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Revenue Collection Bill.
[JAN. 30, 1833.
convention, (same vol. p. o The first is, that the reported constitution be laid before Congress; “that it should afterwards be submitted to a convention of delegates chosen in each State, by the people thereof, under the recommendation of its Legislature, for their assent and ratification,” &c. The second resolution recommends, that, as soon as nine States had ratified, the Congress “should fix a day on which the electors should be appointed by the States which shall have ratified the same,” a day for assembling the electors to vote for President and Vice President, and the time and place for commencing proceedings under this constitution, &c. To the reports of the constitution was also appended an address agreed upon, by the unanimous order of the convention, to the President of Congress. In this letter these sentiments are conveyed: the desire long felt, “that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the correspondent executive and judicial authorities, should be fully and effectually vested in the General Government of the Union.” “It is obviously impracticable in the Federal Government of these States to secure all the rights of independent sovereignty to each, and yet provide for the interest and safety of all.” The difficulty which had arisen in fixing the rights to be surrendered, and those to be reserved, because of the difference among the several States as to their situation, extent, habits, and particular interests; the great importance which they had kept in view, “the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national cxistence.” That “the constitution we now present is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.” That each State should consider “that had her interest been alone consulted, the consequences might have been particularly disagreeable or injurious to others.” Upon this report, the Congress, on the 28th September, 1787, came to the following resolve: (p. 60.) “. Resolved, unanimously, That the said report, with the resolutions and letter accompanying the same, be transmitted to the several Legislatures, in order to be submitted to a convention of delegates, chosen in each State, by the people thereof, in conformity to the resolves of the convention made and provided in that case.” The constitution, so transmitted to the Legislatures, was by them respectively submitted to State conventions, elected in each State, and assembled under the law of each several State. . On the 13th September, 1788, nine States unanimously in Congress adopted a preamble and resolution, reciting the resolve of February 21st, 1787, for revising the articles of confederation; the report of the convention of the 17th September, 1787; the resolve of Congress of the 28th of September, 1787, for transmitting the report, resolutions, and letter to the several Legislatures; and that the said constitution had been ratified by a sufficient number, which ratifications had been received by Congress. Therefore they appointed the first Wednesday in January, 1789, for choosing the electors in the several States which before that should have ratified; the first Wednesday in February, 1789, for the electors to assemble to vote for President and Vice President; and the first Wednesday in March, 1789, for commencing proceedings under said constitution at New York. (see preamble and soon of 13th September, 1788. Laws U. S. vol. i. p. 60.) The ratifications were at the following times: 1. Delaware, December 12, 1787. 2. Pennsylvania, December 12, 1787.
3. New Jersey, December 18, 1787. 4. Connecticut, January 9, 1788. 5. Massachusetts, February 6, 1788. 6. Georgia, January 2, 1788. 7. Maryland, April 2, 1788. 8. South Carolina, May 23, 1788. 9. New Hampshire, June 21, 1788. 10. Virginia, June 26, 1788. 11. New York, July 26, 1788.
It would appear that, Congress having appointed the first Wednesday in January, 1789, for choosing electors, and the first Wednesday in March, 1789, for proceedings under the constitution, it went into operation without North Carolina and Rhode Island. North Carolina did not ratify the new constitution until the 21st November, 1789; Rhode Island not until the 29th May, 1790. Of the two Carolinas, the North State was the first to throw off the colonial subjection to the British crown, and to encounter boldly the consequences of those awful words, rebel and traitor, with which kings never fail to denounce those who defy their power and struggle for liberty. She was quick to risk all in war against a foreign power, for liberty and independence, but slow to come into the compact, until she believed the principles of civil and political liberty were sufficiently guarded from controversy at home. It cannot be denied that the constitution was made and adopted by the States, severally and distinctly; for, until it was ratified by a State for herself, and by her own consent, it had no obligation on her. The ratification of eleven States could not impose it upon North Carolina and Rhode Island; and the vote of twelve States, which included more than twelve-thirteenths of the population of the United States, could not impose it upon the small State of Rhode Island, until accepted by her. There was not one single State that did not ratify in the name of the State, in the name of the people who were bound together in the State Government. Mr. B. referred to the ratification by the State of Pennsylvania, and quoted from it the following words: “Be it known unto all men, that we, the delegates of the people of the commonwealth of Pennsylvania in general convention assembled, have assented to and ratified, and do, in the name and by the authority of the same people, and for ourselves, assent to and ratify the foregoing constitution,” &c. Further, in the ratification by the State of New Jersey, is to be found the following language: “In convention of the State of New Jersey,” (then the act of the Legislature of New Jersey, authorizing the convention, is recited.) “Now be it known, that we, the delegates of the State of New Jersey, chosen by the people thereof for the purpose aforesaid, having maturely deliberated on and considered the aforesaid constitution, do hereby, for and on behalf of the people of the said State of New Jersey, ratify and confirm the same, and every part thereof.” These two ratifications are fair specimens of the residue, and seem to show the sense and understanding of those who did the acts; that they did it for the State, for the people of the State, acting in pursuance of an act of the Legislature, as binding that State, but not as operating beyond the limits and jurisdiction of the State. Thus I have given an authentic history of the rise, progress, and ratification of the constitution of the United States. It grew out of the league of friendship and perpetual union contained in the articles of confederation. It was proposed by virtue of a provision for amendment contained in these articles. The resolution of Congress, proposing to the States the convention, recited the provision in the articles of confederation as the cause. The convention was appointed by States, and voted by
JAN. 30, 1833.]
Revenue Collection Bill.
The report of the convention was approved by the Congress, voting by States. It was transmitted to the Legislatures of the several States. . The several Legislatures authorized the elections of the conventions, and defined the object, and their powers. It was ratified by States; and, being so ratified, it became obligatory, according to the seventh article, which is in these words: “The ratifications of the conventions of nine States shall be sufficient for the establishment of this constitution, between the States so rolifying the same.” Aye, sir, “between the States;” not over the people, but between the States so ratifying. How ratifying? By conventions of the people in each State. If these conventions were not the representatives and delegates of States, why did the constitution provide that, upon the ratification of nine States, it should be established “between the States so ratifying the same?” To say that these conventions were not the representatives of States; to say that the constitution was ratified by and over a mass of people, independent of the authorities and juris. dictions which distinguish and divide them into States, contradicts the language of the constitution, and the fact. The expression, “we, the people of the United States,” in the preamble of the constitution, ought not to be detached from the seventh article, requiring the ratification of nine States, and from all other parts of the instrument, for the purpose of giving a meaning false in fact, and contradictory to its history. They are explained by the resolution for transmitting it to the State Legislatures; by the fact that each State deliberated and ratified for itself; and by the seventh article, which declared it obligatory “between the States so ratifying;” by the known truth that no State was bound, unless by its own assent. The ratification of twelve States did not make it obligatory on the State or people of Rhode Island. “We, the people of the United States.” What is the meaning here of the word “united?” I)oes it mean a united people, consolidated into one mass, without reference to the respective sovereignties into which they had been divided under separate State Governments? No, sir; it is States united; not united people without their States. People may exist without States, but States cannot exist without people. “United States,” by the force of expression, means a plurality of States, a plurality of sovereignties or Governments united. The resolution of Congress, of February 21, 1787, recommending the convention under which the delegates were appointed and acted, declared the objects to be “for the sole and express purpose of revising the articles of confederation,” and reporting “such alterations and provisions therein, as shall, when agreed to in Congress and confirmed by the States, render the federal constitution adequate to the exigencies of Government, and the preservation of the Union.” What Union? That which had been formed, and then existing--the union of States—signified on their ensign armorial by the thirteen stripes and thirteen stars, forming a new constellation; and yet signified on our escutcheon by the stars, the bundle of arrows in the talon of the eagle, and the motto “E pluribus unum”—out of many Governments, one. . The respective State conventions, (called to deliberate on the proposed alterations in the old “federal constitution,” by the new constitution,) represented the respective State Governments. The assent of the State Legislature was a prerequisite to the assemblage of such a convention. The Legislature prescribed the time and manner of the election, and limited the purpose and power of the convention. The convention, so elected and assembled, did not dissolve the State Government; they had no power to dissolve or revise the State constitution; their delegations of power from the people were confined, by the law for the election, to deliberations and
action on the proposed constitution. Each convention acted as the agents and delegates of a people knit together by the particular State Government under whose authority it was elected and assembled, not as the agents of people who had no Government, or who intended to dissolve their existing State Government. That the State Governments are the first-born, the elder; that they were endowed with the rights of “free and independent States;” in possession of the powers, privileges, attributes, and prerogatives of sovereign States; that the Federal Government is the younger; that it sprang from the States; that it owes its being and powers to the concessions of the State Governments; that its powers are delegated and limited; derivative, not inherent; that the powers not delegated to it are reserved to the States—are solemn truths, attested by the memory of witnesses; by the journals; by public records; by authentic testimonials deposited in our archives, and in those of foreign nations; by the constitution itself. Neither the breath of sophists, nor the denials of politicians, nor the dictums of courts, nor the proclamation of a President, can obliterate the past, demolish the facts, nor hide these truths from the common sense of mankind. The federal constitution was not only created by the States, but is a compact between the States. The seventh article is a testimony to this. The ratification of nine States shall make it “obligatory between the States so ratifying.” The instrument abounds with compacts between the States. The ratifications of the States of New Hampshire and Massachusetts treat the instrument ac
...; to truth, as a compact between the States. [Mr. B. read the ratification of the State of Massachusetts, as follows:]
“In convention of the delegates of the people of Massachusetts, February 6th, 1778.” “The convention having impartially discussed and fully considered the constitution for the United States of America, reported to Congress by the convention of delegates from the United States of America, and submitted to us by a resolution of the general court of the said commonwealth, passed the 25th day of October last past, and acknowledging, with grateful hearts, the goodness of the Supreme Ruler of the universe in affording the people of the United States, in the course of his providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn compact with each other, by assenting to and ratifying a new constitution, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity, do, in the name and behalf of the people of the commonwealth of Massachusetts, assent to and ratify the said constitution for the United States of America.”
Mark the expressions, “in affording the people of the United States” “an opportunity” “ of entering into an explicit and solemn compact with each other,” “do, in the name and behalf of the people of the commonwealth of Massachusetts, assent to and ratify,” &c. The people of the “commonwealth of Massachusetts” ratify “a compact.” With whom? Between the said people of the “commonwealth of Massachusetts,” and the people of the other United States. The assent of the majority of delegates of the people of the commonwealth of Massachusetts bound the whole commonwealth to the compact with the people of the other commonwealths, who, by the assent of the majority in each commonwealth, bound the dissenting minorities. But the dissenting minority in each commonwealth could not be bound to a compact, but by force of the power of the majority of a commonwealth to bind the minority, according to the provisions of the State constitution. Dissenting minorities could not contract with dissenting minorities, but by SENATE.]
Merchants' Bonds.-Revenue Collection Bill.
[JAN. 31, 1833.
force of the State Government, which made the will of
the majority bind the minority.
The ratification of New Hampshire, like that of Massachusetts, contains a grateful acknowledgment for the opportunity afforded to the people of the United States of
entering into a solemn compact with each other.
A majority of the whole people throughout the Union did not, and could not, make the constitution obligatory. The assent of each particular State was necessary to bind 'The assent of twelve States did not bind the people of New Hampshire: they were not
the people of the State.
bound by the constitution until the State itself assented. Mr B. continued his argument by asking the member of the Senate how that body itself was constituted?
That the constitution is not based upon the idea of a “New States may be admitted by the Congress into this Union,” The new people must be united under a republican form of government, and compose a State, before admission into “The United States shall guaranty to every State in this Union a republican form of government;” In this section of the constitution the truth is declared, that “this Union” is of States; and the States, united, are to “guaranty to every State a repubEvery State is a party to
The word “guaranty” means, according to use and definition, to undertake to The constitution is founded on and composed of compacts What is this fourth section of the fourth article, but a compact
single nation, may be illustrated by other parts.
(art. 4, sec. 3.) Not new people, but new States.
the Union. (art. 4, sect. 4.) lican form of government.” this compact for guaranty, secure the performance of a treaty or stipulation. and stipulations between the States as parties. entered into by all the States, with each and every one,
By the action, the separate action, of the State Legislatures, and not by the citizens of the United States, in priIt was, as one of the coordinate branches of the Government, dependent for its If a majority of the States should refuse to elect Senators, such a refusal or omission would involve a dissolution of the Union. In the event of such a refusal, there could be no alternative, for there was no compulsory power in relation to the There was no power in the constitution to
sovereign parties. Nothing but good faith can preserve the Government. Its life's blood and vitality can be circulated only by the instrumentality of the State Legislatures. The powers delegated to the Federal Government extend to making laws to operate on individuals through: out the United States. But the States have not delegated the power to coerce the State sovereignties, to compel the State Governments. The States are yet free and sovereign states. I mean no cavil about qualified or unqualified sovereignties. What I have before said on that subject will, I hope, prevent misconstruction. [Here Mr. B. gave way for adjournment.] s
Thursday, JANUARY 31. MERCHANTS’ BONDS.
Mr. KING then moved to postpone the previous orders, and to take up the bill to explain and amend the 18th section of the bill of July, 1832, to amend the various laws imposing duties on imports.
It was stated by him that this bill must pass before the 15th February, if at all, to be of any avail; and this was urged as a reason for the motion.
Mr. POINDEXTER objected to giving this bill a pre
T ference over other bills preceding it in the orders of the
ay. |.. Mr. SILSHEE urged the necessity of an immediate ac
tion on the bill, for the purpose of preventing great inconvenience to the merchants. He did not anticipate any objections to the principles of the bill.
The motion to postpone having been agreed to, and the bill being taken up,
An amendment reported by the Committee on Commerce, requiring the collectors to give the merchants credit on their bonds for the difference between the high and low duties, and to cancel the bonds on payment of the balance, (in lieu of issuing debenture certificates for the amount of excess of duty,) was agreed to.
The bill was then ordered to be engrossed and read a third time, mem. con.
THE REVENUE COLLECTION BILL.
The Senate then resumed the consideration of the bill further to provide for the collection of the duties on imports.
Mr. BIBB resumed the argument which he yesterday began upon the bill. He felt very sensibly, he said, the weight which devolved upon him in sustaining his views of this subject against an authority so highly respectable, and so deeply seated in the affections of the people, as the author of the proclamation, to the doctrines of which it had become his duty to advert. But whilst he stood on the principles of the constitution; whilst he had on his side the opinions of patriots, of lovers of liberty; opinions which were delivered by some of the most eminent of the men who framed the constitution, which opinions were o throughout the United States for the purpose of inducing the adoption of the constitution, he felt himself clad in armor impenetrable to adverse argument, the high authority of the proclamation notwithstanding. He had left off yesterday, he said, at that point of his argument in which he had maintained that the federal constitution is a compact between the States. He now said, in addition, that he considered every Government instituted by consent, and reduced to the form of a writ: ten constitution, to be a compact; and that they who hold the power to alter and amend, and have a sovereign power over the Government, are parties to that compact: The 5th article of the federal constitution, he said, placed the power of amending the constitution in the Legislatures of the respective States, or in their respective conventions. They create, and they can destroy. The constitution, he said, abounds with compacts. Article 1,
JAN. 31, 1833.]
Revenue Collection Bill.
section 9, contains compacts by all the States jointly, with each severally. Article 1, section 10, contains compacts by the several States not to exercise, and to qualify the exercise of certain powers which might be injurious. The 4th article contains compacts by the o States with each other, and by the whole with each. The proviso in the 5th article is a joint compact by all, and with each other, severally. The various stipulations in the constitution, and especially the equality of representation in the Senate, and the majority required to add new powers or to amend, exhibit sedulous care to preserve to their respective local Governments their local interests. In prosecution of this jealous care for the preservation of the powers and rights of sovereignty not surrendered by the States, a number of States, at the time of their adopting the constitution, expressed a desire, in order to prevent misconstruction, that further declaratory and restrictive clauses should be added. Accordingly, the first Congress held under the new constitution proposed amendments, ten of which were adopted by the States. The tenth of which is as follows: “The powers not delegated to the United States by this constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” “To the States respectively or to the people” is here introduced, out of i. caution, to prevent the possibility of a construction that the rights not delegated by the people to the State Governments, but reserved, had been, by the federal constitution, taken away from the people, and transferred to the State Governments. It is clear that the Federal Government was made by the States; that it is a compact between States; that the States are constituent and essential parties to the existence of the Federal Government; that the Statee surrendered only a portion of their powers and authorities; that all powers not delegated nor prohibited are retained; that they have retained the ultimate sovereignty over the Federal Government; that special care has been taken in the compact to protect against the addition of new powers, unless three-fourths of the States shall concur. This brings us to the question, how the several States are to be protected against an irregular, unconstitutional action of the Federal Government, in evading a proposition for a grant of new powers by amendment, and substituting therefor a palpable usurpation of powers not delegated. The abuse of delegated powers is one case. The pal. pable usurpation of powers not delegated, but reserved, is another case. How are the several States to be protected against the usurpation of their respective reserved powers? How are minorities of the States to be protected against a breach of the constitutional compact, "...; the concurrence of three-fourths to sanction a further abridgement of their reserved powers? For it is clear that, by the compact, a minority of seven States are intended to be protected against the concurrence of seventeen States, in any regular proposition to delegate to the Federal Government any portion of their reserved powers. Does that security consist solely in the good faith and unambitious temper of the Federal Government? Does the security of the minority of the States against the usurpation of their reserved powers by the delegates of a majority of States not sufficient to carry a constitutional amendment, or against the usurpation of their reserved powers by any one of the departments, rest solely upon the machinery and regulating checks of the Federal Government itself? It is conceded by me, that, generally, the security against abuses of the delegated powers lies in the nature and organization of the Government itself; the distribution of its powers into several departments; the tenure of
acting within the pale of delegated powers, the majority
office; the mode and frequency of elections, &c. When
These are the two provisions of the constitution which Revenue Collection Bill.
[JAN. 31, 1833.
are referred to as delegating the power to the Supreme Court, to be the sole judge of the extent of the powers granted and of the powers reserved, and as denying to the States the sovereign power of protecting themselves against the usurpation of their reserved powers, authorities, and privileges. If the delegation to the Supreme Court, and prohibition to the States, are not contained in these two clauses, then they are not to be found in the federal constitution. The latter clause cannot touch the question in debate, for that only declares the supremacy of the constitution, and the treaties “and laws made in pursuance thereof.” Powers exercised contrary to the constitution, acts done contrary to the constitution, by the exercise of authorities not under but in violation of the constitution, and by usurpation of State rights, State authorities, and State privileges, are the subjects under consideration. Let us examine the former clause: “The judicial power shall extend to all cases, in law and equity, arising under this constitution.” The case must be of “judicial power;” it must be a case, “in law or equity,” arising under the constitution. The expression is not “to all cases arising under the constitution, treaties, and laws of the United States;” but it is “to all cases in law and equity.” “Use is the law and rule of speech.” By this law and this rule we must examine the language of the constitution. A judicial power is one subject; a political power is another and a different subject. A case in law, or a case in equity, is one subject; a political case is another and a different subject. Judicial cases in law and equity, arising under the regular exercise of constitutional powers, by laws and treaties made by authority, are different from political questions of usurpation, surmounting the constitution, and involving the high prerogatives, authorities, and privileges of the sovereign parties who made the constitution. In judicial cases arising under a treaty, the court may construe the treaty, and administer the rights rising under it to the parties who submit themselves to the jurisdiction of the court in that case. But the court must confine itself within the pale of judicial authority. . It cannot rightfully exercise the political power of the Government in declaring the treaty null, because the one or the other party to the treaty has broken this or that article; and, therefore, that the whole treaty, is abrogated. To judge of the breach of the articles of the treaty by the sovereign contracting parties, and in case of breach to dissolve that treaty, and to declare it no longer obligatory, is a political power belonging not to the judiciary. It belongs to other departments of the Government, who will judge of the extent of the injury resulting from the violation, and whether the reparation shall be sought by amicable negotiation, or whether the treaty shall be declared no longer obligatory on the Government and the people of the injured party. Yet, by the law of nations, the wilful and deliberate breach of one article of a treaty is a breach of all the articles, each being the consideration of the others; and the injured party has the right so to treat it. By the act approved on the 7th of July, 1798, the Congress of the United States declared themselves of right freed and exonerated from the stipulations of the treaties and of the consular convention theretofore concluded between the United States and France, and that they should not thenceforth be regarded as legally obligatory on the Government or citizens of the United States, because of the repeated violations on the part of the French Government, &c.
Before this declaration, the Supreme Court of the
coming before them, to take the treaties as obligatory, and to administer the rights growing out of the treaties between France and the United States. After that declaration, the court was bound to consider the treaties as abrogated. The courts had no power, before the act of July, 1798, to inquire into violations, and therefore to declare the treaties not obligatory. After that act, they had no power to demand evidence of the violations recited, and revise the political decision of the Government. To declare these treaties no longer obligatory was a political power, not a judicial power. Yet the violations of these treaties, committed under the authority of the French Government, and the consequent injuries to the citizens and Government of the United States, and the rights of the United States consequent therefrom, before the act of July, 1798, were “cases arising under the constitution” and treaties of the United States. But the judicial power did not extend to those cases of violation, so as to declare the treaties no longer obligatory. The question whether those violations should or should not abrogate the treaties, did not make a case in law or equity for the decision of a judicial tribunal. Yet they were cases arising under the constitution. The power to decide them belonged to the Government of the United States as a political sovereign; but the judicial power did not extend to them; those cases belonged to the political powers, not to the judicial powers of the Government. The British courts of admiralty executed upon the commerce of the United States the British orders in council, disclaiming the power to decide whether those orders in council were conformable to the general law of nations, which every nation is bound to respect and observe: In like manner, the French courts of admiralty executed upon the commerce of the United States the Berlin and Milan decrees. The British and French courts had not cognizance to judge the sovereign powers of the nations, and to declare those orders and decrees contrary to the law of nations; that was not a judicial power. So the courts of the United States, even the Supreme Court, had not the power to declare the treaties between the United States and France, and Great Britain, no longer obligatory upon the citizens and Government of the United States, because of the multiplied wrongs and injuries committed upon the citizens of the United States under color of those orders in council and decrees, infracting the law of nations and treaties, and hostile to the rights of the Government of the United States. Those cases, in their effects upon the treaties and amicable relations between the United States and those Governments, did not fall within the judicial power of the courts of the United States. Those questions did not fall within the description of “cases in law and equity,” as used in the constitution of the United States, in conferring, vesting, and defining the powers of the judicial department. Those political powers belong to other departments of the Government. According to the law and rule of speech established by use, such powers are classed under the denomination of political powers, prerogative powers, not under the head of judicial powers. Before I proceed to illustrate by other examples the distinctions which I have taken between political powers and judicial powers, between political questions or cases and judicial questions or cases, I will refer to the declaration of one whose opinions on constitutional questions I know will command respect; a man to whose opinions I willingly yield my respect, without, however, submitting with that implicit faith which belongs to fools. On the resolutions of Mr. Livingston, touching the conduct of President Adams, in causing Thomas Nash, alias Jonathan Robbins, to be arrested and delivered over to a British
United States was bound, in cases of judicial cognizance
naval officer, without any accusation, or trial, or investi