Year: 1859




states which have acknowledged the decision in the
prigg case, laws enacted by Congress are excl1-
ively operative, and the laws of their State legs
atutes are void; that no tariff law shall be oper-
,tive in South Carolina, but shall be every where
else valid if in Mississippi and Alabama the law
against the slave trade is held unconstitutional and
void and in every other State enforced it will be
seen the Constitution, by Interpretation, will be-
come different in different States. Now. if this
can be done to'one provision of the Constitution
it can be done as to all others. Each State con-
strung it in its own way, to promote its own local
interest, what would the Constitution of the United
States become but hydra Of more than thirty
heads, utterng Babel, and conflicting commands,
such each State in it's own jurisdiction deemed
it expedient to obey, or party strife demanded.


That this state Of things was foreseen by the
trainers of the Constitution of the United States
no one denies. That there is some remedy provd-
ed for it, all admit. The extent of that remedy
has sometimes been questioned, and l do not pro-
pose to discuss it.


The Constitution Of the United States declares
that the Constitution and laws of the United
States made in pursuance thereof, shall be the
preme law Of the land, and the judges in every
State shall be bound thereby, anything in the Con-
stitution or laws of any State to the contrary not
withstanding." This was the first step. The next
was providing for a judicial department in the
General Government, and declaring that "the ju-
dicial power shall extend to all cases in law and
equity arising under this Constitution, the laws of
the United States, and treaties made" &c., Art
III, SCc 2.


Now, with respect to the boundary of jurisdic-
ton between the Federal and State governments,
do net desire to say ything but this that when
Congress has undertaken to enforce by legislation
right guaranteed by the Constitution itself, after
the power has been recognized by all the highest
judicial tribunals Of the States of the Union be-
fore whom the question has been presented ac-
quiesced in by the country for sixty-six years
and if superadded to these circumstances, the fed
eral tribunal in arising under the Constitu-
ion, repeatedly hold that Congress has the power
1t is too late for the judges of the Courts of Ohio
upon their private judgement to deny the power.


Again, without asserting myself the truth of the
converse of all the following propositions, i. is,
think, clear that to maintain our right to do So we
must hold: lst. That We have tho power under
the Constitution to determine this question in di-
rect conflict with the settled Interpretation of the
Supreme Court of tht United States. I'd. That we
have right to maintain by the powers of every
department of our State government, and to exact
obedience we'll from United States officers as


from all the citizens of the State to our interpreta-
ton OF the Constitution. 3D. That this power, on
our part we have right to exercise when it hap
pens that majority of our Judges are intellectu
ally satisfied beyond any reasonable doubt upon
their minds, from review of the grounds upon
which the federal tribunal and others adopted an
Interpretation of any provision of the Constitution
Of the United States, that they were mistaken 4th
ana lastly. AS we must maintain that VIC have the
judicial right to ovsrrule their previous a6j udca-
tions and enforce obedience to our own, which are
in conflict with theirs; SO, subsequent decisions
ON error, overruling ours not being intellectually
satisfactory to us, we may, in the exercise of the
same judicial right and power, disregard them
For, the icea of frs asserting the power to over
rule their Interpretation because we believe it er-
roneous, and afterwards submit to it, although still
believing it erroneous, would be most undgn6ed
and useless assumption of temporary power, mere
ly creating agitation, and ending in nothing but
submission.


1t seems to me quite clear. that if the individual
opinions of every judge is to become the exponent
and construction of the Constitution Of the United
States whenever lie feels certain that he is right,
without regard to the decisions Of the highest tri-
bunals of the country then the individual opinions
of every Judge, is the Constitution, not only to
himself, but for the time being to the country
This, it seems to me, is simply discretion without
rule, guide, precedent, or limitation-unstabe, ca
PRECIOUS despotism.


Is there any judicial incident more common
than for judge to deny himself the individual
discretion of declaring what he thinks even the
unwritien law of the land should be- and hold bis
judgment amenable to the law as it has been de.
cded' And is the Constitution to be less stable
than the unwritten law? Is a judge to treat the
settled Interpretation of the Constitution an
nounced to the country in previous generation,
by Congress assuming to legslate, sanctioned by
an unbroEeu current of judicial decisions. as of no
binding judicial obligation, and to be over
thrown by the authority of his individual convic-
tions that the constitution should have differen.


Interpretation? And if State Judge thus by his
Interpretation, alter the Constitution when it has
received such acquiescence and sanction, what pro-
visions of the Constitution, State or National, are
safe from change and alteration. under the
assumption of judicial pcwerf They would bs
written upon sand.


For myself, disclaim the existence of any such
judicial power.


Two governments, state and national, over th'
same people, each exacting obedience within III
sphere Of its own sovereign powers, could not b'
adjusted without occasional conflict. But such
government, of more than thirty sovereigns, eacl
jealous of the powers of the national government


each interpreting for itself the powers of the na
tional sovereignty and it's own, and The nationa
sovereignty interpreting theirs, and claiming pow


ers denied to IT by the states, each clashirg an
conflicting and all demanding and enforcing OBJ
dience from the same people to their inconsister
and contradictory commands-such a governmer