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than five hundred slaves. Therefore the state in which the labourers are called freemen should be taxed no more than that in which the labourers are called slaves.
"If slaves are people, as forming the measure of national wealth, and, consequently, of taxation; and if taxation and representation be placed upon the same principle, and regulated by the same ratio, then that slaves are people, in fixing the ratio of representation, is a logical sequitur which no one can possibly deny.
"But it is objected that slaves are property, and, for that reason are not more entitled to representation than any other species of property. But they are also people, and, upon analogous principles, are entitled to representation as people. It is in this character alone that the non-slave-holding states have a right to consider them as has already been shown, and in this character alone is it just to consider them. We ought to presume that every slave occupies a place which, but for his presence, would be occupied by a free white man, and, if this were so, every one, and not three-fifths only, would be represented; but the states who hold no slaves have no right to complain, that this is not the case in other states, so long as the labour of the slave contributes as much to the common stock of productive industry, as the labour of the white man. It is enough that a state possesses a certain number of people, of living rational beings, we are not to inquire whether they be black, or white, or tawny, nor what are their peculiar relations among one another. If the slave of the south be property, of what nature is that property, and what kind of interest has the owner of it? He has a right to the profits of the slave's labour. And so the master of an indented apprentice has a right to the profits of his labour. It is true, one holds the right for the life of the slave, and the other only for a time limited in the apprentice's indentures; but this is a difference only in the extent, and not in the nature of the interest. It is also true, that the owner of a slave has, in most states, a right to sell him; but this is only because the laws of the state authorize him to do so. And, in like manner, the indentures of an apprentice may be transferred if the laws of the state will allow it. In all these respects, therefore, the slave and the indented apprentice stand upon precisely the same principle. To a certain extent they are both property, and neither of them can be regarded as a free man; and if the one be not entitled to representation, the other also should be denied that right. Whatever be the difference of their relations to the separate members of the community, in the eye of that community they are both people. Here, again, Mr. Adams shall speak for me; and our country has produced few men who could speak more wisely: 'A slave, may indeed, from the custom of speech, be more properly called the wealth of his master, than the free labourer might be called the wealth of his employer; but as to the state both are equally its wealth, and should therefore equally add to the quota of its tax. Yes; and consequently, they should equally add to the quota of its representation.'
"It is remarkable that the constitution is wholly silent in regard to the power of removal from office. The appointing power is in the president and senate; the president nominating, and the senate confirming. But the power 10 remove from office, seems never to have been contemplated by the convention at all, for they have given no directions whatever upon the subject. The consequence has been precisely such as might have been expected, a severe contest for the possession of that power, and the ultimate usurpation of it, by that department of the government to which it ought never to be intrusted. In the absence of all precise directions upon the subject, it would seem that the power to remove ought to attend the power to appoint; for those whose duty it is to fill the offices of the country with competent incumbents, cannot possibly execute that trust fully and well, unless they have power to correct their own errors and mistakes, by removing the unworthy, and substituting
better men in their places. This, I have no doubt, is the true construction of our constitution. It was for a long time strenuously contended for by a large party in the country, and was finally yielded, rather to the confidence which the country reposed in the virtues of Washington, than to any conviction that it was properly an executive power, belonging only to the president. It is true of Washington alone, of all the truly great of the earth, that he never inflicted an injury upon his country, except only such as proceeded from the excess of his own virtues. His known patriotism, wisdom, and purity, inspired us with a confidence, and a feeling of security against the abuses of power, which has led to the establishment of many precedents, dangerous to public liberty in the hands of any other man.
"Another striking imperfection of the constitution, as respects the executive department, is found in the veto power. The right to forbid the people to pass whatever laws they please, is the right to deprive them of self-government.*
"The re-eligibility of the president, from term to term, is the necessary source of numberless abuses; at present there is no danger of this. Presidents are now made, not by the free suffrages of the people, but by party management; and there are always more than one in the successful party, who are looking to their own turn in the presidential office. It is too early, yet, for a monopoly of that high honour; but the time will come, within the natural course of things, when the actual incumbent will find means to buy off opposition, and to ensure a continuance in office, by prostituting the trusts which belong to it. We cannot hope to be free from the dangers which result from an abuse of presidential power and patronage, until that officer shall be eligible only for one term, a long term if you please; and until he shall be rendered more easily and directly responsible to the power which appoints him."
HONOURABLE J. C. SPENCER'S EXAMINATION OF JUDGE UPSHUR'S REVIEW OF THE CONSTITUTION OF THE UNITED STATES.
Mr. Macgregor thus introduces Mr. Spencer's answer:-"In order to comprehend the views entertained by eminent legislators in the United States of America, we consider it just to introduce into this work the following examination by a gentleman and statesman of great learning and ability of Mr. Upshur's strictures on the American constitution. Mr. Spencer is not only a profound jurist, but he has held the most important trusts in the government of his country. He was one of the most able secretaries of the treasury; an office which nearly corresponds with that of chancellor of the exchequer in England."
"Having," says Mr. Spencer, "been favoured by a friend with the perusal, in sheets, of a part of Mr. Macgregor's great work on the Progress of America, which contained the remarks of the Honourable Abel P. Upshur on the constitution of the United States, I expressed my unhesitating opinion that they were as erroneous as they were injurious; that they were calculated to produce a very false impression of the weakness of our Union, and the incapacity of our federal government to maintain itself, or to fulfil the high duties assigned to it; and that it would be equally unfortunate for us and for other
So thoroughly is this right of the people to make the laws understood in the British parliament, that the royal disallowance of any bill is never contemplated; and, although the royal prerogative of disallowance still exists de jure, it has long ceased de fucto, by disusage.
countries if those views should be received and accredited, as just expositions of a system somewhat complicated, and therefore liable to be much misunderstood by those who had neither the means nor the leisure for its thorough investigation. I was urged to prepare a statement of the opinions of that class of our countrymen (believed to be, by far, the largest portion of the active and intelligent men engaged in such discussions,) who take a practical view of our government, and seek to ascertain its powers and duties by a reference to the plain words and fair meaning of the constitution. Under the impression that the withdrawal from the cares of public life, and the absence of professional engagements, would afford abundant leisure for such an undertaking, a partial assent was given. This having been communicated to Mr. Macgregor, he has announced that in a subsequent part of his work, a review of Mr. Upshur's remarks, by me, would be given. Under these circumstances, although the anticipated leisure has not been enjoyed, yet the desire to fulfil an implied pledge, impels me to endeavour to execute a task which should have been committed to more competent hands.
"Judging from the portions of Mr. Upshur's communication, for portions only of it are given, it would seem that he quite disapproved of our federal constitution; for while he points out what he supposes to be defects, which he severely censures, no part of it has received his unqualified approbation. To those who were acquainted with the peculiar character of his mind, this, probably, will not be surprising. A knowledge of those peculiarities will serve to explain, if it does not elucidate some of his views. Mingling very little with the world, and in a profound retirement, in a secluded part of Virginia, he indulged a naturally speculative mind to its fullest extent, in reflections upon our form of federal government, without ever having had the advantage of personally partaking in its operations.
"He had held public stations in the state of Virginia, but had held no office under the general government, nor had he ever been a member of either house of Congress, when his opinions on nullification were promulgated. He had prided himself on being one of the most high-toned federalists of the country, until about the time when the disputes with South Carolina commenced. These disputes involved deeply and extensively the interests of the southern states, who complained that their agriculture was made subservient to northern manufactures, by means of the tariff acts of Congress. Failing to secure a numerical majority in that body, they questioned its constitutional power thus to oppress them, as they said, by legislation; and having satisfied themselves of the want of such power, they next inquired into the means of resisting its exercise. This led them to what is called the doctrine of nullification; which means, according to their theory, that any one state legislature which conceives an act of the federal Congress to be unconstitutional, may nullify such act, by declaring it to be inoperative within the limits of the state, and by punishing, through the state tribunals, the officers who should attempt to execute it. The old maxim, that where there is a will there is generally a way, was exemplified in this case. The novel system of a federal government uniting several sovereign states in one confederacy, and under one government for certain definite purposes, afforded an ample field for the speculative tendencies of our southern statesmen; and to a man like Mr. Upshur, it was a rich mine, in which he could strike his own quarry, and pursue it at his own option. There was nothing in the institutions of ancient, or modern republics, at all similar. Neither experience nor the labours of learned or thoughtful men afforded guides to reflection, or checks to the wildest license of speculation. He entered this field warmly; and as the first step in his progress, abandoned all the political principles which forty years had enabled him to form and strengthen. He became a writer for the periodicals of the day, and contributed the principal articles to the Southern Review,' the
champion of nullification. In the support of that cause, and in discussions, written, printed, and oral, he was engaged more or less extensively, for about eight years, when he was called to take charge of the navy department, by Mr. Tyler, from which he was transferred to the state department, and in which he remained about eight months. The communication to Mr. Macgregor, a part of which appears in his work, is but a condensation of the essays published in the 'Southern Review,' and other periodicals.
"This account of the author of the remarks which are proposed to be examined, and this history of the question he has discussed, seemed useful, if not necessary, to a full comprehension of his views. It should be added, that the nullifiers profess to derive their doctrine from Mr. Jefferson and Mr. Madison; and Mr. Macgregor has apparently fallen into the error of supposing that doctrine to constitute the great point of difference between the federalists and democrats. It is very true that these parties have differed much in their construction of the constitution, the former being latitudinarian, pushing to its utmost extent the principle embodied in the eighteenth subdivision of section eighth of the first article of the constitution, that of passing all laws necessary and proper for carrying into execution the powers vested by that instrument in the government, or in any of its departments, while the democrats have insisted on a rigid and strict construction, and have maintained that these implied powers must always be subordinate and ancillary, and can never be converted into main and principal purposes of government. But as to the remedy, for the abuse of the legislative authority, proposed by the nullifiers, the democrats, when in full possession of power, and with ample means to sustain and vindicate it, so far from supporting, rebuked and denounced it in the most significant manner. On the occasion already referred to, South Carolina asserted this reserved right to nullify a tariff act of congress, and passed laws for the purpose. General Jackson, the then president, with a vast majority of democrats in both houses of congress, adopted the most stringent measures to put down the doctrine and its abettors.
"He issued a proclamation, which received the warm approbation of the whole country, (excepting South Carolina, and a very few in some of the other southern states,) in which the doctrine was examined, and its fallacy exposed. And the misguided men who acted under it were warned to return to their allegiance; and this was followed by acts of congress of the most effective character. The incipient rebellion was crushed-by democratic men-indeed, by the democratic party.
"In truth, this doctrine of nullification is the peculiar property of a distinguished statesman of South Carolina, who has enjoyed all the highest stations in the republic but the very highest, and who has repeatedly been a competitor for that station. His own state, and some citizens of other states, whose interests are supposed to be identical with those of South Carolina, have embraced it; and although partisan writers talk about reserved rights of the states, on special occasions, the general and almost universal feeling of the country abhors and condemns it.
"In these circumstances an apology will be found for an effort to prevent any erroneous impression as to its prevalence, and to exhibit what are deemed the unfounded assumptions in Mr. Upshur's communication, by which it is sought to be sustained.
"It should be remarked preliminarily, that Mr. Madison has publicly and fully disavowed the paternity of any such doctrine, and declared his conviction of its fallacy, as well as its dangerous consequences. It was contended, by its friends, that the germ of the principle was to be found in the resolutions of the legislatures of Virginia and Kentucky, passed in 1798 and 1799, and which are known to have been prepared by Mr. Jefferson and Mr. Madison.
"These resolutions were aimed at the alien and sedition laws, enacted under the administration of the elder Adams. After denouncing these acts as uncon
stitutional, the resolutions declared, that if they were not repealed it would be the duty, as it was the right, of the states of the union to interpose and seek a rightful remedy. In a letter to Mr. Rives, written a few years since, Mr. Madison denies that the language or spirit of the resolutions authorizes any separate state to resort to any means of resistance, but that the action of the states combined was contemplated; and he refers to the provision of the constitution for calling a convention of all the states, on the application of two-thirds of the num ber, as the remedy intended.
"The reader, not particularly conversant with American politics, will find some advantage in these preliminary remarks, by their enabling him to perceive the exact position advanced by Mr. Upshur on the subject of nullification.
"Justice to him requires that it should be stated in his own words.
"He first admits that the supreme court is the proper tribunal, in the last resort, to determine whether the federal government has transcended its constitutional obligation or not, to a certain extent; that its decision is binding and absolutely final, so far as the court has jurisdiction over cases affecting the rights of the individual citizens, and over certain others, affecting the rights of the individual states; and that states, as well as individuals, in these cases, have not an independent right to construe, control, and judge of the obligations of the federal government, but that they are bound by the decisions of the federal courts, so far as they have authorized and agreed to submit to them.' So far Mr. Upshur has but expressed the clear and unequivocal import of the constitution, and the common opinion of every man in America who has ever publicly declared his opinion on the subject. It will be seen, then, that the dispute is rather about a question of fact than of principle. The principle is conceded that the jurisdiction of the federal courts is final and conclusive in all cases where such jurisdiction exists. The dispute is, whether a given case comes within that jurisdiction. If it does not, then no one has contended that the decision of the supreme court would be more effectual in determining it than that of the emperor of China; it would still remain to be settled. If the parties to the controversy should happen to be a powerful state on one side, and the federal union on the other, it must be determined by physical strength-as all controversies must be where there is no umpire, and the parties will not amicably adjust them. This is natural nullification, independent of all law, all constitutions, and all compacts; in other words, it is a revolution. If this be all that Mr. Upshur and his nullifying associates mean that when the federal government exercises powers not delegated, no decision of the supreme court can supply the defect in the grant, and that resistance to oppression, even in a judicial form, is a right and a duty, few or none on this side the Atlantic will be found to controvert their views. And it is very immaterial whether this resistance proceeds from voluntary and temporary associations of individuals, or from an organized state government. The intelligent reader will perceive at once that this cannot be the question at issue, respecting which so much ink has been shed. The great and the real question is, who shall decide whether the case presented does or does not fall within the circle of powers, duties, and obligations of the federal government, as prescribed by the constitution? It is not as Mr. Upshur would have the reader to infer, whether a state may resist the decision of the supreme court in a case of acknowledged usurpation. But it is, whether the supreme court shall decide whether the power claimed in the given case be a usurpation or not. Now, the real object of the nullifiers is to establish the doctrine, that the states may sit in judgment upon the decisions of the supreme court, review them, like an appellate tribunal; and if any one state conceives that the federal judiciary has sanctioned a usurpation, it may of its own will, and as an incident to its sovereignty, apply the remedy of nullifying, as before explained, or may secede-withdraw from the union. "Unwilling at the onset to state the question in this broad form, Mr. Upshur, after making the admission before quoted, says, 'But there are many cases