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involving the question of federal power which are not cognizable before the federal courts; and of course, as to these we must look out for some other umpire.' And in this case it is, as he contends, that each state has the right to construe its own contracts, and decide upon its own rights and powers. In this short extract lies the root of the whole matter; every thing is based upon the quiet and apparently simple assumption, that there are many cases involving the question of federal power, which are not cognizable before the federal courts. Now, this is utterly denied, and it is averred that in the whole history of our government, no such case has ever occurred, and from the nature of our institutions it cannot occur. In other words, it is affirmed that no case can be conceived, where federal power could be exercised of which the courts of the United States could not take cognizance, by means of a suit or legal proceeding presenting the question directly to them.
"If an officer of the United States forcibly collects an impost upon an imported article, the laws and the forms of proceeding enable the citizen conceiving himself oppressed to present the question by an action at law. The courts act upon individuals; if they claim to be clothed with authority for their proceedings, the extent and constitutionality of that authority necessarily come up for judgment. If the officers and process of the United States be resisted, civil actions, as well as criminal prosecutions, instantly furnish the means of determining whether such resistance was justifiable or not. By the terms of the second section of the third article of the constitution, the judicial power extends to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made under their authority. The question discussed by Mr. Upshur supposes a law of Congress, because, without the authority of the legislative department there can be no exercise of the federal power. And as if to remove every vestige of doubt, and to provide for cases, if any should occur, which did not arise under a law of Congress, the same section provides that the judicial power shall extend 'to controversies to which the United States shall be a party,' without distinction or discrimination. How can there be any cases, then, 'involving the question of federal power,' to which 'the judicial power' of the United States does not extend, or which, in the language of Mr. Upshur, 'are not cognizable before the federal courts?' "If this, then, be the case, as Mr. Upshur supposes, in which the question, who are parties to the constitution, becomes all-important and controlling,' the question itself might be dismissed as of no practical consequence; for the case itself never can occur. But although introduced in this quiet and unpretending form, the question, nevertheless, is one which lies at the foundation of the whole argument advanced by the nullifiers. Their theory is, that the government is federative-a confederation of sovereign states, and not consolidated-and that the states, the parties to the league, retain the right to construe the compact-the constitution-each for itself, and to decide upon its own rights and powers. It is for this purpose that Mr. Upshur has examined our colonial history, contending that we were not 'one people' before the adoption of our own constitution. In the sense in which he uses this term, no one will dispute his correctness. The American colonies certainly were not a political corporation;' and great injustice would be done to Judge Story by the supposition that he maintained such an historical untruth. Mr. Upshur has also shown, what no one had ever denied, that by the articles of confederation the several states retained their sovereignty; and he might have added, that the very weakness of the league which connected them was so apparentits utter unfitness, either in war or in peace, to unite the common strength of the Americans, to restrain the powerful states, and to compel the reluctant to contribute equally to the common defence, was the cause, and the sole cause, of its abandonment, and of the adoption of the new constitution. The question arises under this new form of government. The inhabitants of the
thirteen colonies had waged a common war, and they, unitedly as well as severally, had been acknowledged to be independent by the treaty of 1783. They united in appointing ambassadors to negotiate this treaty, and, by its terms and operation, they were not only separated from Great Britain, but were bound together in a common mass. France, Spain, and Holland, had recognised them as one people, and had sent ministers to the body, not to the several states. The body had formed treaties with those nations; it had acted as a nation, had assumed its duties and responsibilities-nay, in the very first line of the Declaration of Independence, they had called themselves 'one people.' They were, therefore, to some extent 'a people;' they were in the incipient stages of forming a political corporation,' and were in a conditionphysically, morally, and politically-to do so. Yet Mr. Upshur remarks, that in the states the sovereign power is in the people of the states respectively, and the sovereign power of the United States would, for the same reason, be in the people of the United States, if there were any such people known as a single nation, and the framers of the federal government.' The historical references already made show sufficiently that there was a people composing the thirteen colonies, who had made themselves somewhat extensively known as a single nation, having an army and a navy, a national ensign, issuing a national currency, represented abroad by its ministers, and receiving embassies from other nations. The first condition stated by Mr. Upshur would seem to have been complied with. As to the second condition, viz. that a people known as a single nation should have been 'the framers of the federal government'-perhaps the instrument which was the work of their handswill be allowed to be good evidence, if not conclusive, upon the point. It commences with these words: 'We, the people of the United States, in order, &c., &c., do ordain and establish this constitution for the United States of America.' It made provision for its own existence by its last article, that the ratification by nine states should be sufficient for its establishment. It was accordingly submitted to the people of the several states, not to their ordinary legislatures, but to conventions elected specially to consider the new constitution, and to adopt or reject it. This was the most expedient form in which it could be submitted to the people directly. A ballot, or a viva voce vote at the election polls, directly upon the various parts of the constitution, was obviously objectionable, if not wholly impracticable; and the same object was obtained by calling on the electors to choose delegates who should directly and immediately express their will. Admitting, then, that up to the time of the formation of the constitution the inhabitants of the thirteen colonies did not form a separate and distinct political corporation, perfect in its organization, and capable of maintaining itself, yet it must be apparent that they had so long associated together under a common government, had exercised unitedly so many of the functions of the national sovereignty, that they were in a condition to become integrated, and to perfect their identity; and the exact question is, what was the effect of the constitution upon them in this respect?
"There has certainly been a class of politicians who have contended that this effect was a complete consolidation, and that the federative principle was extinguished. Another class, and these are the nullifiers, maintain that the federative principle still prevails as effectually under the new constitution as it did under the articles of confederation; and that, consequently the separate states have the same right as before to construe for themselves the new compact-in other words, to set aside the decisions of the federal judiciary. There is another class, comprising, it is believed, two-thirds of the American people, who hold both these views to be extremes, and to be fallacious, and who adopt a middle course regarding the federal government as both federative and consolidated-federative in its origin, federative in reference to domestic and
internal concerns, and yet consolidated; that is, an independent integer, a popular government in relation to foreign affairs, and in general to all that concerns the common interest of the people of all the states. The idea has been correctly expressed by M. de Tocqueville. The object was,' he says, 'so to divide the authority of the different states which composed the union, that each of them should continue to govern itself in all that concerned its internal prosperity, while the entire nation, represented by the union, should continue to form a compact body, and to provide for the exigencies of the people.' And the whole matter is condensed in one line: The United States form not only a republic, but a confederation;' and he shows that the authority of the nation is more central than it was in France or Spain, when the American constitution was adopted. The identity of the people of the several states, their oneness, as Mr. Upshur expresses it, is very clearly shown by the second section of the fourth article. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.' Here is a provision that operates, not upon the states, but individually upon every citizen, clothing him with a new character, in addition to that he already possesses. It enables the citizens of Louisiana to inherit lands by descent in Massachusetts: it removes all alienage at once, and leaves no trace of a foreign feature. Without dwelling upon the first section of the same article, which gives full faith and credit in 'each state to the public acts, records, and judicial proceedings of every other state,' and which has been held by all our courts to give them the same effect in every part of the union that they have in the state where they originate, or upon the power given to Congress exclusively, of establishing the mode of making citizens of the United States; and, without adverting to various other provisions of a similar character, it must be sufficient to rest on this single section, which makes the citizen of one state a citizen of every state, to demonstrate that the union is not a mere confederacy, or league of sovereign states, but that it is an integer, a political body under a constitution which declares that treason may be committed against it by declaring war, or adhering to its enemies. It becomes quite immaterial how this result was accomplished, or who were the parties to the instrument by which it was effected. The question, and the only question, is, what is the political condition of the people under that instrument? Are they one people, or are they twenty-seven distinct people, aliens to each other?
"Contenting myself with these general views of some of the leading and prominent features of the constitution, I do not deem it necessary to follow Mr. Upshur in his examination of the structure of the different departments. He admits, however, that the House of Representatives is not federative. The ordinary course of electing a president by the votes of the people of the different states, in choosing special delegates to express their will on that subject, is also certainly not federative; while the mode of proceeding in the event of a failure to elect in the first instance, is evidently federative; and thus, in the structure of the departments, the federative and the consolidating, or central principle, are both adopted, and are applied as the nature of the power to be conferred may require.
"We may now approach more directly the true question which the nullifiers present against the residue of their countrymen, and which Mr. Upshur has rather intimated than distinctly avowed. After enumerating at some length the cases to which the judicial authority of the United States extends, he refers to the tenth amendment of the constitution, by which it is provided, that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.' And he contends that these powers are reserved as well against the judiciary as against the other departments of the federal government; that among these powers is that of each state, judging alone of its own compacts
and agreements; that the constitution being such a compact, each state has a right to interpret it for itself, unless, and then comes a most important quali fication, which presents the point of the whole controversy, unless it (each state) has clearly waived that right in favour of another power.' Now the position advanced and maintained by all parties in America, except the nullifiers, is, that by the very terms of this compact this right of each state to interpret it for itself, has been expressly waived in favour of the federal judiciary. No language which I can employ would so clearly state this position as that of M. de Tocqueville: 'The attributes of the federal government,' he says, 'were, therefore, carefully enumerated, and all that was not included among them, was declared to constitute a part of the privileges of the several governments of the states. Thus the government of the states remained the rule, and that of the confederation became the exception. But as it was foreseen that in practice, questions might arise as to the exact limits of this exceptional authority, and that it would be dangerous to submit those questions to the decision of the ordinary courts of justice established in the states by the states themselves, a high federal court was created, which was destined, among other functions, to maintain the balance of power which had been established by the constitution between the two rival governments.' 'To suppose,' he remarks in another place, that a state can subsist, when its fundamental laws may be subjected to four-and-twenty different interpretations at the same time, is to advance a proposition alike contrary to reason and to experience. The object of the erection of a federal tribunal, was to prevent the courts of the states from deciding questions affecting the national interests in their own departments, and so to form a uniform body of jurisprudence for the interpretation of the laws of the union.' The supreme court of the United States was, therefore, invested with the right of determining all questions of jurisdiction. And to effect this purpose, can language be more clear and explicit than that of the second section of the third article? 'The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority, to controversies to which the United States shall be a party,' &c. If it extends to them, it must be for the purpose of deciding them, not for the purpose of referring them to some other power or tribunal. It has already been shown it is supposed that this description necessarily comprises every case that can possibly arise, involving the exercise of the federal power. Every such case must be founded on a claim that it springs from the authority given by the constitution, and then the courts must decide whether it arises under the constitution.' If it does not, it must be dismissed. If it does, the courts must entertain and decide it. And it is somewhat extraordinary that this very power is conceded by Mr. Upshur in a previous part of his remarks: 'So far, therefore, as the federal constitution has provided for the subject at all, the supreme court is, beyond question, the final judge or arbiter; and this, too, whether the jurisdiction which it exercises be legitimate or usurped.' These are his words, and they afford a complete and perfect answer to the qualification he makes of the right of each state to interpret the constitution for itself, 'unless it has clearly waived that right in favour of another power.' If, then, the federal constitution has provided for the subject in the way he states, and if the States have assented to that provision by adopting the constitution, have they not waived the right of interpreting it in favour of another power?'
"But Mr. Upshur says, that it is not waived, and this, he says, is apparent from the fact that, if the judiciary be the sole judges of the extent of their own powers, their powers are universal, and the enumeration in the constitution is idle and useless.' Now, with deference be it said, this is very inconclusive. The liability of any power to abuse, to gross perversion, does not, in
sound minds, tend in the least to prove its non-existence. The same remark, which Mr. Upshur makes in reference to the judiciary, is still more applicable to the states. If they are 'the sole judges of their own powers, their powers are universal,' and the grant of authority to the federal government, or to the judiciary, is idle and useless. The question, however, still remains, whether the power has been granted? The object of all political compacts and constitutions is to produce and preserve peace, and to prevent wars, by providing a mode of final settlement peaceably, by an independent tribunal. Every umpire may err; may enlarge its jurisdiction, and take cognizance of what is not submitted to it. In the formation of a constitution, the question is open, whether it is better to incur this hazard, than the opposite one of having nothing finally settled? And this was the very question which the framers of our constitution considered, and debated and decided, and this decision having been ratified by the states, as well as by the people of the United States, it is too late to seek to evade it by questioning its wisdom.
"Mr. Upshur, however, persists in falling back on principles anterior to the constitution, instead of looking to that instrument alone; and he urges that the federal government is the creature of the states; that it is a mere agent, with limited powers, and then asks,— Shall the agent be permitted to judge of the extent of his own powers, without reference to his constituents? To a certain extent he is compelled to do this, in the very act of exercising them; but this is always in subordination to the authority by whom his powers were conferred.' Besides, the fallacy, as it is believed to be, that the federal government is the creature of the states, as distinguished from the people of the states, there is a fundamental error in considering the judiciary as an agent to exercise certain political powers-as a mere attorney, in fact, to per form certain delegated functions, and as being subordinate to the states, by whom it is intended to be implied that the judicial power was conferred. It is conceived that its functions are of a character entirely different. As its very name imports, it is to adjudge-not execute, nor legislate. It is the means by which disputes and controversies are to be terminated, without a resort to force. It is the contrivance of civilization, to prevent a recurrence to the law of nature. It is the last and strongest link which unites the ends of the chain of civil government, and renders that complete, which, without it, would not deserve the name of government. So far from partaking of the nature of agents, or being subordinate to the authority which conferred their powers, the judiciary are by the constitution rendered wholly independent of their constituents, who cannot revoke or annul the authority once granted; and, instead of being subordinate, they are by the same instrument placed above those who created them, and administer the law to them and to all others. Even controversies between states are subjects of their jurisdiction. What becomes then of this idea of their being agents, and bound to make 'reference to their constituents' to determine the extent of their powers?
"It will be observed, that the argument of Mr. Upshur covers the whole ground. 'True,' he says, the states ought to be, and, I presume, will be, extremely careful not to interpose their sovereign power against the decisions of the supreme courts in any case where that court clearly has jurisdiction.' But this involves the very point of determining whether it has jurisdiction or not; and whatever may be Mr. Upshur's opinion of certain cases being clearly within their jurisdiction, a state which has passed a stop-law, as it is termed an act to suspend the collection of debts, or to prevent their recovery-will not be very scrupulous in its construction of one part of a constitution which interposes a check to its rashness, when it has already violated another part of the same instrument. In truth, this doctrine, that a judiciary is not to judge of the extent of its own powers without reference to its constituents,' at one blow prostrates that department of government in the states, as well as in