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APRIL 2, 1830.]
Mr. Foot's Resolution.

[SENATE. enforced by the courts, and no State law can stop them. Now, upon the principle assumed in debate, of the right All controversies, in which the United States are a party, of a sovereign to decide these questions of sovereignty for gives jurisdiction of all cases where her sovereign power itself, the General Government ought to have declared, is called in question; and all questions of inhibited powers through Congress, that these acts were void. to the States arise directly under the constitution. vereign State, having an interest in the case, would have

The laws, in general, operate on the rights of individu. a right to interpose her veto, and then the State must als claiming under the sovereign power of the United cease to act under it. But is not this judicial mode much States. Thus, the sovereignty of the United States made easier and safer? Suppose the State executes prohibited a bank; the sovereignty of Maryland undertook to tax it; laws, and there is no tribunal to decide. The two authothe United States denied the right; the court decided rities would come directly in conflict. The court has an. this act of sovereignty, on the part of Maryland, to tax it, nulled the judgments of State courts in fourteen cases, void. Here, the corporation claim rights under the con- which drew in question the constitution, laws, or treaties stitution and law of the United States; it is under the con- of the United States, but has affirmed as many, which stitution, and the law of the United States it will often shows that they have no bearing against the rights of happen that questions will arise between individuals States; and which, if it had no other effect, has preserved claiming rights and powers under the two Governments. the uniformity so essential to the administration of justice The wise heads that framed the Judiciary Act saw this, and under them. It shows, also, the indispensable necessity made the recessary provision of the 25th section. This of the twenty-fifth section of the Judiciary Act; it exhibits presents an admirable system, perfect in all its parts, har- the fact that, while only eight questions have arisen on the monious in all its operations, which establishes justice, en constitutionality of acts of Congress, thirty-five have oc. sures domestic tranquillity, and preserves the Union. curred on that of State laws. In all these cases the line

In the other alternative, I see nothing but confusion has been distinctly drawn between the two powers, and and disorder, and, in the end, disunion and anarchy. In the two jurisdictions; all parties acquiesce, and the whole pursuance of this organization of the court, one hundred system moves with the grcatest harmony. and seven points or principles have been decided, under But it is said they are the creatures of the Government. the constitution, each of which involved some disputed How? They are members of the States, created by the question with regard to the power of the General Govern people and by the States, to decide for all the people, ment, or of the States, or of the courts. It has fulfilled and for all the States. They decide principles that act the design of its institution; it has settled most of the every where, and upon every class and interest, and must doubtful points that necessarily arose in putting this great operate in all time. They must sustain the jurisdiction machinery in operation. It has given form and consisten- you have conferred upon them, and no more. Their chacy to the constitution, and uniformity to the laws. It has racter, talents, and fame, are the best security, and the preserved its own high character, in the midst of politi- highest guarantee, for the faithful performance of their cal conflicts, and, by its purity, elevation, dignity, and duty. They are selected for their signal qualifications, learning, maintained the confidence of the people; and it and will probably be of the dominant party when appointwill hold this place as long as its members pursue the even ed; they are independent in their office; they decide beand quiet tenor of their way, high above the hopes of of- fore the whole country, and under the scrutiny of a fice, or the reachings of ambition. But, if they enter the learned and watchful profession, and subject to the jealpolitical arena, and become aspirants there, they will ous care of the State tribunals. The court is permanent, catch the passions of the people, and the spirit of parties, whilst the esecutive and legislative branches are continuand they will perform their duties under their influence. ally changing: Opinions, parties, and men, are undergoThey will either conform their opinions to the party they ing constant revolution, while the principles of the Goattempt to propitiate, and thus vary them from time to vernment, the construction of the constitution, and the time, or degrade the court with shameful disagreements, interpretation of the laws, remain fixed. The Judiciary until it becomes a cabal instead of a court; they will lose, is the only principle of stability in the Government. as they will deserve to lose, the confidence of the country. It was undoubtedly the intention of the convention to

The following list will exhibit the nature and number constitute a Supreme Court to decide all questions of law of the causes decided. The same case is sometimes count or sovereignty, and the words are as general and as am. ed under different heads:

ple as the language admits. But, in addition to this, it is 1. Declaring acts of Congress unconstitutional, 2 cases. the duty of the President to take care that the laws be 2. Declaring acts of Congress constitutional, 6 faithfully executed, and Congress have power to provide, 3. Declaring State laws constitutional, 9 and they have provided, that the President may call forth 4. Declaring State laws unconstitutional, 26 the militia to execute the laws of the Union, suppress in5. Affirming judgments of State couris, 14 surrections, and repel invasions. Besides, the Congress 6. Annulling judgments of do.

14 have power to suspend the habeas corpus in cases of re7. Assenting to appeal of jurisdiction, 7

bellion and invasion. This superintending power of 8. Acquiescing in do.

21 the Government was understood perfectly by the fra. 9. States parties really and nominally,

6 mers of it. To secure the citizens of the respective 10. States parties incidentally,

States from being punishable as traitors to the United 11. Opinions against the President,

2 States, when acting expressly in obedience to the autho. 12. Opinions in favor of the President, 2 rity of their own State, it was proposed, in the conven13. Opinions against the Secretary of State, 2 tion, to add: “Provided that no act or acts done by one

It may be remarked that each of these cases involves or more of the States against the United States, or by any some principle of sovereign power. The right of the citizen of any one of the United States, under the authority court to decide, then, between individuals, has not been of one or more, shall be deemed treason, or punished as denied. No State has interposed. The opinions are ge- such; but, in case of war being levied by one or more of the nerally approved by professional men throughout the States, against the United States, the conduct of each par. country. They prove the necessity, and demonstrate the ty towards the other and their adherents, respectively, independence of the tribunal. They have decided twen- shall be regulated by the laws of war and of nations” ty-six State laws to be unconstitutional; that is, inter- which was not adopted; which sufficiently explains the fering with the rights of the General Government; which, views of the convention. But, after the adoption of the considering these as twenty-four States, are not equal to constitution, the State of North Carolina proposed, as an the number of decisions against the acts of Congress, amendment, that no State should be declared in rebellion

4

SENATE.]

Mr. Foot's Resolution.

(APRIL 2, 1830.

but by the consent of two-thirds of the States present, “ The proposed constitution is, in strictness, neither nawhich was also not adopted.

tional nor federal; it is a composition of both; in its foun. If this is the true interpretation of the meaning of the dation, it is federal, not national; in the sources from constitution, they will take upon themselves a heavy re- which the ordinary powers of the Government are drawn, sponsibility who undertake, upon a mere abstract theory it is partly federal, partly national; in the operation of of right, to resist or to interfere with the regular and le. these powers, it is national, not federal; in the mode of gal operations and functions of the different branches of amendment, it is neither wholly federal nor wholly nathe Government, at the will and pleasure of the States. tional.”—[Federalist.] Having entered into civil society, and distributed the pow. This was the great question solved by the convention: er into different hands, they contract the obligation of whether this Government should be a confederation, obedience; they are bound by the constitution which they founded on an equality of States, or a Union, upon the have sworn to support.

principle of population. The large States contended for This question is reduced to a narrow compass. The representation of the people, the small States for equality right to resist an usurpation, or a tyranny, is not denied; of States. The parties were nearly balanced, and upon the right to use all the peaceful modes of redress, not this ground the great struggle was conducted. A majoridoubted. It has been admitted that the Supreme Court ty of the people could not consent to be governed by a may decide all cases between individuals. But it is said minority in the great concerns of this Government; wbile the States now claim the right to decide when the Gene- the small States thought their safety consisted in mainral Government exceed their authority, because that is a taining their equal share of the power. A majority of sovereign power. I have endeavored to show that the the convention was in favor of the popular principle; the power to decide all questions under the constitution has House of Representatives was formed upon a representabeen conferred on the Supreme Court; and, if so, the tion of the people; the States were equally divided in question is concluded, whatever may be the form of the the formation of the Senate, which led to a compromise, Government.

by which that branch was formed on the principle of If this is a pure and simple confederation of States, they cquality of States, and the election of President was rene are bound by the constitution, by all they have stipulated, dered, in the first instance, popular, but upon a comand they are obliged by their duty and by their oath to pound principle, growing out of the compromise. The submit to the court all matters of which they have juris-confederation was abandoned, as too defective to remcdy; diction; that is, every case arising under the constitution the federative principle was retained, so far as to protect and laws, and every controversy to which the United the rights of the small States, while it preserved those of States are a party; and they are, moreover, bound to the people of the large States, by the division and or. show that, to decide on the unconstitutionality of a law is ganization of the Legislative department, by which no an exception, and not included in this grant; they are law or treaty can be made without the concurrence of a bound to show that, in such a union of States, for certain majority of the people and of the States. The rights of great objects, cach State has a right to decide, definitive both were farther protected by the veto of the Executive. ly, for herself, when the power is exceeded. The con- The States are a part of the machinery of the Government, vention intended to provide for all cases that could occur; and constitute one great whole, and “a more perfect if they have failed to remedy the evil that was foreseen, Union,” under the style of “We the people of the Unitthey bave made a Government whici, instead of being a ed States.” This Government, thus constituted for cersplendid fabric of human invention, is utterly impracticable, tain purposes, acts for the people collectively, and di. and which must exist only by the forbearance of the States. rectly upon the people of the Union, without any refer

This was the defect of the confederation; it had not ence to the States. It does not act by States, or upon the the sanction of the peoole; it was ratified only by the State States. It levies taxes, imposts, and duties, upon the peo. Legislatures; and, therefore, reasoning from these theo- ple; it administers justice in the States, upon individuals; ries of Government, it was said each Legislature had a lit commands the militia, &c. Now, having entered into right to repeal the law, and thereby annul the confedera- this Government, by whatever name it may be known, so tion. It is said, in reply to this, in the Federalist: checked and balanced, with so many guards and precau.

“ However gross a heresy it may be to maintain that a tions, what is the principle upon which it is founded party to a compact has a right to revoke that compact, Certainly, that a majority of the people and of the States the doctrine itself has had respectable advocates. The should pass all laws, and that these should be the supieme possibility of a question of this nature proves the neces- laws of the land, and that every question of power under sity of laying the foundations of the National Government the constitution and laws should be decided by the Sudeeper than in the mere sanction of delegated authority. preme Court. But the fabric of American Empire ought to rest on the This, I think, has been shown by the substitution of the solid basis of the consent of the people. The streams of Supreme Court in the place of the other modes recomnational power ought to flow immediately from the pure mended, to give Congress the control of the State laws: original fountain of all legitimate authority.”

by giving, in express terms, jurisdiction of all controverThe righi of a State to annul a law of Congress must sies in which the United States are a party; by the colemmoreover depend on their showing that this is a mere con- poraneous construction of the constitution in the Judiciary federation of States; which has not been done, and cannot Act; by declaring the laws supreme; by giving the Presibe said o be true, although it should not appear to be ab- dent power to call out the militia, and making it his duty solutely a Government of the people. It is by no means to execute the laws. The court has uniformly exercised necessary to push the argument, as to the character of jurisdiction, which has been approved, on an open appeal the Government, to its utmost limit; the ground has been to the States. The President has carried the judgments, taken, and maintained with great force of reasoning, that by force, into effect. The State tribunals have acknoirthis Government is the agent of the supreme power, the ledged the authority, and such is now the opinion of people. It is suflicient for the argument that this is not three-fourths of the people and of the States of this Union. a compact of States; it may be assumed that it is neither It was believed, by those who framed the constitution, strictly a confederation nor a National Government: it is that the laws would be supreme, and would be enforced compounded of both—it is an anomaly in the political world by the National Judiciary. Mr. Monroe, in his message, -an experiment growing out of our peculiar circum- in December, 1824, says, the Supreme Court decides, stances--a compromise of principles and opinions--it is in the last resort, on all great questions which arise under partly federal, partly national.

our constitution, involving those between the United

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APRIL 2, 1830.]

Mr. Foot's Resolution.

(SENATE.

States, individually, between the States and the United that some of its rights had been invaded by the late acts States.” Chief Justice Spence, 19 Johnson 164, says, of the General Government, and proposed a remedy, “I consider that court as paramount, when deciding whereby to obtain a repeal of them. The plan contained on an article of the constitution, and an act of Congress in the resolutions appeared the most advisable; force was passed under its express injunction."

not thought of by any one.” Nothing seemed more In the case of Colens vs. Virginia, “ It (the counsel) likely to produce a temper in Congress for a repeal, than maintains that, admitting the constitution and laws to have a declaration similar to the one before the committee, been violated by the jurigment, it is not in the power of made by a majority of States, or by several of them.” the Government to apply a corrective. They maintain “We do not wish," said Mr. M.]" to be the arm of the that the nation does not possess a department capable of people’s discontent, but to use their voice.” “They restraining, peaceably, and by authority of law, any at. (the States) can readily communicate with each other in tempts which may be made, by a part, against the legiti- the different States, and unite their common forces for mate powers of the whole; and that the Government is the protection of their common liberty.” Mr. Barbour reduced to the alternative of submitting to such attempts, said: “ The gentleman from Prince George had remarked, or of resisting them by force; they maintain that the con- that these resolutions invited the people to insurrection siitution of tiie United States has provided no tribunal and to arms; but, if he could conceive that the consequen. for the final constructio: of itself, or of the laws or trea- ces foretold would grow out of the measure, he would ties of the nation, but that this power may be exercised, become its bitterest enemy;"“ but it would appear by rein the last resort, by the courts of cvery State in the ference to the leading feature in the resolutions, which Union." The court, however, decided in favor of the was their being addressed, not to the people, but to the power of the court.

sister States, praying, in a pacific way, their co-operation It has been objected by the gentleman from South Caro- in arresting the tendency and effect of unconstitutional Ina, (Mr. Smith) that a bare majority of the Supreme laws." Court may decide the most important questions of State General Lee said: “If the law was unconstitutional, rigits. The answer is, that no provision was made in he admitted the right of interposition; nay, it was their the constitution; none was thought necessary. It is in duty; every good citizen was bound to uphold them in the power of Congress at all times to change it, and to fair and friendly exertions to correct an injury so serious require a large majority. This has been tried, and always and pernicious.” resisted.

But the object of these resolutions is more clearly and it is objected, that, when the court is composed of explicitly set forth by Mr. John Taylor, who introduced seven, there may he three on each side, and one may de. the resolutions. In his reply to the apprehensions of civil cide; but this is favorable to the States: for if they ailirm commotion, to which the resolutions were said to have a the constitutionality of a law, they only sanction what has tendency, he said: “ Are the republicans possessed of been previously declared by all the other branches of fleets and armies? if not, to what could they appeal for the Government. If a majority of one member decides defence ard support? To nothing but public opinion; if against the law, his opinion countervails the weight of all that should be against them, they must yield. They had the majority by which the law was passed; so that, when uttered what they conceived to be truth, in firm, yet dethe constitutionality of a law is cloubted, a single member, cent language; and they had pursued a system which was when there is a disagrecinent, may decide against the only an appeal to public cpinion." power of the Government. If more than a majority are He maintained that the fifth article of the constitution required to declare a State law unconstitutional, by pari- had provided a remedy against encroachments, by Conty of reason more than a majority must be required to gress on the States, and upon the rights of cach other. By declare an act of Congress inconstitutional.

the article, “two-thirds of Congress may call upon the Having cxamined the question upon principle, let us Stales for an explanation of any such controversy as the see if there is any precedent or autiority for it. I be- present, by way of amendment to the constitution, and lere there are but two gentlemen who have avowed the thus correct an erroneous construction of its own acts, by opinion. The gentleman from New Hampshire marched a minority of the States, while two-thirds of the States boldly up to the very boundary of the question, and stop- are also allowed to compel Congress to call a convention, ped short; he refused to vouch for the nullifying power, in case so many should think an amendment necessary for by which I infer it is not, in his opinion, the true demc- the purpose of checking the unconstitutional acts of that cratic cioctrine.

body. lle said “the will of the people and the will of There is no precedent except the Virginia aid Ken- the States were made the constitutional referee in the tucky resolutions; they are merely declaratory that the case under consideration. The State was pursuing the States are parties to the compact, and that, in case of a pal- only possible and ordinary mode of ascertaining the opinpalle, dangerous, and deliberate violatio: of the consti-ion of two-thirds of the States, by cleclaring its own, and iation, the State has a right to interpose. But how? By asking theirs. He hoped these reprobated laws would be annulling the law? No, but by declaring the act of Con- sacrificed to quiet the apprehensions even of a single gress inconstitutional, and referring the question to the State, without the necessity of a convention, or a mandate other Staics. It is a protest on the part of the State, from threc-fourths of the States. He said, “firmness and an appeal from Congress to the State authorities, who and moderation could only produce a desirable coinciare also parties. The list Virginia resolution is in these vence between the States." “Timidity would be as diswords, after expressing the most sincere affection for honcrable as the violent measures, which gentlemen on the their brethren of the other States: “ The General Assein- other side recommended in cases of constitutional infracbly doth solemnly appeal to the like dispositions of the tions, would be immoral and unconstitutional." other States, in confidence that they will confer with this Thus it appears that there is nothing in these resolutions Commonwealth in declaring, as it does hereby declare, that looks to the right of the State of Virginia herself to tirat the acts aforesaid are unconstitutional, and that the annul an act of Congress; on the contrary, it is the very renecessary and proper measures will be taken by each, for verse. It is a declaration that the law, in their opinion, cooperaiing with this State in maintaining, unimpaired, violates the constitution; that the State has a right, as a the authorities, rights, an 1 liberties, reserved to the States, party to the compact, to interpose, by referring it to the respectively, or to the people;” and for this purpose they consideration of the other parties to the compact: the were transmitted to the screral States.

language is too plain, and too explicit, to require comment. la the debate, Mr. Mercer said: “The State believed Two very important amendments were introduced,

Vo... VI.--37

SENATE.)

Mr. Foot's Resolution.

(APRIL 2, 1830.

wbich evinced still farther that it was not their intention the extreme of our abilities, so long as they continue in to annul the laws, or to claim the right to interpose in that force. As to the second class of the unconstitutional laws, way. The first was: they declared, in the first of the re. although we consider them as dead letters, and, therefore, solutions, that the alien and sedition laws were unconstitu- that we might legally use force in opposition to any attional, and not law, but utterly null and void, and of no tempts to execute them; yet, we contemplate no means force or effect. These nullifying expressions were stricken of opposition, even to those unconstitutional acts, but an out, upon the motion of Mr. Taylor himself. They were, appeal to the real laws of our country. As long as our no doubt, originally inserted merely to express the opinion excellent constitution shall be considered as sacred, by that the necessary effect of their being unconstitutional was any department of our Government, the liberties of our that they were not law, and null and void; but it is evident it country are safe, and every attempt to violate them may was not in the contemplation of the Legislature or of be defeated by means of laiv, without force of tumult of the author of them, that the Legislature, who was merely any kind." He quotes the following to Hamilton: "The submitting the subject by way of appeal to the other complete independence of the courts of justice is pccuStates, could make the laws void by their declaration. Mr. liarly essential in a limited constitution: by a limited conTaylor said the plan proposed might eventuate in a constitution I understand one which contains specific excepvention. He did not admit or contemplate that a conventions to the legislative authority, such, for instance, as that it tion might be called; be only said that, if Congress, upon shall pass no bill of attainder, no ex post fuclo law, and the being addressed to have the laws repealed, should persist, like; limitations of this kind can be preserved in practice no they might, by a concurrence of three-fourths of the other way than through the medium of the courts of jusStates, be compelled to call a convention. The second tice, whose duty it must be to declare all acts contrary to amendment was in the third clause: “The compact in the manifest tenor of the constitution void. Without this, which the States alone are parties.” The word alone, all reservations of particular rights or privileges amount to stricken out on the motion of Mr. Giles. It had been nothing.” “It is more rational to suppose that the courts said that the people only were the parties to the compact, were designed to be an intermediate body between the

and the resolution declared that States alone were par- people and the Legislature, in order, among other things, * ties. Mr. Giles said, “the General Government was partly to keep the latter within the limits assigned to their au. of each kind;” and, therefore, moved to strike out alone. thority. The interpretation of the law is the proper and

The opinion of Mr. Jefferson, which has been quoted peculiar province of the courts. A constitution is, in fact, in this debate, relative to calling a convention, the proper and must be regarded by the judges as, a fundamental arbiter in questions of sovereignty, correspond with those law. It therefore belongs to them to ascertain its meanof the Legislature. In his letter to W. C. Nicholas, in ing, as well as the meaning of any particular act proSeptember, 1799, then about to proceed to Kentucky, ceeding from the Legislative body. If there should hapdirecting what was necessary to avoid the inference of ac- pen to be any irreconcileable variance between the two, quiescence, and to procure a concert in the general plan of that which has the superior obligation and validity ought, action, he recommended resolutions, first, answering the of course, to be preferred; or, in other words, the concommittee of Congress and the States that replied: se-stitution ought to be preferred to the statute, the intention cond, making protestation against the precedent and prin- of the people to the intention of their agents. As long, ciple, and reserving the right of making this palpable viola- therefore, as the Federal courts retain their honesty and tion of the Federal compact the ground of doing in future independence, our constitution and our liberties are sufe;" whatever we might now rightfully do, should repetitions " but resistance ought not to be appealed to, except in of these and other violations of the compact render it ex- cases of extreme danger and necessity: let all good men pedient: third, expressing, in affectionate and concilia- unite their efforts to prevent the United States from being tory language, our warm attachment to the union with our brought to that crisis." sister States, and to the instrument and principles by On the 14th November, 1799, four days after this letwhich we are united.”. He says, “Mr. Madison does not ter, the Kentucky Legislature entered its solemn proconcur in the reservation proposed above, and from this test against the laws which had been declared unconI recede readily, not only in deference to his judgment, stitutional. The States of Maryland and Obio had quesbut because, as we should never think of separation, but tions about the Bank of the United States, which were for repeated and enormous violation, so these, when they submitted to the Supreme Court. The constitutionality occur, will be cause enough of themselves.”

of the embargo, which involved an immense amount, I hold in my hand a letter from George Nicholas, of was settled by the Supreme Court. In fine, every quesKentucky, in November, 1798. He was a conspicuous tion that has arisen in forty years, under the constitumember of the Virginia convention--an able lawyer and tion, has been satisfactorily settled; and they have estastatesman—a distinguished republican, and a leading and blished many great and difficult principles, which have influential man, in the day of the Kentucky resolutions. I now hecome the settled rule of construction and the law of read from this letter to show the views entertained then of the land; and they will go on in the execution of this high the remedy against unconstitutional laws. “If you had duty, until they are stopped by the want of power in the been better acquainted with the citizens of Kentucky, you Executive to execute the judgments of the court, the would have known that there was no just cause to ap- power of a State to annul the laws to the contrary notprehend an improper opposition to the laws from them. withstanding. The laws we complain of may be divided into two classes, But, happily for us, this question of the power of the those which we admit to be constitutional, but consider as court, and the necessity and expediency of establishing impolitic, and those which we believe to be unconstitu- another tribunal to decide on cases involving the sovereign tional, and therefore, do not trouble ourselves to inquire power of the two Governments, has been formally subas to their policy, because we consider them as absolute mitted to the States, in a strong case, by a large State, nullities. The first class of laws having received the and under the most imposing forms; and was as solemnly sanction of a majority of the Representatives of the peo- rejected. The State of Pennsylvania, in 1809, complainple of the States, we consider as binding on us, however ed of an infringement of her state rights, by an unconstiwe differ in opinion from those who passed them as to their tutional exercise of power in the United States' courts: policy; and although we will exercise our undoubted right that no provision had been made in the constitution for of remonstrating against such laws, and demanding their determining disputes between the General and State Gorepeal as far as our numbers will justify us in making suchvernments, by an impartial tribunal, wlien such cases oca demand, we will obey them with promptitude, and to cur. The Legislature “ Resolved, That, from the con

APRIL 2, 1830.]

Mr. Foot's Resolution.

(SENATE.

struction which the United States' courts give to their the Federal Judiciary, however, unmindful of their weak. powers, the harmony of the States, if they resist en-ness, unmindful of the duty which they owe to themselves croachments on their rights, will frequently be interrupt- and their country, become corrupt, and transcend the ed; and if, to prevent this evil, they should, on all occa- limits of their jurisdiction, would the proposed amendsions, yield to stretches of power, the reserved rights of ment oppose even a probable barrier in such an improbathe States will depend on the arbitrary power of the ble state of things? courts."

"The creation of a tribunal, such as is proposed by “ To prevent the balance between the General and Pennsylvania, so far as we are able to form an idea of it State Governments from being destroyed, and the lar- from the description given in the resolutions of the Legismony of the States from being interrupted, Resolved, That lature of that State, would, in the opinion of your comour Senators in Congress be instructed, and our Represen- mittee, tend rather to invite, than to prevent, collision betatives requested, to use their influence to procure an tween the Federal and State courts. It might also be. amendment to the constitution of the United States, that come, in process of time, a serious and dangerous embaran impartial tribunal may be established to determine dis- rassment to the operation of the General Government. putes between the General and State Governments.” Resolved, therefore, that the Legislature of this State

These resolutions were submitted to all the States. I do disapprove of the amendment to the constitution of the hold in my hand the answers of nine States, refusing the United States proposed by the Legislature of Pennsylproposition, to wit: Virginia, North Carolina, Maryland, vania.” Georgia, Tennessee; Kentucky, New Jersey, Vermont, The Governor of Pennsylvania, by direction of the Le. and New Hampshire, without one affirmative State. gislature, transmitted the proceedings to the President of

Mr. J. then read the answer of the State of Virginia, the United States. He said he was “consoled with the which was agreed to unanimously, as follows:

pleasing idea that the Chief Magistracy of the Union is “Turisday, January 11, 1810.

confided to a man who is so intimately acquainted with the

principles of the Federal constitution, and who is no less “Mr. Peyton, from the committee to whom was referred disposed to protect the sovereignty and independence of that part of the Governor's communication which relates the several states, as guarantied to them, than to defend the to the amendment proposed by the State of Pennsylvania rights and legitimate powers of the General Government; to the constitution of the United States, made the follow- who will justly discriminate between opposition to the ing report:

constitution and laws of the United States, and that of “ The committee, to whom was referred the communi- resisting a decree of a judge, founded, as it is conceived, cation of the Governor of Pennsylvania, ering certain in an usurpation of power and jurisdiction not delegated resolutions of the Legislature of that State, proposing an to him by either; and who is equally solicitous, with himamendment of the constitution of the United States, by self, to preserve the union of the States, and to adjust the the appointment of an impartial tribunal to decide disputes present unhappy collision of the two Governments, in between the States and Federal Judiciary, have had the such a manner as will be equally honorable to them both.” same under their consideration, and are of opinion that a To which Mr. Madison replied: “Considering our respec, tribunal is already provided by the constitution of the tive relations to the subject of these communications, it United States, to wit. the Supreme Court: more eminent- would be unnecessary, if not improper, to enter into any ly qualified, from their habits and duties, from the mode of examination of some of the questions connected with it; their selection, and from the tenure of their offices, to de- it is sufficient, in the actual posture of the case, to recide the disputes aforesaid, in an enlightened and impartial mark that the Executive of the United States is not only manner, than any other tribunal which could be created. unauthorized to prevent the execution of a decree, sanc

“The members of the Supreme Court are selected from tioned by the Supreme Court of the United States, but is thcse in the United States who are most celebrated for expressly enjoined, by statute, to carry into effect any virtue and legal learning, not at the will of a single indi- such decree, where opposition may be made to it." He vidual, but by the concurrent wishes of the President and ac!cls, that no legal discretion lies with the Executive to Senate of the United States: they will, therefore, have no decline steps which might lead to a very painful issue. local prejudices and partialities. The duties they have to The proceedings were transmitted to Congress, who perform lead them, necessarily, to the most cnlarged and made no report thereon. The Governor of Pennsylvania accurate acquaintance with the jurisdiction of the Federal determined to resist; the marshal proceeded to execute and State courts together, and with the admirable sym- the judgment; the troops were drawn out; but the Govermetry of our Government. The tenure of their offices nor finally withdrew, and the marshal performed his duty. enables them to pronounce the sound and correct opinions These are all the authorities I have met with. I have seen they inay have formed, without fear, favor, or partiality: nothing that justifies the idea of the power of a State to

* The amendment to the constitution, proposed by annul the acts of Congress. They all look to an appeal Pennsylvania, seems to be founded upon the idea that the to the other States—to conventions of the people, or to Federal Judiciary will, from a lust of power, enlarge their decisions of the courts. It is to be regretted that this idea jurisdiction, to the total annihilation of the jurisdiction of has been suggested: some, in moments of passion, may the State courts that they will exercise their will, instead seek this violent remedy for partial and temporary evils. of the law and the constitution.

If the power was undoubted, it is one which might be This argument, if it proves any thing, would operate kept from the people. It is the only secret I would keep more strongly against the tribunal proposed to be created, from them; the power by which a small majority of a which promised so little, than a minst ihe Supreme Court, State may produce anarchy, confusion, and civil war. Let which, for reasons given before, have every thing con- us rather teach them how well they are, and how happy nected with their appointment calculated to ensure confi- they ought to be; how free and how prosperous; show dence. What sccurity have wc, were the proposed them their relative condition in the scale of human existamendment adopted, that this tribunal would not substi-ence and political society; show them the miserable state tute their will and their pleasure in place of the law? The of the mass of the people in every other country; show Judiciary are the weakest of the three departments of Go-them the wretched state of pauperism, and what we have vernment, and least dangerous to the political rights of the recently read of the condition of a portion of the people constitution; they hold neither the purse nor the sword; in the freest government of Europe: let us teach them to and, even to enforce their own judgments and decisions, enjoy the good they have. must ultimately depend upon the Executive arm. Should It has been said, the people have the power to break

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