The Massachusetts spy. [volume] (Worcester [Mass.]) 1831-1858, 1831-10-19

,ected Governments as with US 4 nc reason Is
.e one case as the danger Of confc; is greater.
bcre the interests of society divided geograph-
icay, than in any other. as has already oeen
shown. :...
These truths do seem to me to be incontroverti-
BILE; and / am at 4 loss TO understand now any
one who has maturely reflected on the nature oil
our institutions who has read history, or studied
the principles of free governments to any purpose,
can cali them in question. The explanation must,
il appears me- be sought in the fact thai In every
free state, there are those who LOOK more 10
the necessity ofmantaiaing power, than guarding
against il abuses do not intend repreach, out
simply state fact apparently necessary to explain
the contrariety of opinions among the intelligent,
where the abstract consideration OF the suoJec'
would seem scarcely to admit OF doubt IL such
he the true cause must think the fear Of weaken
N, the government too much in this case, to be in
treat me asure unfounded, or at least, that the
danger is much less from that, than tha oPPos"e
side | do not deny, that power oil SO hien ma.
ture may be abused by State; but when rehect
that the States unanimously called tne genera
government into existence with all Its powers,
which thew freely surrender on their part, under
the conviction III their common peace, safety
and prosperity required it that they are bound
together by one common origin, and the recollec-
ton of common triumph in the great and splendid
achievement of their Independence; and that the
strongest feelings of our nature, and among them,
the love of national power and distinction, are on
the side Of the union il does seem to me that the
fear which would strip the States OF their sove-
reigAty, and degrade them, in fact, to mere de-
pendent corporations, lest they should abuse
right Indispensable TO the peacable protection OF
those interests which they reserved under their
own peculiar guardianship, when they created the
general government, is unnatural and unreasons-
Bile. If those who voluntarily created the system,
cannot be trusted to preserve it, what power can
So far from extreme danger, l hold, that there
Sfato in Uh
vatiye principle, indispensable in all, was ever so
safely lodged In others when the co-estates, re-
. esenting the dissimlar and connecting Interests
of the community, came into contact, the only al
tentative was compromise, submission, or force
Not so in ours Should the general government
and State come into conflict. we have higher
remedy; the power which called the general gov
eminent into existence, which gave 1t all OF its au-
thority and can enlarge, contract or abolish Its
powers at its pleasure, may DO invoked. Inc
States themselves may be appealed to- three-fourths
of which, in fact. form power, whose DEGREES are
the constitution ITSELF and whose voice can silence
all discomfort. The utmost extent then OF tho
power is that State acting in Its sovereign capa-
city, as one of the parties to the constitutional
compact, may compel the government, created by
that compact to submit question touching us m
fraction to the parties who created it, to avoid the
supposed dangers Of which, it is proposed 10 resort
to the novel the hazardous, and must add, fatal
project of giving TO the General Government the
sole and final right Of interpreting the constitution
thereby reversing the whole system, making tha'
instrument the creature Of its WILL instead OF rule
of action impressed it at its creation, and ami
hlating in fact the authority which imposed It
and from which the government itself derives Its
existence.
That such would be the result we're the right in
question vested in the Legislative or Executive
branch of the government, is conceded Dy all. INC
one has been SO hardy to assert that Congress oil
tie President ought to have the right, or to DENY
that if vested finally and exclusively In either, the
consequences which have stated would not ne
cessarily follow but its advocates have been recon
elcd to tho doctrine on the supposition that there
is one Department of the general government
which. from its peculiar organization, affords an IN
dependent tribunal through which the government
may exercise the high authority, which is Inc
subject of consideration, with perfect safety to all
Iyield, l trust, to few in my attachment to Inc
judiciary department am fully sensible OF Its I'M
portance. and would maintain it to the fullest ex-
tent in its constitutional powers and independence,
but il is impossible for to believe that IT ever
was intended by the Constitution, that It should
exercise the power in question, or that 1t is com
petent to do so, and il It were, that IL would De
a safe depository ofthe power.
Its powers are judicial and not political, and are
expressly confined by the constitution " to all cases
in law and equity arising under this constitution,
the laws of the United States and the treaties made,
under its authority; and which have high author
comprehends those only, where these are parties
anenable to the process of the court" Nor is
its incompetency less clear than It's want OF con-
sttutiona authority. There may be many and the
most dangerous infractons on the part OF Congress,
of which it is conceded by all, the court judi
cal tribunal cannot from its nature take coeni-
zance. The tariff itself is a strong case in points,
and the reason applies equally in all Others where
Congress peryerts powell, from an object intend
ed, to one not intended, the most insidlous and
A. he
extended to all of its powers, more especially to
the taxing and appropriaiing. But suPposlng IT
competent to take cognlzance OF all infractions of
every description the inseparabe objection still re-
mains, that it would not be safe tribunal to exer
else the power in question.
II is universal and fundamental political prin-
ciple, that the power to protect can safely be con-
ded only to those interested in protecting, or their
responsible agents, maxim not less true IN pri-
vate than in public affairs. The danger in our sys
TEN, is that She general government, which repre-
sents the interests Of the whole, may encroach on
the States, which represent the peculiar and local
interests, that the latter, may encroach on the
former. In examining this point, We ought not TO
forget that the government through all Its depart
ments, judicial. voli as others, IS administered
by delegated and responsible agents; and that the
power which really controls, ultimately, all the
movements is not in the agents. but those who
elect or appoint them. To understand then its re-
al character, and what would be the action Of the
system in any supposed case, we must raise our
view from the mere agents. to this'high controlling
power which finally impels every movement of the
machine. By doing SO, shall find all under the
control Of the will Of majority compounded Of the
will Of the majority of the people of the States est
mated in federal numbers. These united consti- |
tue the real and final power which impels and di-
reefs the movements ofthe general government
The majority of the States elect the majority of
the senate Of the people Of the States that Of the
house of representatives; the two united, the Pre-
sdent; and the President and a majority Of the
senate appoint Judges; majority Of whom and
majority Of the senate and the house with the Pre-
sident really exercise all Of the powers Of the gov
eminent, with the exception of the cases where the
constitution requires greater number than ma
jority. The Judges are, in fact, truly the Judi
cial representatives of this united majority as the
majority of congress ITSELF the President, in its
legislative or executive representative; and to
con6de the power to the judiciary TO determine
finally and conclusiveIy what powers are delega-
ted and what reserved would be in reality to con-
ade IL TO the majority, whose agents they are, and
by whom they can be controlled in various ways /; |
and, of course, to subject against the fundamental
principle Of our system, and all sound political
the reserved powers of the states with
all the local and peculiar interests they were in
tended to protect to the will Of the very majority,
against which the protection was intended. Nor
will the tenursby which the judges hold their Of
nee, however valuable the provision in many other
respects materially vary the Its highest pos
sibe effect would be to retard and not finally TO
sist, the will cfa dominant majority
But Il is useless to multiply arguments. Were