Imágenes de páginas
PDF
EPUB

clause, the engagement to protect each state against domestic violence, which can only be by the arms of the Union, we are assisted in a due construction of the means of enforcing the guaranty. If the majority of the people of a state deliberately and peaceably resolve to relinquish the republican form of government, they cease to be members of the Union. If a faction, an inferior number, make such an effort, and endeavour to enforce it by violence, the case provided for will have arisen, and the Union is bound to employ its power to prevent it.

The power and duty of the United States to interfere with the particular concerns of a state are not, however, limited to the violent efforts of a party to alter its constitution. If from any other motives, or under any other pretexts, the internal peace and order of the state are disturbed, and its own powers are insufficient to suppress the commmotion, it becomes the duty of its proper government to apply to the Union for protection. This is founded on the sound principle that those in whom the force of the Union is vested, in diminution of the power formerly possessed by the state, are bound to exercise it for the good of the whole, and upon the obvious and direct interest that the whole possesses in the peace and tranquillity of every part. At the same time it is properly provided, in order that such interference may not wantonly, or arbitrarily take place, that it shall only be on the request of the state authorities: otherwise the self-government of the state might be encroached upon at the pleasure of the Union, and a small state might fear or feel the effects of a combination of larger states against it under colour of constitutional authority.; but it is manifest, that in every part of this excellent system, there has been the utmost care to avoid encroachments on the internal powers of the different states, whenever the general good did not imperiously require it.

No form of application for this assistance is pointed out, nor has been provided by any act of congress, but the natural course would be to apply to the president, or officer for the time being, exercising his functions. No occasional act of the legislature of the United States seems to be necessary, where the duty of the president is pointed out by the Constitution, and great injury might be sustained, if the power was not promptly exercised.

In the instance of foreign invasion, the duty of immediate and unsolicited protection is obvious, but the generic term invasion, which is used without any qualification, may require a broader construction.

If among the improbable events of future times, we shall see a state forgetful of its obligation to refer its controversies with another state to the judicial power of the Union, endeavour by force to redress its real or imaginary wrongs, and actually invade the other state, we shall perceive a case in which the supreme power of the Union may justly interfere: perhaps we may say is bound to do so.

The invaded state, instead of relying merely on its own strength for defence, and instead of gratifying its revenge by retaliation, may prudently call for and gratefully receive the strong arm of the Union to repel the invasion, and reduce the combatants to the equal level of suitors in the high tribunal provided for them. In this course, the political estimation of neither state could receive any degradation. The decision of the controversy would only be regulated by the purest principles of justice, and the party really injured, would be certain of having the decree in its favour carried into effect.

It rests with the Union, and not with the states separately or individually, to increase the number of its members.* The

* There is, however, a restriction on this point, which must be noticed. No new state can be formed or erected within the jurisdiction of any other

admission of another state can only take place on its own application. We have already seen, that in the formation of colonies under the denomination of territories, the habit has been, to assure to them their formation into states when the population should become sufficiently large. On that event, the inhabitants acquire a right to assemble and form a constitution for themselves, and the United States are considered as bound to admit the new state into the Union, provided its form of government be that of a representative republic. This is the only check or control possessed by the United States in this respect.

If a measure so improbable should occur in the colony, as the adoption of a monarchical government, it could not be received into the Union, although it assumed the appellation of a state, but the guaranty of which we have spoken, would 'not literally apply the guaranty is intended to secure republican institutions to states, and does not in terms extend to colonies. As soon, however, as a state is formed out of a colony, and admitted into the Union, it becomes the common concern to enforce the continuance of the republican form. There can be no doubt, however, that the new state may decline to apply for admission into the Union, but it does not seem equally clear, that if its form of government coincided with the rules already mentioned, its admission could be refused. The inhabitants emigrate from the United States, and foreigners are permitted to settle, under the express or implied compact, that when the proper time arrives, they shall - become members of the great national community, without being left to an exposed and unassisted independence, or compelled to throw themselves into the arms of a foreign

state, nor can any state be formed by the junction of two or more states or parts of states, without the consent of the legislatures of the states concerned as well as of congress.

power. It would seem, however, that the constitution adopted, ought to be submitted to the consideration of congress, but it would not be necessary that this measure should take place at the time of its formation, and it would be sufficient if it were presented and approved at the time of its admission. The practice of congress has not, however, corresponded with these positions, no previous approbation of the constitution has been deemed necessary.

It must also be conceded, that the people of the new stäte retain the same power to alter their constitution, that is enjoyed by the people of the older states, and provided such alterations are not carried so far as to extinguish the republican principle, their admission is not affected.

The secession of a state from the Union depends on the will of the people of such state. The people alone as we have already seen, hold the power to alter their constitution. The Constitution of the United States is to a certain extent, incorporated into the constitutions of the several states by the act of the people. The state legislatures have only to perform certain organical operations in respect to it. To withdraw from the Union comes not within the general scope of their delegated authority. There must be an express provision to that effect inserted in the state constitutions. This is not at present the case with any of them, and it would perhaps be impolitic to confide it to them. A matter so momentous, ought not to be entrusted to those who would have it in their power to exercise it lightly and precipitately upon sudden dissatisfaction, or causeless jealousy, perhaps against the interests and the wishes of a majority of their constituents.

But in any manner by which a secession is to take place, nothing is more certain than that the act should be deliberate, clear, and unequivocal. The perspicuity and solemnity of the original obligation require correspondent qualities in its disso

lution. The powers of the general government cannot be defeated or impaired by an ambiguous or implied secession on the part of the state, although a secession may perhaps be conditional. The people of the state may have some reasons to complain in respect to acts of the general government, they may in such cases invest some of their own officers with the power of negotiation, and may declare an absolute secession in case of their failure. Still, however, the secession must in such case be distinctly and peremptorily declared to take place on that event, and in such case-as in the case of an unconditional secession, the previous ligament with the Union, would be legitimately and fairly destroyed. But in either case the people is the only moving power.

A suggestion relative to this part of the subject has appeared in print, which the author conceives to require notice.

It has been laid down that if all the states, or a majority of them, refuse to elect senators, the legislative powers of the Union. will be suspended.*

Of the first of these supposed cases there can be no doubt. If one of the necessary branches of legislation is wholly withdrawn, there can be no further legislation, but if a part, although the greater part of either branch should be withdrawn it would not affect the power of those who remained.

In no part of the Constitution is a specific number of states

* It is with great deference thač the author ventures to dissent from this part of the opinion of the learned chief justice of the Supreme Court in the case of Cohen v. Virginia, 6 Wheaton, 390. It was not the point in controversy, and seems to have been introduced in that flow of luminous discussion for which he is so remarkable, by way of answer to part of the arguments of counsel. Every thing that falls from such a quarter excites to reflection, and the opinion having gone forth to the world, it seems a duty on him who professes to také a general view of the Constitution, to notice whatever may in his apprehension amount to the slightest error in principle.

« AnteriorContinuar »