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the Constitution, and from that alone, the committee are not unapprised of a late doctrine, which opens another source of federal powers, not less extensive and important, than it is new and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution. The committee satisfy themselves here with briefly remarking, that in all the cotemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended, on the ground, that the powers not given to the government, were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th amendment, now a part of the Constitution, which expressly declares, “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.” The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution or compact,” is, in the judgment of the committee, equally free from objection. It is indeed true, that the term “states,” is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus, it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments, established by those societies; sometimes those societies as organized into those particular governments; and, lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance, whatever different constructions of the term “states,” in the resolution, may have been entertained, all will at least concur in that last mentioned; because, in that sense, the Constitution was submitted to the “states:” in that sense the “states” ratified it: and, in that sense of the term “states,” they are consequently parties to the compact, from which the powers of the federal government result.* The next position is, that the General Assembly views the powers of the federal government, “as limited by the plain sense and intention of the instrument constituting that compact,” and “as no farther valid than they are authorized by the grants therein enumerated.” It does not seem possible, that any just objection can lie against either of these clauses. The first amounts merely to a declaration, that the compact ought to have the interpretation plainly intended by the parties to it; the other to a declaration, that it ought to have the execution and effect intended by them. If the powers granted, be valid, it is solely because they are granted: and, if the granted powers are valid, because granted, all other powers not granted, must not be valid. - The resolution, having taken this view of the federal compact, proceeds to infer, “that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.” It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal, superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition. It does not follow, however, that because the states, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole, every part being deemed a condition of every other part and of the whole, it is always laid down that the breach must be both wilful and material to justify an application of the rule. But in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties, in their sovereign capacity, can be called for by occasions only, deeply and essentially affecting the vital principles of their political system. The resolution has accordingly guarded against any misapprehension of its object, by expressly requiring for such an interposition, “the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise of powers not granted by it. It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was established. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case not resulting from a partial consideration, or hasty determination; but a case stamped with a final consideration and deliberate adherence. It is not necessary, because the resolution does not require that the question should be discussed, how far the exercise of any particular power, ungranted by the Constitution, would justify the interposition of the parties to it. As cases might easily be stated, which none would contend ought to fall within that description; cases, on the other hand, might, with equal ease, be stated, so flagrant and so fatal, as to unite every opinion in placing them within that description."
* This paragraph seems to have in view some observations of Mr. GEORGE KEITH TAYLoR, in the debate on the Resolutions in 1798, ante, pp. 122 to 126. The Resolutions, as originally introduced into the House of Delegates, had the word “alone” following “states,” so as to make that clause read thus:—“to which the states alone are parties.” Mr. Taylor's remarks, which are very ingenious, tended to show that the states,—which he interpreted to mean the ordinary governments of the states,—were not parties to the Federal Constitution, at all, much less, sole parties. His argument so far prevailed as to induce Mr. GILEs to move to strike out the word “alone,” in which Mr. John TAYLOR of Caroline, the mover of the resolutions, concurred, and it was stricken out accordingly. (See ante, pp. 148 and 150.)
* The cautious and moderate language of the text is worthy of observation. The cases proper for interposition by the states are said to be such only as involve deliberate, palpable, and dangerous breaches of the Constitution, by the exercise of powers not granted. The objects of interposition are merely to arrest the progress of the usurpation, and to maintain the authorities, rights, and liberties of the states, as parties to the Constitution. Force, on this occasion, at least, appears to have been neither threatened nor contemplated. The moral influence of the sentiment of the states and of the people was relied upon. Not only does this appear from the declarations of Mr. Madison, in his letter to Ingersoll, post, p. 257, but it is abundantly manifested by the tenor of the debates on the resolutions, and by the report. Thus Mr. MERCER, replying to Mr. GEORGE K. TAYLOR, holds this language: “The gentleman from Prince George had told the committee that the resolutions introduced by the gentleman from Caroline were calculated to rouse the people to resistance, to excite the people of Virginia against the federal government. Mr. M. did not see how such consequences could result from their adoption. They contained nothing more than the sentiments which the people in many parts of the state had expressed, and which had been conveyed to the legislature in their memorials and resolutions, then lying upon the table.” See ante, p. 41. Again: “The state believed some of its rights had been invaded by the late acts of the federal government, and proposed a remedy whereby to obtain a repeal of them. The plan contained in the resolutions appeared to Mr. M. the most advisable. Force was not thought of by any one.” Ante, p. 42. Then, after citing seme passages from the Federalist, to show that state interposition had been contemplated by the authors of that work, he argues that not only is the right of the states to communicate with each other defended by that authority, but that the adoption of a regular plan of opposition, in which they should combine all their resources, would also be justified by it. “But no such wish,” says he, “is entertained by the friends of the resolutions; their object in addressing the states is to obtain a similar declaration of opinion,” &c. Ante, p. 44. Mr. BARBoUR observed, “that the gentleman from Prince George had remarked that these resolutions invited the people to insurrection and to arms. But, Mr. B. said, that if he could conceive the consequence foretold would grow out of the measure, he would become its bitterest enemy, for he deprecated intestine commotion, civil war, and bloodshed, as the most direful evils which could befall a country, except slavery. A resort to arms was the last appeal of an oppressed, an injured nation, and was never made but when public servahts converted themselves, by usurpation, into masters, and destroyed rights once participated; and then it was justifiable.” Ante, p. 54. Again: “The gentleman from Prince George was for the people's rising en masse, if the law was unconstitutional. For his part, he was for using no violence. It was the peculiar blessing of the American people to have redress within their reach by constitutional and peaceful means.” Ante, p. 59. Mr. John TAYLOR, of Caroline, spoke of the threats of war, and the apprehension of civil commotion, towards which the resolutions were said to have a tendency. “Are the republicans,” said he, “possessed of fleets and armies? If not, to what could they appeal for defence and support? To nothing, except public opinion. If that should be against them, they must yield.” Ante, p. 113. And he is not less emphatic and ''. in a subsequent passage. Ante, pp. 114–15. See also the report, post, - 31. Pr: has been suggested, however, as proof that resistance by force was meditated, that Virginia £ herself for the *: conflict by establishing arsenals, and 1 --
But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition which it contemplates, to be solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights, and liberties appertaining to the states, as parties to the Constitution.
From this view of the resolution, it would seem inconceivable that it
erecting armories. The fact standing alone, hardly warrants the inference under any conceivable circumstances, but especially does it not warrant it in the face of the declarations just cited of the prominent guides and advocates of the action of the state, at that period. But, in truth, the armory and arsenal bill was enacted 23d January, 1798, about six months before the alien and sedition-laws were passed, and three months, probably, before they were contemplated, at a time when Mr. Adams's administration, though certainly not popular in Virginia, was not particularly obnoxious. Can it be believed, indeed, that a party which could marshal so much talent and character, and so respectable an array of numbers against the less extreme measure of the resolutions of the succeeding session of 1798–9, when the provocation was infinitely greater, would have failed to penetrate the belligerent purpose of that bill, if any had existed, or that perceiving it, they would have hesitated to expose and denounce it? This note, protracted, as it is, ought not to be concluded without referring to the temper of wise forbearance which, at this perilous crisis, was earnestly inculcated by Mr. JEFFERson. In a letter to Mr. John TAYLOR, in June, 1798, he says: “Mr. New showed me your letter, which gave me an opportunity '' observing what you said as to the effect with you, of public proceedings, and that it was not unwise now to estimate the separate mass of Virginia and North Carolina, with a view to their separate existence. It is true that we are completely under the saddle of Massachusetts and Connecticut, and that they ride us very hard, insulting our feelings, as well as exhausting our strength and substance. Their natural friends, the three other eastern states, join them from a sort of family pride, and they have the art to divide certain other parts of the Union, so as to make use of them to govern the whole.” Then, after observing that this was not the natural state of things, and that time, of itself, would bring relief, which besides was likely to be hastened by impending events, he continues: “Be this as it may, in every free and deliberating society, there must, from the nature of man, be opposite parties, and violent dissension and discords; and one of these, for the most part, must prevail over the other, for a longer or shorter time. Perhaps this party division is necessary to induce each to watch, and delate to the people the proceedings of the other. But if on a temporary superiority of the one party, the other is to resort to a scission of the Union, no federal government can ever exist. If to rid ourselves of the present rule of Massachusetts and Connecticut, we break the Union, will the evil stop there? Suppose the New England states alone cut off, will our natures be changed? Are we not men still, to the south of that, and with all the passions of men? Immediately we shall see a Pennsylvania and a Virginia party arise in the residuary confederacy, and the public mind will be distracted with the same party-spirit. What a game, too, will the one party have in their hands, threatening the other that unless they do so and so, they will join their northern neighbours! If we reduce our Union to Virginia and North Carolina, immediately the conflict will be established between the representatives of these two states, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with one another, is a thing which never yet existed, from the greatest confederacy of nations, down to a town-meeting, or a vestry; seeing that we must have somebody to quarrel with, I would rather keep our New England associates for that purpose, than to see our bickerings transferred to others.” “It is true that, in the mean time, we are suffer. ing deeply in spirit, and incurring the horrors of a war, and long oppressions of enor. mous public debt. But who can say what would be the evils of a scission, and when and where they would end? £ keep together as we are, haul off from Europe as t
can incur any just disapprobation from those who, laying aside all momentary impressions, and recollecting the genuine source and object of the Federal Constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognised under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared. But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort; and it may be asked for what reason, the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day and in so solemn a manner. - o On this objection it might be observed, first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department;" secondly, that if the decision of the judiciary be raised above the authority of the
* Judge Story holds that each department of the government, and each member of every department, is the interpreter of the Constitution for itself, in the first instance, whenever called upon to act under it. If the question is not of a nature to be capable of a judicial decision, he considers such determination by the department called on to . act—whether it be the executive, or the legislative,—to be final. If it be capable of judicial investigation, he regards the judicial power and the Supreme Court as the ead thereof, the final arbiter of the constitutionality of the act. As to the second observation in the text, that the judicial department may also exercise or sanction dangerous powers, not granted by the Constitution, Judge Story esteems it a case not to be supposed, or that, at all events, the people, in forming the Constitution for the Union,—in like manner as in forming the state constitutions,— have relied upon the judiciary as the ultimate barrier against usurpation, or the exercise of unconstitutional power. The difference between these views is certainly marked, but it is less considerable than at first view may appear. According to the text, if all the departments of government, including the judiciary (where the question is of a nature to be submitted to it,) combine to commit or to sanction, a deliberate, palpable, and dangerous violation of the Constitution, the states, as parties to the Constitution, may determine, in the last resort, whether the alleged violation has occurred, and may interpose to arrest the evil. Judge Story allows of no interposition by the states, but insists that, in the case supposed, when the evil has become no longer endurable, resort must be had, by the people and not by the states, to the ultimate right of resistance. Neither construction discards resistance to dangerous and palpable usurpation. They only differ as to the means of ascertaining the usurpation in the last resort, and of setting on foot the resistance, when ascertained. The one refers it to the states as sovereign members of the confederacy; the other to the people exclusively. (See 1 Story's Com. on Const., 346 to 375.) The constitutional remedies against the exercise of unconstitutional power, in Judge Story's opinion, are:—if the Congress be the offender, an appeal to the elective franchise! and, if need be, an amendment of the Constitution; if the executive is guilty, an impeachment, and a new election; if the judiciary, an impeachment, and an altera. tion, for the future, of the bad law as judicially expounded.