SENATE.]

The Tariff.

[FEB. 21, 1832.

to the commissioners where the road is laid out, this con- the treaty-making power can be resorted to for the procession is made to the individual; he avails himself of this tection of domestic industry. public act, the main inducement to which is the comple- But it is said we can do this by legislation. With a protion of the highway, and he incidentally is benefited to the per motive, I admit we can legislate a regulation of comwhole extent of the labor bestowed on the embankment. merce into existence, not to protect manufactures, but to Thus the public executes its original substantive purpose, countervail foreign restrictions. It was lawful and constiand the individual takes the incidental benefit. But let tutional for our Government to interdict the direct trade me ask, with what grace would this same individual de-between this country and the British West Indies; and how mand of the commissioners of the road to set about and so? Not to increase the price of sugar and molasses, or to erect a mill dam for him where no road was intended, or reduce the price of lumber and naval stores; but to restore demanded by the public? And yet this would not be more the reciprocal and equal terms, the commerce between proposterous than the manufacturers now insisting that the British and American possessions. It would be no because protection to the extent of the revenue has here- more constitutional to prohibit foreign commerce with a tofore been extended, that, therefore, now they must have view to domestic protection, than to make treaties to protection when revenue is not wanting. abolish commerce. The power was not confided for such Latterly the advocates of the protecting system, finding purposes, and when so used is fraudulent and void. But it is the revenue power not sufficiently strong to build their said the British Government refused to receive our bread hopes upon, have resorted to the clause in which the right stuffs; and therefore we can refuse to receive her manuto regulate foreign commerce among the States is con- factures. This is not the true motive. The British corn founded. Let me examine this view of the subject for a laws were in force long since. It never was contended, moment. Neither the history of the times, the contempo- upon the adoption of the constitution, that the existence raneous commentaries, nor the proper import of these of the corn laws in England would give an indefinite words, can be relied on as sustaining this construction. right to trammel our commerce with that nation; nor is it The object in conferring on the Federal Government the pretended your prohibitory laws are enacted, bona fide, power to regulate commerce, was to improve, facilitate, with a view to retaliate on the British corn laws. This and add new life thereto. Under the old confederation, was an afterthought, resorted to to give color to legislation; foreign nations refused to form commercial arrangements, adopted avowedly to effect what was denied to the Genebecause we presented a broken surface and a mutilated ral Government by the convention. The power to regufront; each State adopting its own commercial code. One late commerce with foreign nations, and among the States, of the main inducements to the change of the confedera- is given, using the term regulate, as common to both. I tion, was to enable the Federal Government to act as an will ask, can Congress prohibit Tennessee iron from being entire nation in its foreign intercourse. Hence it is said, sold in Pittsburg, under the power to regulate commerce in the commentary submitted to the American people in the among the States? Or would the power to prohibit Western Federalist: "The powers delegated to the Federal Govern- trade in live stock be entertained by Congress, to foster ment are few and defined. Those which remain with State the farming interest of the South? One of the modes Governments are numerous and indefinite. The former proposed by Col. Hamilton, in his famous report on manuwill be exercised principally in external objects, as war, factures, to encourage them, was to prohibit the exportapeace, negotiation, and foreign commerce; with which tion of the raw material. Would any one on this floor last, the power of taxation will, for the most part, be con- avow the right to prohibit the exportation of cotton, in ornected. The powers reserved to the several States will der to lessen the price to the manufacturer? Or would extend to all the objects which, in the ordinary course of any one be countenanced in the proposition to tax domes affairs, concern the lives, liberties, and property of the tic manufactures at the North, and to enable the South people; and the internal order, improvement, and pros- to engage with success in that branch of industry? Neverperity of the State. The operations of the Federal Go-theless, all these consequences will fairly result from the vernment will be most extensive and important in time assertion of the power to regulate commerce, so as to deof war and danger; those of State Governments in time of stroy it, and establish one branch of industry on the ruins peace and security. The administration of private justice of another. But it is said, if Congress has not this power, between the citizens of the same State, the supervision of it is extinct; because the States have surrendered it. The agriculture and other concerns of a similar nature; all States, may have surrendered this power without conferthose things, in short, which are proper to be provided ring it on Congress. There are some things which cannot for by local legislation, can never be desirable cases of a be done either by the Federal Government or the States. general jurisdiction. It is therefore improbable that there "The powers not delegated to the United States by the should exist a disposition in the federal councils to usurp the powers with which they are connected."

The pretension of regulating commerce so as to protect domestic manufactures, is not avowed here, nor can it be shown that it ever was alleged as an inducement to the adoption of the Federal Government, other than as incidental to the taxing power.

constitution, nor prohibited by it to the States, are reserv ed to the States respectively, or to the people." This supposes there may be some powers neither granted to the United States, nor retained by the States, which may still remain with the people. But has the constitution not provided for this very case, by conferring on the several States the right to lay taxes and impost duties, with the consent of Congress? If this power was not conferred for this precise purpose, it is clearly a nugatory one. Could any thing be more absurd or offensive to the evidently intended to enable such States as wished to promoral sense of this nation, than a treaty with a foreign tect her citizens against foreign competition, to do so, nation, stipulating a cessation of all commerce between with the consent of Congress, and at the expense of those the two? The assumption of such basis for a treaty, on whom the tax would operate.

There are but two ways to regulate commerce; the one is by treaty, the other by legislation.

It was

would be treated with public indignation, and the people The gentleman from New Jersey supposes he has found of both nations would soon revise such a treaty. I defy an "extinguisher" for this argument, when he shows that the production of any case, in which our Government has, the State tax is to go into the treasury of the United States. under the power of regulating commerce, proposed to Upon mature reflection, I think he will not find this so clear. cripple it by treaty; to advance, enlarge, and improve it, It is admitted that the tax imposed to protect domestic is the great object of our commercial treaties. The idea manufactures, is paid as a bounty to them; and the ques of negotiating with foreign Powers, to destroy commerce, tion is, who ought to bear this tax-those who impose, of is so ridiculous and absurd that no one will pretend that those who resist it? If it be so important to a State to

FEB. 21, 1832.]

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[SENATE.

protect its own industry, let the citizens of such a State have originated even with Mr. Madison at a period subsebalance the profit and loss of this matter; "qui sentit com- quent to the Virginia resolutions; for we find him going modum, debit sentire incommodum,"* and he will be a lit-out of the question then before him, to reprobate Mr. tle careful how far he taxes. But when a tax is laid by Hamilton's report, made on the 5th December, 1791-the those who receive the benefit, and do not pay it, what report referred to so often in this debate. In the famous responsibility have you against unjust extortion and exac- report of his, which was made by him in 1799, he says: "To tion? Mr. Madison, in his letter to Mr. Cabell, states his these indications might be added, without looking further, surprise that this construction should be given to the clause the official report on manufactures by the late Secretary under consideration. He reasons, to show that this clause of the Treasury, and the report of the committee of Conwas to confer the right on the States to provide for the gress in January, 1797, on the protection of agriculture. execution of their inspection laws. This would not have In the first of these it is expressly contended to belong to been the object, since the right to pass such laws, without the discretion of the National Legislature to pronounce the consent of Congress, is conceded by the very clause. upon the objects which concern the general welfare, and "No State shall, without the consent of Congress, lay any for which, under that description, an appropriation of moimpost, or duties on imports or exports, except what may ney is requisite and proper. And there seems to be no be absolutely necessary for executing its inspection laws." room for a doubt, that whatever concerns the general inteNow what is absolutely necessary for executing the in-rests of learning, of agriculture, of manufactures, and of comspection laws, may be enacted without the consent of Con-merce, is within the sphere of the national councils as far gress, and clearly does not go into the United States' trea- as regards an application of money. The latter report," says sury, since the very exception confers both the power and Mr. Madison, "assumes the same latitude of power in the the use of the money. Other and more substantial taxes national councils, and applies it to the encouragement of were in contemplation, when it was considered proper to agriculture, by means of a society to be established at the require the consent of Congress to permit their passage, seat of Government. Although neither of these reports and when those who paid the taxes are required to forego may have received the sanction of a law carrying it into the benefit of them. In transferring the import duties, effect, yet, on the other hand, the extraordinary doctrine laid, with the consent of Congress, by the State Govern- contained in both has passed without the slightest positive ment, from the State treasury to the United States' trea- mark of disapprobation, from the authority to which it sury, some indirect object was to be effected, else, in con- was addressed." ceding this power to the States, the nett proceeds would not have been abstracted from those who imposed the duty. I, therefore, conclude the reasons assigned by Mr. Madison are not conclusive.

Can it be doubted, if the reports here animadverted on had based themselves upon the right to regulate commerce, the same anathema would not have been pronounced? The idea had not then occurred either to Mr. Hamilton or Mr. Madison, to fasten on the clause to regulate commerce, to build up home industry; if so, why this dispute about the financial power, if it fairly belonged to the Government under any clause? Why reprobate the mere assertion of the abstract power as a usurpation?

Our

This clause not only furnishes inherent evidence of the purposes intended to be effected, but we have the opinion of one of the ablest delegates to the convention, that this was the intention-I mean Luther Martin. He says: "By this same section, every State is prohibited from laying imposts, or duties on imports or exports, without the permis- The Senator from Kentucky has quoted an act of the sion of the General Government. It was urged that, as Legislature of South Carolina, in favor of the policy of esalmost all sources of taxation were given to Congress, it tablishing manufactures. This is in conformity with the would be but reasonable to leave the States the power of very theory which is here contended for. Let the States bringing money into their treasuries by laying a duty on protect their own manufactures. South Carolina is not exports, if they should think proper, which might be so opposed to manufactures; she is only opposed to taxing the light as not to injure or discourage industry, and yet might people in one State to protect the manufactures of another, be productive of considerable revenue; also, that there against their will, and without a lawful reason to do so. might be cases in which it would be proper, for the pur-Sir, we are not opposed to manufactures nor internal impose of encouraging manufactures, to lay duties to prohibit provement, when carried into effect by State authorities. the exportation; and even, in addition to the duties laid by We have spent liberally our funds for internal improveCongress on imports, for the sake of revenue, to lay a duty ment. We have not asked the Federal Government to aid to discharge the importation of particular articles in a State, our manufactures, nor help us to make our roads. to enable the manufacturer there to supply us on as good opposition is to the consolidation of all power in the Fedeterms as they could be obtained from a foreign market. ral Government, by which the union of the States will be However, the most we could obtain was that this power destroyed, and our free institutions yield to a Government might be exercised by the States, with, and only with, the more vigorous, more energetic. Nothing but a despotism consent of Congress, and subject to its control; and so can make the legislation of the central Government acquianxious were they to seize on every shilling of our money esced in, when it interferes with the every-day transacfor the General Government, that they insisted that the little tions of life of a people who live in this vast continent. It revenue that might thus arise should not be appropriated is this which Mr. Jefferson considers worse than a dis to the use of the respective States where it was collected, union. And yet the rapid strides made by the Federal Gobut should be paid into the treasury of the United States; vernment to consolidation and despotism create no alarm. and accordingly it is so determined." Extreme powers are pressed without the least concern as We have here the history of this clause, by Mr. Martin, to results, and the warning voices of Washington and Jef directly after the convention, showing the point debated, ferson are treated as the idle wind. Sir, the gentlemen and the point decided made to his State; not founded on on the other side will search in vain in the history of the the glimmering recollection of years, but contemporane-times, or the journal of the convention, for the power now ously with the adoption of the constitution. When you claimed. If this power had been avowed and maintained look at the words of this clause, and the account given by as conferred by the constitution, this Government would Mr. Martin, who can doubt what it was intended to effect? not have been formed. The agricultural States would It never entered the mind of this great statesman and law- not have become parties to the compact, knowing that yer that the power to regulate commerce could be con- their right would be so affected. This matter does not strued so as to protect manufactures. This idea seems to depend upon inference or application. By referring to the journal of the convention, it will be seen this power was ⚫ He who receives the bounty, ought to pay the tax. [expressly denied.

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[FEB. 21, 1832.

"To establish public institutions, rewards and immuni- the animadversion and reprehension of the Senators from ties for the promotion of agriculture, commerce, trades, Kentucky and Maine. Let me tell the Senators that there and manufactures," were proposed and rejected. I have is nothing in the qualities of these sentiments, neither in not seen, either in the journal, debates, or commentaries, the sources whence they sprang, the effects they have by Hamilton, Madison, and Jay, one single expression fa- produced, nor their moral influence upon civil society, voring the idea that this power was conferred, except as which is calculated to bring a blush upon the cheek of a mere incident to revenue. [Here Mr. M. referred to those who avow them. We believe the people did not the opinions of Messrs. Jefferson, Hamilton, Madison, &c., invest this Government with absolute and supreme power; to show that this power was not supposed to be conferred.] that some rights were reserved to the people of the States, The whole argument upon the adoption of the first tariff as States; and that the people of the States must, from neturned upon the measure as a financial one, and the naked cessity, be the guardian of their rights. It is idle to tell question of protection, as a constitutional right, is no- me I have rights which I have no means to enforce. It is where to be found, although it may often have been advert- a mere illusion to tell me that the States have rights, as ed to as an incident to the substantive power of revenue. opposed to the Federal Government, and that those rights In that point of view, it is not now resisted. The argument are to be protected by the Federal Government. It is commight be rested on this single interrogation: would the mitting the lamb to the wolf. There is no difference beadvocates of this system venture to lay a direct tax on the tween a right which does not exist, and a right which cannation, either as a commercial or financial arrangement, not be enforced. I place no value on an imperfect right: and give the product to the manufacturers to enable them a private title to lands, where the statute of frauds is in to keep up their establishments? If they would not ven- force, is no title at all. It is a solemn mockery to tell the ture to do so directly, by what authority can they do so States that they have certain rights reserved, but they can indirectly? Sir, the people of South Carolina believe be ascertained only by subtracting them from those which these laws to be unconstitutional, and they believe further the Federal Government may choose, without control or that they have the right to declare them so. In this they restraint, to exercise. I can illustrate my opinions on may err. But we have it from the eloquent apostle, the this subject with no more force than by relating a familiar great champion of christian faith, that "Those who know and friendly conversation with one of my constituents on not the law, yet do the things contained in the law, their the disputed powers of the two Governments. He told consciences shall be a law unto them." The Senate ought me he was opposed to the doctrine of nullification, but to keep in mind this fact, that such is the opinion, the asked my opinion upon the matter; whereupon, I got out honest and fearless opinion of the majority of the people of of my sulky, and marked on the ground a square, and at least one of the States. That they have not heretofore said to him, "Now, these lines contain the whole of your carried out their opinions, is owing to their unwillingness land; you sell half to me, with the usual covenants; I take to put themselves apparently in opposition to what should possession, and very soon begin to trespass beyond what be the constituted authority of the nation, its legislative you sold me; you protest against this, and ask by what enactments. Sir, the Senator from Maine has travelled authority I pass the line; to which I reply, it is true the out of this debate to reprimand South Carolina for her po- boundary expressed in the premises of your deed has been litical faith, and has given in his experience in this matter. passed by me, but there is a clause-the habendum, which I have understood the Senator from Maine to be a profess- says I am to have and to hold the land, together with all ed follower of Mr. Jefferson, a republican in principle, rights, appurtenances, &c. thereunto incident, or any. and a friend to the States in practice. However, do his wise appertaining. Now, one of these incidental rights sentiments on this subject comport with such suppositions? is just to take as much of your reserved land as suits my He informs us that he has always been the consistent ad- convenience, or my interest. To this you reply, this is not vocate of the supremacy of Congress: that the States a fair construction of the deed. Very well, we will go to sometimes have put on airs, but they have always been wrong, and that South Carolina is particularly reprehensible for the opinions put forth by her. I do not envy the gentleman the complaisance he derives, by the reference to his consistency and supposed orthodoxy.

law; but who is to decide? When I gravely tell you, my servant, my faithful, intelligent servant is to decide; he, and he only, shall decide this matter--would not your indignation rise at the avowal of such unparalleled injustice and effrontery?"

The doctrine of divine right, and passive obedience, has With this illustration I left my friend to his reflections, no charms for me. If I thought as the Senator from and the next time I saw him he informed me he was now for Maine, I would not avow--I would conceal it. His senti- nullification; he saw, very clearly, that the States had no ments accord with the prerogative party--the Govern- rights, unless they had some way of protecting them. ment party. I speak not in the sense in which the terms Would any man in his senses make a bargain such as is are used in this country--not in the odious association here described, and confer on the person interested the connected with our revolutionary history--but as the right to appoint, pay, and dismiss the person who is to terms are used in England, when I say the sentiments of decide on it? This is the pretension set up by the Genethe Senator from Maine would locate him with the tory ral Government, to construe its own charter, and take party. In every free country, having the claim to consti- what it pleases, and, in case of resistance, to refer the tutional liberty, mankind will divide into those who take matter to its creatures, liable to be operated on by insides with the power, and those who take sides with the creased salaries, or the judgment influenced by additional people. The old English whig is not the less a friend of selected incumbents. Instead of creating a batch of new his country, and the enemy of anarchy and revolution, be- peers, you can create a batch of manufacturing judges. cause he resists the power of the crown, and maintains If we become a party to a compact containing such prothe constitutional rights of the people. The principles of visions, we are bound to submit; but it must be very clear South Carolina are the whig principles-the principles language which would satisfy a rational mind that any which dethroned the Stuarts, and achieved our revolution. intelligent people would so compromise their rights. They are the principles which brought Mr. Jefferson into Against such a conclusion we have the great names of power, and upon which the maintenance of our constitu- Washington, Jefferson, Madison, Hamilton, Parsons, tional liberty rests. Our creed may be summed up in Roane, and McKean, backed by the great body of the this--the declaration of our right to resist encroachment democratic party.

and usurpation, and the determination to use the reserved Sir, I have said we have these great names, besides rights of the people against the assumed power of the common sense, the fair construction of the English lan Government. The avowal of these opinions calls forth guage, and our Anglo-Saxon notions of liberty, to sustain

FEB. 21, 1832.]

US.

General Washington, in his farewell address, makes check the usurpations of the State Government; and these the following observation: will have the same disposition towards the General Go

"It is important, likewise, that the habits of thinking, vernment. The people, by throwing themselves into in a free country, should inspire caution in those entrusted either scale, will make it preponderate. If their rights with its administration, to confine themselves within their are invaded by either, they can make use of the other as respective constitutional spheres, avoiding, in the exer- the instrument of redress. How wise will it be in them, cise of the powers of one department, to encroach upon by cherishing the Union, to preserve for themselves an another. The spirit of encroachment tends to consoli- advantage which can never be too highly prized." date the powers of all the departments in one, and thus to "In the compound republic of America, the power surcreate, whatever the form of government, a real despot- rendered by the people is first divided between two disism. A just estimate of that love of power, and prone- tinct Governments, and then the power allotted to each ness to abuse it, which predominates in the human heart, subdivided among distinct and separate departments. is sufficient to satisfy us of the truth of this position. The Hence a double security arises to the rights of the peonecessity of reciprocal checks in the exercise of political ple. The different Governments will control each other, power, by dividing and distributing it into different de-at the same time that each will be controlled by the peopositories, and constituting each the guardian of the ple."

public weal against invasion by the others, has been "It is well known that, in the Roman republic, the leevinced by experiments, ancient and modern: some of gislative authority, in the last resort, resided for ages in them in our own country, and under our eyes. To pre- two different political bodies-not as branches of the same serve them must be as necessary as to institute them. If, legislature, but as distinct and independent legislatures, in the opinion of the people, the distribution or modifica- in each of which an opposite interest prevailed-in one tion of the constitutional powers be, in any particular, the Patrician, in the other the Plebian. Many arguments wrong, let it be corrected by an amendment in the way might have been adduced to prove the unfitness of two which the constitution designates. But let there be no such seemingly contradictory authorities, each having change by usurpation: for though this, in one instance, power to annul or repeal the acts of the other. But a may be the instrument of good, it is the customary wea- man would have been regarded as frantic who should have pon by which free Governments are destroyed. The attempted, at Rome, to disprove their existence. precedent must always greatly overbalance, in permanent yet these two legislatures existed for ages, and the Roevil, any partial or transient benefit which the use can, man republic attained to the pinnacle of human greatness." at any time, yield."

And

Mr. Jefferson, in the Kentucky resolutions, maintains What is the meaning of the necessity of reciprocal the doctrine we contend for, in terms not to be mistaken: checks in the exercise of political power, by dividing and he who runs may read it. The following sentiments from distributing into different depositories, and constituting the pen of that great man cover the whole ground: each the guardian of the public weal against the invasion "The several States composing the United States of of the other, unless it means that the States who have po- America are not united on the principle of unlimited sublitical rights, as opposed to federal rights, must be the mission to the General Government; but that by compact, guardian of them? The father of his country has caution-under the style and title of a constitution for the United ed against consolidating all power into the hands of the States, and of amendments thereto, they constituted a GeFederal Government, and its tendency to despotism. He neral Government for special purposes; delegated to that has not only pointed out the danger, but suggested the Government certain definite powers, reserving, each State remedy-the constituting each power the guardian of the to itself, the residuary mass of right to their own selfpublic weal against invasion by the other. government; and that, whensoever the General GovernLet us now hear Colonel Hamilton-not in the conven- ment assumes undelegated powers, its acts are unauthorition, insisting what the constitution should be, nor in the tative, void, and of no force; that to this compact each Treasury Department, carrying out his high-toned princi- State acceded, as a State, and as an integral party, its ples, but in his address to the people of the States, per-co-States forming to itself the other party; that the Gosuading them to adopt the constitution, and giving a com-vernment, created by this compact, was not made the exmentary which has always been considered almost as clusive or final judge of the extent of the powers delebinding as the text. He maintains, in various numbers, the powers and rights of the States, as will be seen by reference to his writings in the Federalist.

"If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. But it will not follow from this doctrine that acts of the larger society, which are not pursuant to its constitutional power, But which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such." Such a law, he says again, "would not be the supreme law of the land, but a usurpation of power not granted by the constitution."

gated to itself-since that would have made its discretion, and not the constitution, the measure of its power; but that, as in all cases of compacts among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

In the Virginia resolutions, from the pen of Mr. Madison, we find the following position maintained:

"It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain has been pursued or violated.

"The constitution of the United States was formed by "It may safely be received as an axiom in our political the sanction of the States, given by each in its sovereign system, that the State Government will, in all possible capacity. It adds to the stability and dignity, as well as contingencies, afford complete security against invasions to the authority of the constitution, that it rests on this leof the public liberty by the national authority. Projects gitimate and solid foundation. The States, then, being the of usurpation cannot be masked under pretence so likely to escape the penetration of select bodies of men as of the people at large.'

"Power being almost always the rival of power, the General Government will, at all times, stand ready to VOL. VIII.-29

parties of the constitutional compact, and in their sovereign capacity, it follows, of necessity, that there can be no tribunal above their authority, to decide, in the last resort, whether the compact is made by them or violated, and consequently that, as parties to it, they must themselves de

SENATE.]

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[FEB. 21, 1832.

cide, in the last resort, such questions as may be of suffi- cannot be enforced without the aid of juries, whose intecient magnitude to require their interposition."

rests and prejudices will be interposed to save their counI refer to this report for its own intrinsic and unanswer- trymen, federal legislation and federal judges are impoable reasoning; not because it is the opinion of Madison, tent and powerless, for purposes of tyranny and oppression. but because the principles contained in that report were It is true, upon a late occasion, in open defiance of the adopted and recognised by the democratic republican principles of the letter of the constitution, the right of the party. This great civilian was at that time in the prime of trial by jury has been violated, and the liberty of her citi life, surrounded by patriots, and sustained by pure princi-zens invaded by a course of reasoning as arbitrary and des ples. That his opinions, before or after this time, should potic as ever signalized the judgments of the courts during vary from this report, matters nothing. The question is, the reign of the Stuarts. Such infractions upon the conwhen was he right? In the convention, when he avowed stitution cannot be successfully repeated; and if they should the States "were only corporations, having the power to be, the State authorities have complete power to countermake laws, and those effectual only, if they are not contra- act them; and we have no right to presume such authority dictory to the general confederation--when he avowed will not be called forth in vindication of this palladium of the States ought to be placed under the control of the civil liberty. There is no usurpation against which I would General Government, at least as much so as they were un- bring the reserved rights of a State into action in its most der the King and British Parliament? In his letter to the efficient form, sooner than in maintaining the trial by jury. North American Review, when he maintained the supremacy of the federal judiciary? or, in 1799, when he wrote his masterly commentary on the principles of our Government-to be found in the State paper from which the above is an extract?

Sir, we rest upon the great names to which I have referred. Are these authorities to be contemned? and is South Carolina put under the ban, whilst she follows truth and correct principles, illustrated and enforced by the illustrious patriots of 1776--1798?

Let us advert to the constitution itself, and see how far its plain import will sustain the doctrine that the rights of the States are alone to be determined by the federal judiciary.

"The judicial power shall extend to all cases in law and equity, arising under the constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority," &c.

"In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make."

There is no mention made of appeals from State courts here. Under the terms "such regulations as Congress shall make," are the States chained down.

There is scarcely any law in which I would not acquiesce, when enforced by neighbors and friends-by those having similar rights and similar feelings. This is our last peaceable refuge--the sanctuary which is not to be violated without State authority interposing to punish the sacrilege.

The Senator from Maine has referred to Olmstead's case in Pennsylvania, to prove the folly of a State attempting to resist the federal authority; and has humorously spoken of Gen. Bright. This is an authority on our side, rather than otherwise; it shows what were the opinions of those truly democratic statesmen and patriots, Snyder, McKean, and Tilghman. Can any doubt but the commonwealth of Pennsylvania would have prevailed in that controversy, but for the decision of her own chief justice against her? And although he decided the point then in issue against the State, he still maintained the right of the State judges to protect her citizens against usurped authority by the Federal Government. Olmstead's case no more proves the want of power in the State authorities to protect her citizens' rights, than the case of Tassels and Cohen proves the want of authority of the United States' court to protect their citizens against State usurpation.

In the case of Olmstead, Chief Justice Tilghman maintained the jurisdiction of the State court, but refused to act in that specific instance. In the case of Tassels and In partitioning out the federal powers between the ex-Cohen, the Supreme Court did precisely the same; they ecutive, legislative, and judicial departments, no one considered prudence the better part of valor. The Fedeshould suppose that the States can be considered as ad-ral Government ought to be cautious how it tries its verted to. The President is to have certain powers, Con- strength. The Popes, in the proudest days of their power, gress to have certain powers, and the judges to exercise chose to govern rather by fear than force. Let the Secertain powers-all obviously federal in their nature. The nate remember, Bonaparte lost his throne by his march to President is not to see a State law executed; Congress is not Moscow. The Federal Government relies more on its to legislate for the States; and why is it, that, under general moral than physical force to sustain itself. The people phrases, used with reference to the partition of the federal owe allegiance to two separate Governments, and may, on powers, it is assumed that the Supreme Court is to revise a conflict of authority, elect which they will obey. A and execute judgments of the State courts? If the State judge has no power, without the posse comitatus. Fedecourts had been within the scope of the meaning of inferior ral laws cannot be enforced, but by the people of the courts, subject to the appellate power of the Supreme States. The laws of Congress, and the laws of the State, Court, why declare that they should be bound by the con- operate upon the same territory, and depend on one peostitution, laws, statutes, in a distinct and separate clause? ple for their execution; where they conflict, they may be We are told by the Chief Justice, in his life of Washing- considered as two overseers on the same plantation, giving ton, that the federal constitution was committed, after its contrary orders; the slaves may elect which to obey; and adoption, to the federal party; and, it seems, what it lack-if confusion arises, the master must come forward and aded of energy, they determined to acquire by legislation. just the difficulty, control the overseers, lay down the rule The judiciary act sprang into existence, embodying principles which were repudiated in the convention, and which, to a certain extent, have never been acquiesced in, notwithstanding the ingenious devices resorted to, by construction, to subvert the authority of the States.

and enforce it. So must the whole people of the United States, who are the only master, in case confusion arises between the State and federal jurisdiction, come forward. It was thus they did in the case of Chisholm against the State of Georgia, when Georgia refused to submit to the Without denying the authority of the judiciary act, Supreme Court. It is unwise and impolitic for this Gothere is still a redeeming spirit in the constitution, which vernment to put the skill of the State Governments to the rises above all artifice, and bids defiance to every scheme test, in eluding and baffling its laws. If a State Legisla of federal subjugation. So long as the trial by jury shall ture were to make the collection of duties beyond a cerbe preserved, it is impossible to enslave the people of this tain extent penal, say petit larceny, how would you save commonwealth; and when it is recollected that your laws your officer from the consequences incident to such legis