FEB. 8, 1830.]

Mr. Foot's Resolution.

[SENATE.

were to be represented as States, and taxed as States; and of the social compact. Every State has its fixed and its only the States which might be included within the Union variable attributes of character. The former is political, were to pay taxes and be entitled to be represented. Here, and identified with the social compact; the latter exists on too, the word State most evidently means the people who the changeable qualities or habits of the people. Thus a nacompose it. They are to choose representatives and they tion is said to be brave or cowardly, sincere or faithless. are to be taxed as the collective bodies who constitute the The people of Spain were at one time remarkable for their State. Again the same provision, farther on, reads thus: fine chivalric spirit. Not so now. Punic faith is a lasting "The number of Representatives shall not exceed one stigma upon Carthage. But that the compression of the for thirty thousand; but each State shall have at least one people, by the social compact, into the unit called a State, Representative, &c.; and, until such enumeration shall be remains, under all the changes of character which the peomade, New Hampshire shall be entitled to choose three, ple undergo, and all the changes of its government which Rhode Island one," &c. Here it is very evident that the choice or accident may produce, or war or convulsion inword "State" is used to mean the people of the State; flict, itself unchanged. If a republic becomes a monarchy, population is made the basis of representation; the ratio or, if a monarchy becomes a republic, these are but is fixed at thirty thousand; but whether thirty thousand, changes of government; the civil society, or State, reor a smaller number of the people, composed a State, it mains unaltered, and is sovereign, while ever it manages should have one Representative. its own affairs by its own will. It is upon this principle So, too, the provision that the State of New Hamp- that States are not absolved from their debts by revolution. shire should, until the next enumeration, be entitled to The State, and not "the Government," is the contracting choose three Representatives, means, that the people who party, and nothing but the dissolution of the social comcomposed that State should choose, and implies that their pact, and consequent extinction of the State, can absolve number was at least ninety-thousand, and so of the other from its payment.

States. But hear this provision of the constitution still Now, sir, unless I am wrong as to the formation and further to the same effect: "When a vacancy happens character of States, and unless I have read the conin the representation from any State, the Executive au- stitution wrong, that instrument not only was not formed thority thereof shall issue writs of election," &c. Who by the people at large, but could not, as I have before can misunderstand this language? Who does not see, said, have been formed by them. It could not have been from the clauses of the constitution which I have read, formed by the people in any other capacity than as States. that that instrument was made by the people of the States, It was, we know, formed by Representatives from the in their State capacity? That the States made it? In the States, and it was adopted by the Representatives of the last clause there is an evident distinction between the States, severally: for the nymbers of the conventions in State, and the Government of the State; "to fill a vacancy the several States were not less representatives of the happening in any of the States, the Executive authority States severally, than their legislative representatives. I thereof should issue writs of election," &c. A State contend, therefore, that the States made the constitution, was to have one Representative for every thirty thou- and thereby rendered the Union greatly more perfect. sand composing it, and the Executive authority of the State than it was under the articles of confederation. I contend, was to issue writs to fill vacancies happening in the State. also, that the individuality and sovereign personality of Now, the State is formed by the social compact; the Ex- the States were not at all impaired by that instrument. ecutive authority was formed by the constitutional com- That the States remain plenary sovereigns as much so as pact; the constitution, in all its references to the people, they were before the formation of the constitution. and in all its requisitions on them, refers to them either by they have not by that instrument parted with one jot of the term "State," or by the terms "people of the State," their sovereign power. You seem to startle; but hear me: as is evident from the clauses which I have read. But I contend that the States as plenary sovereigns, agreed this distinction between the State and the Government by the constitution (which is but their compact of Union) thereof, is obviously displayed in the third section of the that they would unite in exerting the powers therein first article: It relates to the creation of the Senate, the specified and defined, for the purposes and objects therebody which we now compose, and reads thus: "The in designated, and through the agency of the machinSenate of the United States shall be composed of two ery therein created. The power exercised by the funcSenators from each State, chosen by the Legislature tionaries of the General Government is not inherent in thereof." Here the word State, as in the other instances them, but in the State whose agents they are. which I have read, means the people incorporated by the stitution is their power of ally to do certain acts, and consocial compact; and the Legislature which was created by tains, connected within their authority to act, their letter the constitutional compact must be referred to the con-of instructions as to the manner in which they shall act. stitution by which it was created.

The social compact created the State; the State created, by its constitutional compact, its government; and, hence we say, the Government of the State, the Legislative, Executive, and Judicial authority of the State The people of the State can speak or act only through their constitutional functionaries, or by convention.

That

The con

They are the servants. The power which gives validity to their acts is in their masters, the States. Where, let me ask you, is the power of Congress during the recess of that body? Certainly not in the individual members-they do not carry it about with them. Suppose the Judges of the Supreme Court were by some fatality thrown out of existence, where would be the judicial power which they The prevailing idea that, when the constitution of a exercised, until others were appointed? Upon the death State is abolished, the people are thrown back into a state of the President, where is the supreme executive power of nature, is erroneous, and one which, as used by aristo- of the Union? You may tell me in the Vice President. crats and office-holders, does much harm. It is urged But between the death of the President, and induction to deter the people, who are often duped by it, from that of the Vice President, where is it? The answer to these seasonable resort to first principles which is essential to the questions is most obvious. It is, that they possessed no soverpreservation of their liberty. Now, we all know that eign power; that they were but the agents of the soverthe abolition by a State of its constitution, no more affects eign States; that the States retained all their sovereign powthe social compact, or the existence of the State, than the er, and still retain it. That it is inherent in them; not in repeal of a statute affects it. The State made its constitu-three fourths of the States, but in all of them. In amending, tion, and enacted the statute. The same sovereign power or altering the constitution, they have agreed that the was exerted in both instances, alike in the creation and voice of all shall be expressed by three-fourths. The the abolition of both: and exists in the unimpaired efficacy sentiment that the States, by the formation of the constitu

SENATE.]

Mr. Foot's Resolution.

[FEB. 8, 1830.

tion, divested themselves of a large portion of their Seven-eighths sovereign. Every State being a unit, must sovereign power, is, in my humble opinion, as erroneous be entirely of one character-must be either sovereign or as it is unhappily prevalent. And this error will be advo- vassal; and I repeat that a State, subject to be controlled cated by all who are hostile to State sovereignty, and by any other power, is the vassal of that power. friendly to a consolidated Government.

An

So it is the

I admit that a sovereign State may forbear to exercise I have attempted to prove, in a previous part of my ar- her sovereign power in relation to given objects, or classes gument, that a State could not, without dissolving its so- of objects. She may stipulate thus to forbear the exercial compact, divest itself of its sovereign power. To sup- tion of her sovereign powers, or she may stipulate to expose that a State could be dependent and sovereign at the ercise her sovereign powers in conjunction with other same time, would be to suppose it destitute of that unity States, in relation to a certain class of subjects, and to which is of the essence of its nature. It would be not forbear to exert them individually upon any of those subonly to misconceive the character of a State, but to ascribe jects. But the very stipulation, instead of renouncing the to it two inconsistent modes of existence. Nor is it more powers which are to be jointly exercised, implies their readmissible to suppose that a State is sovereign, and, at the tention. Such a stipulation I consider the constitution to same time, subject to certain salutary restraints upon the be. I view it as an agreement between the sovereign States exercise of its sovereignty by any other power. For Hay to exert, jointly, their respective powers, through the it down as a truism in political science, that whenever a agency of the General Government, for the purposes and State is subject to the control of the will of any other pow-in the manner delineated in that instrument of compact. er, it has ceased to be sovereign, and is the province of Each State exerts its plenary sovereign power jointly, for the power that may control it. I say, may control it: for all the legitimate purposes of the Union; and separately, its objection does not consist in the actual exertion upon for all the purposes of domiciliary or State concerns. it, of the controlling power, but in its subjection to that individual citizen may stipulate to transact a portion of his control. Slaves are not always under the controlling ac-business by agent, and the balance by himself; and that he tion of their master's will. Indeed they are but seldom so. will forbear to exert his moral faculties or physical ener Yet they are not the less slaves when they are not, than gies upon that class of subjects which, by his stipulation, when they are, under his actual control, because their sla-are to be acted upon by his agent; has he, by his stipulavery consists in their subjection to his will, and not in their tion, lessened, impaired, or diminished his moral or physi actual continuous conformity to it. cal powers? Certainly not. The validity of the agency It is for that reason that slaves cannot form or enter into depends upon his retaining those facultics: for if he shall a social compact. They lack that exemption from control, become insane, or die, the agent cannot act, because the that freedom of will, of which the sovereign power of the power of his principal has become extinct. State is created by the social compact. Then, if it is es- power, the full subsisting sovereign power of the States, sential that the component parts of sovereignty, that the which gives validity to the acts of the General Government. will of each member of the social compact, shall be free The validity of those acts does not result from the exercise from subjection, does it not follow that the sovereignty it- of a portion of the sovereign power of cach State. self should be alike free from subjection? The sovereign Sir, we cannot conceive of a sovereign act, without the power of the State (as I have before urged) consists in consciousness that it must have been performed by a s the free will of all the members of civil society, compacted vercign power. An atom is a very small part of a globe, by the social compact into a corporate person. The ele- and yet the creation of that implies the exertion of as plements of this power being free, the aggregate must be so. nary sovereign power as the creation of the globe. The There is, therefore, no law obligatory upon a sovereign power in the State, which is exerted in taking from a citiState but that which was obligatory upon its constituent zen an acre of his land for a public highway, is not less parts. The laws of nature were alone obligatory upon sovereign than that which is exerted in taking his life for man in a state of nature, and no other laws are obligatory crime--nothing less than plenary sovereign power can efupon a sovereign State: for all the rights, powers, and fect either; and there are no degrees of comparison in soprivileges, which were possessed in a state of nature, by vereign power; there is not sovereign, more sovereign, the individuals who compose the State, are concentrated, and most sovereign power. The States were, before the by the social compact, in the State, and constitute its so- formation of the constitution, equal, for they were sovereignty. Control implies superiority on the part of the vereign; since that instrument was formed, they are not controlling, and inferiority on the part of the controlled. less equal; because they are still sovereign, as much so But sovereigns are equal, and it is of the essence of so- now as then; and because the powers which they stipulat vereignty that it cannot admit of salutary restraints abunde. ed in that compact to forbear to exercise separately, and It is a governing and self-governed power. Besides, a to exercise jointly, were equal. So that, if the powers State would be unfit, indeed disqualified, to protect its which they exercise jointly, under the constitution, be concitizens according to its stipulation in the social compact, sidered, they are equal, and equally exerted, by the joint if it were, as the Senator supposes, subject to those salu- action of all the States, through their agents; and the powtary restraints, by the judicial functionaries of the General ers which each may, consistently with their constitutional Government. It would indicate, by its weakness, that, in compact, exert separately, are equal; and whether viewed stead of protecting it needed protection. The reciprocal in their joint or separate action, they are equal. And when duties and obligations which now exist between the States a new State is admitted into the Union, it enjoys, by conand their citizens, would vanish. But the gentleman is stitutional stipulation, an equality with the other States of kind in subjecting the States to none but salutary restraints. the Union. And here I would ask the honorable Senator, The Supreme Court are to judge whether the restraints if the constitution was formed by the people, as he alleges, are or are not salutary, which they will, no doubt, seasona- and not by the States, how it happened to be provided, in bly impose upon State sovereignties. The sovereign State that instrument, that the enlargement of the Union should is not to form any opinion on this subject, and therein, and be by the admission of States, and not of people, as such; and by its passive acquiescence, display, according to its own why the stipulation as to equality should have related to opinion, its sovereignty. I can form no idea of a sovereignty the States and not to the people? And, while on this point, subject to such restraints. It is illusive, and but the pre-I would ask him why the provision in that instrument, for cursor, as I fear, of a declaration hereafter to be made, its adoption, referred it to the States and not to the people; that the States are not sovereign. Indeed it is to my mind and why, under that provision, the little State of Delaware nothing short of a virtual declaration to that effect now: had as much weight in its adoption as the great State of for there is no such thing as half, or three-quarters, or Virginia?

FEB. 8, 1830.]

Mr. Foot's Resolution.

[SENATE.

But, sir, I fear that I am fatiguing you and this honorable agree to submit the sovereignty of his State to the arbi body; my object has been to show that the constitution was trament of even neighboring sovereigns. How infinitely not, could not, have been formed by the people; that it more exalted is the sovereignty of a State composed of must have been formed by the States; that the States acted free citizens! And how degrading is the idea that soveas plenary sovereigns in forming it; that their sovereign reignty, the sovereignty of free States, must be subjected character and individuality was not impaired by that in- to certain salutary restraints! Sir, the history of the world strument; that it is now administered by them in the cha- does not furnish an instance in which the sovereignty of a racter in which they made it, that of full and perfect so- State was ever subjected to judicial decision; or to any vereigns; that the constitution is nothing more nor less other power than the God of Battles and the Lord of Hosts! than a compact between sovereign States, who are parties But allow me, sir, to inquire into the fitness of this to it; that the union of the States produced by it is more tribunal for the exercise of the power asserted for it by perfect than that which existed under the articles of con- the honorable Senator; and allow me to preface the infederation; and that its increased perfection consists main- quiry by a few observations upon the nature of our Goly in the stipulation that the States may exert their joint vernments. I have thus far spoken much more about the legislative, executive, and judicial power upon the people States than about their governments. In the republics of each. This is a stipulation of each with all the others, of our country, the great, the leading principle is, that and of all the others with each; and this is the stipulation the responsibility of the rulers, or public agents, shall be to which the illustrious Washington alluded when he spoke commensurate with the character and extent of the of the consolidation of the Union. But still, in this stipu- power confided to them. Our Governments are contrilation, the people are regarded as citizens, as collective vances, or devices, by which the people govern thembodies, constituting the States respectively. The States, selves--by which the governed govern; ours are governin the joint exercise of power, through the agency of the ments of laws. Indeed all free governments are of that General Government, must confine themselves to the pow- character; and the great difficulty has always been to ers stipulated in the bond of union-to the constitution; guard against, and check efficiently, the influence of the and in doing that they must consider the people as citizens selfish principle (which is so deeply rooted in human naof their respective States. Thus, the constitution provides ture) over those who are entrusted with making and adthat all trials for crime shall be in the State where the crime ministering the laws. Now when we regard the zeal and is alleged to have been committed; and so in the exercise vigilance with which the States, in the formation of their of the power which allowed to Congress to provide for or- respective constitutions, and in the formation of the Geganizing, arming, and disciplining the militia, and for gov-neral Government too, endeavored to check this selfish erning such part of them as shall be employed in the ser- principle in their political agents, and render them revice of the United States, they are regarded as the militia sponsible, we shall be slow to believe that it was their inof the States severally; and each State has the right to ap- tention, when they formed the constitution of the United point the officers for its own militia. So, also, it is stipulated States, to confer upon the Judicial Department this tranthat "the citizens of each State shall be entitled to all the scendent and all absorbing power. privileges and immunities of citizens in the several States." It is to secure against the influence of this selfish prinNow, if I have been correct in my sentiments as to the ciple of our nature that, in almost all the governments of process of forming a State, and as to the relation which the States, the members of the Legislative Department the people of a State bear to each other, and their duties are elected for short periods-those of the Reprententaresulting from that relation to the State, and the obliga- tive branch generally for one year, and those of the Setion of the State to them; and as to the origin, extent, and nate for from two to four years, and the Governors for a character, of the sovereign power of a State, I think it like period. The election of the Representatives is anwill follow, that the sovereign power of a State is an unfit nual, that they may be under the control of the people. subject to be disposed of by judicial decision; and that The longer period allowed to the members of the Senate the Supreme Court is an unfit tribunal to dispose of the is, that they may not be deterred from checking any poSovereignty of the States; or, in the language of the Sen-pular ebullitions, which might be displayed on the part ator from Massachusetts, [Mr. WEBSTER]" to impose of the House of Representatives; while, in turn, the memcertain salutary restraints upon State sovereignties." It bers of the latter might check any aristocratical tendenwill follow, too, that his views and mine are toto cœlo apart. cy on the part of the Senate. The Governor is invested He thinks that this is a consolidated Government. His with a qualified checking veto upon both branches, and denial that it was formed by the States, and assertion that is himself checked by allowing a defined concurrent powit was formed by the people at large, cannot, whatever er in both to overrule his veto; and he is further checked, he may say upon that subject, be construed into any thing and the better qualified to exercise his checking power, else than that this was a consolidated Government in its by being rendered ineligible, after a given period, to the very formation. And the assertion of power which he gubernatorial chair. I speak of the checks provided by has made for the Supreme Court, if it be sustained, must a majority of the States in their constitutions. I do not lead to the consolidation of the Government, if it were pretend to accuracy or precision as to the detailed pronot before consolidated; so that, according to his notions, visions of any.

K

The two Houses

if we have not now, we must have, a consolidated Go- So, too, in the General Government, biennial elections vernment. If it was formed by the people, it is so; if they were intended to secure the responsibility of the memdid not make it so, the judges will; and, therefore, ac-bers of the House of Representatives, and thereby to check cording to his propositions and arguments, there is no the influence of the selfish principle in the members. The mode of escaping from a consolidation of the Government. members of the Senate are elected for six years, and by the My hope is in the intelligence of the people of the Legislatures of the States, to check the tendency to consoliStates. I consider that they will never submit that the dation which the gentleman advocates. sovereign power of the States shall be narrowed down, were so constituted as to check each other, and the Presicontrolled, or disposed of, by a quorum of the judges of dent was to check and be checked by both. The States were the Supreme Court. They will discern the intrinsic un-reduced to the condition of perfect equipollence in the Sefitness of the sovereignty of their States for either foren- nate, and thus the small were enabled to check the large sic discussion or judicial decision, and oppose it with States, in any attempts they might make to oppress the small. their suffrages, with the force of public opinion, and in Sir, on this part of the subject I do not pretend to miwhatever other way they may. We would deride with nute exactness. It would be tedious, and is not required scorn and indignation any sovereign of Europe who would for my object, which is only to exhibit an outline of the VOL. VI.--18

SENATE.]

Mr. Foot's Resolution.

[FEB. 8, 1830. vigilance and solicitude displayed by the States, in their tive is a hard one; it presents slavery, to which passive respective Governments, and in the General Government obedience and non-resistance leads, and liberty, which retoo, to guard against the influence of this selfish princi- quires from its votaries a prompt obedience to all lawful ple in those to whom political agency might be assigned. requirements, and a bold and unfaltering resistance to But I need but have referred you to the State and Gene- lawless encroachments. ral Governments, without referring specially to any of Sir, it is, I must repeat, too soon for those who rule, or their provisions on this subject. They exhibit abundant, hope to rule, to address their arguments to our credulity almost redundant solicitude to guard the liberty of the and our fears; to deny us the intelligence to discern our people against misrule on the part of the Government. rights, and the right to maintain them. Will the gentleAnd think you, sir, that, after all this elaborate provision man say that the States of Virginia and Kentucky, in the against misrule, the States could have intended to subject steps which they took to nullify the alien and sedition laws, their Governments, and their self-governing power, toge- were guilty of rebellion? Were their acts treasonable? If ther with the liberties of the people, to the discretion of they were, then all the States were guilty of treason; at an irresponsible and unchecked Judiciary? Who does least, as accessories after the fact; for they all sanctioned, not see that the only security the people have for their by the moral force of their opinion, the proceedings of liberty, their lives, and their property, is in the protect-the resisting States. But against whom did those States, ing power of the sovereignty of their respective States? or can any State, rebel? Rebellion means the resistance and that, when that sovereignty is subjected to the will of by an inferior of the lawful authority of a superior. It the Supreme Court, the people are subjected to the same implies the violation of allegiance. To what power does tribunal; and that, after all their vigilance and caution, a State owe allegiance? To what power is it subordinate? in guarding, by every conceivable check, against oppres-No one State owes allegiance to another; for if it did, that sion from their rulers, they are, by this doctrine, to be other would owe protection to it. Will the gentleman subjected to the rule of a judicial aristocracy? to the rule say that any such relation exists between the States? Or, of four men-a majority of that tribunal-who are un-will he say that a sovereign State can owe allegiance to known to them, except by the fame or the feeling of their any earthly power? I have attempted to prove that the encroachments upon State rights; whose tenure of power States of this Union are equal; and have always been so, is for life, and irresponsible? And yet the Senator mo- as well before as since the formation of the constitution; destly tells us that, if the truth must be told," such was that the duties which they owe to each other under the the intention of the people who framed the constitution. constitution are pactional; and, if I have succeeded, then Sir, if it be a truth, it had better not have been told. it is impossible that they can commit rebellion, or incur It is a truth worse than falsehood; or, if told, it should the guilt of treason, by any violation of their covenant rehave been told many years ago. The gentleman, by the lations with each other. But, sir, the idea that a sovereign manner of telling it, seems to admit that it had been con-State can commit treason, rebellion, or any crime whatcealed. He treats it as one of those precious truths, ever, is utterly inadmissible in the science of politics. The which nothing but necessity could drag from its conceal-idea of crime cannot exist where there is no conceivable ment--"if the truth must be told." Must is a word or possible tribunal before which the culprit could be arwhich imports necessity. The necessity which produced raigned and convicted.

this long concealed truth will, no doubt, in due course of Still less, sir, can any State be supposed to incur the time, come out, as a truth that must be told. The senti-guilt of rebellion or treason, by resisting an unconstitument, whether it be a truth or not, lurked in every part tional law of the General Government, or an unconstituof the first message of Mr. Adams. He did not feel that tional decision of the Supreme Court, upon a valid law of he must tell it in the message, and yet he could not con-Congress. The General Government is the creature of ceal it. Perhaps the design was only to make such an the States--the offspring of their sovereign power. And implied presentation of it as might operate as an experi- will the gentleman say that the creator shall be governed ment upon the public feeling. If such was the design, by the lawless authority of the creature? Will he invert they have mistaken the indications of public sentiment, un-the rule of reason and of law, upon that subject, and say less I am greatly deceived, and yet it is announced with that it is the superior that incurs guilt, by resisting the ingreat confidence. The gentleman tells us that the ferior, and not the inferior, by resisting the superior? States must submit to the judicial restraints upon their But the threats which are brandished against States, or sovereignty, or incur by resistance the guilt of rebellion. even individuals, who shall oppose the encroachment of That the decision of the Supreme Court affirming a pal- the General Government upon the States, are uncalled pably unconstitutional law, which invades the sovereignty for, and can only have the effect to provoke illegal resistof a State, must be submitted to by the State, or it must ance, or to awe into a degrading submission. If the States incur the guilt of rebellion. are true to themselves, and faithful in the discharge of

Could the doctrine of passive obedience and non-resist- their high duties, they will move on in the majesty of their ance have been more explicitly urged? Has it ever been sovereign power, and maintain, with a steady and equal more zealously advocated, in any country? It is prema-hand, both their governments, by restraining each, in the ture; the people of the States are not prepared for it yet. exercise of its legitimate powers, within its appropriate They are too well informed of their rights, and the prin-sphere. They will not incumber the Supreme Court ciples upon which they depend, to be the dupes of that with the exercise of this restraining power. In their doctrine. There is scarcely a man in the community, who hands it would not be a restraining, it would be an absorbhas participated at all in political discussion, that does not ing power. know that rebellion consists in the resistance of lawful au

This epithet of supremacy, [said Mr. R.] which is so thority; that the resistance of lawless authority is not a unceasingly applied to that court, is calculated to swell crime, but a virtue. That the only mode of escaping from the volume of their power, in the minds of the unthinkoppression, is, by resisting the exercise of unlawful power. ing. Its supremacy is entirely relative, and imports only That patriotism requires such resistance. The citizens that appellate and corrective jurisdiction which it may must, at their peril, distinguish between lawful and law-exercise over the subordinate courts of the General Goless power; and while they determine to retain their free-vernment. The appellate court of every State is just as dom, conform to the one, and oppose the other. It is a supreme as it is; and in the same way, and for the same high duty, and full of peril; but, I repeat, it is the only reasons. It is not supreme in reference to the other decondition on which liberty, the most precious gift of Hea-partments of the Government; nor has it any supremacy ven to man, can be enjoyed and maintained. The alterna-in reference to the States; and yet the gentleman will

FEB. 8, 1830.]

Mr. Foot's Resolution.

[SENATE.

eignty to the control of the judiciary, would be to substitute a judicial oligarchy for the free institutions employed for self-government by the people.

have it that this Supreme Court, which derives its title of to be conferred, upon the judiciary of any of the States, supremacy from its control over the proceedings of infe- or of the General Government, as a direct substantive rior judicial tribunals, shall control and restrain the Su- power. The exercise of this power is incidental to the preme Courts of the States, and the States themselves. exercise of the mere judicial power which was conferred. That the mere modicum of judicial power which they are The validity of a law, involved by a case, may be incidenpermitted by the States to exercise, shall be exerted to tally decided, in deciding the law and justice of the case. control them in the exercise of their sovereign power. But the decision must be made with an eye to the law and Sir, I deny that it was the intention of the States, in the justice of the case, and not in reference to the just or unformation of the constitution, to invest that tribunal with just exercise of the legislative power which was exerted the power of doing any political act whatever. The power in making the law. Not in the view to check, control, accorded to that court was purely judicial, and was intend- or restrain the legislative power. It must be given in the ed to be so. If it had been intended that they should ex-exercise of merely a judicial, and not of political power. ercise the political power, which is not asserted for them, Thus exercising its jurisdiction, the court would comits exercise would have been subjected to some checks, mand the respect and confidence of the people as a judito some responsibility. It cannot be reasonably supposed cial tribunal. But when it merges its appropriate judithat, after subjecting the exercise of political power by cial, in an assumed political character; when it exchanges all the other functions of the Government, to judicious and its ermine for the woolsack and the mace, and asserts its well devised checks, it was intended to subject all to the right to impose restraints upon the sovereignty of the unchecked and irresponsible power of this court. But, States, it should be treated as a usurper, and driven back upon this point, I have given my opinions in a previous by the States within its appropriate judicial sphere. It part of my argument. I must, however, be permitted to is due from the States to their own self-respect, and the say, that the judges, in the States, as well as in the Gene-just rights of their citizens, to assert that they are comperal Government, even in reference to the exercise of their tent to decide upon every question involving their own mere judicial powers, are left by the constitutions danger- sovereignty; and that, to neglect to maintain it, would be ously irresponsible. The independence of the Judiciary to renounce the character in which they formed the conhas, in my opinion, been greatly misconceived. Sir, the stitutional compact of union. That the maintenance of true independence of the judges consists in their depend- its own sovereignty unimpaired, by each of the States, ence upon, and responsibility to, the people. The surest is essential to the liberty of the people, and to the preexemption from dependence upon any is independence servation of the Union, and that, to submit their soverupon all. In free governments, we have nothing more stable than the will of the people. To be independent of that, is to rebel against the principles of free government. It is a dependence upon, and a conscious responsibility to, the All the purposes for which civil society was instituted will of the people, that will best secure the judge from would be defeated in the control of the States by the julocal, partial, and personal influences. But on what prin- diciary. Nothing less than sovereign power is competent ciple should those who administer the laws be less respon- to the management of the concerns of a State, and nosible to the people than those who make them? The laws thing less was pledged by the States, in the social comoperate as they are expounded, not as they are made. It pact, for the protection of the people. The State canis in the exposition of them that they operate oppressively; not redeem this pledge, if it shall be controlled by the and all responsibility is to secure against oppression. But judiciary. The judiciary will govern, and not the State: there can be no oppression, or scarcely any, without the for that power that governs those who govern, governs consent of the judges. The judges are irresponsible, and those who are governed; and how can a State protect the people are every where oppressed? But I hold it to its citizens from oppression, if it is itself liable to be be universally true that all power which may be irre-oppressed by their oppressor? So that a State is unsponsibly exercised will be exercised oppressively. It der a political necessity to vindicate its sovereignty from has always been so; it always will be so: for the judges any salutary restraints which the Supreme Court may attempt to inflict upon it, by resistance, or whatever But to return to the judges of the Supreme Court. They means it may. are authorized" to take jurisdiction of all causes in law For security against oppression from abroad, we look and equity, arising under the constitution, laws of Con- to the sovereign power of the United States, to be exgress, and treaties made pursuant to it;" and that constitution, erted according to the compact of union; for security together with the treaties, and the laws of Congress made against oppression from within, or domestic oppression, pursuant to it, are to be the "supreme law of the land." we look to the sovereign power of the State. Now, all This is their power; and this the character and force of sovereigns are equal: the sovereignty of the State is equal the constitution, laws of Congress, and treaties. Now, to that of the Union: for the sovereignty of each is but a suppose there shall exist, between two of the States, a moral person. That of the State and that of the Union dispute, as to territorial boundary, and the Congress shall are each a moral person, and in that respect precisely pass a law giving the disputed territory to one of the con- equal. In physical force, the latter greatly transcends tending States; and suppose the judges shall affirm the the former; but, in essential sovereignty, they are not validity of this law: must the State whose territory has only naturally but necessarily equal: just as the soverbeen thus invaded and taken from it by Congress, submit eignty of the State of Delaware is equal to that of New to the decision, or incur the guilt of rebellion? Is that to York, or of Russia, though the physical power of those be the practical operation of the gentleman's doctrine? sovereignties are vastly different. Or, suppose the territorial boundary of any one of the The unrestrained exercise of the sovereign power of States shall be altered by treaty, and a portion of its ter- the Union is necessary to all the purposes of the Union; ritory transferred to a foreign Power, and the Supreme and is it not as necessary that the sovereign power of the Court were to decide that the treaty was constitutional, State should be unrestrained, as to all domestic purposes? must the State thus dismembered acquiesce, or, by resist-and can any reason be assigned why the latter, more than ing, be denounced as a rebel? And would the gentleman the former, should be restrained by the Supreme Court? assert that this operation was merely imposing a salutary No reason can exist for the restraint of the one, that does restraint upon State sovereignty? Now, sir, I deny that not equally apply to the other. But, in truth, the idea the power to declare a law of Congress, or of any of the of controlling a sovereign State is so inconceivable that States, unconstitutional, was ever conferred, or intended I do not know in what terms to combat it.

are but men.