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* “These are counsellors
“That feelingly persuade the what I am.”
V.oixiliull *N Davis i Circuit Court of the
vs. > U. S. April Session,
YVilliara Wagner. j I—y 1.
Present Judges liaidu in and lionldnson.
This was an application to discharge the
defendant from custody under a ca su., and
.tvas.submitted to the Court upon a statement
of the frets, as follows :
William Wagner, residing in Philadelphia,
crew a l3ili ol Exchange upon WooJhull and
Davis, residing in New York. It was ac
cepted and paid at maturity by the acceptors.
Tae late firm of Snowden and Wagner haJ
consigned to WoodhuH and Davis a cargo of
1 nrpentine, which was not disposed of at the
timeof accepting the bill,at which time the
firm was dissolved, and the defendant was
carrying on business alone. After winding
up the sal _s and crediting the nett proceeds,
a balance remained, excluding Wagner’s bill,
against the New Nork house. Suit was brought
against William Wagner lor not indemnifying
Wood ini 11 and Davis, for their acceptance on
his account, and the sum claimed, and for
which judgment was recovered, was the u
mount of the Bill of Exchange, less the bal
ance ol Snowden and Wagner’s account. The
defendant, being in custody on a ca. sa. ap
plied for his release 011 the ground of his dis
charge by the Insolvent Law ot Pennsylvania.
This was opposed on the allegation that the
debt was contracted in New York, and there
fore not affected by the discharge here.
The opinion of the Court was delivered by
Baldwin, J. .
1 lie statement of the case agreed on by the
parties presents only one question tor the con
sideration of the court, which is—Whether
the defendant’s discharge underthe Insolvent
law of Pennsylvania entitles him to be dis-
from the arrest made under a ca. sa.
issued from this Court in execution of ajudg
tnent obtained against him eleven mouths be
fore his dischare !
The power of the states of this Union to
pass bankrupt or Insolvent laws, and the ef
fect of the exemption of the person of the
-debtor, or property acquired after the dis
charge, have been the subject of much dis
cussion arid difference of opinion. In the
Supreme Court, they have been so fully ex
amined by counsel, and the judges, as to
make it necessary only to state (he result of
■such cases as hear on the present application.
In Sfurges vs. Crowninshield, 4 Wheat.
i:22,!D, it was decided, Ist. That a state had
■a right to pass a bankrupt law, provided there
was no act of Congress in force cstabli/ling
a uniform system of bankruptcy, conflicting
>vith such state law; and provided it did not
impair the obligation of a contract, within the
.13th sect, ot the first art. ol the constitution.
~d. 1 hat such state law, liberating the per
son ot the debtor, and discharging him from
liability on contracts made previously to the
law, was unconstitutional and void, so far as
it is discharged the contract, or attempted to
lo so. But 3d. 1 hat it was valid, so far as it
l:scharged the person of the debtor from con
finement; as imprisonment was merely a rem
edy to enforc the obligation of the contract,
but no part of the contract itself, a release
from i; did not impair the obligation, p. 200-1.
Though the Coui t, in the latter part of their
opinion, p. 207,confine it tothe second point,
yet the first and third having been considered
mid their judgment exercised on thorn, it has
always been understood (and so we feel it our
duty to view it) that the law is settled on
these points, according to the reasoning of the
court, if not their direct The same
}rm nle on the third point was affirmed in
J'Uso i vs, Haii ;, 12 Wheat. 370.* This
case was decided independently of any cou-
Mf.b ration arising from the-Jpculity of the con
tract or t? p irtiys.
in NI Milan vs. M’Ncil, 4 Wheat. 200, the
Court are sai ! to have declared that the cir-
c '..stance ot tlie siate law, mid. r which the
debt was attempted to bo discharged, having
be. n pass' and b<-fore the debt was contracted
made no difference in the application of t>...
principle. And it; ti... Farmer’s Ba -f vs
Smith, 6, Wheat, ini, that the fact ./both
parties being citizens of Pennsylvaryt when
the contract was made, and tin; defendant
was discharged, made no differojde between
that and the former cases.
From the opinions ot the Ridges in Saun
ders vs. Ogden. 12 Whoaj/213, Ac. it seems
trrnt the point decided in McMilan vs. Me
Neil was not correct/stated by the report,
and that it was ny intended to settle the qm s*
ton of tlie eQtct of the Isw upon controls
made subsorient to its passage. This /‘.us*
tisn renamed open till the case of Sa;/crs vs
*in wliieii, four of the their
that the contract could ,V- discharg
ed V> a state law passed befog? (lie contract
ivi.s made; putting the ease cm tlie distinction
Between bankrupt or i-yolvent laws which
wre retrospective, r-atl tliose which were
prospect, ein t’mir operation. But these o
jiinmns le<. o no Oral judgment on this point,
which in strictness may the refore lie eojisid-
red as not Uving been adjudicated, though
it was the deliberate opinion of a majority of
the court. but this opinion does not arise here,
and it fs therefore not necessary to the decis
ion ■/ f i;is motion to notice it further.
A (other point of more immediate applica
tion ..ro-e in that case. The suit was brought
o i a bill drawn bv Jonlon in Kentuckv, on
Ogden, a citizen of New York, resident there,
ar and accepted i,y him in favor of Saunders a
cit zon of Kentucky. One of the judges who
c' the majority on the first question
being of opinion that a discharge under the
• 1 -S'-U 1 or!; w..s void as to a citizen of
Kentucky, four judges concurred in giving
judgment for the plaintiff, on the ground of
the invalidity of tlie law, p. 309. Jud*o
•h Ifßson w. i the only judge, who gave an o
pi.i i’i or: fbc second point—the tiiree vvlio
concurred with him on the first, dissented on
s—-t r thr e'vfo dissented on tlie first, as
#< idr-1 to tV judgment -which wasentcrctl for
tl.e defrr.'iantjn rror; but without assigning
any reasons b-e ond those given in their dis
r,- • irg opinion e:i the fret question, p. 332.
It the ca a of Ogdon vs. Saunders bad turn
mi u; on the me,v point of the citizenship of
t.i.' ; I intilf, it would betlifficult to say what
was the direct judgment of tho court. Throe
TDK MACON’ ADVERTISER, AND AGRICULTURAL AND MERCANTILE INTELLIGENCER.
judges thought the law of New Y ork was va-1
lid, having been passed before the debt was j
contracted, and that it open.ted on the ca>;. ?
the contract having been made, and to bec.v j
cautid there. Three gave no opinion on tin j
point of locality, it was not necessarr to do |
so, as they thought the plaintiff entitled to
judgment on the first. Thus considered, this
case, standing by itself, directly adjudicate
no definite question involved in the one now
under hearing; as we are not informed wheth
er the three judg- s, \i ho concurred with Judge
Johnson in rendering judgment against the
party claiming under the law, did it for the
reasons assigue'd by them in their dissenting
opinion on the first point, or those assigned
by him on the second. No question arises
here as to the right of the plaintiffro all reme
dies against the defendant’s property. The
law under which lie has been discharged is
not unconstitutional as it attempts to dis*
I charge only the person. The only doubts are,
Ist, as to the effect of a discharge on a debt
contracted in New Y’ork; 2d, with a citizen
of that state; and 3d, on process issued from
this court.
All the judges in Ogden vs. Saunders sta
ted that the point decided in McMilan vs.
McNeil was that a discharge of the defend*
ant under a law of Louisiana could not dis
charge or operate on a contract made and to
he executed in South Carolina, where both
parties then resided. Thus affirming individ
ually, if riot by their collective judgment, the
principle then settled. In several cases pre
ceding that of McAlilan vs McNeil, as well
well as in tliat, the Supreme Court have de
clared that a discharge by the bankrupt laws
of a foreign country was no bar to an action
brought on a contract made in this. 4 Wheat,
213; 5 Cr. 298; 302 Robert’s Adm’rs. vs.
Bank of Georgetown, January term, 1831.12
\Vheat. 358, et seq.
In Buckner vs Finley, 2 Peters, 586, the
Court declared that “For all national purposes
embraced by tlfe Federal Constitution, the
Suites, and the citizens thereof are all united
under the same sovereign authority and gov
erned by the same laws. In all other res
pects the states are necessarily foreign to, and
independent of each other. Their Constitu*
tons and forms of government being, although
republican, altogether different, as are their
laws and institutions, 590. This principle
seems directly applicable tothe laws of tl.j
States discharging the persons arid future ac
quisitions of debtors. Such laws are wholly
unconnected with if*: Federal relations of the
States to the General Government, where they
do not impair the obligation of contracts.—
Discharges under them, arc, in other States,
to be considered as made under foreign laws,
within tlie uniform decisions of the Supreme
Court, having 110 extra-territorial effect on
contracts made beyond their jurisdiction, or
with persons not subject to their laws at the
time when it was to be carried into elfect.—
In tliis light and taken in connexion with these
cases, the case of Ogden vs Saunders is im
portant, as showing the concurrence of all the
judges in the general principle as to the efl’cct
of discharges under foreign bankrupt laws
It is also important as connected with the case
ot Shaw vs Robins, in a note to 12 Wheat.
369, in which the Court decided that a bill of
exchange, drawn by a citizen of Massachu
setts on a citizen of New Y’ork, and accepted
hy him, being a resident there, could be re
covered in afitate Court in Ohio, though the
defendant had been discharged under the in
solvent law of New York. The facts of the
ease were those of Ogden & Saunders, tiled
decision in which was held applicable, avl
governed the one before them. Thus con
nected with the preceding case of McMillan
vs. McNeill, ami the subsequent one c/Sliaw
vs. Bobbins, the caser f Ogden vs. (jnunders
must be coi/adcred, at least in tYc Circuit
Court, as retting both principles-that a dis
charge by the law of a State op .rates only on
contracts made between its oyn citizens, and
to b/r executed within the Sg.te. The opin
io/. of Judge Johnson may fie taken by us as
that of a majority of the jCourt on the effect
ot their decision of th - .f ease in p. 368-9.
lie declares it to bo an adjudication in that
ca>e “that as between citizens of the same
State, a discharge of a bankrupt by the laws
of that State is "valid, as it afl’ccts posterior
contracts; t’/u as against creditors, citizens,
of other St A s,it is invalid as to all contrasts.”
The burned Judge maintains these propo
sitions ; Ist—‘That the power given to the
Unit A Sates to uass insolvent laws is notex
clo>iv.. g—j oaf the fur and ordinary cx
ycise of that power by tlie States, does not
-necessarily involve a violation ofthe obliga
tion of con • cis, a ini/lta fortiori of posterior
contracts.” 3.—“But when States pass be
.'and their own limits, and the rights of their
own citizens, and acton the rights of citizens
oi other States, the exercise of such a power is
incompatible with the rights of other States,
i and tlie constitution of the United States.”
In the next case which came before the Su
preme Court on t!>e effect of discharges by
State bankrupt laws (Clay vs Smith, 3 Peters
111) the plaiutill was a citizen of Ken
tucky, the defendant of Louisiana, who was
dis barged, “as well his person as his future
effects, from all claims of his creditors,” by a
law of State passed in 1812. The debt
sued for was incurred in 1808. The plain
till made himself a party to tlie proceedings
under the law, and was thereby held to have
abandoned his extra-territorial immunity from
the operation ofthe bankrupt law of Louisi
ana, which released the defendant from all
demands on his person or subsequent acquir
ed property.
The result then of what w e must consider
in this court as (he decision in the foregoing
ease is, that a State law, discharging the
person of a debtor from arrest for debts con
tracted in the State between its own citizens,
it effecting only the remedy to enforce not the
obligation ofthe contract, is valid and not
within the prohibition of the constitution,
whether the debt was contracted before or af
ter the! iw. Sturgcs vs. Crow-ninshield, Og
den vs Saunders, Mason vs Haile.—So is a
law discharging both tiie person and future
acquisitions ot tin- debtor from contracts pos- j
’■ rior to the law, or from anterior ones, if the j
creditor makes himself a party to the proceed-'
mgs which lead to the discharge in the Slate I
Court. Ogden vs Saunders, Clay vs Smith.— |
P-ut such laws have no operation out of the *
State over contracts not made and to be car
ried into effect within if, or over the citizens
of other states. Harrison vs. Story, McMi
laji vs. AlcHcil, Ogden vs. Saunders, Shaw vs
Bobbins, Robertson's Administrator's vs.
Bank of Georgetown. That it makes no dif
ference whether the suit is brought in aSta e
court or the courts of the United States ; the
rule is the same as to rendering a judgment,
or issuing process. Farmers and Mechanic’s
Bank of Pennsylvania vs. Smith, Shaw vs.
Robbins, Ogden vs. Saunders. A state law
not repugnant to the constitution, laws, or
treaties of the United States, is, by the 34th
sect ion of the Judiciary act, a rule for the de
cision of all cases to which it applies in the
Federal courts, and we must decide on this
precisely as the State courts ought to do. 2d
Peters, 650, 413, 14.
With these settled principles to control our
decision, it only remains to apply them to the
contract, on which the plaintiffs have obtain
ed their judgment, and issued theii'texecution.
The defendant, residing in Philadelphia
consigned to the plaintiffs, residing in Neyv
YYirk, a quantity of turpentine, to be sold on
his account. In anticipation of the sale he
drew a bill on the plaintiff, which was accept
ed and paid. The sales did not reimburse
them, they brought their suit to recover the
lialunce, and obtained the judgment 011 which
the ca. sa. issued. By the nature of this
contract, the defendant undertook in law to
pay this balance to the plaintiffs, and was
hound to reimburse them at the place where
the money wasadvanced. The plaintiffs had
a right to draw for the difference between the
amount of the bill so accepted and paid, and
the proceeds of the sales; we can perceive no
difference between this right in the plaintiffs
to draw for this balanse and the obligation of
the defendant te pay, which arise from tlie
nature of the contract; and a letter expressly
authorising tlie crafts for' reimbursement.—
The case conies within the principle settled in
Lanusse vs. Barker, 3 Wheat 101, where Lu
nusse having advanced money in New Orleans
011 the faith of letters written by Barker in
New York, it was held that tlie money was
to be replaced at New Orleans, and Barker
was adjudged to pay tho balance at the Or
leans interest of iO percent.
The undertaking then being to replace the
money in New York, that was the place w here
the debt was payable, and tlie plaintiffs being
citizens of that state, the discharge of the de
fendant by the insolvent laws of Pennsylva
nia can have no operation on tlie contr; /.t or
the remedies to enforce performance. As the
decisions of the Supreme Court are rfuthorita
tive, we have not thought it necessary to go
into a detailed examination of Biosj in tlie
Circuit Court. Tiiey will In- found in accor
dance with the principles settled by the Su
preme Court, on’all tlie points arising in the
case, 1 Peters, 404, fk; 1 Wash. 340, 41, 3
Wash. 425, 443, 471 Gall. 169,475, 441;
3 Mason, 88.
Defendant remanded to custodv.
* The Court.declared that a state law abol
ishing iinprisiKiinent for debt would be as va
lid as a mcaj'ire regulated by the State Le
gislature rating on the remedy and lHat in part
only; and repeat the doctrine asserted in the
former. />7S.
Political. _ _ _
from the ] J endlpfon Messenger.
MR. CALHOUN’S SENTIMENS.
Mr. Symmes,
1 must request you to permit me toure your
columns, as the medium to make known my j
sentiments on the deeply important question,!
ot the relation, which the States ami General i
Government bear to each other, and which is,'
at this time,a subject o! so much agitation.
It is one ol the peculiarities of the station
I occupy, that while it necessarily connects
its incumbent, with the politics of the day,
it affords him no opportunity officially to ex-1
press his sentiments, except accidentally orr
an equal division of the body, over which lie
presides. Ho is thus exposed, as 1 have often
experienced, to have his opinions erroneous
ly and variously represented. In ordinary
cases, 1 conceive, tlie correct course to be to
i remain silent, leaving to time and circumstan
ces, tlie correction of misrepresentations; but
there are occasions so vitally important, that a
regard both to duty and character would seem
to forbid such a course; and such, I conceive j
to bo the pres. *.'• The requent allusisns to'
my sentiments, will not permit me to doubt,i
that such also is the public conception, and
that it claims the right to know, in .relation
to the question referred to, the opinions of
those, who hold important official stations;
while on ray part, desiring to receive neither
unmerited praise, nor blame, I feel, I trust, the
solicitude, which every honest and independ- 1
ent man ought, that my sentiments should be
truly known, whether they be such, as may
be calculated to recommend them to public
tav our, or not. Entertaining thes* imprt ssions,
I have concluded, that it is my duty to make
known my sentiments ; and I have adopted
the mode, which on reflection seemed te be
the most simple, and best calculated to effect
the object in view.
Ihe question of the relation, wliich the
States and General Government bear to each
other, is not one of recent origin. From the
commencement of our- system, it has divided
public sentiment. Even in the Convention,
while the Constitution was struggling into
existence, there were two parties, as to” what
this relation should be, whose different sen
timents, constituted no small impediment in
I forming that instrument. After the Gene
ral Government went into operation, experi
ence soon proved, that the question had not
t< imutated with the labors ot theConventiom
file great struggle, tli.it proceeded the polit
ical revolution of 1801, which brought Mr.
Jefferson into power, turned essentially on it;
and the doctrines and arguments oil both
sides were e mbodied and ably sustained ; on
the one, in the V irginia and Kentucky reso
lupous, and the report to the Virginia Lcgis
laturu i and on the other, in the replies ofthe
Legislature of Massachusetts and some ofthe
-te os. lb- r..solutions and this re
port, with the decision ofthe Supreme Court j
ol 1 ennsylvania about the same tinie, parti,
eularly in the ease of Cobbet, delivered by |
Chiel Justice M’Kean and concurred in bv|
Lie whole bench.) contain what 1 hclieve to
be, the true doctrine on this important sub
ject. 1 refer to them, in order to avoid the
necessity of presenting my views, with trie
reasons in support of them, in detail.
As my object is simply to state my opin
ions, I might pause with this reference to do
cuments, that so fully and ably state all of the
points immediately connected with thisdeep
| ly important subject, but as there are many,
who may not have the opportunity, or leisure
| te refer to them, and as it is possible however
j clear they may be, that different persons may
j place different interpretations on their incan
i ing, I will in order that my sentiments may
be fully known, and to avoid all ambiguity,
proceed to state summarily the doctrines,
which I conceive they embrace.
Their great and leading principle is that
that the General Government emanated form
the people of the several states, forming dis
tinct political communities, and acting iu
their seperate and sovereign capacity, and
not from all of the people forming one aggre
gate political community ; that the Constitu
tion of the United States is in facta compact
to which each State is a party, in the charac
ter already described ; wul that the several
States or parties, have a right to judge of its
infractions, and in case of a deliberate, palpa
ble, and dangerous exercise of a power not
delegated, they have the right, in the last re
port, to use the language of the Virginia reso
lutions, “to interpose for arresting the pro
gress of the evil , and for maintaining within
their respective limits, the authorities, rights,
and liberties appertaining to them This
ngli tot interposition, thus solemnly asserted
l>v tlie State of Virginia, he it called what it
may, state right, veto, nullification, or by any
other name name, I conceive to be funda
mental principle of our system, resting on
facts bistoiically as certain, as our Revolu
tion itself, and deductions, as simple and de
monstrative, as that of any political, or moral
truth whatever ; and f firmly believe that on
its recognition depends, the stability and safe
ty of our political institutions.
I am not ignorant, that those opposed to the
doctrine have always, now and formerly, re
gardeil it in a very different light, as anarchi
cal and revolutionary. Could I hclieve such
in fact to be its tendency, to me it would be
no recommendation. 1 yield to none, I trust,
in a deep and sincere attachment to our polit
ical institutions and the Union of those States.
1 never breathed an opposite sentiment ; but
on the contrary, I have ever considered them
tlie great instruments of preserving our liber
ty, and promoting the happiness of ourselves
and our posterity ; and next to those, 1 have
ever held them most dear. Nearly half mv
life has passed in the service of the Union,
and whatever public reputation I have acquir
ed, is indissolubly identified with it" To
be too national has, indeed, been considered
by many, even of my friends, to be my great
est political fault. With these stiong feel
ings 01 attachment, 1 have examined with
the utmost care, the bearing of the doctrine
in question ; and so far from anarchial, or re
volutionary, 1 solemnly believe it to be, the
only solid foundation of our system, and of the
Union itsell, and that tlie opposite doctrine,
which denies to the States the right of pro
tecting their reserved powers, and which
would vest in the General Government, (it
matters not through what Department,) the
right of determining exclusively and finally
the powers delegated to it, is incompatible
with the sovereignty oft he States, and of the
constitution itself, considered as the basis of
a Federal Union. As strong as this lanimage
is, it is not stronger, than that used by the
illustrious Jefferson who said, to give to the
General Government the final and exclusive
right to judge of its powers, is to make “ its
d’-. cretion and not the Constitution the mea
sures of its powers;" and that “ in all cases
of compart bctxrren parties haring no common
Judge, each party has an equal right to judge
for itself, as well of the operation, as of the
mode and measure of redress." Language
cannot he more explicit ; nor can higher au
thority be adduced.
That different opinions are entertained on
this subject, [ consider, but as an additional
evidence of the great diversity ofthe human
intellect. Had not able, experienced Ar patrio
tic individuals, for whom 1 have the highest
respect, taken different views, I would have
thought the right to clear to admit of doubt, i
but 1 am taught by this, as well as bv many
similor instances, to treat with deference
opinions differing from my own. The error
may possibly be with me; but, if so, lean
only say, that after the most mature and con
scientious examination, 1 have not been able !
to detect it. But with all proper deference
1 must think, that theirs is the error, who de
ny, what seems to he an essential attribute of
the conceded sovereignty of the States ; and
whe attribute to the General Government a
right utterly incompatible with whet all ac
knowledge to be its limited and restricted
character; an error originating principally,
■os 1 must think, in not duly reflecting on trie
nature of our institutions, and on wliant con
stitutes the only rational object of all political
Constitutions.
It has been well said by one ofthe most
sagacious men of antiquity, that the object of
a Constitution is to restrain the Government,
ns that of lavs ijto restrain individuals. The
remark is correct, nor is at less frnc, wnere
j the Government is vested in a majority, than
I where it is in a single or a few individuals ;
m a republic, than a monarchy or aristocracy.
No one can have a higher respect for the
maxim, that the majority ougiit to govern,
than l have, taken in its proper sense, subject
to the restrictions imposed by the Constitu
tion and confined to subjects, in which even i
portion of the community have smnlar inter,
csts; but it is a great error to suppose, as ma
ny xlo, that the right of a majority to govern
is a natural and not a conventional right; snd
therefore, absolute and unlimited. By na
ture every individual has the right to govern I
himself; and Governments, whether founded
on majorities, or minorities, must dc rive their
right trom the assent, expressed or implied,
of the govermd, and !><■ subject to such limi
tations, as they may impose. W here the in
terests me the same, that is where the laws
that may benefit one, will benefit all, or the i
reverse, it is just and proper to place them un-1
dcr the control of the majority; but where they I
arc dissimilar, so that the law, that may ben
fit one portion, may be ruinous to another,
it would be on ?he contrary unj’ust arid ab?ur I
to snbj zt them to its will; and such, I c on
ceive to be the theory on which our Constitu
tion rests.
That such dissimilarity of interests may ex
ist, it is impossible to doubt. Tiiey arc to
be found in every community, in a greater or
I loss degree, however small, or homogeneous;
and they constitute, every w here, the great
| difficulty of forming, and preserving free in
stitutions. To guard against the unequal
f action of the laws, when applied to dissimilar
i and opposing interests, is, in fact, what main
ly renders a constitution indispensi lc; to
J overlook w hich, in reasoning on our Constitu
tion, w ould be to omit the principal element,
by which todeterminc its character. Were
there no contrariety of interests, nothing
w ould be more simple and easy than to form
j and preserve free institutions. The right of
i suffrage alone would be a sufficient guaranty.
! It is the conflict of opposing interests which
renders it the most difficult work of man.
Where the diversity of interests exists in
i separate and distinct classes of the cornmuni
| ty, as is the case in England, and was former
; ly the case in Sparta, Rome, and most of the
j Bee Stati s of antiquity, the rational constitu
! tional provision is, that each should be repre
sented in the Government, as a separate cs
| fate, with a distinct voice, and a negative on
the acts of its co-estates, in order to check
their encroachments. In England, the con
stitution has assumed expressly this form;
! while in the governments of Sparta and Rome
i the same thing was effected under different
j hut not much less efficacious forms. The
perfection of thc-ir organization,in this particu
j lar, was that which gave to the Constitution
1 ot these renowned States all of their celebrity
; which secured their liberties for so manycen
; turies and raised them to so great a height of
! power and prosperity. Indeed, a constitu
tional provision given to the great and sepa
rate interests of the community the right of
self-protection, must appear to those w ho w ill
duly reflect on the . ibject, not less essential
tothe preservation of liberty, than the right
ot suffrage itself, —they in fact have a com
mon object, to effect which, the one is neces
sary as the other; to secure responsibility, that
is, that those who make and execute the laws
should be accountable to those, on whom the
laws in reality operate; the only solid and
j durablefoundation of liberty. If without the
i right of suffrage, our rulers should oppress
! us ) so, without the right of self-protection, tlie
! major would equally oppress the minor inter
j ests of the community. The absence of the
j former would make the governed the slaves
of the rulers, and of the latter, the feeble in
j tereststhe victim of the stronger,
j Happily lor us, we have no artificial and
| separate classes of society. We have wisely
i exploded all such distinctions; but we are not
| 0,1 that account, exempt from all contrariety
1 ot" interests, as the present distracted and dan
gerous conditions of our country, unfortunate
ly, but too clearly proves. With us they are
almost exclusively geographical, resulting
mainly from difference of climate, soil, situa
tion, industry and production, but i’re not
thereiore, less necessary to be protected by
au adequate constitutional provision, than
where the distinct interests exist in separate
classes. The necessity is, in truth, greater,
as such separate and dissimilar geographical
interests, are more liable to come into conflict
and more dangerous when in that state, than
I tiiose of any other description; so much so,
j that ours is the first instance on record, where
[ they have not formed in an extensive territory,
; separate and independent communities, or sub
jected the whole to dc.potic sway. That such
may not be our unhappy fate also, must be
the sincere prayer of every lover of his coun
try.
So numerous and diversified are the inter
ests of our country, that they could not be
fairly represented in a single government, or
ganized so, as to give to each great and lead
ing interest, a separate and distinct voice, as
in the Governments to which I have referred.
A plan was then adopted better suited to our
situation, but perfectly novel in its character.
1 he pow. rs of the Government were divided,
not as heretofore, in reference to classes, but
geographically. One G< acral Government
was form and for the whole, to which was dele
gated, all the powers supposed to he necessa
ry to regulate the interests common to all ot
the States, leavingothers subject to the sepa
rate control of the States, being from their
local and peculiar character, such that they
could not be subject to the will of the majori
ty ot the whole Union, without the certain
hazzard of injustice and oppression. It was
thus, that the interests of the whole were sub
jected, as they ought to be, to the will of the
whole, while the peculiar and local interests
were left under the control of the States sepa
rately, to whose custody only, they could be
salcly confided. This distribution of power,
settled solemnly by a constitutional compact,
to which all ot the States are parties, coqsti
tutes the peculiar character and excellence
of our political system. It w truly and em
phatically, American, without example or
parallel.
io realize its perfection, we must view the
General Government and the States as a
whole, each in its proper sphere, sovereign
! and independent, each perfectly adapted to
; their respective objects; the States acting sep
arately, representing and protecting tlie local
and peculiar interests; acting jointly through
one General Government, with the weight
respectively assigned to each by the Consti
tution, representing and protecting the inter
est ot the whole; and thus perfecting by an
admirable, but simple arrangement the great
principle of representation and responsibility,
without w hich no government can be l'rco or
just. To preserve this sacred distribute- , as
originally settled, by coercing each te. ’ mov
in its prescribed orb, is the great and difiv ..p
problem, on the solution of which the i
tion of our Constitution, of Union,’ a- jd
probability, our liberty dcr ends, n o ,' '
tins to be effected ? ‘ llou ISs
The question is new, uhe-., ap p l if . and fo ‘
peculiar po it cal onr.miz.ation, whore the
separate and co,.fluting interests of society
are represented by distinct, but connected
Governments; Intis in reality and old quos
soTved■ Wh ~CW form lon sincp Perfectly
soLcd Whenever separate and dissimilar
interests liave been separately represented in
nv Oov, ..b.,,-,. 0r ,b“
power has been divided n, j tß t . x
experience and wisdom of ages ffi ve ?’
but one mode, by which such political?,' ' C<l
zation can be preserved ; the mode ado?." 1 '
England, and by all Governments * nci , P '? d 111
modern, blessed with Constitutions dr? nd
10 K c;;11: f fr ‘-G to give to each co-estr ‘'' g
nght to judge of its powers, with a nuna *
or veto on the acts of the others, j„ o f?!' Ve ’
protect against encroach meats, the i„J f ?
particularly represents; a principle which M
of our Constitutions recognize in the ,1 ,
but.on of power among their respective iv
partmonts, as essentk.l to maintain the’inT'
pendcnce of each, hut which to all !,'
duly reflect on the subject, must a’pncur V
more essential, for the same object j„\, r
great and fundamental distribution of ‘
between the States anil the General Gov?
ment. * 0 essential is the principle fin .
withhold the right from eitherTwLm t °
sovereign power is divided, is in fact ,oT
n:d the division itself,and to consolidate in J
out let niSne exc.usive possession of tb
right, all of the powers #f the Govern.?!
for it is not possible to distinguish,
ly, between a Government having all
and the one having the right ? tak ?
power it pleases. Nor does it in the h?
vary tlie principle, whether the distribute
of power be between co-estates, as j„
laud, or between distinctly organized, £
connected Governments, as with u s . 7 .
reason is the same in both eases, while tl
necessity is greater in our case, S3 the dan-'
ger of conflict is greater, where the interests
of a society are div ided geographically, than
111 othcr always been shown.
t hese truths do seem to me to be incontro.
vertible, and lain at a loss to understand how
any one, who has maturely reflected on the
nature of our institutions, or who has read
history, or studied the principles of ib.
Governments to any purpose, can call them
< l uestl °n* Ihe explanation must, it ap
pears to me, be sought in the fact, that in ?
cry lreo State, there are those who look ucre
to the necessity of maintaining power, than
guarding against its abuses. Ido not intend
reproacu, nut simply to state a fact, apparent
ly necessary, to explain the contrariety 0 f
opinions among the intelligent, where the
abstract consideration of the subject would
seem scarcely to admit of doubt. If such be
the true cause, I must think the fear ofvveik
emng the Government too much in this ca*
to he in a great measure unfounded, or, at
least, that the great danger is much less from
that, than the opposite side. Ido not deny
tint a power, of so high a nature may ne alius
ed hy a State; but, when I reflect that the
States unanimously called the Geneail Gov
eminent into existence with all of its powers
winch they freely surrendered on their part,
under the conviction that their common
peace, safety and prosperity required it; that
they are bound together by a common origin,
and the r. collection a common triumph in the
great and splendid achiev merit of their indc
pendence; and that the strongest feelings if
our nature, and among them, tlieleve of na
tional power and distinction, arc on the side
of the L nion ; it does seetn to me, that the
t ar, which would strip the slates of their
sovereignty, and degrade them, in fact, tv
mere dependent corporations, lest tiiey should
abuse a right indispensible to the peacea
ble protection of those interests, which they
reserved under their own peculiar guardian
ship, when they created the General Govern
ment, is unnatural and unreasonable, li
those who voluntarily created the system,
cannot be trusted to preserve it, what power
can?
So far from extreme danger, I hold, that
there never was a free state, in which tlii;
great conservative principle, indispensible i'.
all, w-as ever so safely lodged. In others,
when the co-estates, representing the dissim
ilar A connecting interests, of tlie community
cme into contact, the only alternative was
compromise, submission, or force. Not so in
ours. Should the General Government, and
astute come into conflict, we have a higher
remedy; the power which called the Genera'
Government into existence, which gave it al
of its authority, and can enlarge, contract, oi
ai ohsh its powers at its pleasure, may be' in
voked. The States themselves may be ap
pealed to, three fourths of which, in fact,
forma power, whose decrees are the Consti
tution its-. li, and whose voice can silence ad
discontent. The utmost extent then of th&
power is, that a State acting in its sovrrcip
capacity, as one of the parlies to the Coi.-ti
tutionul compact, may compel the Govern
inent, created by that compact, to submit a
question, touching its infraction, to theparfn?
who created it; to avoid tlie supposed dan
gers of which, it is proposed to resort to tie
novel, the hazardous, and, I must add, Ltd
project of giving to the General Governmcfit
the sole and final right of interpreting the
Constitution, thereby reversing (he whole
system, making that instrument the creature
ot its w ill, instead of a rule of action imput
ed on it at its creation, and annihilating in
fact the authority which imposed it, anil Irani
which the government itself derive* Us cxi*
tence.
That such would be the r , s „v w ' ,? )f
right in question vested i* the or
Executive branen of t>- zj b , 011 .
ceded by all. NV JC t ?* mmen ' !,Z
. ic n been sa haw/ as
o or the President ought
nnllv -in 1 * F* 1 -’ Ato deny, that if vestedb"
ccs y w |.‘, . j C . luf -vely in either the eonsequ" 1 '
I 7-. ,l * .nve stated would not
; . 0 J ' v j Jfit its advocates have been recon
jV uto ~io doctrine, on the supposition. th-t
acre ’ . rfonc Department of the GencraH ,flV '
' rll ' .icnt, w hich, from its peculiar organize
*' mi, affords art independent tribunal throng l
, which the Government may exercise the big
authority, which is the subject of coniitlcra
tion, with perfect safety to all.
I yield, 1 trust, to few in my attachment ’
the Judiciary Department, 1 am fully sen-h 1
of its importance and would mantain it to 1 j
fullest extent in its constitutional powers linl,
ndcpcndenco; but it is impossible for
believe, that it ever was intended by the* 11
stitution, that it should exercise the powc r .
I question,or. that it is competent to do so. m 1
it were that it would be a safe depositoi )' 0
the power. , ,
Its powers are judicial and not pel
and are expressly confined by <be Got - 1 ! 1
fmn “to nil (V’ ts ip |:>vy and cijui*}’ 8