Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1831-08-15


incompetency less clear than its want of Cunsttu-
tonal authority. There may be many and the most
dangerous infractons on the part of Congress, of
which, it is conceded by all, the court as u judicial
tribunal, cannot from its nature take cognzance.-
The Tariff itself is Il strong case in points and the
reason applies equally to all Others tohere Congress
perccrfsa porer, from an object intended one not
intended, the most insidi0us and dangerous of all
the attractions and ,chch may be extended to all
OF 'fs porers, more especially TO the taxing and ap
proprtdtng. But, surprising it competent TO take
cognizance of all infractons of every description
the inscparabc objection still remains that it would
not he asatc tribunal to exercise the power in qucs
ton.
1t is an universal and Fundamental political prin-
ciple, that the power to protect safely be CON
hdcd only to those Interested in protecting or their
responsible agents. q maxim not less true in private
: han in public affairs. The danger in our system
is, that the General Government, which represents
the interests of the whole, may encroach on tho
States, which represent the peculiar and local in
terests, that the latter may sncroach on the for
mer. In examining this point, we ought not to
forget, that the government through oil its Depart
mcnts, Judicial, as we'll others, is administered
by delegated and responsible agents; and that the
po'cer rhich really controls ultimately all the more
ments IS not in the agents, but those cho elect or an
point them. To understand then its real character
ana what would he the action of tho system in any
supposablc case, we must raise our view from tho
mere agents, to this high controlling power which
hnally impcls every movement ofthe machine BY
doing shall find all under the control of the
VIII oi Il compounded OF the will of a IN
Jorty OF the people of the states estimated in fcde
raj numbers. These united constitute the real and
hnai power, which inpels and directs the move
monts of tho General Government. The majority
OF the states elect the majority of the Senate; of
the people OF the states, that of the House of Re-
presentativcs; the two united, tho President; and
the President and majority of the Senate ap
point tho Judges; majority of whom, and a ma
Joriy OF the Senate and the House with the Presi-
dent. really exercise all of the powers of the Co
vernment with the exception of the cases where
the constitution requires greater number than
majority. The Judges are, in fact as truly the Ju
dlcial Representatives of this united majority rs
the majority of Congress ITSELF or tho President
Is It's Legislative, executive representative: and
to confdc the power to the Judiciary to determine
finally and conclusivcly, what powers are delega-
ed, and what reserved would be in reality to con-
lde 1t to the majority, whose agents they are and
by whom they can be controlled in various WAYS;
ana, OF course to subject against the fundamental
principle OF our system, and all sound political
reasoning the reserved powers of the States with
all OF 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 tenure by which the Judges hold their of
nee however valuable the provision in many other
respects, materially vary the case. Its highest pos
siblc effect would be to refdrd and not fndHy to re-
stst, the will of n dominant majority.
But 1t is useless to multiply arguments. Were
II possible that reason could settle question
where the passions and interests of men are con-
cerned, this point would have been LONG since set
tied forever, by the State OF Virginia The report
OF her Legislature, to which have already refer
fed, mas really, IN my opinion, placed 1t beyond
controversy. Speaking i'll reference to this subject
1t says, sit Las been objected" ito the rghl of
State to interpose for the protection of her reserved
rights chat the Judicial authority is to be regard
ed as the sole expostor of the Constitutions on this
objection it might be observed, first, that there
may be instances of usurped powers, which the
forms OF the Constitution could never draw within
the control of the Judicial Department.; secondly,
that If the decision of the Judiciary be raised above
the sovereign parties to the Constitutions the decis
ions OF the other departments not carried by the
forms OF the Constitution before the Judiciary
must be equally authoritative, and final with the
decision of that Department. But the proper an
swer to the objection is, that the resolution of the
General Assembly relates to those great and extra
ordinary cases, in which all of the forms of the
constitution may prove Intellectual against nfrac
lions dangerous to the essential rights the parties
10 IL. Inc resolution supposes, that dangerous
powers not delegated may not only be usurped and
executed by the other Departments but that tho
judicial Department may also exercise or sanction
dangerous powers beyond the grant of the Consti
tuition, and consequently that the ultimate right of
the parties to the Constitution to Judge, whether
the compact has been dangerously violated, must
extend to violations by delegated authority, as
well as by another-by the Judiciary az we'll as bv
the Executive or Legislative"
Against these conclusive arguments, as thew seem
to me, 1T is objected that if one party has the rpht
TO Judge of infractions of the Constitutions so has
e-iN oti'S4' liidt consequently of
tested powers between State and the General
government, each would have right to maintain
ITS opinion, as is the when sovereign powers
differ IN the construction of treaties or compacts
and that of course, it would come to be a mere
question of force. The error is in the assumption.
that the General Government is part of the Con
stitutonai compact. Tho States, as has been
shewn, formed the compact, acting as SOVEREIGN
and independent Communit es. The General Co.
Vernment is but its creature and though in reality
government with all the rights and authority
winch belong to any other government, within the
ORD OF lug powers, 1t Is, nevertheless government
emanatng from compact between sovereigns. and
Partaklng In its nature and object, of the charac
Ter OF JOINT commission, appointed to superintend
ana administer the interests in which all are Jointly
concerned but having, beyond its proper shere no
more power, than if it did not exist. To DENY this
would bc to deny the most ncontcstiblc facts and
the cearest conclusions while to acknowledge its
truth is to destroy utterly the objection thai the
appeal would be to force, in the case sun,o
sed' For if each party has right TO udye |
then under system of government. the |
maj cognizance of question of contested
power would be in tho States, and not in the
General Government. 1t would be the duty of the !
latter, as in all similar cases ola contest betvyecn
one or more of the principals and Joint commits |
SION or agency, to refer the contest to the principas
Such the PLAN dictates of reason
and analogy both. On sound principle can The
agents have right to final cognizanceS as against
the principals much less to use force against them
20 MAINTAIN their construction of their powers
ouch right would be monstrous; and has never
heretofore, been claimed in similar cases
nat the doctrine is applicable the case of con
sgr Ipu O.