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Jan. 31, 1833.]
[SENATE. gation in a court of justice, Mr. Marshall, then a represen- and cannot be represented and brought up for decision by tative of Virginia, now chief justice of the United States, individuals. in defending the conduct of the President, thus deliver In a case between two citizens, parties to an ejectment, ed his opinion in that debate.-(Appendix 5, Wheaton, claiming lands, the one party under a grant from the State p. 17.)
of New York, the other under a grant from the State of “By extending the judicial power to all cases in law Connecticut, in the gore which was claimed by both and equity, the constitution had never been understood to States, the court was competent to decide the private confer on that department any political power whatever. rights and interests of the parties. But that decision could To come within this description, a question must assume a have no controlling influence over the line of jurisdiction legal form for forensic litigation and judicial decision. between the two States; because those States were not There must be parties to come into court, who can be parties. So said the Supreme Court of the United States reached by its process, and bound by its power; whose in the cases of Fowler vs. Miller, and Fowler vs. Lindsay, rights admit of ultimate decision by a tribunal to which (3 Dallas, p.411.). And one of the judges, in delivering they are bound to submit. A case in law or equity may his opinion, with whom all concurred, asked emphatically, arise under a treaty, where rights of individuals acquired “On what principle can private citizens, in the litigation or secured by a treaty, are to be asserted or defended in of their private claims, be competent to fix the important courts." “But the judicial power cannot extend to rights of sovereignty?" political compacts." This distinction between a political The twelfth amendment to the constitution takes away power and a judicial power is recognised and acted upon the jurisdiction which had been given to the Supreme by the Supreme Court of the United States, in the case Court to hold jurisdiction of a suit against one of the of Williams us. Armroyd, 7 Cranch, 423, 433.
United States by a citizen of another State, or by citizens Again, in the case of Marbury vs. Madison, (1 Cranch, or subjects of any foreign States; but leaves the juris137,
1st Peters's Condensed Reports, 279,) this distinction diction conferred over controversies between two or more between the political powers of Government and the States. If two States, therefore, have a controversy, judicial power is most explicitly avowed and recognised which, in its character, makes a case in law or equity proby the Supreme Court. The supremacy of that court is per for judicial cognizance, it may be brought before the a judicial supremacy only. It is supreme in reference to Supreme Court. Controversies between two or more the other courts, in questions of a judicial character, States, about territory or limits, may be litigated before brought within the sphere of judicial cognizance by con- the Supreme Court of the United States. But then each troversies which shall have assumed a legal form for State must have an opportunity, as a party, to prosecute forensic litigation and judicial decision. There must be or defend her right before the decision can bind her. parties amenable to its process, bound by its power, Those are questions of meum et tuum; rights of property whose rights admit of ultimate decision by a tribunal to which one State claims to the exclusion of the other; not which they are bound to submit. “Questions in their political rights belonging to all the States respectively, nature political, or which are by the constitution and laws where the rights and powers of one State does not ex
submitted to the Executive, can never be made in this clude but establishes the rights of each and every other. · court."
Such rights claimed for all, as belonging equally to each The decision of the Executive, upon political questions and every of the States respectively, cannot make a consubmitted to its discretion, is as supreme as the decision of troversy in law or equity between two States. the court within its jurisdiction. Neither department Political powers not delegated to the Federal Governought to invade the jurisdiction of the other; so said the ment, political powers reserved to the States, constitute Supreme Court of the United States, in Marbury u. Ma- the subjects of the propositions which are affirmed on the dison. A judicial decision binds the parties litigant in one side, and denied on the other. The propositions that particular case, not others who are neither parties affirmed are, that the powers of the Federal Government nor privies, whose rights and privileges are separate and result from the compact to which the States are parties; distinct. Not even the court itself is bound to give the that these powers are limited by the plain sense and inlike decision between other parties, where a similar ques- tention of the instrument constituting that compact, and tion may be involved. Prudence will dictate that a former no further valid than they are authorized by the grants decision be not lightly disregarded, but adhered to in a enumerated in that compact; " and that, in case of a subsequent case, unless the judges see an error in the deliberate, palpable, and dangerous exercise of other former decision. But honesty requires that an erroneous powers, not granted by the said compact, the States, who opinion be not carried into doctrine, and error perpetuat- are parties thereto, have the right, and are in duty ed, merely because of the first error. Errors should be bound, to interpose for arresting the progress of the evil, corrected, not perpetuated. To err is the lot of man; and for maintaining, within their respective limits, the to correct an error is noble and praiseworthy. No decision authorities, rights, and liberties appertaining to them.” binds in law or in morality, beyond the rights of the If the Congress of the United States usurp and exerparties litigant, and those claiming under them as privies; cise a power not delegated, but reserved, it is evident and even there, not until the time for a new hearing or that the controversy about this exercise of power must re-trial has expired. But as to all other persons, it binds be between the Government of the United States and not. It is contrary to the first principles of justice, that the States. How is this controversy to get into the courts, the rights, interests, and privileges of any person should and finally to the Supreme Court, so as to bind the State be decided, negatived, and abrogated, before he is heard as one party, and the Government of the United States as to make good his title and his claim, his rights and his the other party? For on no principle can private citizens, justification. God in his infinite wisdom did not condemn in the litigation of their private claims, be competent to Adam unheard. And this example of divine wisdom and fix the important rights of sovereignty. A decision in a justice is fit to be imitated by human tribunals.
case to which a State is not a party cannot bind the State; When parties present themselves before the Supreme it is res inter alios acta. So said this court, to whom these Court of the United States to litigate the judicial question litigated questions of the limits of sovereign power are involved in that controversy, the decision of the court supposed to be referred, by those who deny the right of binds the rights and interests therein represented and liti- the States to interpose.--Fowler vs. Miller and Lindsey, zated; it binds no others.
3 Dall. 412. The public rights, privileges, authorities, and preroga Mr. Callender was tried, convicted, and sentenced to tives of the States, are not the property of individuals, fine and imprisonment in the State of Virginia by the
Revenue Collection Bill.
tJAN. 31, 1833.
federal court, under the sedition law. Now, it is clear that Mr. Callender was not in his individual person the representative of the State of Virginia, so as to bind that State by the decision, and fix her sovereign rights. Mr. Lyon was tried and sentenced in Vermont under the sedition law by the federal court; yet that decision did not bind the State of Vermont. Mr. Cooper was sentenced for sedition by the federal court in the State of Pennsylvania, yet that did not bind that State; neither did all these decisions bind the States, nor settle the point that the sedition act was valid and constitutional; nor would the decision of the Supreme Court have had that effect if such cases could by law have been carried to the Supreme Court. To bind a State, and command obedience to the decision of the Supreme Court, in a question relating to a dangerous usurpation of powers not delegated, but retained by the States, it is necessary that a case should be brought before that court between the United States and a State, as parties litigant; because, according to the first principles of o: none but the rights of parties are bound by the decision. Where is the grant of power to the judicial department to hold a plea of controversy between the United States and a State, as parties in a controversy touching the political powers alleged to be reserved to the States, respectively, and not delegated to the Federal Government? Is there any thing in the constitution which gives color to the idea that a suit can be maintained in the Supreme Court, or in any of the inferior courts, between the United States as plaintiffs and a State as defendant, or between a State as plaintiff against the United States as defendant, to settle a controverted question of delegation and reservation of political powers? Would such a suit be a case in law or equity according to any usage of speech? Let us try to frame the complaint on the one side, and the defence on the other, and come to the judgment, upon the alien and sedition laws. What sentence is to be passed upon the State? I suppose that her resolutions were seditious and unconstitutional; that she should forever thereafter acknowledge that the alien and sedition laws were constitutional; that she repeal her false and seditious resolutions. Ridiculous! Let the Attorney General of the United States try to frame a bill in equity, or an indictment for the United States against a State or States; or the Attorney General of a State to frame a declaration at law, or bill in equity, or indictment, for a State against the United States, to try the controverted questions of political powers delegated and retained by the States; draw out the plaint, and it will appear at first blush to be an anomaly, not known in the vocabulary of “cases of law and equity,” not to be classed under the judicial power over cases in law and equity, according to any law or rule of speech. There is no grant of power to the Supreme Court to hold jurisdiction of any such plaint or bill. Such a plaint in law or in equity would be a novelty in the history of judicial powers. The portentous consequences of such a jurisdiction in the court would strike with terror and amazement as soon as such a process should be instituted. The alien act of June, 1798, was enacted when the United States were at peace with all the world. By this it was declared that it shall be lawful for the President of the United States “to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the Government thereof, to depart out of the territory of the United States within such time as shall be expressed in such order.” Any alien, so ordered to depart, found at large within the United States, after the time limited in such order, and not having obtained a
imprisoned, on conviction of such disobedience, and never admitted to become a citizen of the United States. To obtain a license, such alien was to prove his innocence, and to give bond and security for his good behavior, and for not violating his license; which the President, however, might revoke at his pleasure. All aliens ordered to depart, who did not obtain license to remain, were liable to be arrested and sent out of the United States, at the discretion of the President. This act was not levelled against the citizens of any power, State, or potentate, at war with the United States, for there was then no declaration of war by the United States against any foreign power. There was another act passed in July, 1798, “respecting alien enemies,” providing for a case of war, and operating only upon the citizens or subjects of the hostile nation or Government. This act of June, 1798, was levelled at alien friends; against those who had been invited by the policy of the States, and the genius and spirit of our free institutions, to fly from the oppressions and convulsions of the old world, and seek an asylum in the States; against oppressed humanity, seeking a home on our peaceful shores. All this numerous class of aliens, not then having completed their naturalization, were placed at the discretion of the President, to be removed upon suspicion, without the form of a trial, except in the mind and judgment of the President. The sedition law operated upon citizens as well as aliens. These two acts, when made to bear against particular individuals, might have been the subjects of judicial investigation in each particular case; but the decision in such case would have affected only the personal rights of the individuals, parties to the judicial proceeding, but could not fix and bind the important rights of the State sovereignty involved in those two acts of Congress. Those acts, although they had never been brought to bear upon a single person, did invade the political rights and powers of the States, violated that security for liberty of speech, of the press, of the person, which the States respectively had a right, and were in duty bound, to maintain within their respective jurisdictions; and counteracted the policy and interests of the States, by driving from their shores alien friends, whom their laws had encouraged and invited to settle their vast tracts of wild, uncultivated lands; the faith of a sovereign State was pledged; that sovereign was bound to take care that its plighted faith was not violated by the usurpation of another potentate. The private rights and personal security of individuals, and the political rights, authorities, shd powers of the State Governments, were both invaded and violated by these two acts. An individual might be indicted for sedition, and sentenced, or be arrested for refusing to depart according to the order of the President, and the court might refuse to discharge him upon habeas corpus. The private rights of the individual, when violated under color of the alien or sedition law, might be submitted to the judicial powers. But the political powers, authorities, and liberties of a State, violated by those laws, cannot be subjected to the judicial power of a federal court, supreme or inferior; they cannot be arrested, tried, condemned, removed, or extinguished. Such cases as do not fall properly under the denomination of judicial powers, of cases of law and equity, according to common usage and acceptation antecedent to the constitution, required an enumeration and express delegation to the judicial department to hold cognizance of such classes, of which there are examples in the constitution; such as controversies, between two or more States, and between a State and for reign States, &c. The distinctions between political and judicial powers; between judicial cases in law and equity, and political cases; between the binding effect of a judicial decision
license from the President to remain, was subject to be
on the parties litigant, and its want of obligatory force on JAN. 31, 1833.]
others, not parties nor privies, are very necessary to be observed. The disregard of the usage of speech antecedent to the constitution, and of the distinctions just mentioned, would remove the landmarks of the compact. It would convert the Supreme Court into a political council and board of control, to administer the political opinions of its members. It would confer on the Supreme Court powers too gigantic and terrific, too dangerous to the peace of the United States, to the reserved powers of the States, and to the safety of the Union. It would carry along with it the power to the Supreme Court to decide upon acquisition of new territories, and upon the admission of States into the Union, formed out of such purchased territories; the power to decide how far infractions of treaties and delays of reparation did abrogate those treaties between the United States and foreign nations. The whole system of the United States, for ascertaining and adjusting private land claims in the newly acquired territories by commissioners, reserving the final decision to the Congress, depends upon the distinction I have taken. Remove these distinctions, and the powers of the legislative and executive departments depend on the judgment of the Supreme Court; and the limits of its own powers would depend upon its own will. A new mode of drawing to the Federal Government the reserved powers of the States is let in, which evades and puts to naught the safeguard to the minority of the States provided by the compact against amendments. The door is open to usurpation and tyranny, by giving the Federal Government the sole and entire control, independent of any control of the States. By the theory of the constitution, if the Congress desire to exercise a new power not before delegated, they must draw upon the States for a further surrender and delegation of another portion of their reserved powers. To sanction such new delegation of power, three-fourths of the several States must consent, by ratifying the amendment proposed. But in practice, under this new doctrine, that whatever power is sanctioned by the Supreme Court of the United States is constitutional, and thc States have no power to interpose, a bare majority of both Houses of Congress, with the assent of the President and the Supreme Court, or two-thirds of both Houses with the assent of the Supreme Court, without the assent of the President, may alter the constitution at pleasure. If the Congress exercise any of the powers reserved to the States by passing an act, let the Supreme Court, in a litigation between two citizens, in which this law is incidentally drawn in question, sanction it as constitutional, then, according to this unlimited power, conferred on the Supreme Court by construction, the act would be constitutional law, sound constitutional doctrine. Protect the authors of the law from a public examination of their conduct, by the terrors of an alien and sedition law, to speak or to write against the authors of the law would be seditious; to oppose the law by force would be treason, rebellion! . So say those who contend for the unlimited power of the Supreme Court to decide “all cases arising under the constitution and laws of the United States!” Deny the rights of the States to interpose to arrest the usurpation, and where is the remedy? Happily, a Legislature cannot be indicted of sedition; a State cannot be indicted of treason, and arraigned at the bar of a court. The general revolt of a whole nation against usurpation and oppression cannot justly be called rebellion. Truth is comprehended by examining princiPles. A whole people resisting oppression, and vindicating their own liberty and the constitution, commit no crime in so doing. Private men, who swear allegiance to the constitution, who swear “obedience ad legem,”
oath can detract nothing from the constitution; nothing from the public liberty, which the constitution was intended to protect. It admits the right to protect and preserve the constitution, and imposes a duty to avenge the violation of it. By the constitution, the diversified particular interests of the States were intended to be under the regular action of the Federal Government, secured and reserved from federal legislation: 1st, by a judicious selection of the delegated powers, the exercise of which were most likely to promote the general welfare of all the States, and least likely to bear oppressively upon any one of them; 2d, by regulations and prohibitions upon the exercise of those powers so specified and delegated, so as to render their action uniform in all the States, and to guard against a preference or favoritism towards any of the States; 3d, by guarding against amendments which might delegate additional powers, and divest the States of further portions of sovereignty, unless such amendments were proposed by two-thirds of the Houses of Congress, or twothirds of the Legislatures of the several States, and afterwards ratified by three-fourths of the States. But by this new doctrine of supremacy of the federal court, an irregular action of the Federal Government is substituted in place of amendment. Usurpation of power, if sanctioned by the Supreme Court, is made equal to an additional grant by an amendment of the constitution. A majority of the States combined in interest, may, if sanctioned by the Supreme Court, exercise any powers not delegated, not necessary and proper to execute the powers especially delegated, but new substantive powers to the Government, added by construction, destructive of the particular interests and prosperity of a minority of the States—powers which two-thirds of both Houses, or two-thirds of the Legislatures of the States, would not propose; or, if proposed, would not be ratified by threefourths of the States as an amendment to the constitution. A majority of the States elect a majority of the Senators, and a majority of the members of the House of Representatives; and a bare majority of the States may be so taken as that they may elect a majority of electors of President and Vice President. So that a majority of States combined in the assumption of new powers, may exercise such new constructive powers to their agrandizement, and the advancement of their particular interests, to the depression of the particular interests and prosperity of the minority. . Such a combination may be perpetuated by the very fact that it is a combination of the majority of local and particular interests. The aggression cannot be corrected by an appeal of the minority for a change of representation in the two Houses, because of the special interests which the majority of the States have in continuing such system of benefits to themselves, at the expense of the minority. The combination can effectually perpetuate itself by continual elections to both Houses, and by the election of the President and Vice President. This is a short way of adding new powers by assumption of Congress, with the consent of the Supreme Court, and denying the authority of the States to interpose to arrest the evil. It is a new mode of amendment to the constitution, totally variant from the mode prescribed by the constitution. . It evades and defies the security and efficient safeguard provided by the constitution, and encourages encroachments which lead to a tyrannical concentration of all the powers of Government, both State and federal, in the same hands. But there may be instances of usurpations of undelegated power so contrived as to evade the examination and decision of the judicial department, even in suits between the Federal Government and an individual. The very protective system, which is the source of the unhappy discontents in South Carolina as well as in other
swear no obedience “extra vel contra legem.” The Vol. IX. —19
States, is a striking example.
[JAN. 31, 1833.
Revenue Collection Bill.
The tariff bill, on its title and face, professes to be for a President, so as to give a majority of a desired political revenue. But the duties imposed produce revenue ex- cast. These judges hold their offices for life, remov. . the wants of the Government for its economical able by impeachment by the House of Representatives, expenditures. The high imposts are enacted for protec- and conviction by the concurrence of two-thirds of the tion of manufactures. But this motive and intent is conceal. Senators. Their responsibility is too remote, and the ed and not avowed in the bill, howsoever strongly urged number too few for a high prerogative court, with power on the floors of Congress to induce the high tariff, and to adjust the political powers of the Federal and State howsoever this intent may inflate extravagant and waste- Governments, and try the Federal Government when imful expenditures, for the purpose of fostering and continu- peached of usurpation and encroachment upon the reing the high pressure of taxation upon consumers. served powers belonging to the States. If the central Now, the judicial tribunals cannot go out of the act to Government be accused of encroachment and usurpation, look for the motives of the members of Congress; they o triers, the Supreme Court judges, are, in their turn, liacannot examine into the secret springs of action in the ble to be impeached and tried by the central Government. Legislature. So it is decided in the case of Fletcher vs. The Congress who commit the usurpation are the only perPeck, in the Supreme Court of the United States. As sons who can impeach and try their judges. The offending the power to tax imports and collect revenue is expressly Congress are to be tried by their judges; and the offending delegated, the question of the undelegated but usurped judges are to be impeached and tried by the offending Conpower of protection of one class of citizens, by giving 'gress. There is but little wise and practical security in this money to them, taken from the pockets of other classes against the encroachments of the central Government. of citizens who consume domestic manufactures, can No plaintiff would feel very safe if the defendant had the never arise upon a bill professing to be for revenue. But sole power to appoint the jury, with the power superwill the gentlemen who are so ardent for protection of added to accuse that jury of misconduct, and try the ac
manufactures be pleased to divide these subjects into two
ernment tends to increase, not to allay, his lust for do
power. The federal constitution was framed and adopted by wise, patriotic, and practical statesmen, lovers of liberty, inspired with a holy zeal in a revolution to resist the encroachments of power from the central Government upon the rights and liberties of the colonies. They did not, they could not, intend to create a central Government with unlimited powers, nor a Government without sufficient practical checks against the usurpations which might be attempted upon the reserved rights of the States.
The Supreme Court of the United States is not such sufficient check and safeguard against the encroachments of the central Government upon the State Governments. The number of judges of the Supreme Court is not defined by the constitution. That number is but seven at present. Four are a majority of the court. But the number may be increased at the pleasure of the Congress and
cusation. It seems to me that if those wise and practical
solve the bonds of union, and ought, therefore, to be reand balances against the encroachinents and abuses of
confederated States against the minority, have produced
The principles of civil justice to be administered by the community to such an officer. He is looked upon as the guardian of civil rights, the protector of life, liberty, and
judicial tribunals are fixed, immutable, and eternal, they *** so nearly assimilated in all civilized nations, that they
may be made universal. But the notions of political justice, and balances of political power, are mutable and variant, differing, like the complexions, habits, education, and feelings of politicians. If the Supreme Court is to be the sole and exclusive judge in the last resort, not only of judicial questions properly submitted to it by the forms of the constitution, but also of all questions touching the confines of political powers delegated and not delegated by the compact, then not only the legislative and executive departments of the Government hold their powers at the will of this court, but the concurrence of this court, with the other departments of the Federal Government, “in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very constitution which all were instituted to preserve.” If one of the parties is to be the sole and exclusive judge of the extent of the powers to him delegated, and of the concessions made by the other parties, then such party would have an unlimited and supreme authority ever the other parties. It is not sufficient to discriminate in theory the several classes of power, and distribute them between the legislative, executive, and judicial departments; neither will it suffice to mark with precision the boundaries between the powers delegated to the Federal Government and those retained by the States, and trust to these parchment barriers for defence against the insatiable appetite and restless gnawings of power. Experience teaches that the efficacy of such paper barriers are too feeble to withstand the scorching desires of power, and that some more adequate defence is indispensable to secure the more feeble against the more powerful members of the Government. The judicial department does not present the requisite security in matters of such transcendent and vital importance. The judges of the Supreme Court are too few in number. The permanent tenure by which their appointments are held, as well as their salaries and the mode of their appointment, destroys all sense of dependence on the States, and lifts them above the common burdens of the people; and, from the very nature of their callings, they see human nature in the worst light. These are but too apt to infuse into their minds hightoned notions of a forcible consolidated Government, as necessary to “save the people from their worst enemy—— themselves.” Judges, in a long course of official duties, are familiarized to the sight of frauds, chicaneries, misdemeanors, and crimes; accustomed to exercise the force of the laws upon knavish wealth, naked poverty, and squalid vice; they are but too apt to confound the distinction between the judicial powers necessary to administer the laws, and political powers necessary to prescribe the laws; between the powers necessary to be granted to secure and protect against a violation of the laws by the vicious, and the powers necessary to be reserved to the good for protection and security against a violation and abuse of the political powers of the Govern. ment. In o from the time that Alfred hung the forty judges for illegal and corrupt practices, to the trial and conviction of Algernon Sidney for high treason, in writing that celebrated treatise on Government, (which, since his execution, has been published,) against the divine right of kings, and the doctrines of non-resistance and passive obedience, and from that time to this, the histor of judicial power, as exercised, teaches this solemn truth --judges are but men, fallible men. The history of judicial power in our own country and in our days, is not less impressive. But I forbear. I respect an independent, upright judge. There is a
generous confidence yielded by the moral sense of the