the English language, and our Anglo-Saxon no supreme over those societies, and the individutions of liberty, to sustain us. General Wash-als of whom they are composed. But it will ington, in his farewell address, makes the fol- not follow from this doctrine, that acts of the lowing observations : larger society which are not pursuant to its con"It is important, likewise, that the habits of stitutional powers, but which are invasions of thinking, in a free country, should inspire cau- the residuary authorities of the smaller societion in those intrusted with its administration, ties, will become the supreme law of the land. to confine themselves within their respective These will be merely acts of usurpation,and will constitutional spheres, avoiding, in the exer- deserve to be treated as such." Such a law, he cise of the powers of one department, to en- says again, "would not be the supreme law of croach upon another. The spirit of encroach- the land, but an usurpation of power not grant. ment tends to consolidate the powers of all the ed by the Constitution." "departments in one, and thus to create, what. "It may safely be received as an axiom in ever the form of government, a real despotism. our political system, that the State Government A just estimate of that love of power, and will, in all possible contingencies, afford comproneness to abuse it, which predominates in plete security against invasions of the public the human heart, is sufficient to satisfy us of liberty by the national authority. Projects of the truth of this position. The necessity of usurpation cannot be masked under pretence reciprocal checks in the exercise of political so likely to escape the penetration of select bopower, by dividing and distributing it into difdies of inen, as of the people at large " ferent depositories, and constituting each the "Power being almost always the rival of guardian of the public weal, against invasion power, the General Government will, at all by the others, has been evinced by experi- times, stand ready to check the usurpations of ments ancient and modern some of them in the State Governments; and these will have our own country, and under our own eyes. To the same disposition towards the General Gopreserve them must be as necessary as to insti-vernment. The peop'e, by throwing themtute them. If, in the opinion of the people, selves into either scale, will make it preponthe distribution or modification of the constitu derate. If their rights are invaded by either, tional powers be, in any particular, wrong, let they can make use of the other as the instruit be corrected by an amendment in the way ment of redress. How wise will it be in them, which the Constitution designates. But let by cherishing the union, to preserve for themthere be no change by usurpation: for though selves an advantage which can never be too highthis, in one instance, may be the instrument of ly prized !” good, it is the customary weapon by which free "In the compound republic of America, the governments are destroyed. The precedent power surrendered by the people is first dimust always greatly overbalance, in permanent v ded between two distinct governments, and evil, any partial or transient benefit which the then the power allotted to each subdivided use can at any time yield." among distinct and separate departments What is the meaning of the necessity of re- Hence a double security arises to the rights of ciprocal checks, in the exercise of political the people. The different governments will power, by dividing and distributing into differ- control cach other at the same time that each ent depositories, and constituting each the will be controlled by the people." guardian of the public weal against the invasion "It is well known, that in the Roman repubof the other, unless it means, that the States lic, the legislative authority in the last resort, who have political rights, as opposed to fede- resided for ages in two different political boral rights, must be the guardian of them? The dies; not as branches of the same legislature, father of his country has cautioned against con- but as distinct and independent legislatures; in solidating all power into the hands of the Fede- each of which an opposite interest prevailed, ral Government, and its tendency to despotism; in one the Patrician, in the other the Plebian. he has not only pointed out the danger, but sug- Many arguments might have been adduced, to gested the remedy; the constituting each pow- prove the unfitness of two such seemingly coner the guardian of the public weal, against in-tradictory authorities, each having power to vasion by the other. annul or repeal the acts of the other. But a man Let us now hear Col. Hamilton,-not in the would have been regarded as frantic, who convention, insisting what the Constitution should have attempted at Rome to disprove their should be, nor in the Treasury Department, existence. And yet these two legislatures excarrying out his high-toned principles; but in isted for ages, and the Roman republic attained his address to the people of the States, per- to the pinnacle of human greatness." suading them to adopt the Constitution, and Mr. Jefferson, in the Kentucky resolutions, giving a commentary which has always been maintains the doctrine we contend for, in terms considered almost as binding as the text. He not to be mistaken: he who runs may read it. maintains, in various numbers, the powers and The following sentiments, from the pen of that rights of the States, as will be seen by refer- great man, covers the whole ground: ence to his writings in the Federalist: "The several States composing the United If a number of political societies enter into States of America, are not united on the prina larger political society, the laws which the ciple of unlimited submission to the General latter may enact, pursuant to the powers entrust- Government; but that by compact under the ed to it by its constitution, must necessarily be style and title of a Constitution for the United States, and of amendments thereto, they con-wrote his masterly commentary on the prin stituted a General Government for special ciples of our Government-to be found in the purposes; delegated to that Government cer- State paper, from which the above is an tain definite powers, reserving each State to extract? itself, the residuary mass of right to their own Sir, we rest upon the great names to which self-government; and that whensoever the I have referred. Are these authorities to be General Government assumes undelegated contemned, and is South Carolina put under powers, its acts are unauthoritative, void, and the ban, whilst she follows truth and correct of no force; that to this compact, each State principles, illustrated and enforced by the illus acceded as a State, and as an integral party, its trious patriots of 1776-1798? co-states forming to itself the other party; that Let us advert to the Constitution itself, and the Government created by this compact was see how far its plain import will sustain the not made the exclusive or final judge of the doctrine, that the rights of the States are alone extent of the powers delegated to itself: since to be determined by the Federal Judiciary: that would have made its discretion, and not "The judicial power shall extend to all cases the Constitution, the measure of its power; but in law and equity, arising under the Constituthat, as in all cases of compacts among parties tion, the laws of the United States, and the having no common judge, each party has an treaties made, or which shall be made, under equal right to judge for itself, as well of in- their authority," &c. fractions, as of the mode and measure of "In all cases affecting ambassadors, other redress." public ministers, and consuls, and those in In the Virginia resolutions, from the pen of which a State shall be a party, the Supreme Mr. Madison, we find the following position Court shall have original jurisdiction, both as maintained: to law and fact, with such exceptions and "It appears to your committee to be a plain under such regulations as the Congress shall principle, founded in common sense, illustrated make." by common practice, and essential to the nature There is no mention made of appeals from of compacts, that where resort can be had to State courts here. Under the terms, "Such no tribunal superior to the authority of the regulations as Congress shall make," are the parties, the parties themselves must be the States chained down. rightful judges in the last resort, whether the bargain has been pursue.l or violated. In partitioning out the Federal powers be tween the Executive, Legislative, and Judicial "The Constitution of the United States was departments, no one should suppose, that the formed by the sanction of the States, given by States can be considered as adverted to. The each in its sovereign capacity. It adds to the President is to have certain powers, Congress stability and dignity, as well as to the authority to have certain powers, and the judges to of the Constitution, that it rests on this legiti- exercise certain powers-all obviously federal mate and solid foundation. The States then, in their nature. The President is not to see a being the parties of the constitutional compact, State law executed, Congress is not to legislate and in their sovereign' capacity, it follows of for the States; and why is it, that, under necessity, that there can be no tribunal above general phrases, used with reference to the their authority, to decide in the last resort, partition of the federal powers, it is assumed, whether the compact is made by them, or that the Supreme Court is to revise and execute violated; and consequently, that as parties to it judgments of the State courts? If the State they must themselves decide, in the last resort, courts had been within the scope of the meansuch questions as may be of sufficient magni-ing of inferior courts, subject to the appellate tude to require their interposition." power of the Supreme Court, why declare, I refer to this report for its own intrinsic and that they should be bound by the Constitution, unanswerable reasoning; not because it is the laws, statutes, in a distinct and separate opinion of Madison, but because the principles clause? contained in that report were adopted and We are told by the Chief Justice, in his life recognized by the democratic republican party. of Washington, that the Federal Constitution This great civilian was at that time in the prime was committed, after its adoption, to the feder of life, surrounded by patriots and sustained by al party; and it seems, what it lacked of enerpure principles. That his opinions, before orgy, they determined to acquire by legisla after this time, should vary from this report, tion. matters nothing. The question is, when was The judiciary act sprang into existence, emhe right? In the Convention, when he avow-bodying principles which were repudiated in' ed, the States "were only corporations, having the convention, and which, to a certain exthe power to make bye laws, and those effectent, have never been acquiesced in, notwithtual only, if they are contradictory to the standing the ingenious devices resorted to, by general confederation-when he avowed, the construction, to subvert the authority of the States ought to be placed under the control of States. the General Government, at least as much so Without denying the authority of the judi as they were under the King and British Par-ciary act, there is still a redeeming spirit in liament? In his letter to the North American the constitution which rises above all artifice Review, when he maintained the supremacy of and bids defiance to every scheme of federal the Federal Judiciary, or, in 1799, when he subjugation. So long as tlie trial by jury shall be preserved, it is impossible to enslave the two separate governments, and may, on a conpeople of this commonwealth; and when it is flict of authority, elect which they will obey. recollected that your laws cannot be enforced A judge has no power, without the posse comiwithout the aid of juries, whose interests and tutus. Federal laws cannot be enforced but prejudices will be interposed to save their by the people of the States. The laws of countrymen, federal legislation and federal Congress, and the laws of the State, operate judges are impotent and powerless, for purpc upon the same territory, and depend on one ses of tyranny and oppression. people for their execution, where they con It is true, upon a late occasion, in open defi- flict, they may be considered as two overseers ance of the principles of the letter of the con- on the seme plantation, giving contrary orders; stitution, the right of the trial by jury has been the slaves may elect which to obey; and if con violated, and the liberty of the citizens invaded fusion arises, the master must come forward by a course of reasoning as arbitrary and des- and adjust the difficulty, control the overseers, potic as ever signalized the judgments of the lay down the rule, and enforce it. So must courts during the reign of the Stuarts. Such the whole people of the United States, who infractions upon the constitution cannot be suc-are the only master, in case confusion arises cessfully repeated; and if they should be, the between the State and Federal jurisdiction, State authorities have complete power to coun come forward. It was thus, they did in the teract them; and we have no sight to presume case of Chisholm against the State of Georgia, such authority will not be called forth in this when Georgia refused to submit to the Su palladium of civil liberty. There is no usurpa preme Court. It is unwise and impolitic for tion against which I would bring the reserved this government to put the skill of the State rights of a State into action,in its most efficient Governments to the test, in eluding and bafform, sooner than in maintaining the trial by fling its laws. If a State Legislature were to jury. make the collection of duties beyond a certain There is scarcely any law in which I would extent penal, say petit larceny, how would not acquiesce, when enforced by my neigbors you save your officer from the consequences and friends-by those having similar rights and incident to such legislation? The state judges similar feelings. This is our last peaceable re- would try, the juries convict, and the sheriff fuge, the sanctuary which is not to be violated, inflict forthwith the punishment, and of what without State author.ty interposing to punish avail would your writ of error, or appellate juthe sacrilege. risdiction be, supposing it to exist, which is The Senator from Maine has referred to not conceded. If you persist in this reckless Olmstead's case, in Pennsylvania, to prove the disregard of public opinion, your authority in folly of a State attempting to resist the federal certain sections of the union will be contemnauthority; and has humorously spoken of Gen.ed, scouted, scoffed at, and become a reproach Bright. This is an authority on our side, rath- and a by-word. Listen to what that able and er than otherwise; it shows what were the opi-enlightened jurist, Chief Justice Parsons, laid nions of those truly democratic statesmen and down upon this subject. patriots, Snyder, McKean, and Tilghman.- An act of usurpation is not obligatory-it Can any one doubt but the commonwealth is not law. Any man may be justified in his of Pennsylvania would have prevailed in that resistance to it. Let him be considered as a controversy, but for the decision of her own criminal by the General Government; yet his Chief Justice against her? And although he own fellow-citizens alone can convict them.→ decided the point then in issue against the They are his jury; and if they pronounce him State, he still maintained the right of the State innocent, not all the powers of Congress can Judges to protect her citizens arainst usurped hurt him—and innocent they certainly will proauthority by the Federal Government. Olm-nounce him, if the supposed law which he restead's case no more proves the want of pow-sisted was an act of usurpation." er in the State authorities to protect her citi- Sir, one half of the States of this Union have zen's rights, than the case of Tassels and Co- avowed, and acted on the principle, that the hen proves the want of authority of the United States have rights, and the means of enforcing States Court to protect their citizens against them. Massachusetts, Maine, New York, PennState usurpation. sylvania, Maryland, Connecticut, Ohio, VirgiIn the case of Olmstead, Chief Justice Tilgh-nia, South Carolina, Georgia, Alabama, and man maintained the jurisdiction of the State Kentucky. And the Senator from Maine is Court, but refused to act in that specific in entirely mistaken in supposing they have alstance. In the case of Tassels and Cohen, the ways been vanquished in the controversy.— Supreme Court did precisely the same; they Sometimes the Federal Government has preconsidered prudence the better part of valor. vailed; sometimes the States-but generally, The Federal Government ought to be cautious good sense and mutual forbearance have adjustbow it tries its strength. The Popes, in the ed the controversy: proudest days of their power, chose to govern Considering the situation of Maine, at this rather by fear than force. Let the Senate re-time, the opinions expressed as well by that member, Bonaparte lost his throne by his State as by Massachusetts, on the subject of march to Moscow. The Federal Government the northeastern boundary, I think the Senator relies more on its moral than physical force, to from Maine maintains his consistency rather at sustain itself. The, people owe allegiance to the expense of public opinion, and the local in terest of his constituents; and there is but one ard will submit to the invasion of his personal ground upon which I can justify his course. If, rights. No one ought to act on the supposiby loyalty to the Federal Government, he can tion of danger resulting from what he has a get it to interpose, to protect the rights of right to do. Maine, it will be better than to let Maine, sin gle-handed, struggle for them. The Senator from Maine thinks, because he stood up for the Federal Government against State authority, during the late war, that he has a right, now, to take to himself the same credit for standing forth its champion in profound peace. He tells us the times have chang. ed, and we have changed with them. I contend that it was perfectly right in the gentleman to sustain the government of the Union du ring the war; and equally right,now, to sustain the government of the States. There can be no doubt but in conceding to Congress the power to levy taxes; the objects upon which the taxes are to operate must be selected by that body. In selecting, however, the articles for taxation, the Constitution again takes care that injustice shall not be done.The taxes must be uniform; any design to violate this rule, would be unconstitutional. In fact, the Constitution was intended to secure life, liberty, and property; and no legislative device can be resorted to, to pierce the panoply which that instrument throws over the rights and 1.berties of the people of this counUnder different circumstances, different rules try. It is an entire protection, even the heel of conduct are perfectly defensible; and the cannot he wounded, and when it shall cease to gentleman might maintain his consistency of subserve this purpose, our government henceaction at the expense of becoming ridiculous. forth will degenerate into a despotism—an ir. When he is in deep water, we should expect responsible depotism. By the 1st, the customs received as 97,000 95,000 Difference, 2,000 him to use the swimming motion; when on land, Upon the expediency and policy of this syswe should expect him to stand up and walk. 1 tem, the free trade reports, memorials, and arhave seen it stated of a gentleman who fell o-guments of those who have preceded me, will verboard in a river, that he was so alarmed at save me the trouble of going much in detail at the thoughts of drowning, he continued, after this time. It has been said that the home marhe was safe on shore, to swim. During the wars ket has been improved for agricultural prowe were struggling in deep water, and it was ducts, through the agency of this system. I all right for the honorable Senator to swim have no doubt the free trade policy would then; but now he is upon lerra firma, let him greatly increase the demand for most of the escape from the river-let him stand erect up-agricultural products. And to sustain this po on Maine and State nights. But, it is said, if the sition, I quote the following judicious observageneral government has not the power to sup- tions: port itself against all opposition, our Union is a "The Free Trade System.—Some idea of its rope of sand. This is a mere fallacy. The advantages over the restrictive, may be seen by governments rests, at last, upon the States, and comparing the amount imported, when the du is founded on the supposition that the peoplties were 100 cents per gallon, on Madeira will, for their own interest, sustain it. Cannot wine-worth the same when the duty was re. the States, by refusing to act, dissolve the go- duced to 50 cents. verument? May they not refuse to elect Senators, electors, and members of the other House? Does this make the government a rope of sand? The question is, will the people do what is op. posed to their own interest? Have they not in. telligence and forecast enough to govern them selves? This is presumed by the theory of our government. Is there any danger that the weaker power will resist the stronger one, unless it is clearly right? But it is said that both For this nineteen hundred dollars less at parties have a right to put their construction on the Custom House, the country derive a benethe extent of th ir powers, that the Federal fit of about two hundred thousand dollars per Government will always construe for itself, and annum, for there being imported nearly double enforce, by its authority, its own construction. the quantity of wine; the exports, whether in Of course, this must necessarily belong to the Federal Government. The question, then, would resolve itself into this: would a small man permit a larger one 'quietly to take a pu sition on his toes, and refuse to push him off, merely because a larger one might res nt an punish him for doing what he had the most un- The Senator from Rhode Island has gone questionable right to do? And here let me rento a calculation to show that, upon the supmark upon the specific difference between S. position that the duty increases the price of the Carolina and Georgia nullification. In the cas articles, to prove that the cotton planti g States just referred to, the Georgian would knock derive an enormous increase of the profis by down he trespasser without notice, and the S. the tax of three cens per pound on cotton; and Carolinian would say, my friend, stand off my by establishing this acknowledged absurdity, toes, or I will push you off; none but the cow-supposes he will escape from the argument so After deducting charge of collecting, 1,900 the shape of codfish, flour, or rice, would be that much greater to pay for it-besides the advantages the navigation secured by carrying so much more-and people in moderate circumstances can afford to drink a glass of good wine, instead of deleterious trash." far as regards the duty on cotton goods. The to make a rail road from Charleston to Hamfair way to test this matter, is to repeal the du- burgh; and they applied to Congress to assist ty on both. I pledge myself, if the Senator will them. While the result of this application, vote to repeal the duty on manufactured cotton and the extent of their means remained uncer goods, I will vote to repeal the duties on raw tain, an intelligent capitalist told me, that if the cotton. It is not pretended, that the tax ope- scheme failed, the company would realise, in the rates as an increase of the price of the domes-purchase of manufactured iron, which pass a less tic article, to the whole amount of the tax in duty than the raw material, the suin of one hunevery instance. But we are told, the duties dred thousand dollars, upon the iron purchased reduce the prices of the article, and that, in for the rail road in Europe, by selling it for progress of time, we shall be supplied with the common agricultural purposes. With such domestic fabric at prices below the foreign ar ticle. This does not seem likely to be the result, as appears from the following letter, writ ten by an intelligent merchant of Columbia, South Carolina, from New York: facts as these before us, who can subscribe to the doctrine that the duty decreases the price. We have on our tables essays written to prove that it is all nonsense to take off any of the taxes. Is it not palpable that those who think so, do not pay them, but derive the benefit therefrom? "New York, Sept. 1831. DEAR SIR-I have forwarded you some New When gentlemen are driven from every po York papers, and now discharge what I feel to sition, behind which they entrench themselves, be a duty, in stating to you the state of this they fall back upon vested rights, and tell us it market; this I could do with some accuracy, by was the south that imposed this system; they saying at once that there is an advance of 20 get furious and say, it was you that have done per cent. in all descriptions of staple goods, this mischief Now, what are the facts? In such as are indispensable to planters. I will, 1816, we had just escaped from a hazardous however, go more into details. Since Septem-war; the manufactures, to a certain extent, ber 1830, sprang up under war duties; Bonaparte had Nails have advanced 1 cent per lb. 20 per cent. been put down-the whole disposable British Bar lead Bale roping 14 66 25 66 40 66 Anvils and vices - 2 to 3 66 force had been thrown upon our shores-our capital had been sacked and burnt-Baltimore assailed-their squadrons fell down the ChesaWhite lead [25 kegs] 31 cts. per keg 124" peake-passed south-threatened Charleston, Hardware has advanced in price, from 10 to making only a bow to Fort Moultrie-attacked 20 per cent. All descriptions of domestic New Orleans, were gloriously defeated, and goods, such as brown and bleached homespuns, soon after, a treaty of peace put an end to the striped homespuns, checks, ticklings, negro war-cotton rose from 7 cents to 30; and while clothing, &c., have advanced 20 per cent., prosperous beyond measure, exulting in the in twelve months, and cotton yarns 25 per cent., arms of peace, and triumphing over the tro Dafil blankets and coarse woollens about 20 phies of the war, we consented, upon the pure per cent." principles of benevolence, to sustain by liberal And Every planter in the southern country knows legislation the manufacturing interest. that these articles have increased in price. this is brought forward against the south as a The continued assertion, by the manufacturers, criminal charge. You asked us then for a that the higher the duty, the cheaper the artic'e, pittance as a bounty; because it was given you, is just about as true, as the proposition that by now, with a pistol presented at our breast, deputting a fish into a tub of water, the weight is not mand all we have. thereby increased, and the latter would be quite I believe I speak the truth when I say the as susceptible of proof by learned dissertations average product of the South Carolina planter on hydrostratics, as the other is by pretenders is not more than six hundred pounds of cotton to political and statistical infallibility. One to the hand; and the Senator from Louisiana, thing, we all know, that something cannot who sits near me, who is good authority on this come out of nothing; that we pay now, nearly subject, admits, that with this result, the exthirty millions in taxes, drawn from imports. penses of such a planting interest must equal If the duties are taken off articles not manufac- the income. Can any one doubt, then, that the tured in the United States, one of two things duty of forty per cent. might as well be laid must happen, either that the foreign article, upon the exports as the imports; according to burthened with the duty, will be consumed, or this rule, the government gets two hundred and that it will be excluded by the domestic article forty weight, and the planter three hundred if consumed, it proves that the tax increases and sixty, of the product of each laborer. And the price; if not consumed, where will you yet, the honorable Senator from Kentucky, has get your revenue? If domestic fabrics fall be-gone into a calculation, to prove that South low the price of the foreign article, then the tax Carolina does not pay an equal portion of the will prohibit the foreign article, and we shall taxes; assuming the aggregate amount of the have no revenne. Sir, this will not be the re-imports of the whole State to be eight millions, sult; the foreign article will still be imported, and that our aggregate expenses equal our inconsumed, and the people taxed. come, it would follow as a mathematical cerIt will be recollected that a few years since, a tainty, that we pay from three to four millions company was incorporated in South Carolina, as our portion of the taxes. It is considered A |