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ment, and a reunion with that people, upon just and liberal terms, instead of a redress of grievances, have produced, from an imperious and vindictive administration, increased insuli, oppression, and a vigorous attempt to effect our total destruction. By a late act, all these colonies are declared to be in rebellion, and out of the protection of the British crown, our properties subject to confiscation, our people, when captivated, compelled to join in the plunder and murder of their relations and countrymen, and all former rapine and oppressions of Americans declared legal and just. Fleets and armies are raised, and the aid of foreign troops engaged to assist these destructive pur. poses. The king's representative in this colony hath not only withheld all ihe powers of government from operating for our safety, but, having retired on board an armed ship, is carrying on a piratical and savage war against us, tempting our slaves by every artifice to resort to him, and training and employing them against their masters.
In this state of extreme danger, we have no alternative left, but an abject submission to the will of those overbearing tyrants, or a total separation from the crown and government of Great Britain, uniting and exerting the strength of all America for defence, and forming alliances with foreign powers for commerce and aid in war. Wherefore, appealing to the Searcher of all hearts, for the sincerity of former declarations, expressing our desire to preserve our connexion with that nation, and that we are driven from that inclination by their wicked counsels and the eternal laws of self-preservation; resolved, unanimously, that the delegates appointed to represent this colony in general congress, be instructed to propose to that respectable body, to declare the united colonies free and independent states, absolved from all allegiance to, or dependence upon, the crown or parliament of Great Britain; and that they give the assent of this colony to that declaration, and to whatever measures may be thought proper and 'necessary by the congress, for forming foreign alliances, and a confederation of the colonies, at such time and in such manner as to them may seem best. Provided, that the power of forming government for, and the regulations of the internal concerns of each colony, be left to the respective colonial legislatures.
Resolved, unanimously, that a committee be appointed to prepare a declaration of rights, and such a plan of government, as will be most likely to maintain peace and order in this colony, and secure substantial and equal liberty to the people.'
"It is impossible to contemplate this proceeding on the part of Virginia, without being convinced that she acted from her own free and sovereign will; and that she, at least, did 'presume' to establish a government for herself, without the least regard to the recommendation or the pleasure of congress.
“We all admit that the power and authority of the federal government, within its constitutional sphere, are superior to those of the states, in some instances; and co-ordinate in others; and that every citizen is under an abso. lute obligation, to render them respect and obedience; and this simply because his own state, by the act of ratifying the constitution, has commanded him to do so. We all admit it to be true, as a general proposition, that no citizen nor state has an independent right to 'construe,' and still less to control,' the constitutional obligations of that government, and that neither a citizen nor a state can (judge, that is, decide on the nature and extent of those obligations, with a view to control them. All that has ever been contended for, is, that a state has a right to judge of its own obligations; and, consequently to judge of those of the federal government, so far as they relate to such state" itself, and no farther. It is admitted on all hands, that when the federal government transcends its constitutional power, and when, of course, it is not acting within its
obligations, the parties to that government, whoever they may be, are no longer under any duty to respect or obey it. This has been repeatedly affirmed
by our courts, both state and federal; and has never been denied by any class of politicians. Who then is to determine whether it has so transcended its constitutional obligations, or not? It is admitted, that to a certain extent, the supreme court is the proper tribunal, in the last resort, because the states in establishing that tribunal, have expressly agreed to make it so. The jurisdiction of the federal courts extends io certain cases, affecting the rights of the individual citizens, and to certain others affecting those of the individual states. So far as the federal government is authorized to act on the individual citizen, the powers of the one and the rights of the other, are properly determinable by the federal courts; and the decision is binding too, and absolutely final, so far as the relation of the citizen to the federal government is concerned. There is not, within that system, any tribunal of appeal, from the decisions of the supreme court. And so also of those cases in which the rights of the state are referred to the federal tribunals. In this sense and to this extent, it is strictly true that the parties have not 'an independent right to construe, control, and judge of the obligations of the federal government; but they are bound by the decisions of the federal courts, so far as they have authorized
agreed to submit to em. But th are many cases involving the ques. tion 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. It is precisely in this case, that the question who are the parties to the constitution, becomes all-important and controlling. If the states are parties as sovereign states, then it follows, as a necessary consequence, that each of them has the right which belongs to every sovereignty, to construe its own contracts and agreements, and to decide upon its own rights and powers.
"The nullifier contends only for the right of a slate to prevent the constitution from being violated by the general government, and not for the right either to repeal, abrogate, or suspend it. The seceder asserts only, that a state is competent to withdraw from the union whenever it pleases; but does not assert that in so doing, it can repeal, or abrogate, or suspend the constitution as to the other states. Secession would, indeed, utterly destroy the compact as to the seceding party; but would not necessarily affect its obligation as to the rest. If it would, then the rest would have no right to coerce the seceding state, nor to place her in the attitude of an enemy. It is certain, I think, they would not have such right; but those who assert that they would—and Judge Story is among the number-must either abandon that idea, or they must admit that the act of secession does not break up the constitution, except as to the seceding state. For the moment the constitution is destroyed, all the authorities which it has established, cease to exist. There is no longer such a government as that of the United States; and, of course, they cannot, as such, either make any demand, or assert any right, or enforce any
claim. “Having disposed of this preliminary question, we now approach the constitution itself. I afirm that it is in its structure a federative and not a consolidated government; that it is so in all its departments, and in all its leading and distinguishing provisions; and, of course, that it is to be so interpreted, by the force of its own terms, apart from any influence to be derived from that rule of construction which has just been laid down. We will first examine it in the structure of its several departments.
“ The Legislature. This consists of two houses. The senate is composed of two members from each state, chosen by its own legislature, whatever be its size or population, and is universally admitted to be strictly federative in its structure. The house of representatives consists of members chosen in each state, and is regulated in its numbers according to a prescribed ratio of representation. The number to which each state is entitled is proportioned to its own population, and not 10 the population of the United States; and if there happen to be a surplus in any state less than the established ratio, that
surplus is not added to the surplus or population of any other state, in order to make up the requisite number for a representative, but is wholly unrepresented. In the choice of representatives, each state' votes by itself, and for its own representatives, and not in connexion with any other state, nor for the representatives of any other state. Each state prescribes the qualifications of its own voters, the constitution only providing that they shall have the qualifications which such state may have prescribed for the voters for the most numerous branch of its own legislature. And as the right to vote is prescribed by the state, the duty of doing so cannot be enforced, except by the authority of the state. No one can be elected to represent any state, except a citizen thereof. Vacancies in the representation of any state are to be supplied under writs of election, issued by the executive of such state. In all this there is not one feature of nationality. The whole arrangement has reference to the states as such, and is carried into effect solely by their authority. The federal government has no agency in the choice of representatives, except only that it may prescribe the times, places, and manner of holding elections. It can neither prescribe the qualifications of the electors, nor impose any penalty upon them for refusing to elect. The states alone can do these things; and, of course, the very existence of the house of representatives depends, as much as does that of the senate, upon the action of the states. A state may withdraw its representation altogether, and congress has no power to prevent it, nor to supply the vacancy thus created. If the house of representatives were national, in any practical sense of the term, the nation' would have authority to provide for the appointment of its members, to prescribe the qualifications of voters, and to enforce the performance of that duty. All these things the state legislatures can do, within their respective states, and it is obvious that they are strictly national. In order to make the house of representatives equally so, the people of the United States must be so consolidated that the federal government may distribute them, without regard to state boundaries, into numbers, according to the prescribed ratio; so that all the people may be represented, and no unrepresented surplus be left in any state. If these things could be done under the federal constitution, there would then be a strict analogy between the popular branches of the federal and state legislatures, and the former might with propriety be considered national.' But it is difficult to imagine a national legislature which does not exist under the authority of the nation, and over the very appointment of which the nation, as such, can exert no effective control.
"The second argument is, that the states are not equally represented, but each one has a representation proportioned to its population. There is no reason apparent to me, why a league may not be formed among independent sovereignties, giving to each an influence in the management of their common concerns, proportioned to its strength, its wealth, or the interest which it has at stake. This is but simple justice, and the rule ought to prevail in all cases, except where higher considerations disallow it. History abounds with examples of such confederations, one of which I will cite. The states general of ihe United provinces were strictly a federal body. The council of state had almost exclusively the management and control of all their military and financial concerns; and in that body, Holland and some other provinces had three votes each, whilst some had iwo, and others only one vote each. Yet it never was supposed that for this reason the United provinces were a consolidated nation. A single example of this sort affords a full illustration of the subject, and renders all farther arguments superfluous.
"It is not, however, from the apportionment of its powers, nor from the modes in which those powers are exercised, that we can determine the true character of a legislative body, in the particular now under consideration, The true rule of decision is found in the manner in which the body is con
stituted, and that, we have already seen, is in the case before us, federative, and not national.
"We may safely admit, however, that the house of representatives is not federative, and yet contend, with perfect security, that the legislative department is so. Congress consists of the house of representatives and senate. Neither is a complete legislature in itself, and neither can pass any law without the concurrence of the other, and as the senate is the peculiar representative of the states, no act of legislation whatever can be performed, without the consent of the states. They hold, therefore, a complete check and control over the powers of the people in this respect, even admitting that those powers are truly and strictly represented in the other branch. It is true that the check is mutual; but if the legislative department were national, there would be no federative feature in it. It cannot be replied with equal propriety, that, if it were federative, there would be no national feature in it. The question is, whether or not the states have preserved their distinct sovereign characters in this feature of the constitution. If they have done so, in any part of it, the whole must be considered federative; because national legislation implies a unity, which is absolutely inconsistent with all idea of a confederation; whereas, there is nothing to prevent the members of a confederation from exerting their several powers, in any form of joint action which may seem to them proper.
" But there is one other provision of the constitution which appears to me to be altogether decisive upon this point. Each state, whatever be its population, is entitled to at least one representative. It may so happen that ihe unrepresented surplus, in some one state, may be greater than the whole population of some other state, and yet such latter state would be entitled to a representation. Upon what principle is this? Surely if the house of re. presentatives were national, something like equality would be found in the constitution of it. Large surpluses would not be arbitrarily rejected in some places and smaller numbers not equal to the granted ratio, be represented in others. There can be but one reason for this: as the constitution was made by the states, the true principle of the confederation could not be preserved, without giving to each party to the compact a place and influence in each branch of the common legislature. This was due to their perfect equality as sovereign states.
" The Executive.- In the election of the president and vice-president, the exclusive agency of the states, as such, is preserved with equal distinctness. These officers are chosen by electors, who are themselves chosen by the people of each state, acting by and for itself, and in such mode as itself may prescribe. The number of electors to which each state is entitled, is equal to the whole number of its representatives and senators. This provision is even more federative than that which apportions representation in the house of representatives; because it adds two to the electors of each state, and, so far places them upon an equality, whatever be their comparative population. The people of each stale vote within the state and not elsewhere, and for their own electors and for no others. Each state prescribes the qualifications of its own electors, and can alone compel them to vote. The electors, when chosen, give their votes within their respective states, and at such times and places as the states may respectively prescribe.
" There is not the least trace of national agency in any part of this proceeding. The federal government can exercise no rightful power in the choice of its own executive. “The people of the United States are equally unseen in that important measure. Neither a majority, nor the whole of them together, can choose a president, except in their character of citizens of the several 'states. Nay, a president may be constitutionally elected, with a decided majority of the people against him. For example: New York has forty
two votes; Pennsylvania, thirty; Virginia, twenty-three; Ohio, twenty-one; North Carolina, fifteen; Kentucky, fourteen; and South Carolina, fifteen. These seven states can give a majority of all the votes, and each may elect its own electors by a majority of only one vote. If we add their minorities to the votes of the other states (supposing those states to be unanimous against the candidate,) we may have a president, constitutionally elected, with less than half-perhaps with little more than a fourth-of the people in his favour. It is true that he may also be constitutionally elected, with a majority of the states, as such, against him, as the above example shows; because the states may, as before remarked, properly agree, by the provisions of their compact, that they shall possess influence in this respect, proportioned to their population. But there is no mode, consistent with the true principles of free repre. sentative government, by which a minority of those to whom, en masse, the elective franchise is confided, can countervail the concurrent and opposing action of the majority. If the president could be chosen by the people of the •United States' in the aggregate, instead of by the states, it is difficult to imagine a case in which a majority of those people, concurring in the same vote, could be over-balanced by a minority.
“ All doubt upon this point, however, is removed by another provision of the constitution, touching this subject; if no candidate should receive a majority of votes in the electoral colleges, the house of representatives elects the president from the three candidates who have received the largest electoral vote. In doing this, two-thirds of the states must be present by their representatives, or one of them, and then they vote by states, all the members from each state giving one vole, and a majority to all the states being necessary to a choice. This is precisely the rule which prevailed in the ordinary legislation of that body, under the articles of confederation, and which proved its federa. tive character, as strongly as any other provision of those articles. Why, then, should this federative principle be preserved in the election of the president by the house of representatives, if it was designed to abandon it, in the election of the same officer, by the electoral colleges ? No good reason for it has yet been assigned, so far as I am informed.
"This view of the subject is still further confirmed by the clause of the constitution relating to impeachments. The power to try the president is vested in the senate alone, that is, in the representatives of the states. There is a strict fitness and propriety in this; for those only whose officer the president is should be intrusted with the power to remove him.
"It is believed to be neither a forced nor an unreasonable conclusion, from all this, that the executive department is, in its structure, strictly federative.
" The Judiciary.—The judges are nominated by the president, and approved by the senate. Thus, the nominations are made by a federative officer, and the approval and confirmation of them depend on those who are the exclusive representatives of the states, this agency is manifestly federative, and the people of the United States · cannot mingle in it, in any form whatever.
"As the constitution is federative in the structure of all three of its great departments, it is equally so in the power of amendment.
"Congress may propose amendments, whenever two-thirds of both houses shall deem it necessary. This secures the states from any action upon the subject by the people at large. In like manner, congress may call a convention for proposing amendments, on the application of the legislatures of two-thirds of ihe several states. It is remarkable that, whether congress or the states act upon the subject, the same proportion is required; not less than two-thirds of either being authorized to act. From this it is not unreasonable to conclude, that the convention considered that the same power would act in both cases: to wit, the power of the states, who might effect their object either by their separate action as states, or by the action of congress, their common federative agent; but whe