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properly intended to notice every branch of it, whether constitutional, statute, or other: and as in the occasional notes and comments it is properly intended to examine, very concisely, a few important parts of this law; and as some very recent proceedings, as published in Virginia, South Carolina, and Georgia, respecting state rights and state sovereignty, demand the serious attention of every man in the United States, I need make no apology for adding a few remarks on the subject; but as a full examination cannot be made, even in a volume, and much as to these rights and this sovereignty, is already stated in this work, I shall confine my remarks, mainly, to the tenth section in the first article in the federal constitution, which, in a special manner abridges and limits state sovereignty, and which section is in these words, to wit : “No state shall enter into any treaty, alliance, or confederation; grant letters of marque or reprisal; coin money ; emit bills of credit; make any thing but gold and silver coin a tender in payment; pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts, or grant any titles of pobility.'

No state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection law; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the congress. No state shall, without the consent of congress, lay any duty of tonnage, keep troops, or ships of war, in time of peace; enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded or in such imminent danger, as will not admit of delay.' Many other parts of this constitution limit state power and sovereignty which will be recollected.

14. In the proceedings in the Virginia legislature, in Feb. 1829, on the tariff subject, it was resolved, that there is no common arbiter to construe the constitution of the United States, the constitution being a federative compact between sovereign states, each state has a right to construe the compact for itself.” This legislature then declared its deliberative conviction that the acts of congress, usually denominated the tariff acts, are not authorized by the plain construction, true intent and meaning of the constitution. About the same time, on the same subject, the legislature of Georgia resolved, that as one of the contracting parties to the federal constitution, and possessing equal rights with the other contracting party, she will insist on her construction of that instrument, and will submit to no other. By the other contracting party, in the singular number, Georgia must mean the United States or Union.

Several questions arise : 1. Is the federal constitution a compact or contract agreed to, and made by two or more parties, or is it a constitution ordained and established by the people of the United States, as a nation ? 2. Is there, or is there not, a common arbiter to construe it? 3. Has a state a right to construe it for itself, to insist on her construction, and to refuse to submit to any other construction ? 4. If a state has this right to construe, where is this right placed, in her judiciary, or in her legislature ?

If this state right exists, it exists in each of twenty-four states; and if deliberate conviction so lead them, they may construe this constitution in twenty-four different ways, and if there be no common arbiter, all the different constructions must be constitutional, and stand firm. Even the old confederation provided a common arbiter, which finally decided and settled the Wyoming dispute between Connecticut and Pennsylvania, and other disputes.

§ 15. I will venture to assert, that the constitution of the United States, is not a compact or contract agreed to by two or more parties, to be construed by each for itself, and there stop for the want of a common arbiter to revise the construction of each party or state ; but that it is, as the people have named and called it, truly a constitution ; and they properly said “we, the people of the United States” “ do ordain and establish this constitution,” and not we, the people of each state. If a contract, when and how did the Union become a party to it? If a compact, why is it never so denominated, but often, and invariably, in the instrument itself, and in its amendments, styled this constitution ? and if a contract, why did the framers and the people call it the supreme law? A constitution, state, or federal, is a thing constituted, an instrument ordained and established. If a committee frame a constitution for a state, as for Connecticut, and the people thereof meet in their several counties, and ratify it, it is a constitution, ordained and established, not a compact or contract among the several counties; so if they meet in their several towns, and ratify it, it is not a compact among them. A compact among states is a confederation, always so named, as was the old confederation, and never a constitution. The words, federal constitution, were first used in the old congress, in assenting to the federal convention, which framed the constitution. In a confederation among states, the name of each is preserved : so in treaties made under one, as in our treaties with France in 1778, and with Great Britain in 1782 and 1783; not so in treaties made under the constitution. In the time of the confederation, the several states were known to foreign nations, not so in the time of the constitution. In the confederacy, acting under the confederation, each state was distinctly noticed and named; not so under the constitution. The distinction is material under the

so, that

confederation; the several states were more sovereign, and acted severally, as thirteen states. Under the constitution they are far less sovereign, and do not act so, except in mending the constitution. If each state be now sovereign, in the true sense of the word sovereign, its sovereignty is very much limited, as appears in the said tenth section, in other parts of the constitution, and in various cases and decisions stated in this work; so much it can make, without the consent of congress, no compact with another state, or with a foreign state, nor is it legally known to it; it cannot engage in peace or war, without such consent, but in a special case: it has no sovereignty on the ocean; nor has it any in the numerous cases in which its sovereign power has been transferred to the union, as in regard to post-offices, bankruptcy, naturalization, and scores of other cases.

Nor was a legislature a party to the adoption of the constitution.

"§ 16. Is there a common arbiter to construe the constitution ? This question involves two questions: one, is not the power to construe the constitution a judicial power ? and another, if judicial, where is it placed in the last resort? Most clearly, it is a judicial power, so belongs not to congress or the legislatures, in the cases in question, finally to be exercised. The power to decide in the last resort, that an act of congress is constitutional or not, is clearly judicial, and has been so exercised by the judiciary, federal or state, in scores of cases stated; and this is manifestly correct, for if a state judicial court misconstrue the federal constitution, an act of congress, or treaty, or a state statute, in several cases, the state decision can be, and has been for forty years, corrected in the Supreme Court of the United States, in the proper cases; and thus, the desirable uniformity of decision has been produced throughout the nation, and the national character preserved, at home and abroad. But if state legislatures can make decisions, constitutionally, in these cases, there may be as many different decisions of the same question, as there are states in the Union, and their decisions must remain, however diverse or contradictory, as there is no way to get such legislative decisions into the Supreme Court of the United States, or into any federal forms so as to produce the uniformity of decisions desired, and so essential. A legislative decision in the last resort, must be as novel as it is untenable.

$ 17. By the constitution of the Union, art. 3, the judicial power of the supreme court of the United States, extends“ 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.” Beyond all question, the tariff acts of congress are laws or cases arising under the constitution, and the question is, if they are constitutional or not; or, in the Virginia form of expression, does the constitution authorize them, expedient or not. This case is, in principle, precisely that of the United States Bank, stated in this work. Congress and the president, passed the act creating that bank : some state legislatures thought it was unconstitutional, and some taxed it, and, by state officers, collected the taxes : suits were brought against them in the judiciary, not in legislatures. Some state courts decided against the tax, and thought the bank act was not constitutional. The causes were carried into the Supreme Court of the United States; that court decided the act was constitutional, and since the bank has quietly proceeded : all pros and cons agreed to give the case the judicial course : and how is it possible, in the last resort, to have decided and settled the case in a constitutional manner, in any other way? The most zealous advocates for state rights and sovereignty, never contended the question could ultimately be decided in state legislatures, or by congress, or by state or federal executives, or anywhere, but by the co-ordinate branch, the judiciary, state, or federal. This settles one material point, which is, that the power is judicial.

"$ 18. Now let us follow the question into practice, and we come to the same result. Some think the tariff act of 1828, is constitutional, some not. In Georgia, for instance, the federal collector demands payment of the import duties, created by the act, of the importer : he refuses to pay them, thinking the act is not constitutional : the collector proceeds on the ground the act is constitutional : what is the next step in legal order? the importer is prosecuted in the judiciary, state or federal, surely not in the legislature. Does not the cause, in regular order and necessarily, get into the judiciary? As the legislature of Georgia has declared it will submit to no construction of the constitution of the Union, but its own; to act in character, it must enact laws, empowering the executive of Georgia to resist by force, the federal collection, or leave the prosecution to take its judicial course: if to resist by force, we have a precedent, acquiesced in by all, twenty years, with the doings in the Virginia legislature, in the case as published, thus: “Supreme Court of the United States in 1819, a collision happened between the general government, and the state of Pennsylvania, in the case of Olmstead against Rittenhouse's executors : Governor Snyder ordered a detachment of the militia under General M. Bright, to take the field, and resist, by arms, the execution of the process of the United States court, by the marshal. The marshal, however, summoned the posse comitatus, and executed the precept. General Bright and his army were indicted, convicted, and marched to gaol.”

The legislature of Pennsylvania, to prevent future wars of the sort, proposed an amendment to the constitution of the United



States, similar to that lately brought forward in the senate of the United States, by Mr. J- -, of Kentucky, and requested the assent of the other states. Among others, it was communicated to Virginia, in whose legislature the following report was made.

· Virginia Legislature-House of Delegates-An amendment of the constitution.

Thursday, January 11, 1810. "The committee to whom was referred the communication of the

governor of Pennsylvania, covering certain resolutions of the legislature of that state, proposing an amendment to the constitution of the United States, by the appointment of an impartial tribunal, to decide disputes between the state and federal judiciary, have had the same under their consideration, and are of opinion, that a tribunal is already provided, by the constitution of the United States, to wit: The supreme court, more eminently qualified, from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid, in an enlightened and impartial manner, than any other tribunal which could be erected."

The inference seems to be, that the legislature was satisfied with this report, if it did not, in form, adopt it; as it does not appear it concurred in the amendment.

. It is believed, that every state in the union, in the last forty years, has expressly or impliedly admitted this court is this common arbiter.


To the Editors of the American Jurist. In the year 1810, I had occasion to read very carefully Mr. Sugden's Treatise on Powers, of which one edition only had then been published. It occurred to me at that time that Mr. Sugden's examination of Becket's case, in Lane's Reports, 118, and of some other cases bearing upon an important doctrine of the law upon the subject of Powers, was not quite accurate or satisfactory; and I put in writing at that time my own views, without any expectation of using them except for my private practice. Having seen, however, the third and fourth editions of Mr. Sugden's Treatise (in 1821 and 1826,) in which no alteration is made in the original passages, I have thought it might not be without use to attract the attention of

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