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its form and substance. Its judiciary, is constituted upon similar principles—its judges, hold their offices by the tenure of good behaviour—and may be turned out by impeachment, intrusted solely to the people's immediate representatives, and triable only, by the senate, their mediate representatives.
In the formation of the constitution, the election of the representatives in Congress, and the choice of the president, is displayed, principles, and forms, entirely National and ConsoliDATORr. In the formation of the senate only, is the federal feature, exhibited: unless it may also be recognised in the bouse of representatives, in the choice of president, when that duty devolves on it. Both houses voting in all other cases, upon the broad national principle: It constitutes, a truly NaTional Government, called Federal, for the sake of brevity, and as a substitute, for the confederation.
This delineation, appeals to the constitution, for its correct-. ness, and challenges scrutiny. A more minute detail cannot be indulged here; while it yet remains to be remarked; that it should forever explode the futile and untenable theory, proposed in the resolution, and sustained by the vote of the Kentucky legislature. A consideration highly important, is next to be presented, for reflection: Are we to look to state constitutions, or to that of the United States," for the powers to be exercised under the latter? According to the doctrine here maintained, to the latter, only; that being national. must be coextensive with the nation—its effect being external, as well as internal, it must pervade, and comprehend, the whole. That there may be no redundancies, or incongruities, the superior must be impressed on the inferior—not the latter, on the former; and that impression, to be efficacious, must become the test of right, in removing every obstacle to its correct action: for while it operates, within its proper sphere, that is, within its constitutional orbit, it may have difficulties, but no impediments, from its parts, or other inferiors: such are the state governments, compared with that of the nation. The state governments have their orbits marked out, as they relate to the nation, by the national constitution. That is the criterion of their
rTgTits, and the test of their powers, in every case of collision. -—As however, the people in each state, are to act separately. in state affairs, while they have all, a common concern in the affairs of the nation; it is not to be supposed, that one should judge, and decide for the whole; but rather the whole for each one. Upon this principle, in all matters of controversy, between a state, and the nation, the latter prescribes the tribunal.
Upon this principle, harmony may be maintained, and the union preserved. Upon the principles advanced in the resolution, the very reverse would be the consequence.
But enough, as to that—the people are the parties to both; it is their business to superintend both, within their proper spheres of action. Nor is a better rule of judging perceived, than that contained in this simple proposition; does the measure in question concern our state and citizens only? Then it is under state control: but if it involves the rights or interests of other states, or their citizens; or foreign states, citizens, or subjects, then its ultimate resort for solution, is to the constitution, and tribunals of the nation.
States of the union, are essentially co-sovereigns, in relation to each other; but in comparison with the nation, they are constitutional sovereigns only—That is, qualified sovereigns. Does not that fill the pride, and qualify the ambition of state authorities? Then let them elevate their minds, and expand their views, to the superior orb, the nation. Let each recollect, that he is one of its citizens, and may become one of its immediate, as he is at the time, one of its secondary functionaries: and his heart should leap, and his soul exult, with joy and triumph, on the reflection. For what could a single stale ever-be,as to those circumstances, of internal safety, and happiness, of external influence, and renown, compared to the whole united? As an individual, "to an army with banners." Then the nation, is my country—the state, my dwelling place. It is the rule of law, the administration of justice, the prosperity of the honest, the comfort of the industrious, the joy of peace, and the smiles of social intercourse, which belong to union, and are by it ensured; if by men attainable, to the exclusion of contests, and wars; which should endear the union, to every American bosom. But if we would preserve union, we must cherish those sentiments which conduce to union, and to strengthen its ligatures.
The states have their distinct spheres of action, which it is the duty of their public functionaries to fill, and to guard— which demands of all, respect and observance. For although the constitution oft'ie nation, comprehending the whole of the states, as to their more general concerns, necessarily moves in a larger circle, touching those things which concern the nation, and must therefore be greater than the several states; yet are the constitutional rights of these, in their corporate 'capacity, as sacred, and to be held as inviolable, as those of the nation. Are states limited sovereigns? So are the United States, a limited sovereign. The plenary sovereignty, is divided between them. The American politician, should understand this subject, in order to be able to see the line of partition, and hence to assign to each, its proper subjects. This is an important science, the acquisition of which, honestly reduced to practice, would prevent much idle, or vicLous declamation, error, and fully.
The people of the United States, in framing and adopting the constitution of the United States, knew that they were reducing the power of the state governments/ It was their intention to take from the state governments, as much power as was necessary to constitute the general government; and they inserted in the constitution the eighth and tenth sections of the first article, which have been exhibited; and adapted to these, various other, declarations, and provisions, for the purpose of rendering the government operative, and efficient.
Incidental conflicts were foreseen; ultimate harmony was provided for. The government of the nation, was declared to be Supreme. What else could it be? Nothing less, to be at all a government. The state governments, by a necessary consequence, became Inferior; to the whole extent of the 'comparison. The terms, "superior," and "inferior," are correlative: the one does not exist, without the other.
But then their order, and rank, are established by the people; who made one, for the government of all, and tie others, for the government of their respective parts. Taking care, as the great objects were union, peace, and happiness, to provide a tribunal, where controversy should be terminated.
That is, THE SUPREME COURT OF THE NATION.
It is not to be understood, that all the ideas embodied in the resolution, which has been animadverted on, are erroneous those which are mainly thought so, have been selected; and it is hoped sufficiently exposed, to render their fallacy apparent.
On the subject of legislation, a few general observations wi'l be hazarded, previous to a more detailed, course of remar! , upon the obnoxious act of congress; called, the sedition h;v/.
In the first place, it seems to be admitted on all hands, that the state legislatures, have a right, at least, to pass a law, to punish slander, even, of its own body, of the executive, and of the courts; notwithstanding, they are inferior governments—in other words, "limited sovereigns." Nor does it seem to be questioned but that, this power in states, is no less fit and pro- per, to guard official reputation, than it is to guard private reputation; and that it is an essential part ai d parcel of the legislative power. Whence comes the right, it may be asked, of punishing contempts, by legislative bodies, even without express law for the purpose? Whence comes the right of preserving order, and enforcing silence, in the presence of those bodies? Certainly from the propriety, and necessity, of the thing; or it is an attribute of the legislative power, inherent in the body for its own protection, and the despatch of public business. It is admitted that the necessity which authorizes legislative bodies to punish, such as offend in their presence, is;, confined to such bodies—and it is their duty to extend by law, the power of self protection, to other public functionaries. It may be said, that the necessity which authorizes the legislative body to punish without express law, exists only until an act can
be passed for the purpose. Be it so, it will result nevertheless that a law may be passed to the same effect; and by force of the legislative power: notwithstanding the abridged, and limited condition of the state legislatures.
The question may now be put to every intelligent, and candid reader; are not the public functionaries of the national government, to be'protected from annoyance; and may not this protection, as well belong to the legislative power of congress, as to that of the states? and why not? An argument which shall not betray, its own absurdity, in attempting to support the distinction, is defied.
Would the people put the official organs of their superior government, under the sole protection of their inferior governments? The absurdity is too gross.
On the subject of the "sedition law," as it was called; the part which apparently gave the greatest offence, was that, which subjected to an action at law, "such persons as should write, print, utter, or publish, any false, scandalous, and malicious, writing, or writings, against the government of the United States, or the president of the United States, or either house of the Congress of the United States, with intent to defame the said government, or either house of the said congress, or the said president, or to bring them, or either of them, into contempt or disrepute, or to excite against them, or either of them, the hatred of the good people of the United States," &c. And who being convicted, were to be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years. "The person prosecuted, having always, the right, upon trial of the cause, to give in evidence, in his defence, the truth of the matter contained in the publication charged as a libel— while the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases."
Nothing could probably proclaim more distinctly the intrinsic moral principles, of the party, than its opposition to this law, made against the publication of written^ wilful, and malicious slander. The letter to Mazzie, the publications of