Page images

in a course of years, the offices of the highest supreme tribunal in our land, will be held only by those whose political opinions, and whose constructive doctrines of constitutional right and constitutional power will accord with the views of those who hold the reins of government. Such as are disposed to resist the assumption of power, or, in a word, the minority, must not, for a moment, think of confiding their rights to the decision of such a tribunal. They must, at once, plead to the jurisdiction.

Let us illustrate this opinion by facts, and if we introduce names, we do it without the slightest disrespect. However we may regret that certain opinions have been held by celebrated individuals, we are far from considering it an offence, much less as a crime. Many of our readers have no doubt heard of the talents and character and opinions of the late Judge Roane of Virginia. He was distinguished by many at home, as the head of the party who opposed the assumption of constructive power by the government, and wished to limit its jurisdiction to the objects explicitly entrusted to its care. The talents and sentiments of Mr. Pinckney, of Maryland, were more known, because they were displayed on a different, and a wider theatre. Who can doubt, that if, during the two last administrations, a vacancy had unfortunately occurred on the bench of the Supreme Court, and these distinguished jurists had been placed as competitors, the choice would have fallen on him, whose opinions in respect to this very point, (the extended jurisdiction of the court) were known to be friendly, and this without reference to talents; for either of these gentlemen was competent ably to discharge all the duties of such a station. Mr. Pinckney is stated to have devoted much time and research, in the latter years of his life, to the support of these doctrines. All his arguments abundantly verify this. And why, we would ask, was this labour bestowed upon an instrument, whose ers, as vested in the government by the parties to the compact, were sufficiently clear, and so well marked by distinct and definite boundaries? Why were laboured efforts to extend, by subtle and forced interpretations, and by remote analogies, the power of the Constitution? Can it spring from any other source,

, than an ardent desire to include within the jurisdiction of the court, all authority, and to render it, in all respects, sovereign and supreme.

Let us take another case in which the remedy through these tribunals would be hopeless. The tariff laws for the promotion of manufactures, have been pronounced by some of the ablest lawyers and statesmen of the North, as contrary to the principles of the Constitution. They have been considered, al


most unanimously in the South, as an outrage upon these principles. Now, with what hope of success, could an appeal, on this subject, be carried before Mr. Justice Baldwin, who in his congressional career was the steady undeviating advocate of this System, or liefore Mr. Justice Johnson of this State, who has recently made a public declaration, that the protection of domestic manufactures is not only constitutional, but that no State is more deeply interested in maintaining the principles of the tariff thau South-Carolina. Can it be supposed that the one would depart from the avowed opinions of his past life, or that the other, after such a public declaration of his hostility to the settled convictions of his countrymen of South-Carolina, could meei invis question with the unbiassed mind that becomes the saced functions of a judge? As in one, so it might be in all who had been engaged in political life, and might have former opinions and public declarations to encounter.

If there is any sliding, history and philosophy, both unfortunately teach us, that the proclivity is more likely to be in favour of, than adverse to an increase of power. Lord Strafford viewed the complaints and rights of the people with a widely different feeling from Sir Thuhas Wentworth, and we suspect, that, in our own history, Mr. Jefferson is the only President who retired from office with the same opinions as to the limits of State and Federal authority with which he entered.

And what has been the practical progress of this loose construction of the Constitution ? Agriculture was, in the Convention, excluded as a subject fit for the legislation of Congress, and yet we observe in Congress amongst the Standing Committees, a " Committee on Agriculture." The power to grant incorporations, was expressly denied in the Convention, as proper to be given to the government. The court has determined, that Congress has power to create corporate bodies. Mr. Madison, in Congress, strenuously opposed, in 1792, the incorporation of the former National Bank. As President of the United States, he confirmed the charter of the present National Bank. Even General Washington pressed upon Congress the establishmeyt of a National University, though, as President of the Convention, he must have known that, on such a power being proposed to be added to the enumerated powers, it had been three several times negatived in that body. What a melancholy lesson does this teach us of the natural tendency of power to widen the first path which it opens for itself, and

* See Judge Johnson's answer to an invitation to attend a public dinner and meet. ing at Columbia, S. C. published in the Columbia Telescope, of September 17th, 1630.

of the facility with which, even the prudent, the wise and the just, can persuade themselves, that ihe beneficial end of any particular measure, can sanctify its irregular adoption.

If we are to judge of the future by the past, we can see no hope that Congress will cease to exercise powers, not warranted by the Constitution, or that where these powers are disputed, the Supreme Court can ever be relied on, as an impartial arbiter, to decide questions of boundary between the State and Federal jurisdictions. From the foundation of the government, until the present time, we have had from this Court, professions in abundance, that they were no more desirous to limit State sovereignty, than they were to extend the Federal perogative beyond the enumerated powers. We believe, that no professions were ever uttered in greater sincerity; but we must be constrained to say, for the reasons already given; that the judges of this Court, must, from the very nature of things, be silently carried ouwards on the gentle stream of extended interpretation, until they shall find themselves on an ocean of' illimitable judicial jurisdiction. It inay be confidently said that they are already embarked on such a sea. They are evidently under the influence of some invisible under current, which has thrown them out of that course they were most solicitous to steer, and the mistake in their reckoniog, can never be rectified until the mists they have so long encountered in the voyage shall be dissipated, and they shall be able to take an observation by the first unclouded mid-day sun of their own minds. This sunshine, so essential to the true latitude of their powers we fear will never again beam upon them, until it shall vouchsafe the majesty and power of the State sovereignties, which created all things under the government, to give them this light, by some manifestation of its sovereign will and pieasure. Our judges would then discover the hidden causes, which, in spite of all their careful calculations of course and distance, from the time of their departure, have brought the judiciary department of the United States to be regarded as the high, controlling authority over the sovereignty of the States, instead of carrying it to its destination, as a co-ordinate, independent department in our anomalous system, no more sovereign over the State judiciary authorities, than those authorities are sovereign over it. That the lights of au unclouded judgment in the Supreme Court, have not been visible, under any circumstances, where the powers of the Federal Government have been drawn into question, is a truth amply attested by the records of our judicial history. Our limits will not permit us to go into detail of all the instances, but we shall advert to some of them.

The first case in which the Court, in its reasonings, clearly developed its intention to give an extended construction to the powers of the Courts of the United States, was that of Chisolm v. the State of Georgia, (2 Dall. 419.) By this decision, a sovereign State was rendered liable to be brought to the bar of that Court, as a defendant, at the suit of an individual citizen of another State. There were many points made in this case; but the only one material to our present discussion, was, the question of a State's liability to be sued. The ground of the decision against Georgia, was that clause in the Constitution, which declares, inter alia, that the judicial power shall extend to controversies “between a State and citizens of another State." The Attorney General, Mr. Randolph, who, in the Convention, bad been foremost amongst the decided advocates of a supreme national government, who was opposed to the equality of suffrage in the Senate, who proposed that Congress should have a negative over the acts of the State authorities, and who was displeased with the present Constitution, because it was a federal and not a national government, seems to have argued this case under the most pleasant feelings, for he considered "the constitutional right as supported by his own conviction, and that to surrender it, would be official perfidy.” On the part of Georgia, Ingersoll and Dallas declined arguing the case, having received positive instructions not to do so; but they presented a written protestation, on behalf of the State, against the exercise of jurisdiction in the cause." In our humble judgment, this was a case, in which, to say the least of it, considerable doubts might well be entertained, and, therefore, good room for the Court to say, that these doubts should be thrown into the scale of State sovereignty. On the one side, it was said with truth enough, that the words "controversies between a State and the citizens of another State," seemed to indicate, that the Court was to possess jurisdiction, whether the State were plaintiff or defendant, and it is equally certain, that, in the succeeding clause, this exposition does seem to be enforced, when it is provided, that in "cases in which a State shall be a party,the Supreme Court shall have original jurisdiction. But, on the other hand, it was certainly fair reasoning, and it was so allowed by the Chief Justice, that as the same section of the Constitution which extends the judicial power to controversies “between a State and the citizens of another State," also extends to controversies “ to which the United States shall be a party," it would follow, that if the word "party" was intended to comprehend a party defendant as well as plaintiff, then the United States could be sued by a private citizen, a construction this, which is perfectly inadmissible. As fair as this reasoning was, combined with the bumiliation which must accompany the act of a sovereign State being “dragged into a court of justice, torto collo, like Buonaparte's volunteers into the field in chains,” yet the Supreme Court seems to have been deaf to that plea for State sovereignty, which it was obviously the policy of the day to overrule. Judge Iredell was the only Judge who expressed doubls. In the opinions of the other four, is to be discovered that same desire for supremacy in the Federal head, and of latitudinarian construction, against which the friends of State rights have uniformly protested. It is in this decision, that we perceive the tendency of the judicial power to merge all sovereign power into the virtual consolidation of a great central government. Mr. Justice Wilson, who delivered his sentiments in this case, at great length, and had already, in the Pennsylvania Convention, expressed his opinion that the government was an ordinance of the people, and not a compact between States, commenced his opinion by saying, as we conceive rather sneeringly—One of the parties is a STATE; certainly respectable, claiming to be sovereign. The question is, whether this State so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States ? This question, important in itself, will depend on others more important still, and may, perhaps, ultimately be resolved into one, no less radical than this-do the people of the United States form a NATION?” That this Judge brought to the bench of the Supreme Court, his previously settled conviction, that he did not regard the Constitution in the light of a compact between States, but as an emanation from the people aggregately, may be discovered from his opinion, and particularly in that part, wherein he says, " to the Constitution of the United States, the term SOVEREIGN is totally unknown. There is but one place where it could have been used with propriety. But even in that place, it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves 'SOVEREIGN' people of the United States. But serenely conscious of the fact, they avoided the ostentatious declaration.What else could be expected from a Judge on the bench, whose views are so obscured by preconceived opinions of the necessity of a supreme national government, than that he should regard the claim of a State, as, indeed, "soaring high," when that State urges upon the Court,

« PreviousContinue »