admit, sir, that this government is a government of checks and balances; that is, the House of Representatives is a check upon the Senate, and the Senate is a check on the House, and the President a check on both. But I cannot comprehend, or, if I do, I totally differ from him, when he applies the notion of checks and balances to the interference of different governments. He argues that if we transgress our constitutional limits, each State, as a State, has a right to check us. Does he admit the converse of the proposition, that we have a right to check the States? The gentleman's doctrines would give us a strange jumble of authorities and powers, instead of governments of separate and defined powers. It is the part of wisdom, I think, to avoid this; and to keep the General Government and the State Government each in its proper sphere, avoiding as carefully as possible every kind of interference.

Finally, sir, the honorable gentleman says, that the States will only interfere, by their power, to preserve the Constitution. They will not destroy it, they will not impair it; they will only save, they will only preserve, they will only strengthen it. Ah! sir, this is but the old story. All re gulated governments, all free governments, have beer broken by similar disinterested and well disposed inter ference. It is the common pretence. But I take leavi of the subject.



WASHINGTON, Dec. 24, 1847. DEAR SIR: I have received your letter, and shall answer it as frankly as it is written.

You ask me whether I am in favor of the acquisition of Mexican territory, and what are my sentiments with regard to the Wilmot Proviso.

I have so often and so explicitly stated my views of the first question, in th Senate, that it seems almost unnecessary to repeat t em here. As you request it, however, I shall briefly give thein.

I think, then, that no peace should be granted to Mexico, till a reasonable indemnity is obtained for the injuries which she has done us. The territorial extent of this indemnity is, in the first instance, a subject of Executive consideration. There the Constitution has placed t, and there I am willing to leave it; not only because I have full confidence in its judicious exercise, but because, n the ever-varying circumstances of a war, it would be ndiscreet, by a public declaration, to commit the country to any line of indemnity, which might otherwise be enlarged, as the obstinate injustice of the enemy prolongs the contest with its loss of blood and treasure.

cal institutions, if I may so speak, whether they have reference to Slavery or to any other relations, domestic or public, are left to local authority, either original or derivative. Congress has no right to say there shall be Slavery in New-York, or that there shall be no Slavery in Georgia; nor is there any other human power, but the people of those States, respectively, which can change the relations existing therein; and they can say, if they will, we will have Slavery in the former, and we will abolish it in the latter.

In various respects, the Territories differ from the States. Some of their rights are inchoate, and they do not possess the peculiar attributes of sovereignty. Their relation to the General Government is very imperfectly defined by the Constitution; and it will be found, upon examination, that in that instrument the only grant of power concerning them is conveyed in the phrase, "Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States." Certainly this phraseology is very loose, if it were designed to include in the grant the whole power of legislation over persons, as well as things. The expression, the "territory and other property," fairly construed, relates to the public lands, as such; to arsenals, dockyards, forts, ships, and all the va arious kinds of property which the United States may and must possess.

It appears to me, that the kind of metaphysical magnanimity which would reject all indemnity at the close of bloody and expensive war, brought on by a direct attack upon our troops by the enemy, and preceded by a succession of unjust acts for a series of years, is as unworthy of the age in which we live, as it is revolting to the common sense and practice of mankind. It would conduce but little to our future security, or, indeed to our present reputation, to declare that we repudiate all expectation of compensation from the Mexican Government, and are fighting, not for any practical result, but for some vague, perhaps philanthropic object, which escapes my penetration, and must be defined by those who assume this new principle of national intercommunication. All wars are to be deprecated, as well by the statesman as by the philanthropist. They are great evils; but there are greater evils than these, and submission to injustice is among them. The nation which should refuse to defend its rights and its honor when assailed, would soon have neither to defend; and, when driven to war, it is not by professions of disinterestedness and declarations of magnanimity that its rational objects can be best obtained, or other nations taught a lesson of forbearance-the strongest security for permanent peace We are at war with Mexico, and its vigorous prosecution is the surest means of its speedy termination, and ample indemnity the surest guaranty against the recurrence of such injustice as provoked it.

But surely the simple authority to dispose of and regu late these does not extend to the unlimited power of legislation; to the passage of all laws, in the most general acceptation of the word, which, by the by, is carefully excluded from the sentence. And, indeed, if this were so, it would render unnecessary another provision of the Constitution, which grants to Congress the power to legislate, with the consent of the States, respectively, over all places purchased for the "erection of forts, magazines, arsenals, dockyards," etc. These being the "property" of the United States, if the power to make "needful rules and regulations concerning" them includes the general power of legislation, then the grant of authority to regulate" the territory and other property of the United States" is unlimited, wherever subjects are found for its operation, and its exercise needed no auxiliary provision. If, on the other hand, it does not include such power of legislation over the "other property" of the United States, then it does not include it over their "territory;" for the same terms which grant the one grant the other. "Territory" is here classed with property, and treated as such; and the object was evidently to enable the General Government, as a property-holder-which, from necessity, it must be-to manage, preserve and "dispose of" such property 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 regu 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 of the National Legislature, and left to the people of the confederacy in their respective local governments.

The whole subject is a comprehensive one, and fruitful of important consequences. It would be ill-timed to discuss it here. I shall not assume that responsible task, but shall confine myself to such general views as are necessary to the fair exhibition of my opinion.

We may well regret the existence of Slavery in the Southern States, and wish they had been saved from its introduction. But there it is, not by the act of the present generation; and we must deal with it as a great practical question, involving the most momentous consequences. We have neither the right nor the power to touch it where it exists; and if we had both, their exercise. by any means heretofore suggested, might lead to results which no wise man would willingly encounter, and which no good man could contemplate without anxiety.

The theory of our Government presupposes that its various members have reserved to themselves the regulation of all subjects relating to what may be termed their internal police. They are sovereign within their boundaries, except in those cases where they have surrendered to the General Government a portion of their rights, in order to give effect to the objects of the Union, whether these concern foreign nations or the several States themselves. Lo

Such, it appears to me, would be the construction put upon this provision of the Constitution, were this question now first presented for consideration, and not controlled by imperious circumstances. The original ordinance of the Congress of the Confederation, passed in 1787, and which was the only act upon this subject in force at the adoption of the Constitution, provided a complete frame of government for the country north of the Ohio, while in a territorial condition, and for its eventual admission in separate States into the Union. And the persuasion that this ordinance contained within itself all the necessary means of execution, probably prevented any direct reference to the subject in the Constitution, further than vesting in Congress the right to admit the States formed under it into the Union. However, circumstances arose, which required legislation, as well over the territory north of the Ohio, as over other territory, both within and without the original Union, ceded to the General Government, and, at various times, a more enlarged power has been exercised over the Territories-meaning thereby the different Territorial Governments than is conveyed by the limited grant referred to. How far an existing necessity may have operated in producing this legisla tion, and thus extending, by rather a violent implication, powers not directly given, I know not. But certain it is that the principle of interference should not be

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