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that it is sovereign. The opinions of the other judges are tainted, more or less, with the same unsound doctrine of a gwernment of the people, and not a government of States. There is nothing like concern expressed, that a sovereign State should, nolens volens, be brought into a Court, and have a judgment pronounced against it. Mr. Chief Justice Jay defends the justice, policy and utility of such a proceeding. sml
What was the consequence of this decision of the Supreme Court An amendment to the Constitution was immediately proposed and finally adopted, that “the judicial power should not (agaio) be construed to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another State," &c. This was always the true meaning of the Constitution, and the whole case is more remarkable, because Mr. Hanilton, in answering the objections that were made to the Constitution, that, under this provision a State might be sued by an individual, bad expressly disclaimed such an exposition. He says expressly “that it is inherent in the nature of Sovereignty, not to be amenable to the suit of an individual without its consent," and contends that "to ascribe to the Federal Courts, by mere inplication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable." (Fed. No. 81.) In the discussion too, which took place in the Virginia State Convention, which is the only one, in which the powers of the Federal Judiciary were thoroughly examined, Mr. Madison, who had been in the General Convention, disclaimed “the power of an individual, to call any State into Court," and contended, that the only operation this clause could have, was “that if a State should wish to bring suit against-a citizen, it must be brought before the Federal Court.” (Debates 370.) So, also, Mr. Marshall, now Chief Justice of the Supreme Court, in his arguments on this clause, supported Mr. Madison's construction "as warranted by the words," and was surprised, that this clause should have been decried with such unusual vehemence. He could ascribe to the Constitution no other “intent than to enable States to recover claims against individuals, residing in other States." (Debates 394.) The eagle eye of Mr. Patrick Henry had discovered, that the clause migbt conceal the very latent power, afterwards given in Chisolm vs. Georgia, and he denounced it with such force and vehemence, as to have made it necessary, for the other gentlemen, to deny, as strenuously, the possibility of any such construction.
It has been painful to us to dwell so long on a case, which, for the honour of our jurisprudence, we wish had not been adjudicated. But it has been necessary, because this decision is the substratum of all those doctrines, which would regard the States as mere corporations, and make all their authorities, legislative, executive and judicial, subordinate to one supreme government. The citizen plaintiff, though he obtained judgment by default, and a writ of enquiry was awarded to him, nevertheless did not reap the fruits of his victory, for the eleventh amendment of the Constitution stopped all further proceedings. But the Judges of the Supreme Court, though driven from their ground in that case, soon rallied, and, we regret to say, that they have since kept their position with lines of defence, which seem almost impregnable. Our limits will not permit us to enumerate all the instances in which, by sophisms and metaphysical subtlety, they have swept to the jurisdiction of their own courts, cases which it was never designed they should adjudicate. There is a circumstance in regard to the Federal Judiciary which merits attention. It seems to be so far removed beyond the control of the people, that whilst other departments of the government, in committing trespasses upon the rights of the people, by no means so alarming as the encroachments of this body, have occasionally been made to atone for their faults, by the voice of their indignant constituents, heard through the elective franchise, the Supreme Court has enjoyed perfect impunity. It has stood, as it were, upon a rock in the midst of the ocean, bidding defiance to the tempestuous waves of discontent. The great revolution in public opinion, in 1800, brought down the power of the elder Adams, and elevated Mr. Jefferson in the affections of his fellow-citizens. Great, however, as was this revolution, and as extensively as it affected the legislative and executive departments of the government, by correcting their abuses, there was no correspondent reform in the judiciary. The will of the people, so loudly declared against the violations of the charter, and thus far so effectually interposed on behalf of public liberty and of the rights of the States, was, certainly, a signal triumph of the principles of the Constitution, and was worthy of all the joyful emotions and celebration with which it was received at the time, in the hearts of an exulting people. But it was not a victory, which, as to its consequences, could be regarded as decisive. The outposts of the enemy were driven in; his entrenchments were generally forced, but the citadel remained, in which the elite threw themselves, and from which they have never been dislodged. The VOL. VI.-N0. 12.
fruits, therefore, of the revolution of 1800, have been greatly overrated. In that contest, and amidst many scattered elements and fragments of the consolidation party, the judiciary remained unhurt. Where regeneration was so much needed, there was not the slightest reform. Where solemn pledges were necessary, no security for the future was given. There was not even the hope of a promise. Secure in their impregnable fortress, they have never made a sally, in which they have not been successful in invigorating the powers of the Federal legislature, and in breaking down the just claims of the State departments, as co-ordinate powers. The case of Marbury v. Madison, was a movement which at once indicated the conscious self-security which the judiciary enjoyed, immediately after that memorable defeat, whilst all the other functionaries under Mr. Adams were placed under the ban of the empire. Instead of being alarmed at the fate of their compatriots, and naturally falling into a state of cautious judicial coustruction, somewhat congenial with the public feeling, which so properly led to the dismissal of Mr. Adams, the purpose of these judges seems to have been unchanged. They spared no exertions to sustain his principles, and were ready to avail themselves of any position, which, by this most unexpected triumph of the friends of the Constitution, chance might present to them. The last act of Mr. Adams' political life furnished an opportunity. It had been his object to make bis flight from office as formidable as possible, and Parthian like, he discharged his arrows as he retired in full speed. His midnight appointments of a phalanx of judges and justices, were fully in this spirit of warfare. Amongst the commissions which were signed and sealed, but not delivered, was one for Marbury, as a justice of the peace for Alexandria. The first act of Mr. Jefferson was to forbid its delivery, in consequence of which, an application was made by Marbury to the Supreme Court, for a mandamus to Mr. Madison, the then Secretary of State, to deliver to him his commission. The Supreme Court having no jurisdiction, was compelled to dismiss the application, but Chief Justice Marshall went out of his way, as he has since done on another memorable occasion, (Cohens v. Virginia) and gave an extra-judicial opinion, that delivery was not essential to the validity of these commissions, (a hint this that another tribunal might give relief) though at the time they were countermanded they were in the office of the Secretary of State, and, of consequence, in the hands of the new President.
The case of Chisolm v. Georgia, was the first siep towards universal empire of the Supreme Court. There a sovereign
State was brought to its bar at the suit of a private citizen. The case of Marbury Ú. Madison was the second. Here was a claim distinctly urged, to make a co-ordinate and independent department of the government actually subordinate to the judiciary-a doctrine, which, to the honour of Mr. Jefferson, he was deterinined to resist, and did resist whenever he had an opportunity. The third and last step, was to bring all the State Courts at the feet of the same supreme judiciary. This was done in the case of Martin v. Hunter's lessee, I Wheat. 304. Here the appellate jurisdiction of the Supreme Court was extended to any case adjudicated in the highest court of law or equity of a State, where the validity of a treaty or statute, or other authority, exercised under the Constitution, or laws of the United States, shall have been drawn in question, and the decision is against their validity, &c. The highest Court of Appeals in Virginia, had, in the first instance, decided in favour of the defendant in error. On an appeal to the Supreme Court of the United States, the judgment of the State Court of Appeals was reversed; but that Court refused to obey the mandate of the Supreme Court, and did not carry its judgment into execution, on the ground, “that so much of the twenty-fifth section of the act of Congress, (entitled an act to establish the judicial Courts of the United States, passed 24th September, 1789,') as extends the appellate jurisdiction of the Supreme Court to a State tribunal, is not in pursuance of the Constitution.” The case, on being again carried up to that Court, the same reversal of judgment took place, and that Court, under the same clause of the judiciary act, proclaimed its right to proceed to a final decision of the cause, and to award execution.
It is impossible to look into the opinion of the Court, as delivered by Mr. Justice Story, and not to perceive that same fundamental error in his views of the Constitution, into which his predecessors had fallen, namely, that this is emphatically the government of the people, aggregutely, and not of States. Let us hear him on this point.
“Before proceeding to the principal question, it may not be unfit to dispose of some preliminary considerations, which have grown out of the arguments at the bar. The Constitution of the United States was ordained and established, not by the States in their sovereign capacity, but emphatically as the Constitution declares, by the people of the United States ? There can be no doubt, that it was competent to the people to invest the General Government with all the powers which they might deem proper and necessary; to extend or restrain those powers, according to their own pleasure, and to give them a paramount and supreme authority. As little doubt can there be, that the people
had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact; to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of existing State authorities nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own institutions; and the people of every State had the right to modify and restrain them according to their own views. of policy or principle. On the other hand, it is perfectly clear, that the sovereign power, vested in the state governments by their respective constitutions, remained unaltered, and unimpaired, except so far as they were granted to the government of the United States.
“ These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognized by one of the articles in amendment of the Constitution, which declares, that 'the powers ot delegated to the United States, by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people." --1 Wheat. p. 324.
We have in a previous number adverted to the fallacy of this idea of ours being “a government of the people.” But we cannot express our surprise at the total misconception of the Court, in supposing that the word "people" in this tenth amendment, means otherwise than the people of the States in their corporate capacities. The error arises froin not observing the obvious distinction between a State government, and a State sovereignty. The same mistake was subsequently committed in the case of M'Culloch v. State of Maryland. Chief Justice Marshall there evidently confounded two things totally distinct, as has been sufficiently shewn by. Brutus' in the Crisis.' A State sovereignty is that power of a State, which is exercised in its utmost sovereignty, as when the people are in their original character, as in Convention. A State government is the power of the people in their organized character, and with limits affixed to its sovereignty. Mr. Justice Story, in the case before us, conceives that the word “ States," used in the tenth amendment, means the State sovereignties, and that the word
people” being intended to be used in an opposite sense, must be understood to refer to the “people" aggregately. If his premises were right, his inference would be equally true. But we differ from him. The word “ States" here evidently means the State governments; because the “reservation to the • Slates,' is of all power not prohibited by it, (the Constitution) to the States.” The word States twice here used in the same sentence, must have one and the same sense,