SENATE.] The Judicial System. [APRIL 7, 1826. discharge of their high duties, than if they were cut off from all connection with the States. Greater than if they were settled in this metropolis, and to the great mass of the People of the States unheard and unseen, but felt in their power, through the remotest borders of the Unionand how felt, sir? Not as is the case with the other nificent grants, and all the various measures of relief-no, There are few States in the Union, upon whose acts the sir, always on one side, and not unfrequently on all sides, seal of condemnation has not, from time to time, been their measures are regarded as harsh and vindictive. placed by the Supreme Court. The sovereign authorities Their business is to punish the guilty, to restrain the viof Vermont, New Hampshire, New York, New Jersey, cious, to curb power, and to correct its excesses. Such Pennsylvania, Maryland, Virginia, North Carolina, Mis- acts are necessary to the well-being, to the very existsouri, Kentucky, and Ohio, have, in turn, been rebukedence of society, but are not those which have the strongand silenced, by the over-ruling authority of this Court. est tendency to conciliate popular favor. It is to effect I must not be understood, sir, as complaining of the exer- this object, in part, that the friends of the bill, as I cannot cise of this jurisdiction by the Supreme Court, or to pass but think wisely so, zealously resist every measure which upon the correctness of their decisions. The authority will or may separate the Justices of the Supreme Court has been given to them, and this is not the place to ques- from the Circuits, and bring them to this city. tion its exercise. But this I will say, that, if the question of conferring it was now presented for the first time, I should unhesitatingly say, that the People of the States might, with safety, be left to their own Legislatures, and the protection of their own Courts. known and acknowledged. The prohibition is not confined to express contracts, but includes such as are implied by law, from the nature of the transaction. Any one, conversant with the usual range of State Legislation, will, at once, see how small a portion of it is exempt, under this provision, from the supervision of the seven Judges of the Supreme Court. The practice under it has been in ac-branches of the Government-in extending favors, in mucordance with what should have been anticipated. But this is not the only, or the most interesting view, which may be taken of the subject. The political character of the Court, so far as it becomes its duty to pass on the laws of the respective States, affecting personal rights, has already been referred to. A few cursory obAdd to the immense powers of which I have spoken, servations upon the character and tendency of its jurisdicthose of expounding treaties, so far, at least, as they bear tion, so far as it relates to the powers of the General and upon individuals, citizens, or aliens, of deciding controver-State Governments, considered as independent, and, in sies between the States of the Confederacy themselves, many respects, rival States, will conclude my remarks on and between the citizens of the different States, and the this branch of the subject. justice of the remark will not be questioned, that there is no known judicial power so transcendently omnipotent as that of the Supreme Court of the United States! The unfortunate extent of the grounds of collision between the respective Governments, has already been referred to. It was beyond the wit of man, in the constiLet us now, for a few moments, consider the influence tution of a Government like ours, to have wholly avoided which this ought to have upon our legislation. It would it, and it can only be lessened by mutual forbearance and not be in accordance with the common course of nature explanatory amendments. He must be but a superficial to expect that such mighty powers can long continue to observer of events, who is not sensible that it is a subject be exercised, without accumulating a weight of prejudice which is every day attracting more of public attention and that may, one day, become dangerous to an Institution solicitude. There are those, sir, and they are neither which all admit to be of inestimable value. It is true, as small in number, nor light in character, who think that has elsewhere been said, with apparent triumph, that the the uniform tendency of the political decisions of the SuStates, whose legislative acts have successively fallen un-preme Court has been to strengthen the arm of the Geder the interdiction of the Court, have excited little or no neral Government, and to weaken those of the States. sympathy on the part of their sister States, and, after strug- Such men think that danger to the State Governments is gling with the giant strength of the Court, have submitted to be apprehended from permanently fixing the Judges of to their fate. But, sir, it is feared that this will not always the Supreme Court at the seat of the Federal Governbe the case. Those who are most ardent in their devo-ment. They fear (to use an expression, though not litetion to this branch of the Government, knowing the feel-rally applicable here, still so well conveys the idea) that ings produced by these decisions in the States affected by it would be "establishing a power behind the throne them-sensible that those feelings are rather smothered stronger than the throne itself." Thus thinking, they than abandoned, upon conviction of their injustice, fear commenced, as far back as the now vindicated, but forthat, by adding another and another State to the ranks of merly much abused, act of 1802, to confine the Justices those who think they have reason to complain, an accu-of the Supreme Court to their respective Circuits, and mulation of prejudice may be produced, that will threaten, if not endanger, the safety of the Institution. Seeing, and feeling, and fearing this, they, with wise and patriotic foresight, wish to adopt every measure which will retain and increase, as far as practicable, the general confidence in the Court, and to avoid such as may, by possibility, have a tendency to weaken it. No reflecting man can doubt, that the residence of the Judges of the Supreme Court in the States, being subject in their persons, family, and estates, to the laws of the State-portions of their families, as is frequently the case, members of the State Governments, and themselves only temporarily absent going in and out before the People of the States, and commanding their confidence by the purity of their lives, and the modesty of their demeanor-enforcing and expounding their own decisions in the face of the different classes of the community at the Circuits, and in free and familiar intercourse with those who have such great influence in giving a proper direction to public opinion on legal subjects-must have an infinitely greater tendency to enable the judges to sustain themselves in the honest that course has been persevered in to the present day. They think the inevitable tendency of a change would be for the worse--that, if the Judges come here under the eye of the Government, prominent parties as they always must be to all collisions between the respective Governments, they could not fail to embark more strongly in the feelings of men in power here, than they now do. Sir, this has become a subject on which it is difficult for one to speak without unpleasantly encountering the strong opinions entertained on different sides of the question. On the one hand, expressions of distrust and dissatisfaction are heard, of a character so strongly marked, as to defeat their object and recoil upon their authors. On the other, a sentiment, I had almost said, of idolatry for the Supreme Court, has grown up, which claims for its members an almost entire exemption from the fallibilities of our nature, and arraigns with unsparing bitterness the motives of all who have the temerity to look with inquisitive cyes into this consecrated sanctuary of the law. So powerful has this sentiment become such strong hold has it taken upon the press of this country, that it re APRIL 7, 1826. The Judicial System. [SENATE. and constant connection with the Courts, may have given an undue bias to my opinions: but, from whatever cause it may proceed, such are my views. Whether it might not have been wise, so far to have imitated the example of the country from which we have derived so much of our jurisprudence, as provides for the removal of the Judges on the application of a certain and great portion of the Legislature, is another question; but I have no hesitation in saying, that rather than adopt the sentiments I have referred to, and which have sometimes been broached upon this floor, I greatly prefer that things should be as they are. But whilst I do so, I cannot forget what the experi ence of all ages has demonstrated, the tendency of power to its abuse, and the consequent duty of those entrusted with its investment, to keep its possessors as far as practicable from temptation. quires not a little share of firmness in a public man, how-jects must save this Government, if it be saved at all. ever imperious may be his duty, to express sentiments I am not of that sentiment-my pursuits in life, and early that conflict with it. It is nevertheless correct, sir, that in this, as in almost every other case, the thith is to be found in a just medium of the subject. To so much of the high-wrought eulogies (which the fashion of the times has recently produced in such great abundance) as allows to the distinguished men who now hold in their hands that portion of the administration of public affairs, talents of the highest order and spotless integrity, I cheerfully add the very humble testimony of my unqualified assent. That this uncommon man who now presides over the Court, and who I hope may long continue to do so, is, in all human probability, the ablest Judge now sitting upon any judicial bench in the world, I sincerely believe. But to the sentiment, which claims for the Judges so great a share of exemption from the feelings that govern the conduct of other men, and for the Court the character of being the safest depository of political power, I do not I have done with this branch of the subject. My argusubscribe. I have been brought up in an opposite faith, ment leads to the conclusion, if it be correct, that no bill and all my experience has confirmed me in its correctness. which separates the Judges from the circuit duties can be In my legislation upon this subject, I will act in conform-correct; the bill under consideration avoids that supposed ity to those opinions. I believe the Judges of the Su- evil, and the question is-does it effect what is desired? preme Court, (great and good men as I cheerfully con- and is it, or is it not, obnoxious to objection of an insurcede them to be) are subject to the same infirmities, in- mountable character? fluenced by the same passions, and operated upon by the same causes that good and great men are in other situations. I believe they have as much of the esprit du corps as other men: those who act otherwise, form an erroneous estimate of human nature; and if they act upon that estimate, will, soon or late, become sensible of their delusion. By lessening the duties of the Judge in the seventh Cir cuit, he will be enabled to do what he cannot now do, attend at Washington one month sooner, and unite with his brethren in holding the Supreme Court one month longer. The duties of the other Judges, old and new, will be such as to enable them to do the same. The consequence cannot, therefore, I think, fail to be, that, if this I conscientiously believe, that, to bring the Judges of bill, and the other bill on your table, pass, all delay in the the Supreme Court to the Seat of the General Govern- Supreme Court will soon be removed. As to the Circuit ment, and making them, as it were, a part of the Admi- system, there exists not to my knowledge any complaint nistration-for such, it is to be feared, would soon be its against it in the Atlantic States. I am sure there is no effect-would bode no good to the State Governments. good ground for any. If additional circuits should be neWith feelings for the General Government, as I humbly cessary in the Western districts of New York and Pennhope, purely catholic, I firmly believe, and my daily ex-sylvania, the present Justices of those circuits can easily perience confirms that conviction, that much, very much hold them. All that the Western States want is, to have of the present prosperity of the country and its institu- the circuit system extended to them as we have it. No tions, depends upon the successful action of the State one doubts that, with the addition of these additional Governments, and that the preservation of their rightful Judges, a sufficient number of Circuit Courts can be held powers is the sine qua non of our future welfare. I will in all the Districts in the Union to do all the business. not, therefore, give my assent to any measure which may still further disqualify the States to sustain themselves in those collisions of power which are unavoidable, and in which the situation of the parties is already so unequal. I believe a different disposition of the Judges of the Supreme Court from that provided by this bill, would have such effect, and I am, therefore, most decidely opposed to it. Sir, it would be strange if the tendencies of this high tribunal were not such as I have supposed; unless, indeed, they were more or less than men. It is not only made by this Government, and sustained by this Government-its members not only owe to it all they have and are to be, but they are the only portion of it that is permanent, that is beyond the reach of any power known to the Constitution. The billows of faction may run mountain high, and yet reach not them. The indignant voice of an abused People may, at stated periods, sweep by the board every other portion of the men in power-may take from them the little brief authority under which they have strutted their busy hour upon the stage, and cause them to be seen no more-but the Supreme Court alone, “can never be palsied by the will of its Constituents." And, sir, all things considered, it is best that it is so. I know well, that the opinion that the tenure of the office of the Justices of the Supreme Court is the rotten part of the Constitution, is entertained by men who have established for themselves imperishable claims to the characters of saviors of their country, and benefactors of the human race. Of men, whose opinions on other sub It has been supposed, that at some future day the exigencies of the country will require a different system. I see no good reason for such an opinion. I do not understand why this system may not well be looked upon as calculated to secure the purposes of its institution in all time. At all events, it will for our day; and for what is to come after, "sufficient unto the day is the evil thereof." There is, in my judgment, but one objection to the system or the Bill, and that is the number of the Judges. I wish they could be less, but they cannot. If the number is an objection, it is an unavoidable one. But I confess that this objection does not loom half so large to my eyes as it once did. Perhaps it is because I have made myself more familiar with its observation than before. Perhaps from more accurate reflection. For some purposes, such as the decision of constitutional questions, and the acquisition on the bench, of a perfect know. ledge of local law, the number will certainly be a positive advantage. For others, possibly an objection, but we are consoled with the reflection that we have safe precedents, entitled to great weight, that should serve to allay our apprehension. In England, whose judicial system and jurisprudence is supposed by many to be the best in the world, the twelve Judges have, for time out of mind, met in the Exchequer Chamber for the decision of cases and questions of law; and their number has never, to my knowledge, been complained of as an inconvenience. In Scotland, whose judicial character also stands high, the Court of SENATE.] The Judicial System. [APRIL 10, 1826. MONDAY, APRIL 10, 1826. JUDICIAL SYSTEM. The Senate resumed the consideration of the Bill further to amend the Judicial System of the United States: the amendment proposed by Mr. ROWAN, on Friday last, pending. Dernier Resort is composed of fifteen judges. England allows appeals and writs of error to the House of Lords; and to come nearer home, my own State has for its court of final resort, the Senate of the State, composed of thirty-two members, its President, the Chancellor and Judges of the Supreme Court. It might not do so well for me to speak of the character of the administration of justice in that State under its old and present system, which, in this respect, are alike; others will judge of that-our light has not been hid; but this much I will say, that our citizens are now well satisfied with it, and that, in a Convention held a few years since, no attempt was even made to change that feature of the system-the Court of Errors as it now exists, and has from the foundation of the Government. I have, therefore, made myself easy upon this point. I believe the bill will not only do well, but will do all that is desired from it, and I sincerely hope it may pass. Mr. RUGGLES, of Ohio, followed, in opposition to the amendment, and in favor of the bill, as it came from the other House; and it was opposed also by Mr. HAR-ed, in levying, and carrying into effect, the executions RISON. The amendment was supported by Messrs. ROWAN, NOBLE, KANE, and BENTON, each at considerable length, and Mr. RANDOLPH also advocated the amendment, and addressed the Senate in a speech of more than two hours' duration. The question was then taken on agreeing to the amend ment, and carried by the following vote: Mr. ROWAN rose and addressed the Senate as follows: Mr. PRESIDENT: The two sections which I had the honor to offer as an amendment to the bill now under consideration, contain, each, a distinct proposition. Both, as I conceive, of very great importance, in their import, to the People of the States of this Union. By the first, it is proposed that seven of the ten Justices of the Supreme Court, shall concur in any judgment or decree, which denies the validity, or restrains the operation, of the Constitution, or any law of any of the States, or any provision or enaction in either. By the other, it is proposed that the ministerial officers of the Federal Courts shall be govern which issue from those Courts, by the Execution Laws of the States respectively, in which those Courts shall respectively be holden. Every amendment, Mr. President, implies a defect in the subject proposed to be amended. Every remedy presupposes the existence of an evil. It therefore behooves him who proposes the remedy, not only to point out the evil but to show the fitness and competency of the remeYEAS.-Messrs. Barton, Benton, Berrien, Bouligny, dy. I solicit your indulgent attention, and that of the SeBranch, Chandler, Chase, Clayton, Cobb, Dickerson, Ea-nate, while I attempt to point out some of the evils which ton, Edwards, Findlay, Hayne, Hendricks, Holmes, Kane, King, Macon, Marks, Noble, Randolph, Robbins, Rowan, Smith, Tazewell, Thomas, Van Buren, White, Willey, Williams, Woodbury-32. NAYS.-Messrs. Harrison, Johnson, of Ken. Ruggles, Sanford-4. Mr. ROWAN then moved further to amend the bill, by adding thereto the following sections: "4. And be it further enacted, That the Supreme Court shall, in no instance, decide that the Constitution of any State, or any provision thereof, or the law of any State, or any law of Congress, or any part or portion thereof, or of either or any of them, is invalid or void, by reason of any supposed collision between them, or any part or portion of them, or any or either of them, and the Constitution of the United States, or any article, section, or clause thereof, unless at least seven of the Justices of said Court shall concur in that decision-in which case it shall be the duty of the Justices who shall concur therein, to make out each his opinion in writing, separately, and deliver it to the Clerk, whose duty it shall be to spread the same upon the record of the court. 1 "5. And be it further enacted, That, hereafter, until it The amendment was ordered to be printed; and then are expected to be alleviated, at least, if not remedied, by the amendments which I have proposed. And first, of the evils on which it is hoped the first section will have a remedial effect. They are those which result from the exercise of implied powers by the Judges of the Supreme Court. From an enlargement of the powers of the General Government, by inference and construction, through their instrumentality. To distinguish between the powers which may be legitimately exercised by that tribunal, as the organ of the General Government, and those which they have derived, and are in the habit of deriving, by implication, a short inquiry into the nature, origin, and extent, of the powers which justly belong to the Government of the Union, may not be inappropriate. I promise you, sir, not to be tedious: I will just premise, that a little attention to the import of some of the terms, which are necessarily employed in political discussion, and which I shall be constrained to use, may save from some confusion, in the progress of this inquiry, and enable us to comprehend more clearly the subject embraced by it. I feel that it is necessary: Because the terms to which I allude have, in the discussions of much abler persons than myself, for the want of this precaution, run into each other, and somewhat obscured their arguments. There is nothing more common than to call a Government a State, and, e converso, a State a Government; and the General Government is almost universally called the National Government, the Government of the Nation, &c. The indiscriminate use of these terms tends to confuse the ideas which they import; and their import, thus indiscriminately applied to the States, the State Governments, and the General Government, tends to confound distinctions of the utmost importance to the People of the States. State is a word of technical import in the nomenclature of politics. I understand it to mean civil society, as incorporated by the social compact; and by social compact, do not mean, as many do, the constitution of a Stateno two words differ more in their import. The social compact, I understand to be that contract by which men pass from a state of nature, to a state of civil society; that contract in which each agrees with all, and all with each that each will surrender to all the control of himself, his powers, and his property, and that all shall protect each, in his person, property, and possessions. Anterior to the formation of this compact, every man was, sui puris, in the fullest meaning of those words-exempt from the control of others, and without the right to control any body; he was subject only to the control of his own will; every man was independent of every other man. By this compact, civil society was not only formed but incorporated, became a body politic, a moral agent, a State. The State thus formed, by the consent of all its members, expresses its will, by the voice of a majority, which will is, by the compact, to be the rule of their conduct, the law of their rights, the arbiter of their disputes. [SENATE. essence of liberty. The control of this will, by the functionaries of the Government, whether Executive or Judicial, is any thing but the power of liberty. Liberty is power, when the People of the State govern themselves, by their own will, according to their own plan of government; by functionaries of their own appointment. Thus it is evident that the States were, anterior to the formation of this Union, independent Sovereigns: aliens in their nature, as all sovereigns are, to each other. That each had an organized Government-its Constitution; that the People, and their property, belonged exclusively to the States of which they were citizens. Now the question is, by whom was the Government of the United States formed? By the People, by the States, or Civil society, thus formed by the social compact, is de- by the State Governments? Does it emanate from the States nominated a State. The will of the People who compose in reference to the social compacts by which they were that society, is the sovereign power of the State. But created? Or in reference to the Constitutions which they how that power shall be exercised, most beneficially for formed? Or from the People of all the States, without the People, is the question presented to the State, imme-regard or reference to either compacts or Constitutions? diately after its formation. It has to settle upon the plan, This is a question of great import, as it relates to the extent by which its will shall be exerted in regulating the con- and character of the powers of the General Government. duct, defining the duties, and protecting the rights, of its That the Constitution of the United States was not members. This plan of Government is ordained by the formed by the aggregate People, absolved from the soState, in its Constitution: So that, instead of the Consti- cial compacts, whereby they had incorporated themselves tution being the social compact which forms the State, into States, we know-because, in that case, they must the State forms the Constitution; which is but a diagram not only have dissolved those compacts, and thereby anof the manner in which the will of the People is to be ex-nihilated the States; but, after having done so, they ercised in governing; that is, managing the concerns of must, as one People, have incorporated themselves by sothe State, by the functionaries to be employed for that cal compact, in order to get the power of forming the purpose. Those functionaries are legislative, judicial, and Constitution by the voice of the majority. For, without executive, according to the Constitutions of the States of this compact, the dissentients from the Constitution could this Union, and constitute what I call, and what I think not, on any conceivable principle, be bound by it: for uscan only be properly called, the Governments of the States, sent is the only rational basis of obligation. or State Governments. Without this compact, either express or tacit, the conThe State, by the Constitution, confers on those func- trol of the minority by the majority, would be tyranny. tionaries the authority to exercise the governing power. Besides, the existence of the States is not only recognized The power which is exercised in governing, is neither cre- by the Constitution, but many of its provisions are prediated, nor specifically conferred, by the Constitution. The cated upon their co-existence; and some of its machinery authority, only, to exercise that power, is specifically con-upon the co-existence of the Governments of the States. ferred by that instrument. rable from civil society-which capacity can be conferred by the social compact alone, and which alone exalts the People of that society into citizens, and enables them to act as a moral agent-as an unit-as a State. It was not formed then by the People in their naked chaThe Constitution and laws of the State are formed by racter as such. It was not formed by the Governthe will of the majority. In the formation of the State, ments of the States. It does not purport to have been unanimity was required. To the formation of the Consti- formed by them: they had not been invested by the tution, and the enaction of laws, the will of the majority is States with the powers requisite for that purpose; the competent. The competency of the majority, to the State Constitutions were not only not adapted, but formation of the Government, was derived from the una-opposed to its formation by the functionaries of the State nimity which had existed in the formation of the State Governments. How, then, was it formed? I answer that in its formation, all assented that the majority should be it was formed by the People of the States, in their corpocompetent to the formation and administration of the Go-rate capacity-in that corporate capacity which is insepavernment. The State derives its existence, and its power to govern, from the social compact, and forms its plan of exercising that power, by its Constitution, which is properly called its Government. So that the State is as distinct from its Government, as the Creator is from his crea- The Constitution, then, of the United States, was formture. The former can alter, amend, or abolish, the latter, ed, not by the People, but by the People of the States, in at pleasure. It still exists, whatever may be the muta- their corporate State character. The People of each tions of its government, upon the firm, unaltered, and in- State, separately and distinctly, resting on the basis of the extinguishable basis of the social compact. It is upon this social compact, by which it was formed, and by the exer principle that the debt of a State, or Nation, cannot be cise of that sovereign power, which that compact crecancelled by any revolution whatever in its Government.ated-by the exercise of which, it could alone participate The debt was not due from the Government, but from the in the formation of that instrument. People, in their corporate State capacity; and nothing but The power of the State is commensurate with the votheir extinction could extinguish the debt. If we define lume of the will of the People who compose it. The powliberty to be the right of the citizens to do, each, what heer of the Government is less than the power of the State, by ought to will to do, and not to be constrained to do what he ought not to will to do, the social compact furnishes, in the will of the majority, the rule of that right, and the power the moral force, which guaranties its enjoyment. And this is the sense, Mr. President, in which liberty is power: it is the power created by the social compact-which con- If, then, the Constitution of the United States was formstitutes the liberty of the citizens. The controlling powered by the People of the States, and the People acted in of the will of the majority, is not only the power, but the their corporate State capacity, in its formation, it must be the extent of the restrictions, imposed in its Constitution and bill of rights upon its functionaries. They exercise the power of the State in the manner prescribed, and subject to restrictions, imposed upon their exercise of it in that instrument. SENATE.] The Judicial System. [APRIL 10, 1826. a Federal, and cannot be a National Government, and the It is not my purpose to inquire whence Congress inferpowers of which it consists must necessarily be specific. red the power to cut canals and make roads in the States, For if, as I have asserted, (and I do not repent of the as- or any of them; or to exact, by any mode of taxation, money sertion,) the governing power is a moral force, and con- from the People of the States, for that purpose. I have been sists exclusively in the will of the People, and the People tedious in attempting to be explicit. My special object is, belong to the States, then there is no source whence this to show that the Judges cannot legitimately infer power to power can be derived to the General Government, by im- themselves, or to the General Government; that they can plication or inference. The power of the General Go- only exercise the power expressly accorded to them in the vernment consists exclusively in its Constitution. It is a Constitution of the General Government. If I shall have mere government, consisting of designated functionaries, succeeded in relation to them, the same reason which depermitted to exercise specified powers. It does not con-nies to them the exercise of implied power, denies it alike sist of the People, and, therefore, cannot legitimately use to the Legislative and Executive functionaries of the Gotheir will, except as concocted by the States. The Legislative power of the General Government is exerted on the floor of Congress by the Representatives of the People of the States; and on the floor of the Senate by the Representatives of the Governments of the States, respectively. The first represents the People of the States, in reference to their incorporation by the social compact; the second represents the Governments of the States, in reference to their Constitutions. Hence it follows that the States are, directly or indirectly, the constituents of all the functionaries of the General Government, and, being the constituents of Members of Congress, have the exclusive right to instruct them; whether in relation to matters merely legislative, or to the choice of President, when the election of that officer devolves on Congress. The districts from which the Members are elected, in any State, belong to the State, and were created by it, for the convenience of its People, in the exercise of the elective franchise. The Members, when elected, are the Members of the State, elected by the People of the State, and bound to represent the will, not of the People of this, or that district, but of the State. The State can only express its will through its Legislature, and the Representatives from the counties, which compose the districts, compose the Legislature; which enables the State to express the will of every portion of its citizens, in its corporate capacity, by the voice of the majority, according to its organized plan of agency. vernment. It is, Mr. President, I believe, a just dictate of reason, that the zeal to guard against an evil, should be in proportion to its magnitude. What is the magnitude of the evil apprehended from the exercise, by the Judges, of implied powers: and what are the reasons for apprehending it? The evil apprehended is the absorption of the powers of the States by the General Government, through the instrumentality of its Judges: the reasons for this apprehension are to be found in what they have already done. It is fair, Mr. President, to judge of the future from the past; the past is, in fact, the only medium through which we can lock into the future; the present will not stay with us long enough to be examined; it is the only portion of time which always seems to be in a hurry. We see, in the humiliation of a majority of the States, the triumphant encroachments which the General Government has made, by judicial construction, upon State rights. It is impossible, Mr. President, to depict either the extent or the magnitude of the evils inflicted upon the States, by the Judges, in the exercise of implied powers. I have attempted to show, not that liberty is power, but that power is liberty; if 1 am correct in the position that liberty consists in the right of every citizen to do whatever he ought to will to do, and that the guarantee of that right is in the power of the Stale, then any diminution of the power of the State is a correspondent abridgment of the liberty of the citizen; and, consequently, the prostration of the power of the If a Member from a particular district should attempt to State is the vassalage of its citizens. The magnitude of screen himself behind the supposed will of his district, the evil, then, in its extreme, is neither more nor less against the known and expressed will of his State, he acts than the loss of their liberty by the citizens. But if we upon the principle of consolidation: he detaches the Peo- define liberty to be the right of every citizen to do what ple of his district from the State, in violation of its corpo- the laws permit him to do, and the power of the State to rate character, and attaches them to the General Govern- consist in the will of its citizens, then the code of the ment, in violation of the principles of that Government. State, regulating the conduct of its People, is hut the He incurs, by that single act, a complicated delinquency: will of the citizens, regulating their own conduct. Hence, he violates the will of his State, and he contravenes the the liberty of the People of each State consists in the principles of its Government, and those of the General power of self-government: and the abstraction of that Government. He violates the laws of physics, as well as power is the destruction of liberty. The denial to a State the laws of civil polity, by attempting to substitute either of the power to make laws, in relation to the social inhis own will, or that of his district, for the will of the tercourse, conduct, or interests, of its own citizens, is, in State, and thus to control the power of the whole, by so far, a paralysis of the power in which their liberty esthe power of a part. This, Mr. President, is one of the sentially consists. This paralysis has been inflicted by many inferences which may be drawn from a just view of the Judges upon a majority of the States which compose the principles of our Government, in refutation of modern, this Union. They have been successively stripped, by but prevalent errors. But, as the inferences to which I allude that tribunal, of their sovereign power, to an enfeebling are not necessary to my argument, I forbear to trespass upon and degrading extent. These instances are past; they the time of the House, by running them out; and return to cannot be recalled. The mortification they inflicted can the subject, with the assertion that, if my views are correct, only be compensated by the lessons of caution which they and if every State is the sovereign of the soil, and the citi-inculcate the admonitions which they give to the States, zens within its limits-if its power is its will, subject only to guard against their recurrence. To maintain the pow to the restrictions which it has imposed upon itself in its er of a State is to maintain the efficacy of its laws: for its Constitution, and by the concessions expressly made in the power consists in the enaction and enforcement of such Constitution of the United States, then it is obvious that laws as its condition may require, conformably to its Conany power exercised by any of the functionaries of the Ge- stitution. The importance of the free and unhamperneral Government, which is not expressly conceded in the ed exercise of this power to the freedom and happiness Constitution to that Government, must be an usurpation of of the People, must be obvious to the most superficial obpower, which belongs to the State Governments, or to the server. People, in their corporate capacity; and endangers liberty, in the degree in which the reserved power is necessary to its maintenance and enjoyment. This power, Mr. President, consists, as I have already perhaps too often repeated, in the will of the People. This will, to be beneficially and efficiently exercised. |