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SENATE.]

Merchants' Bonds.-Revenue Collection Bill.

[JAN. 31, 1833.

force of the State Government, which made the will of sovereign parties. Nothing but good faith can preserve the majority bind the minority. the Government. Its life's blood and vitality can be cirThe ratification of New Hampshire, like that of Massa-culated only by the instrumentality of the State Legislachusetts, contains a grateful acknowledgment for the op- tures. The powers delegated to the Federal Government portunity afforded to the people of the United States of extend to making laws to operate on individuals throughentering into a solemn compact with each other. out the United States. But the States have not delegated the power to coerce the State sovereignties, to compel the State Governments. The States are yet free and sovereign States. I mean no cavil about qualified or unqualified sovereignties. What I have before said on that subject will, I hope, prevent misconstruction. [Here Mr. B. gave way for adjournment.]

A majority of the whole people throughout the Union did not, and could not, make the constitution obligatory. The assent of each particular State was necessary to bind the people of the State. The assent of twelve States did not bind the people of New Hampshire: they were not bound by the constitution until the State itself assented.

THURSDAY, JANUARY 31.
MERCHANTS' BONDS.

Mr B. continued his argument by asking the members of the Senate how that body itself was constituted? By the action, the separate action, of the State Legislatures, and not by the citizens of the United States, in priMr. KING then moved to postpone the previous orders, mary assembly, or as a body. It was, as one of the co- and to take up the bill to explain and amend the 18th ordinate branches of the Government, dependent for its section of the bill of July, 1832, to amend the various very existence upon the States separately. If a majority laws imposing duties on imports.

of the States should refuse to elect Senators, such a re

tion on the bill, for the purpose of preventing great inconMr. SILSBEE urged the necessity of an immediate acvenience to the merchants. He did not anticipate any objections to the principles of the bill.

The motion to postpone having been agreed to, and the bill being taken up,

fusal or omission would involve a dissolution of the Union. It was stated by him that this bill must pass before the In the event of such a refusal, there could be no alterna-15th February, if at all, to be of any avail; and this was tive, for there was no compulsory power in relation to the urged as a reason for the motion. elections. There was no power in the constitution to ference over other bills preceding it in the orders of the Mr. POINDEXTER objected to giving this bill a prechange or compel the elections. The States, great or day. small, as they might be, however wide or limited in extent, were there all represented on terms of the most perfect equality. This was a plain, evident, and absolute principle, which could not, by any sophistry, be evaded. Recollect that direct taxes, and the apportionment of representatives among the several States, according to their respective populations, in federal numbers, is another fixed principle of the compact; that is to say, according merce, requiring the collectors to give the merchants An amendment reported by the Committee on Comto the number in each, "determined by adding to the credit on their bonds for the difference between the high whole number of free persons, including those bound to and low duties, and to cancel the bonds on payment of service for a term of years, and excluding Indians not the balance, (in lieu of issuing debenture certificates for taxed, three-fifths of all other persons.' Are the re-the amount of excess of duty,) was agreed to. presentatives elected as by or for a single nation? No: The bill was then ordered to be engrossed and read a according to States and State population. On this subject a great struggle took place at the last session in the debate on the bill to fix the ratio of representation under the fifth census. No Senator, who had attended the discussion of this interesting subject, could fail to recollect the numerous arguments advanced, and ingenious propositions for transferring and disposing the fractions produced in each State, when the number proposed for the ratio of representation was applied to the federal number in each State.

third time, nem. con.

THE REVENUE COLLECTION BILL. The Senate then resumed the consideration of the bill further to provide for the collection of the duties on imports.

Mr. BIBB resumed the argument which he yesterday began upon the bill. He felt very sensibly, he said, the weight which devolved upon him in sustaining his views of this subject against an authority so highly respectable, That the constitution is not based upon the idea of a and so deeply seated in the affections of the people, as the single nation, may be illustrated by other parts. "New author of the proclamation, to the doctrines of which it States may be admitted by the Congress into this Union," had become his duty to advert. But whilst he stood on (art. 4, sec. 3.) Not new people, but new States. The the principles of the constitution; whilst he had on his new people must be united under a republican form of side the opinions of patriots, of lovers of liberty; opinions government, and compose a State, before admission into which were delivered by some of the most eminent of the the Union. "The United States shall guaranty to every men who framed the constitution, which opinions were State in this Union a republican form of government;" promulgated throughout the United States for the pur(art. 4, sect. 4.) In this section of the constitution the pose of inducing the adoption of the constitution, he truth is declared, that "this Union" is of States; and the felt himself clad in armor impenetrable to adverse arguStates, united, are to "guaranty to every State a repub-ment, the high authority of the proclamation notwithlican form of government." Every State is a party to standing.

this compact for guaranty. The word " guaranty" He had left off yesterday, he said, at that point of his means, according to use and definition, to undertake to argument in which he had maintained that the federal secure the performance of a treaty or stipulation. The constitution is a compact between the States. He now constitution is founded on and composed of compacts said, in addition, that he considered every Government and stipulations between the States as parties. What is instituted by consent, and reduced to the form of a writthis fourth section of the fourth article, but a compact ten constitution, to be a compact; and that they who hold entered into by all the States, with each and every one, the power to alter and amend, and have a sovereign respectively? power over the Government, are parties to that compact. Away, then, with this idea of a single nation--a unit. The 5th article of the federal constitution, he said, placed The Government of this Union is based upon a union of the power of amending the constitution in the Legisla States, as parties to a compact. Its fulfilment depends tures of the respective States, or in their respective conupon the observance of good faith among the States who ventions. They create, and they can destroy. The conare parties to the compact, as in all compacts between stitution, he said, abounds with compacts. Article 1,

JAN. 31, 1833.]

Revenue Collection Bill.

[SENATE.

section 9, contains compacts by all the States jointly, acting within the pale of delegated powers, the majority with each severally. Article 1, section 10, contains com- must be obeyed for the time. Abuses or maladminpacts by the several States not to exercise, and to qualify istration of delegated powers must be corrected through the exercise of certain powers which might be injurious. the instrumentality of elections.. The security in such The 4th article contains compacts by the several States cases rests upon the regulating checks contained within with each other, and by the whole with each. The pro- the Government itself, the responsibility of the rulers to viso in the 5th article is a joint compact by all, and with those who elected them. To abuse and maladminister each other, severally. The various stipulations in the delegated powers, and to usurp powers not delegated, constitution, and especially the equality of representation but reserved, are subjects entirely different. in the Senate, and the majority required to add new powers or to amend, exhibit sedulous care to preserve to their respective local Governments their local interests. In prosecution of this jealous care for the preservation of the powers and rights of sovereignty not surrendered by the States, a number of States, at the time of their adopting the constitution, expressed a desire, in order to prevent misconstruction, that further declaratory and restrictive clauses should be added. Accordingly, the first Congress held under the new constitution proposed amendments, ten of which were adopted by the States. The tenth of which is as follows: "The powers not delegated to the United States by this constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

"To the States respectively or to the people" is here introduced, out of abundant caution, to prevent the possibility of a construction that the rights not delegated by the people to the State Governments, but reserved, had been, by the federal constitution, taken away from the people, and transferred to the State Governments.

It is clear that the Federal Government was made by the States; that it is a compact between States; that the States are constituent and essential parties to the existence of the Federal Government; that the States surrendered only a portion of their powers and authorities; that all powers not delegated nor prohibited are retained; that they have retained the ultimate sovereignty over the Federal Government; that special care has been taken in the compact to protect against the addition of new powers, unless three-fourths of the States shall concur.

This brings us to the question, how the several States are to be protected against an irregular, unconstitutional action of the Federal Government, in evading a proposition for a grant of new powers by amendment, and substituting therefor a palpable usurpation of powers not delegated.

The abuse of delegated powers is one case. The pal pable usurpation of powers not delegated, but reserved, is another case.

The question is, whether or no, "in cases of a deliberate, palpable, and dangerous exercise of powers not granted by the said compact, the States who are parties thereto have the right to interpose, for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them."

The question is not whether the State Governments shall direct and control the Federal Government in the exercise of its delegated powers, but whether they shall interpose for arresting the exercise of powers not delegated, but usurped. The question is not whether the Federal Government is the servant of twenty-four masters of different wills, yet bound to obey all, in the exercise of its granted powers, but whether the Federal Government shall be the sole and exclusive judge of the limits of its own powers; an autocrat, the sole director of his own will, and the unbridled usurper of the rights and liberties appertaining to the States.

That there are powers, authorities, and liberties, appertaining to the States, which belonged to them as States, and which they have not surrendered, but reserved, is undeniable. The general principle is clear, that in all compacts, leagues, conventions, and treaties between sovereign States, powers, and potentates, each party has the right to judge whether a breach has been committed by the other party; and in case of a wilful, deliberate breach, to take such measures for redress as prudence and the discretion of the injured party shall dictate.

Is the compact between these States an exception to this general rule? If it is, then the States must, by some action of theirs, have surrendered this portion of their sovereignty. What part of the constitution declares such a surrender? There is no such express declaration of surrender. In the various enumerations of powers prohibited to the States, and agreed not to be exercised by them, there is no declaration that they shall not exercise the right, appertaining to them as parties to the compact, to judge of an excessive, alarming, and dangerous stretch of power by the Federal Government. The abridgment of the powers of the States in this particular, not being expressed, cannot be made out by implication or by construction. The powers not delegated by the States to the United States, nor prohibited to the States by the constitution, are reserved to the States. So says the constitution. What clause in the constitution delegates to the Federal Government the sole power of deciding the extent of the grant of powers to itself, as well as the extent of the powers reserved to the States?

How are the several States to be protected against the usurpation of their respective reserved powers? How are minorities of the States to be protected against a breach of the constitutional compact, requiring the concurrence of three-fourths to sanction a further abridgement of their reserved powers? For it is clear that, by the compact, a minority of seven States are intended to be protected against the concurrence of seventeen States, in any regular proposition to delegate to the Federal Government any portion of their reserved powers. Does It is said that this power is vested by the constitution in that security consist solely in the good faith and unambi- the Supreme Court of the United States. The provisions tious temper of the Federal Government? Does the se- are,

curity of the minority of the States against the usurpation "The judicial power shall extend to all cases in law of their reserved powers by the delegates of a majority and equity, arising under this constitution, the laws of the of States not sufficient to carry a constitutional amend- United States, and treaties made, or which shall be made, ment, or against the usurpation of their reserved powers under their authority." by any one of the departments, rest solely upon the machinery and regulating checks of the Federal Government

itself?

This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of It is conceded by me, that, generally, the security the United States, shall be the supreme law of the land; against abuses of the delegated powers lies in the nature and the judges in every State shall be bound thereby, and organization of the Government itself; the distribu- any thing in the constitution or laws of any State to the tion of its powers into several departments; the tenure of contrary notwithstanding."

office; the mode and frequency of elections, &c. When These are the two provisions of the constitution which

SENATE.]

Revenue Collection Bill.

[JAN. 31, 1833.

are referred to as delegating the power to the Supreme coming before them, to take the treaties as obligatory, Court, to be the sole judge of the extent of the powers and to administer the rights growing out of the treaties granted and of the powers reserved, and as denying to between France and the United States. After that dethe States the sovereign power of protecting themselves claration, the court was bound to consider the treaties as against the usurpation of their reserved powers, authori- abrogated. The courts had no power, before the act of ties, and privileges. If the delegation to the Supreme July, 1798, to inquire into violations, and therefore to Court, and prohibition to the States, are not contained in declare the treaties not obligatory. After that act, they these two clauses, then they are not to be found in the had no power to demand evidence of the violations refederal constitution. cited, and revise the political decision of the Government.

The latter clause cannot touch the question in debate, for that only declares the supremacy of the constitution, To declare these treaties no longer obligatory was a and the treaties "and laws made in pursuance thereof." political power, not a judicial power. Yet the violations Powers exercised contrary to the constitution, acts done of these treaties, committed under the authority of the contrary to the constitution, by the exercise of authorities French Government, and the consequent injuries to the not under but in violation of the constitution, and by citizens and Government of the United States, and the usurpation of State rights, State authorities, and State rights of the United States consequent therefrom, before privileges, are the subjects under consideration. the act of July, 1798, were "cases arising under the

Let us examine the former clause: "The judicial constitution" and treaties of the United States. But the power shall extend to all cases, in law and equity, arising judicial power did not extend to those cases of violation, under this constitution." The case must be of "judicial so as to declare the treaties no longer obligatory. The power;" it must be a case, "in law or equity," arising question whether those violations should or should not under the constitution. The expression is not "to all abrogate the treaties, did not make a case in law or equity cases arising under the constitution, treaties, and laws for the decision of a judicial tribunal. Yet they were of the United States;" but it is "to all cases in law and cases arising under the constitution. The power to deequity." cide them belonged to the Government of the United States as a political sovereign; but the judicial power did not extend to them; those cases belonged to the political powers, not to the judicial powers of the Government.

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"Use is the law and rule of speech.' By this law and this rule we must examine the language of the consti

tution.

A judicial power is one subject; a political power is The British courts of admiralty executed upon the another and a different subject. A case in law, or a case commerce of the United States the British orders in in equity, is one subject; a political case is another and a council, disclaiming the power to decide whether those different subject. orders in council were conformable to the general law of Judicial cases in law and equity, arising under the re-nations, which every nation is bound to respect and obgular exercise of constitutional powers, by laws and trea- serve. In like manner, the French courts of admiralty ties made by authority, are different from political executed upon the commerce of the United States the questions of usurpation, surmounting the constitution, Berlin and Milan decrees. and involving the high prerogatives, authorities, and pri- The British and French courts had not cognizance to vileges of the sovereign parties who made the constitu-judge the sovereign powers of the nations, and to declare tion. those orders and decrees contrary to the law of nations; In judicial cases arising under a treaty, the court may that was not a judicial power. So the courts of the United construe the treaty, and administer the rights rising States, even the Supreme Court, had not the power to under it to the parties who submit themselves to declare the treaties between the United States and France, the jurisdiction of the court in that case. But the and Great Britain, no longer obligatory upon the citizens court must confine itself within the pale of judicial au- and Government of the United States, because of the thority. It cannot rightfully exercise the political pow-multiplied wrongs and injuries committed upon the citier of the Government in declaring the treaty null, zens of the United States under color of those orders in because the one or the other party to the treaty has council and decrees, infracting the law of nations and broken this or that article; and, therefore, that the whole treaties, and hostile to the rights of the Government of treaty is abrogated. To judge of the breach of the arti- the United States. Those cases, in their effects upon the cles of the treaty by the sovereign contracting parties, treaties and amicable relations between the United States and in case of breach to dissolve that treaty, and to de- and those Governments, did not fall within the judicial clare it no longer obligatory, is a political power belong-power of the courts of the United States. Those quesing not to the judiciary. It belongs to other departments tions did not fall within the description of "cases in law of the Government, who will judge of the extent of the and equity," as used in the constitution of the United injury resulting from the violation, and whether the re- States, in conferring, vesting, and defining the powers of paration shall be sought by amicable negotiation, or whe- the judicial department. Those political powers belong ther the treaty shall be declared no longer obligatory on to other departments of the Government. According to the Government and the people of the injured party. the law and rule of speech established by use, such Yet, by the law of nations, the wilful and deliberate powers are classed under the denomination of political breach of one article of a treaty is a breach of all the ar-powers, prerogative powers, not under the head of juditicles, each being the consideration of the others; and the cial powers. injured party has the right so to treat it.

Before I proceed to illustrate by other examples the By the act approved on the 7th of July, 1798, the Con- distinctions which I have taken between political powers gress of the United States declared themselves of right and judicial powers, between political questions or cases freed and exonerated from the stipulations of the treaties and judicial questions or cases, I will refer to the declaraand of the consular convention theretofore concluded tion of one whose opinions on constitutional questions I between the United States and France, and that they know will command respect; a man to whose opinions I should not thenceforth be regarded as legally obligatory willingly yield my respect, without, however, submitting on the Government or citizens of the United States, be- with that implicit faith which belongs to fools. On the cause of the repeated violations on the part of the French resolutions of Mr. Livingston, touching the conduct of Government, &c. President Adams, in causing Thomas Nash, alias Jonathan Robbins, to be arrested and delivered over to a British naval officer, without any accusation, or trial, or investi

Before this declaration, the Supreme Court of the United States was bound, in cases of judicial cognizance

JAN. 31, 1833.]

Revenue Collection Bill.

[SENATE.

gation in a court of justice, Mr. Marshall, then a represen- and cannot be represented and brought up for decision by tative of Virginia, now chief justice of the United States, individuals. in defending the conduct of the President, thus deliver- In a case between two citizens, parties to an ejectment, ed his opinion in that debate.—(Appendix 5, Wheaton, claiming lands, the one party under a grant from the State p. 17.) of New York, the other under a grant from the State of "By extending the judicial power to all cases in law Connecticut, in the gore which was claimed by both and equity, the constitution had never been understood to States, the court was competent to decide the private confer on that department any political power whatever. rights and interests of the parties. But that decision could To come within this description, a question must assume a have no controlling influence over the line of jurisdiction legal form for forensic litigation and judicial decision. between the two States; because those States were not There must be parties to come into court, who can be parties. So said the Supreme Court of the United States reached by its process, and bound by its power; whose in the cases of Fowler vs. Miller, and Fowler vs. Lindsay, rights admit of ultimate decision by a tribunal to which (3 Dallas, p. 411.) And one of the judges, in delivering they are bound to submit. A case in law or equity may his opinion, with whom all concurred, asked emphatically, arise under a treaty, where rights of individuals acquired "On what principle can private citizens, in the litigation or secured by a treaty, are to be asserted or defended in of their private claims, be competent to fix the important "But the judicial power cannot extend to rights of sovereignty?" political compacts." This distinction between a political power and a judicial power is recognised and acted upon by the Supreme Court of the United States, in the case of Williams vs. Armroyd, 7 Cranch, 423,433.

courts."

The twelfth amendment to the constitution takes away the jurisdiction which had been given to the Supreme Court to hold jurisdiction of a suit against one of the United States by a citizen of another State, or by citizens Again, in the case of Marbury vs. Madison, (1 Cranch, or subjects of any foreign States; but leaves the juris137; 1st Peters's Condensed Reports, 279,) this distinction diction conferred over controversies between two or more between the political powers of Government and the States. If two States, therefore, have a controversy, judicial power is most explicitly avowed and recognised which, in its character, makes a case in law or equity proby the Supreme Court. The supremacy of that court is per for judicial cognizance, it may be brought before the a judicial supremacy only. It is supreme in reference to Supreme Court. Controversies between two or more the other courts, in questions of a judicial character, States, about territory or limits, may be litigated before brought within the sphere of judicial cognizance by con- the Supreme Court of the United States. But then each troversies which shall have assumed a legal form for State must have an opportunity, as a party, to prosecute forensic litigation and judicial decision. There must be or defend her right before the decision can bind her. parties amenable to its process, bound by its power, Those are questions of meum et tuum; rights of property whose rights admit of ultimate decision by a tribunal to which one State claims to the exclusion of the other; not which they are bound to submit. "Questions in their political rights belonging to all the States respectively, nature political, or which are by the constitution and laws where the rights and powers of one State does not exsubmitted to the Executive, can never be made in this clude but establishes the rights of each and every other. court." Such rights claimed for all, as belonging equally to each The decision of the Executive, upon political questions and every of the States respectively, cannot make a consubmitted to its discretion, is as supreme as the decision of troversy in law or equity between two States. the court within its jurisdiction. Neither department| Political powers not delegated to the Federal Governought to invade the jurisdiction of the other; so said the ment, political powers reserved to the States, constitute Supreme Court of the United States, in Marbury vs. Ma- the subjects of the propositions which are affirmed on the dison. A judicial decision binds the parties litigant in one side, and denied on the other. The propositions that particular case, not others who are neither parties affirmed are, that the powers of the Federal Government nor privies, whose rights and privileges are separate and result from the compact to which the States are parties; distinct. Not even the court itself is bound to give the that these powers are limited by the plain sense and inlike decision between other parties, where a similar ques- tention of the instrument constituting that compact, and tion may be involved. Prudence will dictate that a former no further valid than they are authorized by the grants decision be not lightly disregarded, but adhered to in a enumerated in that compact; “and that, in case of a subsequent case, unless the judges see an error in the deliberate, palpable, and dangerous exercise of other former decision. But honesty requires that an erroneous powers, not granted by the said compact, the States, who opinion be not carried into doctrine, and error perpetuat- are parties thereto, have the right, and are in duty ed, merely because of the first error. Errors should be bound, to interpose for arresting the progress of the evil, corrected, not perpetuated. To err is the lot of man; and for maintaining, within their respective limits, the to correct an error is noble and praiseworthy. No decision authorities, rights, and liberties appertaining to them." binds in law or in morality, beyond the rights of the If the Congress of the United States usurp and exerparties litigant, and those claiming under them as privies; cise a power not delegated, but reserved, it is evident and even there, not until the time for a new hearing or that the controversy about this exercise of power must re-trial has expired. But as to all other persons, it binds be between the Government of the United States and not. It is contrary to the first principles of justice, that the States. How is this controversy to get into the courts, the rights, interests, and privileges of any person should and finally to the Supreme Court, so as to bind the State be decided, negatived, and abrogated, before he is heard as one party, and the Government of the United States as to make good his title and his claim, his rights and his the other party? For on no principle can private citizens, justification. God in his infinite wisdom did not condemn in the litigation of their private claims, be competent to Adam unheard. And this example of divine wisdom and fix the important rights of sovereignty. A decision in a justice is fit to be imitated by human tribunals. case to which a State is not a party cannot bind the State;

When parties present themselves before the Supreme it is res inter alios acta. So said this court, to whom these Court of the United States to litigate the judicial question litigated questions of the limits of sovereign power are involved in that controversy, the decision of the court supposed to be referred, by those who deny the right of binds the rights and interests therein represented and liti-the States to interpose.-Fowler vs. Miller and Lindsey, gated; it binds no others. 3 Dall. 412.

The public rights, privileges, authorities, and preroga- Mr. Callender was tried, convicted, and sentenced to tives of the States, are not the property of individuals, fine and imprisonment in the State of Virginia by the

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Revenue Collection Bill.

[JAN. 31, 1833.

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federal court, under the sedition law. Now, it is clear imprisoned, on conviction of such disobedience, and never that Mr. Callender was not in his individual person the admitted to become a citizen of the United States. representative of the State of Virginia, so as to bind that obtain a license, such alien was to prove his innocence, State by the decision, and fix her sovereign rights. Mr. and to give bond and security for his good behavior, and Lyon was tried and sentenced in Vermont under the sedi- for not violating his license; which the President, howev tion law by the federal court; yet that decision did not er, might revoke at his pleasure. All aliens ordered to bind the State of Vermont. Mr. Cooper was sentenced depart, who did not obtain license to remain, were liable for sedition by the federal court in the State of Pennsyl- to be arrested and sent out of the United States, at the vania, yet that did not bind that State; neither did all discretion of the President.

these decisions bind the States, nor settle the point that This act was not levelled against the citizens of any the sedition act was valid and constitutional; nor would the power, State, or potentate, at war with the United decision of the Supreme Court have had that effect if States, for there was then no declaration of war by the such cases could by law have been carried to the Supreme United States against any foreign power. There was Court. another act passed in July, 1798, "respecting alien To bind a State, and command obedience to the de-enemies," providing for a case of war, and operating only cision of the Supreme Court, in a question relating to a upon the citizens or subjects of the hostile nation or Govdangerous usurpation of powers not delegated, but re- ernment. This act of June, 1798, was levelled at alien tained by the States, it is necessary that a case should be friends; against those who had been invited by the policy brought before that court between the United States and of the States, and the genius and spirit of our free instia State, as parties litigant; because, according to the first tutions, to fly from the oppressions and convulsions of the principles of jurisprudence, none but the rights of par-old world, and seek an asylum in the States; against opties are bound by the decision. pressed humanity, seeking a home on our peaceful shores. Where is the grant of power to the judicial department All this numerous class of aliens, not then having comto hold a plea of controversy between the United States pleted their naturalization, were placed at the discretion and a State, as parties in a controversy touching the poli- of the President, to be removed upon suspicion, without tical powers alleged to be reserved to the States, respec- the form of a trial, except in the mind and judgment of tively, and not delegated to the Federal Government? Is the President. The sedition law operated upon citizens there any thing in the constitution which gives color to as well as aliens.

the idea that a suit can be maintained in the Supreme These two acts, when made to bear against particular Court, or in any of the inferior courts, between the individuals, might have been the subjects of judicial inUnited States as plaintiffs and a State as defendant, or vestigation in each particular case; but the decision in such between a State as plaintiff against the United States as case would have affected only the personal rights of the defendant, to settle a controverted question of delegation individuals, parties to the judicial proceeding, but could and reservation of political powers? Would such a suit not fix and bind the important rights of the State sovebe a case in law or equity according to any usage of reignty involved in those two acts of Congress. Those speech? Let us try to frame the complaint on the one acts, although they had never been brought to bear upon side, and the defence on the other, and come to the a single person, did invade the political rights and powers judgment, upon the alien and sedition laws. What sen- of the States, violated that security for liberty of speech, tence is to be passed upon the State? I suppose that her of the press, of the person, which the States respectively resolutions were seditious and unconstitutional; that she had a right, and were in duty bound, to maintain within should forever thereafter acknowledge that the alien and their respective jurisdictions; and counteracted the policy sedition laws were constitutional; that she repeal her false and interests of the States, by driving from their shores and seditious resolutions. Ridiculous! alien friends, whom their laws had encouraged and invited Let the Attorney General of the United States try to to settle their vast tracts of wild, uncultivated lands; the frame a bill in equity, or an indictment for the United faith of a sovereign State was pledged; that sovereign States against a State or States; or the Attorney General was bound to take care that its plighted faith was not of a State to frame a declaration at law, or bill in equity, violated by the usurpation of another potentate. The or indictment, for a State against the United States, to try private rights and personal security of individuals, and the controverted questions of political powers delegated the political rights, authorities, and powers of the State and retained by the States; draw out the plaint, and it Governments, were both invaded and violated by these will appear at first blush to be an anomaly, not known in two acts. An individual might be indicted for sedition, the vocabulary of "cases of law and equity," not to be and sentenced, or be arrested for refusing to depart acclassed under the judicial power over cases in law and cording to the order of the President, and the court might equity, according to any law or rule of speech. There refuse to discharge him upon habeas corpus. The private is no grant of power to the Supreme Court to hold juris- rights of the individual, when violated under color of the diction of any such plaint or bill. Such a plaint in law alien or sedition law, might be submitted to the judicial or in equity would be a novelty in the history of judicial powers. But the political powers, authorities, and liberpowers. The portentous consequences of such a juris- ties of a State, violated by those laws, cannot be subjectdiction in the court would strike with terror and amaze- ed to the judicial power of a federal court, supreme or ment as soon as such a process should be instituted. inferior; they cannot be arrested, tried, condemned, re

The alien act of June, 1798, was enacted when the moved, or extinguished. Such cases as do not fall proUnited States were at peace with all the world. By this perly under the denomination of judicial powers, of cases it was declared that it shall be lawful for the President of of law and equity, according to common usage and accepthe United States "to order all such aliens as he shall tation antecedent to the constitution, required an enumejudge dangerous to the peace and safety of the United ration and express delegation to the judicial department States, or shall have reasonable grounds to suspect are to hold cognizance of such classes, of which there are concerned in any treasonable or secret machinations examples in the constitution; such as controversies beagainst the Government thereof, to depart out of the ter- tween two or more States, and between a State and foritory of the United States within such time as shall be reign States, &c. expressed in such order." Any alien, so ordered to depart, found at large within the United States, after the time limited in such order, and not having obtained a license from the President to remain, was subject to be

The distinctions between political and judicial powers; between judicial cases in law and equity, and political cases; between the binding effect of a judicial decision on the parties litigant, and its want of obligatory force on

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