« ПретходнаНастави »
by the compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion and not the Constitution the measure of its powers." In truth, it must be conceded and cannot be denied, if Mr. Webster's theory of our Government be correct, it is a Government limited by nothing more than the discretion of the Supreme Court.
We apprehend, that the Supreme Court has no jurisdiction over the reserved rights of the States, which no more belong to the compact, than one of the Swiss Cantons is a member of this confederacy. If a State conceives one of these rights is violated, she has a right to act both in judging of the infraction, and in the mode and measure of redress, "precisely like any other independent sovereign in protecting her citizens, and maintaining within her limits the authorities, rights and liberties appertaining to them.”
Many vastly momentous considerations might be urged, if we had time and space, to show that the Supreme Court could not have been designed as the final judge, in questions affecting the sovereignty of the States. It is obvious that this Court could carry neither respect nor authority with it-where alone its decisions could have any legal or effectual operationwithin the limits of the States, the subjects of such decisions. Besides, the conflict which Judge Tilghman indicated in Olmsted's case, as likely to arise between its decrees and those of the State Courts acting under the sanction of State authority, would deprive them of all respect and obedience. No political community, unless it was prepared to surrender its liberties, would accord to the party whom it charged with usurpation, the right of appointing its own agents to determine the extent and validity of its claims to the dis puted power. It is no answer to this objection to say, that the judges of the court are citizens of the different States. The government of the United States, or a party in the administration of its constituted authorities, cou!d always appoint precisely such judges as would do the business of the national majority most effectually. Have we not seen, within a recent day, when four States in this confederacy had declared the tariff a violation of the compact, a judge preferred to the judgment seat of this high tribunal, where the question may be speedily brought, who is one of the earliest, the most zealous and devoted of its champions !
We apprehend, if the delegates of the Convention had told their constituents that this court was the only check that could be found in our political system on the General Government, in
the probable case of its transcending its clearly delegated trusts, they might well have asked, whether they had passed from under the yoke of one unlimited government, to pass under that of another?
If, then, the Supreme Court neither is in right, nor ought in fact to be the final and sole interpreter of the compact, what then? Mr. Webster, in making out his case of insuperable difficulty, says
“In Carolina, the tariff is a palpable, deliberate usurpation ; Carolina, therefore, may nullify it, and refuse to pay the duties. In Pennsylvania, it is both clearly constitutional, and highly expedient; and there, the duties are to be paid. And yet, we live under a government of uniform laws, and under a constitution too, which contains an express provision, as it happens, that all duties shall be equal in all the States ! Does not this approach absurdity.
“ If there be no power to settle such questions, independently of either of the States, is not the whole Union a rope of sand? Are we not thrown back again, precisely, upon the old Confederation ?
“ It is too plain to be argued. Four and twenty interpreters of constitutional law, each with a power to decide for itself, and none with authority to bind any body else, and this constitutional law the only bond of their Union. What is such a state of things, but a mere connexion during pleasure, or, to use the phraseology of the times, during feeling? And that feeling, too, not the feeling of the people who established the Constitution, but the feeling of the State Governments.”
Our reply is, we cannot help what Pennsylvania may do. We say that an exemption from taxation for the purpose of paying bounties to the industry of the people of other States, and to make roads and canals for them, is one of the reserved rights of the people of the State of South-Carolina, on which specific exemption, we are determined not to be bound by the decision of the Supreme Court. And this is our answer to this pregnant category. Nor are more startled by the other query—“If there be no power to settle such questions, independently of either of the States, is not the whole Union a rope of sand ?" It is sufficient, as we contend, that there is a power to settle such questions, independently of the Supreme Court, and that this is the very power that formed the Constitution. But if the whole Union should become a rope of sand by dint of the usurpations of the General Governmentusurpations irremediable by its own action-all we have to say is, then let it be “a rope of sand.” If the machine of our federative government, by the nicely adjusted checks of its component parts, must stop, if it flagrantly exceeds its powers, weregard VOL. VI.-N0. 11.
this principle of counteracting regulation, as one of the wisest, most subtle and beneficent contrivances of its structure. But we are providing for an extreme case which is not likely to occur. The force of political gravitation, in our system, is as strong as that which controls the harmony of the universe. General Hamilon, in the “Federalist,'' has indicated the true balance of our system; he says, " that in a siugle republic, all the powers surrendered by the people, are submitted to the adıninistration of a single government; and usurpations are guarded against by a division of the government into districts and separate departments. In the compound republic of Ainerica, the power surrendered by the people, is first divided between two distinct governments; and then the portion allotted to each, sub-divided among districts and separate departments. Hence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
“ This control of General Hamilton's, is in fact, Mr. Madison's “right of interposition,” which in plain terms is the veto which a State may apply in her highest sovereign capacity, when all other remedies fail, " in case of a dangerous exercise of powers not granted in the compact for the purpose of arresting the progress of the evil, and for maintaining within her limits the authorities, rights and liberties appertaining to her people.”
As we have no where seen so luminous an exposition of the character, and probable operation of a State veto as is to be found in the Report of the Committee of the House of Representatives of the Legislature of the State of South-Carolina, made in the session of 1828, we are tempted to lay it before our readers—“If the coinmittee do not greatly mistake, it never has in any country, or under any institutions, been lodged, where it was less liable to abuse. The great number by whom it must be exercise, a majority of the people of one of the States, the solemnity of the mode, the delay, the deliberation, are all calculated to allay excitement, to impress on the people of the State, a deep and solemn tone, highly favourable to calm investigation. Under such circumstances, it would be impossible for a party to preserve a majority in the State, unless the violation of its rights be “palpable, deliberate and dangerous.” The attitude in which the State would be placed, in relation to a majority of the States, the force of public opinion which would be brought to bear on her, the deep reverence for the General Government, the strong influence of that portion of her citizens, who aspire to office or distinction in the Union, and above all, the local parties which must ever exist in the States, and which, in this case, must ever throw the powerful influence of the minority in the State, on the side of the General Government, and would stand ready to take advantage of an error on the side of the majority ; so powerful are these causes, that nothing but the truth and a deep sense of oppression on the part of the people of the State, will ever authorize the exercise of the power; and, if it should be attempted under other circumstances, those in power would be speedily replaced by others, who would make a merit of closing the controversy, by yielding the point in dispute. But, in order to understand more fully, what its operation would be, we must take into the estimate, the effect which a recognition of the power, would have on the administration, both of the General and State Governments. On the former it would necessarily produce, in the exercise of doubtful power, the most marked moderation. On the latter, a feeling of conscious security would effectually prevent jealousy, animosity, and hatred, and thus give scope to the natural attachment to our institutions. But withhold this protective power from the States, and the reverse of all these happy consequences must follow, which, however, the committee will not undertake to describe, as the living example of discord, hatred and jealousy, threatening anarchy and dissolution, must impress on every beholder a more vivid picture, than they could possibly draw. The continuance of this unhappy state must end in the loss of all affection, leaving the Government to be sustained by force instead of patriotism. In fact, to him who will duly reflect, it must be apparent, that where there are important separate interests to preserve, there is no alternative but a veto or military force. If these deductions be correct, as cannot be doubted, then under that state of moderation and security, followed by mutual kindness, which must accompany the acknowledgement of the right, the necessity of exercising a veto would rarely exist; and the possibility of abuse on the part of the State, would almost be wholly removed. Its acknowledged existence would thus supersede its exercise. But suppose in this the committee to be mistaken, still there exists a sufficient remedy for the disease. As high as is the power of the States in their individual sovereign capacity, it is not the highest power known to our system. There is a still higher power, placed above all, by the express consent of all, the 'reating and preserving power, deposited in the hands of three-fourths of the United States, which under the character of the amending power, can modify the whole system, at pleasure, and to the final decision of which, it would be political heresy to object. Give
then the veto to the States, and admit its liability to abuse by them; and what is the effect, but to create the presumption against the constitutionality of the disputed powers exercised by the General Government, which, if the presumption be well founded, must compel them to abandon it, but if not, the General Government may remove it by invoking this high power to decide the question in the form of an amendment to the Constitution. If the decision be favourable to the General Government, a disputed constructive power, will be converted into a certain and express grant.. On the other hand, if it be adverse, the refusing to grant will be tantamount to inhibiting its exercise; and thus, in either case, the controversy will be peaceably determined. Such is the sum of its effects. And ought not a sovereign State in protecting the minor and local interests of the country to have a power to compel a decision ? Without it, can the system itself exist ?”
That this right on the part of a State “to interpose to maintain within her limits the rights, authorities and liberties of her people”-should be “a stumbling block and foolishness," to those who regard our government as a consolidated empire formed by one people, and only responsible to one people, is in no degree a subject of surprise. Their denial of this right harmonises with the theory of the Government they maintain.But to those who sustain the doctrines for which we contend, that the Government is a compact formed of independent sovereignties, who delegated certain trusts, and reserved, as unalienable, certain rights, it must follow as a matter of inevitable consequence, that over these reservations they have a right to judge “of their infractions, and the mode and measure of redress."
That our liberties depend upon the vigour with which this right must not only be maintained, but exercised, are propositions about which we are surprised there should be two opinions entertained. Without it our system is absolutely without a check, for the security of the States, for we are greatly mistaken if we have not proved that whilst the Supreme Court is an admirable check on the States, it is no check whatsoever on the General Government—that, practically, it would in nine cases out of ten, be the instrument of its usurpations, and this by the force of a moral destiny which no abstract theory of Government could counteract. Have we then no resource but in the arbitration of the Supreme Court, or according to Mr. Webster's opinion-in revolution and rebellion. This question we were about to answer, but we more willingly employ the clear and conclusive reply of Judge Rowan. He says in his speech on