Thirdly, they have reposed trust in the judicial power, which, in order that it might be trust worthy, they have made as respectable, as disinterested, and as independent as was practicable.Fourthly, they have seen fit to rely, in case of necessity, or high expediency, on their known and admitted power to alter or amend the Constitution, peaceably and quietly, whenever experience shall point out defects or imperfections. And, finally, the people of the United States have, at no time, in no way, directly or indirectly, authorized any State legislature to construe or interpret their high instrument of government: much less to interfere, by their own power, to arrest its course and operation.

MR. HAYNE. The proposition which I laid down, and from which the gentleman dissents, is taken from the Virginia resolutions of '98, and is in these words, "that in case of a deliberate, palpable, and dangerous exercise by the federal government of powers not granted by the compact, [the Constitution,] the States who are parties thereto, have a right to interpose, for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties, appertaining to them.' The gentleman insists that the States have no right to decide whether the Constitution has been violated by acts of Congress or not—but that the federal government is the exclusive judge of the extent of its own powers; and that in case of a violation of the Constitution, however "deliberate, palpable, and dangerous," a State has no constitutional redress, except where the matter can be brought before the Supreme Court, whose decision must be final and conclusive on the subject. Having thus distinctly stated the points in dispute between the gentleman and myself, I proceed to examine them. And here it will be necessary to go back to the origin of the federal government. It cannot be doubted, and is not denied, that before the Constitution, each State was an independent sovereignty, possessing all the rights and powers appertaining to independent nations; nor can it be denied, that, after the Constitution was formed, they remained equally sovereign and independent, as to all powers not expressly delegated to the federal government. This would have been the case even if no positive provision to that effect had been inserted in that instrument. But to remove all doubt it is expressly declared, by the 10th article of the amendment of the Constitution, "that the powers not delegated to the States, by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The true nature of the federal Constitution, therefore, is, (in the language of Mr. Madison,) "a compact to which the States are parties," a compact by which each State, acting in its sovereign capacity, has entered into an agreement with the other States, by which they have consented that certain designated powers

shall be exercised by the United States, in the manner prescribed in the instrument. Nothing can be clearer than that, under such a system, the federal government, exercising strictly delegated powers, can have no right to act beyond the pale of its authority, and that all such acts are void. A State, on the contrary, retaining all powers not expressly given away, may lawfully act in all cases where she has not voluntarily imposed restrictions on herself. Here then is a case of a compact between sovereigns, and the question arises, what is the remedy for a clear violation of its express terms by one of the parties? And here the plain obvious dictate of common sense, is in strict conformity with the understanding of mankind, and the practice of nations in all analogous cases-"that where resort can be had to no common superior, the parties to the compact must, themselves, be the rightful judges whether the bargain has been pursued or violated." (Madison's Report, p. 20.) When it is insisted by the gentleman that one of the parties "has the power of deciding ultimately and conclusively upon the extent of its own authority," I ask for the grant of such a power. I call upon the gentleman to show it to me in the Constitution. It is not to be found there.

But if there be no common superior, it results from the very nature of things, that the parties must be their own judges. This is admitted to be the case where treaties are formed between independent nations, and if the same rule does not apply to the federal compact, it must be because the federal is superior to the State government, or because the States have surrendered their sovereignty. Neither branch of this proposition can be maintained for a moment.

Here, however, we are met by the argument that the Constitution was not formed by the States, in their sovereign capacity, but by the people, and it is therefore inferred that the federal government, being created by all the people, must be supreme; and though it is not contended that the Constitution may be rightfully violated, yet it is insisted that from the decisions of the federal government there can be no appeal.

I deny that the Constitution was framed by the people in the sense in which that word is used on the other side, and insist that it was framed by the States acting in their sovereign capacity.. When, in the preamble of the Constitution, we find the words, "we, the people of the United States," it is clear, they can only relate to the people as citizens of the several States, because the federal government was not then in existence.

We accordingly find, in every part of that instrument, that the people are always spoken of in that sense. Thus, in the second section of the first article, it is declared, "That the House of Representatives shall be composed of members chosen every second year, by the people of the several States." To show that, in entering into this compact, the States acted in their

sovereign capacity, and not merely as parts of one great.community, what can be more conclusive than the historical fact, that, when every State had consented to it except one, she was not held to be bound. A majority of the people in any State bound that State, but nine-tenths of all the people of the United States could not bind the people of Rhode Island, until Rhode Island, as a State, had consented to the compact.

I am not disposed to dwell longer on this point, which does appear to my mind to be too clear to admit of controversy. But I will quote from Mr. Madison's report, which goes the whole length in support of the doctrines for which I have contended.

Having now established the position that the Constitution was a compact between sovereign and independent States, having no common superior, "it follows of necessity," (to borrow the language of Mr. Madison,) "that there can be no tribunal above their authority to decide in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition."

But the gentleman insists that the tribunal provided by the Constitution, for the decision of controversies between the States and the federal government, is the Supreme Court.

It is clear that questions of sovereignty are not the proper subjects of judicial investigation. They are much too large, and of too delicate a nature, to be brought within the jurisdiction of a court of justice. Courts, whether supreme or subordinate, are the mere creatures of the sovereign power, designed to expound and carry into effect its sovereign will. No independent State ever yet submitted to a judge on the bench the true construction of a compact between itself and another sovereign. All courts may incidentally take cognizance of treaties, where rights are claimed under them, but who ever heard of a court making an inquiry into the authority of the agents of the high contracting parties to make the treaty-whether its terms had been fulfilled, or whether it had become void, on account of a breach of its conditions on either side? All these are political, and not judicial questions. Some reliance has been placed on those provisions of the Constitution which constitute "one Supreme Court," which provide, "that the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties," and which declare "that the Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land," &c. Now, as to the name of the Supreme Court, it is clear that the term has relation only to its supremacy over the inferior courts provided for by the Constitution, and has no reference whatever to any supremacy over the sovereign States. The words are, "the judicial

power of the United States shall be vested in one Supreme Court, and such inferior courts as Congress may, from time to time, establish," &c. Though jurisdiction is given "in cases arising under the Constitution," yet it is expressly limited to "cases in law and equity," showing conclusively that this jurisdiction was incidental merely to the ordinary administration of justice, and not intended to touch high questions of conflicting sovereignty. When it is declared that the Constitution and the laws of the United States, "made in pursuance thereof, shall be the supreme law of the land," it is manifest that no indication is given either as to the power of the Supreme Court, to bind the States by its decisions, nor as to the course to be pursued in the event of laws being passed not in pursuance of the Constitution. And I beg leave to call gentlemen's attention to the striking fact, that the powers of the Supreme Court in relation to questions arising under "the laws and the Constitution," are co-extensive with those arising under treaties. In all of these cases the power is limited to questions arising in law and equity, that is to say, to cases where jurisdiction is incidentally acquired in the ordinary administration of justice. But as, with regard to treaties, the Supreme Court has never assumed jurisdiction over questions arising between the sovereigns who are parties to it; so under the Constitution, they cannot assume jurisdiction over questions arising between the individual States and the United States.

But to prove, as I think conclusively, that the judiciary were not designed to act as umpires, it is only necessary to observe, that, in a great majority of cases, that court could manifestly not take jurisdiction of the matters in dispute. Whenever it may be designed by the federal government to commit a violation of the Constitution, it can be done, and always will be done in such a manner as to deprive the court of all jurisdiction over the subject. Take the case of the tariff and internal improvements, whether constitutional or unconstitutional, it is adinitted that the Supreme Court have no jurisdiction. Suppose Congress should, for the acknowledged purpose of making an equal distribution of the property of the country, among States or individuals, proceed to lay taxes to the amount of $50,000,000 a year. Could the Supreme Court take cognizance of the act laying the tax, or making the distribution? Certainly not.

Take another case which is very likely to occur. Congress have the unlimited power of taxation. Suppose them also to assume an unlimited power of appropriation. Appropriations of money are made to establish presses, promote education, build and support churches, create an order of nobility, or for any other unconstitutional object; it is manifest that, in none of these cases, could the constitutionality of the laws making those grants be tested before the Supreme Court. It would be in vain, that a State should come before the judges with an act appropriating money to any of these objects, and ask of the court to decide

whether these grants were constitutional. They could not even be heard; the court would say they had nothing to do with it; and they would say rightly. It is idle, therefore, to talk of the Supreme Court affording any security to the States, in cases where their rights may be violated by the exercise of unconstitutional powers on the part of the federal government. On this subject Mr. Madison, in his report, says: "But it is objected, that the judicial authority is to be regarded as the sole expositer of the Constitution in the last resort; and it may be asked, for what reason the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day, and in so solemn a manner.

"On this objection it might be observed, first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department."

But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it.

"However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments, hold their delegated trusts. any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve."

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If, then, the Supreme Court are not, and, from their organization, cannot, be the umpires in questions of conflicting sovereignty, the next point to be considered is, whether Congress themselves possess the right of deciding conclusively on the extent of their own powers. This, I know, is a popular notion, and it is founded on the idea, that as all the States are represented here, nothing can prevail which is not in conformity with the will of the majority-and it is supposed to be a republican maxim," that the majority must govern."

Now will any one contend that it is the true spirit of this government, that the will of a majority of Congress should, in all cases, be the supreme law? If no security was intended to be provided for the rights of the States, and the liberty of the citizens, beyond the mere organization of the federal government, we should have had no written Constitution, but Congress would have been authorized to legislate for us, in all cases whatsoever;