where, the great difficulty of forming and on this subject, I consider but as an additional evidence of the great diversity of the human intellect. Had not able, experienced, and patriotic individuals, for whom I have the highest respect, taken different views, I would have thought the right too clear to admit of doubt; but I am taught by this, as well as by many similar instances, to treat with deference opinions differing from my own. The error may possibly be with me; but, if so, I can only say, that after the most mature and conscientious examination, I have not been able to detect it. But with all proper deference, I must think that theirs is the error, who deny what seems to be an essential attribute of the conceded sovereignty of the states; and who attribute to the general government a right utterly incom-munity, as is the case in England, and was patible with what all acknowledge to be its limited and restricted character; an error originating principally, as I must think, in not duly reflecting on the nature of our institutions, and on what constitutes the only rational object of all political constitutions. Where the diversity of interests exists in separate and distinct classes of the com In formerly the case in Sparta, Rome, and most of the free states of antiquity, the rational constitutional provision is, that each should be represented in the government as a separate estate, with a distinct voice, and a negative on the acts of its co-estates, in order to check their encroachments. It has been well said by one of the most England the constitution has assumed exsagacious men of antiquity, that the object pressly this form, while in the governments of a constitution is to restrain the govern-of Sparta and Rome the same thing was ment, as that of laws is to restrain indi-effected, under different but not much viduals. The remark is correct, nor is it less efficacious forms. The perfection of less true where the government is vested their organization, in this particular, was in a majority, than where it is in a single that which gave to the constitutions of or a few individuals; in a republic, than these renowned states all of their celebrity, a monarchy or aristocracy. No one can which secured their liberty for so many have a higher respect for the maxim that centuries, and raised them to so great a the majority ought to govern than I have, height of power and prosperity. Indeed, taken in its proper sense, subject to the a constitutional provision giving to the restrictions imposed by the Constitution, great and separate interests of the commuand confined to subjects in which every nity the right of self-protection, must apportion of the community have similar pear to those who will duly reflect on the interests; but it is a great error to suppose, subject, not less essential to the preservaas many do, that the right of a majority to tion of liberty than the right of suffrage govern is a natural and not a conventional itself. They in fact have a common obright; and, therefore, absolute and unlim-ject, to effect which the one is as necessary ited. By nature every individual has the as the other-to secure responsibility; that right to govern himself; and governments, is, that those who make and execute the whether founded on majorities or minorities, must derive their right from the assent, expressed or implied, of the governed, and be subject to such limitations as they may impose. Where the interests are the same, that is, where the laws that may benefit one will benefit all, or the reverse, it is just and proper to place them under the control of the majority; but where they are dissimilar, so that the law that may benefit one portion may be ruinous to another, it would be, on the contrary, unjust and absurd to subject them to its will: and such I conceive to be the theory on which our Constitution rests. laws should be accountable to those on whom the laws in reality operate; the only solid and durable foundation of liberty. If without the right to suffrage our rulers would oppress us, so without the right of self-protection, the major would equally oppress the minor interests of the community. The absence of the former would make the governed the slaves of the rulers, and of the latter the feebler interests the victim of the stronger. Happily for us we have no artificial and separate classes of society. We have wisely exploded all such distinctions; but we are not, on that account, exempt from all conThat such dissimilarity of interests may trariety of interests, as the present distractexist it is impossible to doubt. They are ed and dangerous condition of our country to be found in every community, in a unfortunately but too clearly proves. With greater or less degree, however small or us they are almost exclusively geographical, homogeneous, and they constitute, every-resulting mainly from difference of climate, soil, situation, industry, and production, | move in its prescribed orb, is the great and but are not, therefore, less necessary to be difficult problem, on the solution of which protected by an adequate constitutional the duration of our Constitution, of our provision than where the distinct interests Union, and, in all probability our liberty, exist in separate classes. The necessity is, depends. How is this to be effected? in truth, greater, as such separate and dissimilar geographical interests are more liable to come into conflict, and more dangerous when in that state than those of any other description; so much so, that ours is the first instance on record where they have not formed in an extensive territory separate and independent communities, or subjected the whole to despotic sway. That such may not be our unhappy fate also, must be the sincere prayer of every lover of his country. So numerous and diversified are the interests of our country, that they could not be fairly represented in a single government, organized so as to give to each great and leading interest a separate and distinct voice, as in governments to which I have referred. A plan was adopted better suited to our situation, but perfectly novel in its character. The powers of the government were divided, not as heretofore, in reference to classes, but geographically. One general government was formed for the whole, to which was delegated all of the powers supposed to be necessary to regulate the interests common to all of the states, leaving others subject to the separate control of the states, being from their local and peculiar character such that they could not be subject to the will of the majority of the whole Union, without the certain hazard of injustice and oppression. It was thus that the interests of the whole were subjected, as they ought to be, to the will of the whole, while the peculiar and local interests were left under the control of the states separately, to whose custody only they could be safely confided. This distribution of power, settled solemnly by a constitutional compact, to which all of the states are parties, constitutes the peculiar character and excellence of our political system. It is truly and emphatically American, without example or parallel. To realize its perfection, we must view the general government and the states as a whole, each in its proper sphere, sovereign and independent; each perfectly adapted to their respective objects; the states acting separately, representing and protecting the local and peculiar interests; acting jointly, through one general government, with the weight respectively assigned to each by the Constitution, representing and protecting the interest of the whole, and thus perfecting, by an admirable but simple arrangement, the great principle of representation and responsibility, without which no government can be free or just. To preserve this sacred distribution as originally settled, by coercing each to The question is new when applied to our peculiar political organization, where the separate and conflicting interests of society are represented by distinct but connected governments; but is in reality an old question under a new form, long since perfectly solved. Whenever separate and dissimilar interests have been separately represented in any government; whenever the sovereign power has been divided in its exercise, the experience and wisdom of ages have devised but one mode by which such political organization can be preserved; the mode adopted in England, and by all governments, ancient or modern, blessed with constitutions deserving to be called free; to give to each co-estate the right to judge of its powers, with a negative or veto on the acts of the others, in order to protect against encroachments the interests it particularly represents; a principle which all of our constitutions recognize in the distribution of power among their respective departments, as essential to maintain the independence of each, but which, to all who will duly reflect on the subject, must appear far more essential, for the same object, in that great and fundamental distribution of powers between the states and general government. So essential is the principle, that to withhold the right from either, where the sov ereign power is divided, is, in fact, to annul the division itself, and to consolidate in the one left in the exclusive possession of the right, all of the powers of the government; for it is not possible to distinguish practically between a government having all power, and one having the right to take what powers it pleases. Nor does it in the least vary the principle, whether the distribution of power between coestates, as in England, or between distinctly organized but connected governments, as with us. The reason is the same in both cases, while the necessity is greater in our case, as the danger of conflict is greater where the interests of a society are divided geographically than in any other, as has already been shown. These truths do seem to me to be incon trovertible; and I am at a loss to understand how any one, who has maturely reflected on the nature of our institutions, or who has read history or studied the principles of free government to any purpose, can call them in question. The explanation must, it appears to me, be sought in the fact, that in every free state, there are those who look more to the necessity of maintaining power, than guarding against its abuses. I do not intend reproach, but ture of its will, instead of a rule of action impressed on it at its creation, and annihilating in fact the authority which imposed it, and from which the government itself derives its existence. simply to state a fact apparently necessary | the sole and final right of interpreting the to explain the contrariety of opinions, Constitution, thereby reserving the whole among the intelligent, where the abstract system, making that instrument the creaconsideration of the subject would seem scarcely to admit of doubt. If such be the true cause, I must think the fear of weakening the government too much in this case to be in a great measure unfounded, or at least that the danger is That such would be the result, were the much less from that than the opposite side. right in question vested in the legislative I do not deny that a power of so high a or executive branch of the government, is nature may be abused by a state, but conceded by all. No one has been so hardy when I reflect that the states unanimously as to assert that Congress or the President called the general government into exist- ought to have the right, or to deny that, if ence with all of its powers, which they vested finally and exclusively in either, the freely surrendered on their part, under the consequences which I have stated would conviction that their common peace, safety not necessarily follow; but its advocates and prosperity required it; that they are have been reconciled to the doctrine, on bound together by a common origin, and the supposition that there is one departthe recollection of common suffering and ment of the general government, which, common triumph in the great and splen- from its peculiar organization, affords an did achievement of their independence; independent tribunal through which the and the strongest feelings of our nature, government may exercise the high authorand among them, the love of nationality which is the subject of consideration, power and distinction, are on the side of with perfect safety to all. the Union; it does seem to me, that the fear which would strip the states of their sovereignty, and degrade them, in fact, to mere dependent corporations, lest they should abuse a right indispensable to the peaceable protection of those interests which they reserved under their own peculiar guardianship when they created the general government, is unnatural and unreasonable. If those who voluntarily created the system, cannot be trusted to preserve it, what power can? I yield, I trust, to few in my attachment to the judiciary department. I am fully sensible of its importance, and would maintain it to the fullest extent in its constitutional powers and independence; but it is impossible for me to believe that it was ever intended by the Constitution, that it should exercise the power in question, or that it is competent to do so, and, if it were, that it would be a safe depository of the power. Its powers are judicial and not political, and are expressly confined by the Constitution "to all cases in law and equity arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under its authority;" and which I have high authority in asserting, excludes political questions, and comprehends those only where there are parties amenable to the process of the court.* Nor is its incompetency less clear, than its want of constitutional authority. There may be many and the most dangerous infractions on the part of Congress, of which it is conceded by all, the court, as a judicial tribunal, cannot from its nature take cognisance. The tariff itself is a strong case in point; and the reason applies equally to all others, where Congress perverts a power from an object intended to one not intended, the most insidious and dangerous of all the infractions; and which may be extended to all of its powers, more especially to the taxing and appropriating. But supposing it competent to take cognisance of all infractions of every description, the insuperable objection still remains, that it would not be a safe tribunal to exercise the power in question. So far from extreme danger, I hold that there never was a free state, in which this great conservative principle, indispensable in all, was ever so safely lodged. In others, when the co-estates, representing the dissimilar and conflicting interests of the community, came into contact, the only alternative was compromise, submission or force. Not so in ours. Should the general government and a state come into conflict, we have a higher remedy; the power which called the general government into existence, which gave it all its authority, and can enlarge, contract, or abolish its powers at its pleasure, may be invoked. The states themselves may be appealed to, three-fourths of which, in fact, form a power, whose decrees are the constitution itself, and whose voice can silence all discontent. The utmost extent then of the power is, that a state acting in its sovereign capacity, as one of the parties to the constitutional compact, may compel the government, created by that compact, to submit a question touching its infraction to the parties who created it; to avoid the supposed dangers of which, it is proposed to resort to the novel, the hazardous, and, I must add, fatal pro- the case of Jonathan Robbins. I have not been able to ject of giving to the general government I refer to the speech, and speak from memory. I refer to the authority of Chief Justice Marshall in |