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. 3. New Jersey, December 18, 1787. 11. New York, July 26, 1788. [JAN. 30, 1833. 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 To the reports of the constitution was also appended North Carolina and Rhode Island, North Carolina did an address agreed upon, by the unanimous order of the not ratify the new constitution until the 21st November, convention, to the President of Congress. In this letter 1789; Rhode Island not until the 29th May, 1790. of these sentiments are conveyed: the desire long felt, the two Carolinas, the North State was the first to throw "that the power of making war, peace, and treaties, that off the colonial subjection to the British crown, and to of levying money and regulating commerce, and the encounter boldly the consequences of those awful words, correspondent executive and judicial authorities, should rebel and traitor, with which kings never fail to denounce be fully and effectually vested in the General Government those who defy their power and struggle for liberty. of the Union." She was quick to risk all in war against a foreign power, "It is obviously impracticable in the Federal Govern- for liberty and independence, but slow to come into the ment of these States to secure all the rights of indepen- compact, until she believed the principles of civil and dent sovereignty to each, and yet provide for the interest political liberty were sufficiently guarded from controand safety of all." The difficulty which had arisen in versy at home. fixing the rights to be surrendered, and those to be re- It cannot be denied that the constitution was made and served, because of the difference among the several adopted by the States, severally and distinctly; for, until States as to their situation, extent, habits, and particular it was ratified by a State for herself, and by her own interests; the great importance which they had kept in consent, it had no obligation on her. The ratification of view, "the consolidation of our Union, in which is in- eleven States could not impose it upon North Carolina volved our prosperity, felicity, safety, perhaps our national existence." 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. 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." 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 These two ratifications are fair specimens of the residue, 17th September, 1787; the resolve of Congress of the and seem to show the sense and understanding of those 28th of September, 1787, for transmitting the report, who did the acts; that they did it for the State, for the resolutions, and letter to the several Legislatures; and people of the State, acting in pursuance of an act of the that the said constitution had been ratified by a sufficient Legislature, as binding that State, but not as operating benumber, which ratifications had been received by Con-yond the limits and jurisdiction of the State. gress. Therefore they appointed the first Wednesday in Thus I have given an authentic history of the rise, proJanuary, 1789, for choosing the electors in the several gress, and ratification of the constitution of the United States which before that should have ratified; the first States. It grew out of the league of friendship and Wednesday in February, 1789, for the electors to assem- perpetual union contained in the articles of confederable to vote for President and Vice President; and the first tion. Wednesday in March, 1789, for commencing proceedings under said constitution at New York. (See preamble and resolution 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. 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 States. 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 be came 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 ratifying the same." [SENATE. 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. cording to truth, as a compact between the States. [Mr. B. read the ratification of the State of Massachusetts, as follows:] 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 Aye, sir, "between the States;" not over the people, sprang from the States; that it owes its being and powers but between the States so ratifying. How ratifying? By to the concessions of the State Governments; that its conventions of the people in each State. If these con- powers are delegated and limited; derivative, not inherventions were not the representatives and delegates of ent; that the powers not delegated to it are reserved to States, why did the constitution provide that, upon the the States-are solemn truths, attested by the memory of ratification of nine States, it should be established "be- witnesses; by the journals; by public records; by authentic tween the States so ratifying the same?" To say that testimonials deposited in our archives, and in those of these conventions were not the representatives of States; foreign nations; by the constitution itself. Neither the to say that the constitution was ratified by and over a breath of sophists, nor the denials of politicians, nor the mass of people, independent of the authorities and juris- dictums of courts, nor the proclamation of a President, dictions which distinguish and divide them into States, can obliterate the past, demolish the facts, nor hide these contradicts the language of the constitution, and the fact. truths from the common sense of mankind. The expression, we, the people of the United The federal constitution was not only created by the States," in the preamble of the constitution, ought not to States, but is a compact between the States. The seventh be detached from the seventh article, requiring the rati- article is a testimony to this. The ratification of nine fication of nine States, and from all other parts of the States shall make it "obligatory between the States so instrument, for the purpose of giving a meaning false in ratifying." The instrument abounds with compacts befact, and contradictory to its history. They are explained tween the States. The ratifications of the States of New by the resolution for transmitting it to the State Legisla- Hampshire and Massachusetts treat the instrument actures; 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 "In convention of the delegates of the people of Masassent. The ratification of twelve States did not make it sachusetts, February 6th, 1778.” "The convention havobligatory on the State or people of Rhode Island. "We, ing impartially discussed and fully considered the constithe people of the United States." What is the meaning tution for the United States of America, reported to here of the word "united?" Does it mean a united Congress by the convention of delegates from the United people, consolidated into one mass, without reference to States of America, and submitted to us by a resolution of the respective sovereignties into which they had been the general court of the said commonwealth, passed the divided under separate State Governments? No, sir; it is 25th day of October last past, and acknowledging, with States united; not united people without their States. grateful hearts, the goodness of the Supreme Ruler of People may exist without States, but States cannot exist the universe in affording the people of the United States, without people. "United States," by the force of ex-in the course of his providence, an opportunity, delibepression, means a plurality of States, a plurality of sove-rately and peaceably, without fraud or surprise, of enterreignties or Governments united. The resolution of ing into an explicit and solemn compact with each other, Congress, of February 21, 1787, recommending the con- by assenting to and ratifying a new constitution, in order vention under which the delegates were appointed and to form a more perfect union, establish justice, insure acted, declared the objects to be "for the sole and ex-domestic tranquility, provide for the common defence, press purpose of revising the articles of confederation," promote the general welfare, and secure the blessings of 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, Mark the expressions, "in affording the people of the and then existing--the union of States--signified on their United States" "an opportunity" "of entering into an ensign armorial by the thirteen stripes and thirteen stars, explicit and solemn compact with each other," "do, in forming a new constellation; and yet signified on our the name and behalf of the people of the commonwealth escutcheon by the stars, the bundle of arrows in the talon of Massachusetts, assent to and ratify," &c. The people of the eagle, and the motto " E pluribus unum”-out of of the "commonwealth of Massachusetts" ratify " many Governments, one. compact." With whom? Between the said people of The respective State conventions, (called to deliberate the "commonwealth of Massachusetts," and the people on the proposed alterations in the old "federal constitu- of the other United States. The assent of the majority tion," by the new constitution,) represented the respect- of delegates of the people of the commonwealth of Masive State Governments. The assent of the State Legis-sachusetts bound the whole commonwealth to the comlature was a prerequisite to the assemblage of such a pact with the people of the other commonwealths, who, convention. The Legislature prescribed the time and by the assent of the majority in each commonwealth, manner of the election, and limited the purpose and bound the dissenting minorities. But the dissenting mipower of the convention. The convention, so elected nority in each commonwealth could not be bound to a and assembled, did not dissolve the State Government; compact, but by force of the power of the majority of a they had no power to dissolve or revise the State constitu- commonwealth to bind the minority, according to the tion; their delegations of power from the people were provisions of the State constitution. Dissenting minoriconfined, by the law for the election, to deliberations and ties could not contract with dissenting minorities, but by 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." a SENATE.] Merchants' Bonds.-Revenue Collection Bill. [JAN. 31, 1833. force of the State Government, which made the will of sovereign parties. Nothing but good faith can preserve the majority bind the minority. the Government. Its life's blood and vitality can be cirThe ratification of New Hampshire, like that of Massa-culated only by the instrumentality of the State Legislachusetts, contains a grateful acknowledgment for the op- tures. The powers delegated to the Federal Government portunity afforded to the people of the United States of extend to making laws to operate on individuals throughentering into a solemn compact with each other. out the United States. But the States have not delegated A majority of the whole people throughout the Union the power to coerce the State sovereignties, to compel did not, and could not, make the constitution obligatory. the State Governments. The States are yet free and The assent of each particular State was necessary to bind sovereign States. I mean no cavil about qualified or unthe people of the State. The assent of twelve States did qualified sovereignties. What I have before said on that not bind the people of New Hampshire: they were not subject will, I hope, prevent misconstruction. bound by the constitution until the State itself assented. [Here Mr. B. gave way for adjournment.] THURSDAY, JANUARY 31. MERCHANTS' BONDS. Mr B. continued his argument by asking the members of the Senate how that body itself was constituted? By the action, the separate action, of the State Legislatures, and not by the citizens of the United States, in priMr. KING then moved to postpone the previous orders, mary assembly, or as a body. It was, as one of the co- and to take up the bill to explain and amend the 18th ordinate branches of the Government, dependent for its section of the bill of July, 1832, to amend the various very existence upon the States separately. If a majority laws imposing duties on imports. fusal or omission would involve a dissolution of the Union. Mr. POINDEXTER objected to giving this bill a preference over other bills preceding it in the orders of the day. tion on the bill, for the purpose of preventing great incon- the bill being taken up, of the States should refuse to elect Senators, such a re- It was stated by him that this bill must pass before the In the event of such a refusal, there could be no alterna-15th February, if at all, to be of any avail; and this was tive, for there was no compulsory power in relation to the urged as a reason for the motion. elections. There was no power in the constitution to change or compel the elections. The States, great or small, as they might be, however wide or limited in extent, were there all represented on terms of the most perfect equality. This was a plain, evident, and absolute principle, which could not, by any sophistry, be evaded. Recollect that direct taxes, and the apportionment of representatives among the several States, according to their respective populations, in federal numbers, is another fixed principle of the compact; that is to say, according to the number in each, "determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." Are the representatives elected as by or for a single nation? No: according to States and State population. On this subject a great struggle took place at the last session in the debate on the bill to fix the ratio of representation under the fifth census. No Senator, who had attended the discussion of this interesting subject, could fail to recollect the numerous arguments advanced, and ingenious propositions for transferring and disposing the fractions produced in each State, when the number proposed for the ratio of representation was applied to the federal number in each State. An amendment reported by the Committee on Comcredit on their bonds for the difference between the high merce, requiring the collectors to give the merchants 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, nem. 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, That the constitution is not based upon the idea of a and so deeply seated in the affections of the people, as the single nation, may be illustrated by other parts. "New author of the proclamation, to the doctrines of which it States may be admitted by the Congress into this Union," had become his duty to advert. But whilst he stood on (art. 4, sec. 3.) Not new people, but new States. The the principles of the constitution; whilst he had on his new people must be united under a republican form of side the opinions of patriots, of lovers of liberty; opinions government, and compose a State, before admission into which were delivered by some of the most eminent of the the Union. "The United States shall guaranty to every men who framed the constitution, which opinions were State in this Union a republican form of government;" promulgated throughout the United States for the pur(art. 4, sect. 4.) In this section of the constitution the pose of inducing the adoption of the constitution, he truth is declared, that "this Union" is of States; and the felt himself clad in armor impenetrable to adverse arguStates, united, are to "guaranty to every State a repub-ment, the high authority of the proclamation notwithlican form of government.' Every State is a party to standing. this compact for guaranty. The word "guaranty" He had left off yesterday, he said, at that point of his means, according to use and definition, to undertake to argument in which he had maintained that the federal secure the performance of a treaty or stipulation. The constitution is a compact between the States. He now constitution is founded on and composed of compacts said, in addition, that he considered every Government and stipulations between the States as parties. What is instituted by consent, and reduced to the form of a writthis fourth section of the fourth article, but a compact ten constitution, to be a compact; and that they who hold entered into by all the States, with each and every one, the power to alter and amend, and have a sovereign respectively? power over the Government, are parties to that compact. Away, then, with this idea of a single nation--a unit. The 5th article of the federal constitution, he said, placed The Government of this Union is based upon a union of the power of amending the constitution in the Legisla States, as parties to a compact. Its fulfilment depends tures of the respective States, or in their respective conupon the observance of good faith among the States who ventions. They create, and they can destroy. The conare partics to the compact, as in all compacts between stitution, he said, abounds with compacts. Article 1, JAN. 31, 1833.] Revenue Collection Bill. [SENATE. section 9, contains compacts by all the States jointly, acting within the pale of delegated powers, the majority with each severally. Article 1, section 10, contains com- must be obeyed for the time. Abuses or maladminpacts by the several States not to exercise, and to qualify istration of delegated powers must be corrected through the exercise of certain powers which might be injurious. the instrumentality of elections. The security in such The 4th article contains compacts by the several States cases rests upon the regulating checks contained within with each other, and by the whole with each. The pro- the Government itself, the responsibility of the rulers to viso in the 5th article is a joint compact by all, and with those who elected them. To abuse and maladminister each other, severally. The various stipulations in the delegated powers, and to usurp powers not delegated, constitution, and especially the equality of representation but reserved, are subjects entirely different. in the Senate, and the majority required to add new pow- The question is, whether or no, "in cases of a deliers or to amend, exhibit sedulous care to preserve to berate, palpable, and dangerous exercise of powers not their respective local Governments their local interests. granted by the said compact, the States who are parties In prosecution of this jealous care for the preservation thereto have the right to interpose, for arresting the of the powers and rights of sovereignty not surrendered progress of the evil, and for maintaining within their reby the States, a number of States, at the time of their spective limits the authorities, rights, and liberties apperadopting the constitution, expressed a desire, in order to taining to them." 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 abundant 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. The question is not whether the State Governments shall direct and control the Federal Government in the exercise of its delegated powers, but whether they shall interpose for arresting the exercise of powers not delegated, but usurped. The question is not whether the Federal Government is the servant of twenty-four masters of different wills, yet bound to obey all, in the exercise of its granted powers, but whether the Federal Government shall be the sole and exclusive judge of the limits of its own powers; an autocrat, the sole director of his own will, and the unbridled usurper of the rights and liberties appertaining to the States. That there are powers, authorities, and liberties, appertaining to the States, which belonged to them as It is clear that the Federal Government was made by States, and which they have not surrendered, but reservthe States; that it is a compact between States; that the ed, is undeniable. The general principle is clear, that States are constituent and essential parties to the exist in all compacts, leagues, conventions, and treaties beence of the Federal Government; that the State sur-tween sovereign States, powers, and potentates, each rendered only a portion of their powers and authorities; party has the right to judge whether a breach has been that all powers not delegated nor prohibited are retained; committed by the other party; and in case of a wilful, delithat they have retained the ultimate sovereignty over the berate breach, to take such measures for redress as pruFederal Government; that special care has been taken dence and the discretion of the injured party shall dictate. in the compact to protect against the addition of new Is the compact between these States an exception to powers, unless three-fourths of the States shall concur. this general rule? If it is, then the States must, by some This brings us to the question, how the several States action of theirs, have surrendered this portion of their are to be protected against an irregular, unconstitutional sovereignty. What part of the constitution declares such action of the Federal Government, in evading a proposi-a surrender? There is no such express declaration of tion for a grant of new powers by amendment, and sub- surrender. In the various enumerations of powers prostituting there for a palpable usurpation of powers not hibited to the States, and agreed not to be exercised by delegated. them, there is no declaration that they shall not exercise the right, appertaining to them as parties to the compact, to judge of an excessive, alarming, and dangerous stretch of power by the Federal Government. The abridg How are the several States to be protected against the ment of the powers of the States in this particular, not usurpation of their respective reserved powers? How being expressed, cannot be made out by implication or are minorities of the States to be protected against a by construction. The powers not delegated by the States breach of the constitutional compact, requiring the con- to the United States, nor prohibited to the States by the currence of three-fourths to sanction a further abridge- constitution, are reserved to the States. So says the conment of their reserved powers? For it is clear that, by stitution. What clause in the constitution delegates to the compact, a minority of seven States are intended to the Federal Government the sole power of deciding the be protected against the concurrence of seventeen States, extent of the grant of powers to itself, as well as the exin any regular proposition to delegate to the Federal tent of the powers reserved to the States? Government any portion of their reserved powers. Does It is said that this power is vested by the constitution in that security consist solely in the good faith and unambi- the Supreme Court of the United States. The provisions tious temper of the Federal Government? Does the se- are, The abuse of delegated powers is one case. The pal pable usurpation of powers not delegated, but reserved, is another case. curity of the minority of the States against the usurpation "The judicial power shall extend to all cases in law of their reserved powers by the delegates of a majority and equity, arising under this constitution, the laws of the of States not sufficient to carry a constitutional amend- United States, and treaties made, or which shall be made, ment, or against the usurpation of their reserved powers under their authority." by any one of the departments, rest solely upon the machinery and regulating checks of the Federal Government itself? This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of It is conceded by me, that, generally, the security the United States, shall be the supreme law of the land; against abuses of the delegated powers lies in the nature and the judges in every State shall be bound thereby, and organization of the Government itself; the distribu- any thing in the constitution or laws of any State to the tion of its powers into several departments; the tenure of contrary notwithstanding." office; the mode and frequency of elections, &c. When These are the two provisions of the constitution which SENATE.] Revenue Collection Bill. [JAN. 31, 1833. are referred to as delegating the power to the Supreme coming before them, to take the treaties as obligatory, Court, to be the sole judge of the extent of the powers and to administer the rights growing out of the treaties granted and of the powers reserved, and as denying to between France and the United States. After that dethe States the sovereign power of protecting themselves claration, the court was bound to consider the treaties as against the usurpation of their reserved powers, authori- abrogated. The courts had no power, before the act of ties, and privileges. If the delegation to the Supreme July, 1798, to inquire into violations, and therefore to Court, and prohibition to the States, are not contained in declare the treaties not obligatory. After that act, they these two clauses, then they are not to be found in the had no power to demand evidence of the violations refederal constitution. cited, and revise the political decision of the Government. The latter clause cannot touch the question in debate, for that only declares the supremacy of the constitution, To declare these treaties no longer obligatory was a and the treaties "and laws made in pursuance thereof." political power, not a judicial power. Yet the violations Powers exercised contrary to the constitution, acts done of these treaties, committed under the authority of the contrary to the constitution, by the exercise of authorities French Government, and the consequent injuries to the not under but in violation of the constitution, and by citizens and Government of the United States, and the usurpation of State rights, State authorities, and State rights of the United States consequent therefrom, before privileges, are the subjects under consideration. the act of July, 1798, were "cases arising under the Let us examine the former clause: "The judicial constitution" and treaties of the United States. But the power shall extend to all cases, in law and equity, arising judicial power did not extend to those cases of violation, under this constitution." The case must be of "judicial so as to declare the treaties no longer obligatory. The power;" it must be a case, "in law or equity," arising question whether those violations should or should not under the constitution. The expression is not "to all abrogate the treaties, did not make a case in law or equity cases arising under the constitution, treaties, and laws for the decision of a judicial tribunal. Yet they were of the United States;" but it is "to all cases in law and cases arising under the constitution. The power to deequity." cide 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. Use is the law and rule of speech." By this law and this rule we must examine the language of the consti tution. A judicial power is one subject; a political power is The British courts of admiralty executed upon the another and a different subject. A case in law, or a case commerce of the United States the British orders in in equity, is one subject; a political case is another and a council, disclaiming the power to decide whether those different subject. orders in council were conformable to the general law of Judicial cases in law and equity, arising under the re-nations, which every nation is bound to respect and obgular exercise of constitutional powers, by laws and trea- serve: In like manner, the French courts of admiralty ties made by authority, are different from political executed upon the commerce of the United States the questions of usurpation, surmounting the constitution, Berlin and Milan decrees. and involving the high prerogatives, authorities, and pri- The British and French courts had not cognizance to vileges of the sovereign parties who made the constitu-judge the sovereign powers of the nations, and to declare those orders and decrees contrary to the law of nations; tion. In judicial cases arising under a treaty, the court may that was not a judicial power. So the courts of the United construe the treaty, and administer the rights rising States, even the Supreme Court, had not the power to under it to the parties who submit themselves to declare the treaties between the United States and France, the jurisdiction of the court in that case. But the and Great Britain, no longer obligatory upon the citizens court must confine itself within the pale of judicial au- and Government of the United States, because of the thority. It cannot rightfully exercise the political pow-multiplied wrongs and injuries committed upon the citier of the Government in declaring the treaty null, zens of the United States under color of those orders in because the one or the other party to the treaty has council and decrees, infracting the law of nations and broken this or that article; and, therefore, that the whole treaties, and hostile to the rights of the Government of treaty is abrogated. To judge of the breach of the arti- the United States. Those cases, in their effects upon the cles of the treaty by the sovereign contracting parties, treaties and amicable relations between the United States and in case of breach to dissolve that treaty, and to de-and those Governments, did not fall within the judicial clare it no longer obligatory, is a political power belong-power of the courts of the United States. Those quesing not to the judiciary. It belongs to other departments tions did not fall within the description of "cases in law of the Government, who will judge of the extent of the and equity," as used in the constitution of the United injury resulting from the violation, and whether the re- States, in conferring, vesting, and defining the powers of paration shall be sought by amicable negotiation, or whe- the judicial department. Those political powers belong ther the treaty shall be declared no longer obligatory on to other departments of the Government. According to the Government and the people of the injured party. the law and rule of speech established by use, such Yet, by the law of nations, the wilful and deliberate powers are classed under the denomination of political breach of one article of a treaty is a breach of all the ar-powers, prerogative powers, not under the head of juditicles, each being the consideration of the others; and the cial powers. 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 United States was bound, in cases of judicial cognizance 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 naval officer, without any accusation, or trial, or investi – |