SENATE.] The Judicial System. [APRIL 10, 1826. tending to maintain the power of the People, and the Strange infatuation! to suppose that self-interest is the us, Mr. President, disenthral ourselves from our fatal delusions, in relation to this Judiciary. Let us invoke our reason to disenchant our feelings, and relieve us from this blind devotion to the Judges, this self-destroying idolatry. Let us not forget that they are men-and suppose it possible for them to err. nothing worse than the faculty of erring; and, if they may I ascribe to the present incumbents err-if their successors may, possibly, do worse than err is it not wise to guard, as far as practicable, against that occurrence? Is not prevention more wise than remedy? But why speak of remedy? Their errors are irremediable; and, therefore, there is the strongest reasons for every practicable prevention. and selected men who enacted them-perjury, not by design, but by negligence, or ignorance; not by saying that they were either knaves or fools, but by leaving it to be inferred that they were either the one or the other. body will have the hardihood to believe that the imputaNotion of either, could attach to the ermine. Why, impress the public mind with the belief that, how-just basis of impartial and disinterested umpirage. Let What next? ever fit the States may be for the regulation, and decision of little matters of meum and tuum betwen their own citizens, they are utterly incompetent to decide upon any matter, in which so important a personage as the Bank of the United States is concerned; that the dignity of the origin of that institution, the weight of its character, and the extent and nature of its resources, entitle all its concerns to a place on the federal docket. Let the Judges rivet this impression upon the public mind, by a solemn decision that the Bank has the privilege to sue, and be sued, in the Federal Courts alone: In addition to this, let the presses, which are under the control of the General Government, and of its Bank, vilify the States, as petty, partial, and turbulent corporations; and pouriray, in glowing colors, the excellence and grandeur of quiring the concurrence of seven of these Justices to vaBut, Mr. President, what are the objections against rethe General Government; let them linger, at the close, cate a law of the State? I have attempted to show that with fond delight, upon the independence and intellec- the States do not (frequently at least) pass unconstitutional tual pre-eminence of its judicial functionaries: Again-laws; that, if they should happen to do it, their own relet the President recommend it to Congress to cut the pealing power is a safe corrective. I do not, myself, beStates up into roads and canals; and let the Congress lieve that a single State in this Union has passed an uncontake the hint, and commence operations: Does any thing stitutional law, with the knowledge of its unconstitutionremain, Mr. President, to complete the prostration of the ality. I do believe, myself, that the Federal Judges have States, and with them the liberty of the People? Nothing, erred more frequently, and much more injuriously, in but what the Bank can very easily effect; and that is, pronouncing State laws unconstitutional, than the States to constrain its debtors, immediate, proximate, and remote, have erred in enacting laws of that character. who form a majority of the People of the States, to give to all these operations, the unction of popularity. The quisition? If the law of a State should be obviously and What objection, then, I repeat, can there be to this reBank, it is known, has able counsel retained in each of plainly in violation of the Constitution of the United States, the States. Their efforts and influence must not be it ought to be presumed that, being obviously and plainly wanting to propagate the sentiments which, whatever so, all the Judges would perceive it, and readily and they may be, are best calculated to swell the tide of its unanimously concur in pronouncing it so. influence; the Bank is their client; it is in the way of their stitutionality should not be obvious and plain, ought not vocation. Add to all these the usurers, brokers, stock- the Judges, in charity, if not in comity, to those who enactIf its unconjobbers, merchants, and manufacturers, and who can doubted it, to presume that it was constitutional? Ought they the result? I am one of those, Mr. President, who do not to torture their wits in elaborate, learned, and unconstrubelieve that the States are incompetent to the management able constructions, to arrive at its unconstitutionality, and of their own affairs; that they are, in their legislation, re- thereby inflict the imputation of folly or wickedness upgardless of the Constitution of the United States; that on the State which enacted it? they are petty, partial, turbulent corporations. On the contrary, I believe that their rights, and their constitution, currence of the twelve jurors in the guilt of a single inWhere is the reason of requiring the unanimous conand that of the United States, have been grossly and re-dividual, before he can be deprived of his liberty, and peatedly violated by the Congress and Judiciary of the permitting a bare majority of a quorum of the Justices of United States. I believe that the tendency of the Gene- that Court to deprive a State of its sovereign power, and ral Government towards the absorption of the States, is the million of citizens who compose it, of their liberty? visible, rapid, and, I fear, resistless. Yet, I would make The trial by jury is the boast of the States; but they canthe experiment to resist it. But, any experiment which pur- not be supposed to overlook, in their estimation of it, its ports to impose any restraint upon judicial discretion, is as- characteristic feature-the unanimity with which alone it sailed by all our prejudices in favor of the sanctity of the acts. Now, Mr. President, what reason can there be for ermine. The exclamation is, do what you please with the requiring the concurrence of the twelve Judges of fact, to States, but do not meddle with the Judiciary; you may tax give validity to their verdict, which does not apply with and tariff the People, to swell the influence of the Bank, at least the same force, in requiring seven of the Judges of by chaining to its car the manufacturers, whom you privi- law, to concur in a judgment, or decree, which condemns lege by that process; you may make roads and cut canals, a State law? It cannot be that there is more difficulty in in any of the States, because you are thereby promoting ascertaining the law, than the fact of the case. Every the general welfare; and, because, then, you are only in- lawyer knows that the great difficulty of every trial conterfering with the constitutional rights of the States; insists in ascertaining the true facts of the case. that, you are acting upon the People, and they, in all time, are ascertained, the law is easy. have been lawful game. But, touch not the Judges, they trials, the jurors are judges of the law, as well as the facts. When they are the great umpire between contending sovereigns; be- They must ascertain the facts of the Besides, in all criminal tween the General Government and the States. happiness of the People is in their holy keeping. The shall be in favor of the accused. The the law of it; and that irreversibly too, if their decision case, and may decide Judges of the Supreme Court the umpire! They looked require that twelve plain, common sense men, of the up to by the States as umpire between the General Gov-grand jury, shall agree in preferring a charge of perjury, How unreasonable, to ernment and the People! They the most efficient organs for instance, against the humblest citizen of a State, and of that Government which wants but People to have vas-that twelve more, as a petit jury, must concur in prosals-the just and impartial umpire between States con-nouncing him guilty, before he can be deprived of his APRIL 10, 1826.] The Judicial System. [SENATE. privilege to be a witness; and yet refuse to require the side neutralizes the opinion of the two on the other side, concurence of seven of the ten Justices, in a judgment, and were there but four on the bench, the law would reor decree, which shall not only vacate a State law, but in- main valid and effective. But the opinion of the fifth flict upon the one hundred and fifty select and responsible Judge, and his opinion alone, is against the law; and his men, who enacted it, the imputation of perjury; of hav- opinion declares the law to be unconstitutional and void. ing violated their solemnn oaths to support the Constitu- And, Mr. President, under the bill on the table, if it shall tion, either through wickedness, or ignorance. For my pass into a law, without my amendment, the same thing own part, I have no hesitation in saying, that I would may happen. Suppose there are seven Judges on the place a State upon at least as good a footing as an indivi- bench, and six of them shall be divided, three against dual. As the good sense of my country presumed every three, the seventh alone, makes the decision. If there are accused individual innocent, until his guilt was ascer- nine on the bench, and eight of them are divided, four tained by the unanimous verdict of the twelve jurors, so against four, the ninth Judge alone gives the opinion. I would, if it were left to me, when the law of a State was For when the Courts are divided into two against two, accused of being unconstitutional, require that the whole three against three, or four against four, the odd Judge number of the Judges, whatever their number might be, alone in each case pronounces the opinion; until he speaks, should concur in the condemnation of it, before it should the law remains valid. The opposing opinions, possessbe considered as guilty of the charge, and thereby ren- ing equal force, result in inefficacy, and when the odd dered inoperative. But, Mr. President, let me not be Judge declares the law to be unconstitutional, the judg here misunderstood. In my judgment, the sovereign pow-ment of the Court, to that effect, is as exclusively his sole er of a State should not be submitted to any judicial tri- opinion, as if he alone constituted the Court, and as effecbunal whatever; but, if to any, certainly not to the Su- tive, as if all the Judges had concurred. Could a despot, preme Court of the United States. I can never be per- Mr. President, do more than control the legislation of the suaded that the Court of the United States can be consid-States by his fiat? He could not do it with less than a ered as an impartial tribunal in a case of that kind-cer- hundred thousand bayonets. He could not do it with even tainly not more so than either House of Congress, or that force. The People of the States would be prodigal both-and, neither, more impartial than the Legislature of their blood, in vindication of their rights. And yet, of the State by which the law was enacted. strange to tell, these very People tamely, patiently, and I am not prepared to say, that sovereign power is a fit even cheerfully, submit to lose those very rights, by the subject for special pleading in a court of law: to be associ- fiat of a judicial despot, which they would die to maintain ated with, and share the fate of, John Doe and Richard Roe. against a despot, armed with whatever force-as if it could This, however, is only my individual opinion, and as it make any odds to them, after they had lost their liberty, has nothing to do with the question involved in the whether it was taken from them by a judicial despot, amendment, it was perhaps imprudent in me to ex-armed with the moral force of their own fatal credulity, press it. I therefore pass it over, and proceed to shew, or by an ambitious aspirant, at the head of an armed force. that it is not only not unreasonable to require this concur- Sir, a single Judge may, in the same way, vacate a law of rence of the seven Judges, but entirely reasonable upon Congress. The two Houses of Congress may pass a law principles of reciprocal justice. Mr. President, when by a majority of two-thirds of each House, against the veto the Senators sit in their judicial capacity, to try a judge of the President. A single Judge may, as in the instances of that Court, the concurrence of two-thirds of that body I have mentioned, in relation to State laws, take side with is necessary to the conviction of a single Judge; why the President, and overrule, by his single opinion, the twoshould it require two thirds of the Senators, in their judi-thirds of both Houses of Congress. I mention this, Mr. cial capacity, to convict one of those Judges of a misde-President, to shew that even the legislative power of the meanor, while a minority of the very same Judges may General Government may be controlled by that Courtconvict a State of having violated the Constitution? There by even a single Judge of that Court. Not that I appreare now seven Judges; four of whom constitute a quorum; hend that the power of that Court will be exerted in vathree of the four, a minority of the whole, may, and in cating the laws of Congress; I have really no such appresome instances have, pronounced State laws, of the most hension. They are the Judges of the General Governinteresting character, void. Thus you see, Mr. President, ment, and will always have the wisdom to prefer foreign three of the seven Judges can vacate the laws of the conquests to domestic broils. My great object is to save twenty-four States suucessively; can disrobe them of their the States from being degraded, to save the liberty of the sovereign legislative power; while it takes the concur- States from being frittered away, by the judicial oligarchy rence of sixteen Stutes, or thirty-two Senators, sitting as of the United States. For, I insist upon it, Mr. President, Judges, upon a single one of those Judges, to convict him that the Supreme Court of the United States, if it shall be of unconstitutionality, or in any way to affect his judicial indulged in the exercise of the powers which it has asfaculty. Is this reasonable? is it prudent? is it politic sumed, by inference and construction, in addition to those Can the States hope to retain their sovereingty; can the with which it is legitimately invested by the Constitution People of the States hope to retain their liberty, under of the United States, is the most stupendous aristocracy circumstances like these? But is it not a perversion of which was ever tolerated in any country in which the terms, to call that liberty, which depends upon the will of sound of liberty was uttered, and its import understood. another? Are the States free, when their sovereign will Sir, what would we think of the prudence of those may be controlled, and its efficacy denied, by the minori- farmers, into whose fields, (grainfields, Mr. President, ty of a Court, over which it has not any, even the slight-upon the growing crops of which they depended, excluest, control over whose decisions all the States can, insively, for the subsistence of their families,) the breachy no possible way, either through Congress, or otherwise, exert any control? But sir, not only can three Judges, as things now stand, paralyze the sovereign power of the States, but even one can do it. Yes, sir, a single Judge can deprive a State of its sovereign power. As thus: suppose there are five Judges upon the bench, the Constitutionality of a State law is drawn in question; three of the five think the law unconstitutional; the other two are of a different opinion: how stands the matter, in relation to opinion? Why, the opinion of two on the one cattle of a neighboring Nabob had found their way, owing to the lowness of the fencing, who would neglect to secure their crops from the pillage of the cattle, by raising their fences a rail or two higher, particularly when the rails were lying by them ready made; who would, not only neglect, but refuse, to raise their fences higher? Would we not proclaim that they were improvident farmers; that they were mad men? This is, Mr. President, a homely, but, I think, illustrative case. I shall not press its similitude. But I am for saving the crops by fencing out the cattle, and such, I hope, will be the inclination of a majority of the members of this body. I do not know that the crop, and a precious one it is, can be saved, by even this precaution. But its importance justifies this, and every effort, which can be legitimately made, to save it. The experiment can do no harm, it may do much good. But I will leave this section to the reflection of the Senate; my deficient manner of discussing it, will be supplied by their good sense. I must, however, beg their indulgence for a few minutes, while I offer to them the reasons which influenced me to propose the remaining amendatory section. [APRIL 10, 1826. ther Government, or at the instance of its functionaries? The citizens and their property must be regulated by the State; that is, by the People in their corporate capacity; or the State is not sovereign, and they are not free. The proprietary right of the States over the People, and their property, is, or is not, sovereign. If sovereign, it implies not only the right to regulate both according to their will, but competent wisdom for this purpose. If the power of the State is not sovereign, why are they mocked with it? If the General Government is the proprietor of the People, and their property; that is, if the citizens, and their property, are to be regulated by the Federal Government, The execution laws, Mr. President, of any People, why is not that power asserted by that Government? But who assert their right to self-government, should, in a I have, I trust, been successful in showing that the Conmore emphatic sense than any other of their laws, be stitution of the United States did not, and could not, suited to their condition. Their other laws are, compara- confer this power; that it is inherent in the States, and tively, theoretic and abstract. They exist in the statute that the States would be faithless to themselves, if they book, for contemplation, as rules of conduct and of pro- were to surrender it, or permit it to be usurped, or filched perty; while unobstructed in the acquisition of property, from them. It is not, it cannot be pretended, that the and uninterupted in its enjoyment, the People, unfortunate- Congress could pass laws regulating conveyances, dely for the durability of their rights, pay but too little atten- scents, and distributions, or last wills and testamentstion to the complexion of their code. Busied with the avoca- laws regulating the purchase and transfer of property. tions of life, vexed with its cross purposes, and thwarted by But an execution law is, in fact, a law of this character; it its vicissitudes, they have but little leisure, and less incli- involves, in its operation, the sale, purchase, and transfer, nation, for abstraction of any kind. But execution laws, of property. And in States where land is, and shall contiMr. President, address themselves to the senses of the nue to be, subject to sale under execution, that must, at People; an execution law, is law, in its practical, noun- no very distant day, (such is the vicissitude of human afsubstantive, matter of fact shape. The other laws consti- fairs,) become, in such States, the most prevailing title to tute the rules by which each man regulates his own con- lands. And, although Congress ought not, and, as I beduct and disposes of his own property. The execution lieve, cannot, legitimately, pass execution laws, except law constitutes the rule, and creates the authority, by such as relate to its revenue: yet the Judges of the Suwhich one man takes and disposes of the property of preme Court have construed themselves into the power of others, by which he even deprives others of their personal enacting laws of this character, under the denomination of liberty. I repeat, then, that the execution system of any rules of Court. And some of, even the District Judges, State should be enacted with a wise regard to the condi- made haste, after this learned opinion was made out by tion of its People. It is a despotic feature, which cannot be the Supreme Court, to exert their legislative power upon discussed from the countenance of the Republic; it should, the States. In the State which I have, in part, the honor therefore, be softened as much as possible. The laws of to represent, the legislative faculty of the District Judge right were enacted by the Legislator of the Universe, was very promptly and energetically exerted, in furnishand written legibly and irreversibly in the volume of na-ing a system of execution laws for the People, or rather ture; the social compact recognizes that code, and legiti- against the People: for it was, in all its outlines, and esmates it: its fitness and its force is, instinctively, recog-sential provisions, in utter contempt of their known and nized, felt, and acknowledged by the People. But, Mr. declared will. By the law of the State, imprisonment President, the laws of remedy are created by the State; for debt had been abolished; by the law, alias rule, of the they are the rules by which civil society exerts its reme- Court, the ca. sa. was revived, and the citizens subjectdial and protecting force, in favor of one or more of its ed to imprisonment for debt. By the law of the State, citizens, against the delinquency of others. They are the land could not be sold under execution, for less than avenues through which that force finds its way to the de- three-fourths of its valuation; by the rule of the Court it linquent citizens, and it should find its way in the gen-was enacted, that land should be sold, without valuation, tlest of all the conceivable efficient modes. This is required for whatever it would bring, at a credit of three months; by the peace, tranquillity, and harmony, of society. When and, by several rules of the Court, it was enacted that the the marshal seizes, and bears away with him, the proper- Marshal should convey the lands, sold by him under exty of an individual; if you abstract the authority under ecution, to the purchaser. The rules, moreover, kindly which he acts, his conduct amounts to robbery. The au- prescribe the ceremonies necessary to be observed by the thority, therefore, under which he acts, should not only Marshal, in making the conveyance, in order to give it be visible, in his acts, but it should be obtrusively so; it validity. should be a domestic, and not an alien authority; the individual who is the subject of it should perceive its justice from his consciousness that it was according to the will of the People of which he was himself a part, and in which he had confidence, because he had consented to it. He should, in fact, recognize his own power, as the agent, in producing his own privation. Mr. President: it is time that it should be distinctly as certained whether execution laws should be enacted by the States, by the Congress, or by the Courts. The object of the section which I am now attempting to discuss, is to silence all doubt on that subject, by rescuing that power from judicial usurpation, and leaving it with the States-its only appropriate source. And why should it not be exercised by the States? It originated with them. They have not conceded it to the General Government; they could not, consistently with the power they retained over the persons and property of their citizens, concede Mr. President: we are taught that the liberty and pro-it to the General Government. The concession of it would perty of the citizens are regulated, guarded, protected, have been an implied concession, to the General Governand guarantied by the States. But how can they guar-ment, of the power to regulate the conduct and the anty the liberty, or protect the property, of their citi- property of its citizens. It would, in fact have been a zens, if they permit their persons to be imprisoned, and virtual surrender, by the States, of all their sovereign their property to be taken from them, at the will of ano- power. Hence I insist, Mr. President, that it is the right of every State to enact the execution laws by which the judgment and decrees of the Federal Court, in that State, shall be carried into effect. But, Mr. President, I ask again, why should not the States possess and exercise this power? Will they exercise it foolishly, or partially, or wickedly? If so, they are not sovereign; because folly, partiality, or wickedness, cannot be supposed to be associated, in the mind of a statesman, with sovereign power. So far as concerns their own citizens exclusively, it is admitted that they may exercise this power, and that they must be supposed to exercise it wisely. Well, sir, why shall there be a special, distinct, and different execution law, for aliens, and the citizens of other States? Ought they not to be content with family fare? [SENATE. And A surrender, whereby the General Government would different. Their resources are different; their climates have been at once-what it is rapidly, as I fear, hastening are different; and all these, and a thousand other local to become a National, a consolidated Governinent. causes, combine to influence the will of man. man, (I use the term as a noun of multitude,) is only free, when governed by his own will; he is only prosperous, only happy, when so governed. It is therefore that the liberty of the People cannot survive the sovereignty of the States. The sovereignty of the States consists in the will of the People, and accommodates itself, as it ought, in the enaction of laws, to the resistless will of the heavens only. In every State, that portion and species of property which is essential to the immediate subsistence of the debtor and his family, if he have one, are exempted by the laws from the effect of the execution. In England, the beasts of the plough were exempt; so were the implements of professional avocation--tools of handicraft, &c. The same exemption prevails in most of the States. Each State, however, suits this exemption to the condition of the People, in reference to their pursuits, their cliNow, Mr. President, it is evident that an uniform execu tion law would, in its very uniformity, inflict great evils upon the People of the States. If, when visited by a stranger, you extend to him the hospitality of your domicil, ought he not to be contented; could he reasonably expect you to change your whole domestic system, to suit his taste, whim, or caprice? Which is most reasonable? That he should accommo-mate, &c. date himself to the established rules of your household, or that those rules should be changed to subserve his convenience or caprice? Now, sir, when an alien comes into the political household of a State, he should conform to If you consult commerce, you should give a very swift the rules of the household; he will be hospitably enter-remedy; that remedy would ruin the agriculturist: it tained while he remains-he will be more than entertain- might not suit the manufacturers-but each, and all, can ed; he will be protected by the very same laws which be suited by the States in which they most abound. The protect all the members of the household. To expect exemption, Mr. President, which obtains in the State of more, would be unreasonable; to demand more, would be Maine in favor of poor debtors, is very different from that arrogant. which would be dictated by the climate and condition of the People in the State of Louisiana. The execution law of Maine exempts one swine, seven sheep, and one stove, &c. The rigor of the climate makes the warmth of wool, and of the stove, necessaries, as much so-to the comfort of the bodies of the poor-as the flesh of swine to their stomachs. In Louisiana, the stove, the wool, and even the swine, have never been thought of, except as articles of discomfort. There, consulting their comforts you would exempt musquito curtains. What, Mr. President, has been the usage of other States in relation to this subject? Has England afforded to Frenchmen, or France to Englishinen, an execution law, distinct from that afforded to their respective subjects? Has either claimed the right, or even suggested the expediency, of enacting an execution law, for such of its own subjects as may happen to be drawn into the Courts of the other? Has the commerce of either of those States, or of any of the States within the knowledge of history, suffered from the want of the exercise of this power? On the contrary, has not commerce flourished, wherever it has flourished, without it? And has it not flourished most, where liberty has mast prevailed? And can any State be free, that is not sovereign? And can any State be sovereign, which permits another Government to make an execution law for it-to create the laws by which its citizens are deprived of their liberty, or their property? But, Mr. President, whether the execution laws of the States be enacted by Congress, or by the States, it will, I presume, be acknowledged, that, to be obligatory upon the People, they must be enacted by their Representatives. What is the reason, Mr. President, that a law, to be binding upon the People, must be enacted by their Representatives? It is because they are free; and, to be free, must make the laws by which they are governed; But, Mr. President, I will suppose, for the purpose of the People enact laws by their Representatives, because the argument, that Congress possesses this power, and in-they cannot, with convenience, assemble and do it themquire whether she ought to exercise it; and if she should, how and what would be the result? She ought not to exercise it, because its exercise is unnecessary, and would be odious; and because she is under no compulsion to exercise it; and because its exercise would be incompatible with the sovereignty of the States. There are several powers conferred on Congress by the Constitution of the United States, which it has not yet, and it is hoped never will, exercise. But if it were to exercise this power, it must exercise it in one of two ways; namely, it must either enact one uniform execution law, for all the States, or it must enact separate and different laws for the different States. selves. If they assembled and enacted the law, in their proper persons, the law would be an expression of their will, and, therefore, binding. When it is enacted by their Representatives, it is supposed to be an expression of their will; and, unless the Representatives be faithless, it is so, and, therefore, binding. Well, sir, when the People of a State have enacted an execution law, by their Representatives in the State Legislature, that law is an expression of their will upon that subject, and therefore binding, until they shall will to repeal or modify it. The State of Kentucky has no right to pass an execution law for the State of Tennessee; and a law of that, or any other character, enacted by Kentucky for It cannot enact one uniform execution law for all the Tennessee, would not be binding on the People of that States; for the obvious reason, that an execution law which State, because the law was not made by their Repre would suit one State, would not suit another and all laws sentatives; was not an expression of their will. On the should be suited to the condition of the People; therein same principle, the People of Tennessee have no right to lies the perfection of legislation. But the condition of the enact a law for the People of Kentucky. Well, suppose People of the different States is different, and the cause Congress to enact an execution law for Kentucky, and of that difference is not within the control of Legisla- suppose it were to enact the existing execution law of tion. The People in one State are commercial; in Tennessee for Kentucky, and that of Kentucky for Tenanother manufacturing; in another they are farming.nessee, would the law, in either instance, be binding In one they plant tobacco; in another cotton; in ano- upon the People of those States? Ought it to be binding? ther sugar. Their pursuits, habits, and avocations, are It is, in each inserce, not only not according to the will of the People of those States, but expressly contrary to their will. But the will of the People is the power of the State; and the law derives its obligatory effect only from the consideration that it is the will of the People. The People of Kentucky and Tennessee, therefore, certainly could not be bound by those laws, and remain free, quo ad hoc. Then, if Congress were to enact an execution law for the States, it would enact, if it consulted the will of the People, precisely the execution law which exists in each of the States. The existence of the execution law in each State, is the highest and most solemn expression of the will of the People of each, upon the subject; and to make a law of Congress binding upon the State, in relation to matters of interior policy, it should be according to the will of the State-if, indeed, such a law can be binding. Again-the presumption must be, upon the supposition that each State is sovereign-that its execution law is wise, and suited to its condition. Now, if Congress were to enact an execution law for each State-Congress being a sovereign, must also be supposed to act wisely, and, acting so, it would suit the law to the condition of the People; and, acting wisely, and suiting the law to the condition of the People, it would enact precisely the same law which the State had enacted: and, therefore, in enacting the law, would do an idle, a supernumerary act, and thus display its folly in the exercise of its wisdom. But, if Congress should attempt to enact a distinct execution law for each State, then it might happen that no State in this Union would have an execution law according to its will; and that every State would have an execution law contrary to the will of its Representatives in Congress, and in violation of the representative principle. That of Kentucky might be imposed upon Tennessee, and that of the latter upon the former; and every other two States in the Union might be made, in effect, thus to reciprocate their execution laws; and all those States enslaved, quo ad hoc. For, as the freedom of a People consists in their government of themselves according to their own will, so, e converso, their slavery consists in their being governed by some other will than their own. And so it would turn out that the States, instead of being secured by the Confederacy in their right of self-government and liberty, are, by that very means, to be deprived of both. [APRIL 10, 1826. It has been said, that, by the adoption of this amendment, the Congress would virtually delegate the legisla lative power of the General Government to the States; and that the Congress cannot legislate by deputy. To this objection, Mr. President, I have two answers: First, That this power is not vested in the Congress by the Constitution; there is no express concession of it in that instrument, and you cannot, on account of the intervening State Governments, reach either the People or their property, so as to infer it from either; and, second, that, by the thirty-fourth section of the Judiciary act, which created the Supreme Court, it was provided, in substance, that the Judges should be governed, in their decisions, by the laws of the States, respectively, in which their Courts were holden. Now, surely it is as competent for Congress to ordain that the Marshal shall be governed by the State laws, in carrying a judgment or decree into effect by exccution, as that the Judges should be governed by those laws in the formation of the judgments and decrees. But, it is said that, although Congress might, as it has heretofore done, adopt the present existing execution laws, it could not adopt, now, the laws of that character which the States may hereafter enact. Mr. President, I do not consider it necessary that Congress should adopt either the present or future execution laws of the States, if future can be predicated of laws of that character. The proposition is, to direct the ministerial officers of the Federal Courts to be governed by the execution law of the States-not to adopt the laws. But, if it were an adoption of those laws, the difficulty suggested would not exist; for there are not different successive execution laws in any State. The whole of what is called the execution laws of a State, is but one execution law; as all the successive executions which may issue upon a judgment, however numerous and different in kind, are but one execu. tion, in contemplation of law, and in the nature of things. So, any number of execution laws, however different in their provisions and dates, are, in contemplation of policy and reason, and in the nature of things, but one execution law; and, of course, essentially the same at all times. Mr. President, civil society is an unit; a moral agent; a sovereign, which prescribes by its will, and enforces the observance of its prescriptions by the power of its will. An execution law is but a display of the remedial energies of this will. This will is a stream that never ceases to flow, nor intermits it current; its current is, to be sure, sometimes more rapid than at others. In times of adversity it lingers, as it flows in a circuitous direction; in times of prosperity, it rushes forward in a right line, but is always the same; always, and necessarily, from the nature of sovereign power, an unit. It is therefore, I ventured, with great deference, to differ from their honors in the construction of the process act of 1789. That act declared, in substance, that "executions should be le What objection, then, Mr. President, can there be to the adoption of this section, which provides that judgments and decrees of the Federal Court should be carried into effect by the ministerial officers of that Court, according to the laws of the State within which the judgment or decree shall have been pronounced? I have shown, I trust, that it is in accordance with the nature, genius, and principle of our Government; that it is in accordance with, and even demanded by, the relation which the citi-vied and carried into effect according to the execution zens and their property bear to the States: But, above all, Sir. President, it is in accordance with the great principe in which all right to rule originates; namely, the will of the People. In their will the States originated; by their will, the State Governments were formed; according to their will, all laws are enacted. In the formation of the States by the social compacts, the citizens surrendered themselves and their property to the regulation and control of the States; by the State Constitutions they settled the plan by which they and their property should be regulated and controlled. And they did not, by the Constitution of the United States, dissolve the relation which was created by the social compact, and surrender to the General Government the regulation and control of themselves and their property, except in specified instances, and to a limited extent, for specified purposes. And this is not one of the specified instances; nor is the subject embraced by any of the specified powers. laws now in force in the several States." They interpreted the word "now" to mean the very point of time at which that act went into effect, and confined its effects to the modification of the execution law of each State, at that point of time; and made that interpretation the basis of the necessity which impelled them to enact the rules of Court which I have mentioned. The word now, in that act, was, in my humble opinion, susceptible of a much broader import than they gave to it; the nature of the subject required that a broader import should be given to it; and words should always be construed in reference to the subject-matter to which they relate. "Now is the time, now is the day of salvation," is a text containing a repetition of that adverb of time; and who would construe those words to refer to the very point of time at which they were uttered? Who could restrict their import to a shorter period than the lifetime of those to whom they are addressed? To the lifetime of this world-the subject to which they relate? |