Year: 1860

| ",
| only did my simple duty. To have
done less would have been to fail in the
discharge Of my duty. To have acted
otherwise would have been to act i'm
piously. For Judge to refuse to do
what he believes to be right, when Off
cially required, is as wicked and COR
rupt as to do what he knows to be
wrong. | desire nothing, therefore,
but the award of my countrymen, of
duty faithfully discharged according to
the dictates of conscience. With that
am content


You are pleased to say, gentlemen,
that as an original question, you enter
tain no doubt of the correctness of nv
position. [ thank you most sincerely
for the assurance which cannot be too
highly appreciated, and coming as it
does from names SO distinguished, it
could not fail to fortify my conclusion,
if | had any doubt before. But YOU
will pardon me for suggesting that if it
be correct as an original question, it
must be correct oa tnitto ad 1f7ae,7a,
while the Constitutionremains unchang-
ed, for it is question Of constitutional
law. If correct in virtue of the pre-
scriptions Of the constitution, how can
it become erroneous while that instru-
ment remains unaltered ?


The Constitution cannot be altered
by judicial power. In case of doubt
ful Interpretation, it is proper for courts
to settle npon construction which ap-
pears most correct, and for the sake of
uniformity and certainty to adhere to
It, But 1t IS submitted that the liber-
ties of our citizens are not suspended
upon constitutional phrases of doubtful
Interpretation. On the contrary they
are so clearly defined and strictly guard
ed that Judicial construction can nei-
ther impair nor abridge them, and eve
ry attempt to overleap the barriers of
the constitution in this behalf only
serves to tumble the daring adventur-
ers into inextricable confusion. Two
memorable instances Of this kind will
doubtless occur to you, one in 1887,
and one in 1857.


But whether the question be old or
new, original or otherwise, the Supreme
Court of Wisconsin supposed that the


citizen had right to test any restraint
of his liberty by the provisions of the
Constitution, State and Federal, and
to that end to call into exercise the ap-
propriate instrumentalities They also
supposed that the protection of the lib


critics of the Individual citizen was con-
tided to the States, and not to the fed


eral government. The latter can inter-


fere only in very few prescribed cases;


and thos e. for the most part, auxiliary


to its own jurisdiction. That sacred


trust was confided to, nay, is inherent


in the States, whose duty it is to guard


the liberties of it's citizens and protect


them from all unauthorized restraint,


by whomsoever imposed.


The State never relinquished the


power of executing this trust, because


to have done SO would have been to re-


linquish all claim to the allegiance of
their citizens; for to exact allegiance
:, without affording protection, at least in
theory, is too glaring an absurdity for


despotism itself to attempt. TO allow


another government to prescribe the
extent Of their power Of protection,
, would be to allow that government to
prescribe the degree of allegiance which
the States might demand, and conse-
quently, the extent of their sovereign
ty In other words, to permit another
power to absolve their citizens from
their allegiance to any desirable extent,
and to reduce their sovereignty within
any convenient limits.


Though, as we use the word, there
may be a limited sovereignty, yet there
can be no such thing as sovereignty to
a degree, without the rightful power
to protect and defend their sovereignty
to that degree. All admit that the
States are sovereign to the extent of
their reserved powers. But what is


sovereignty without the right to de-
fend it? What sort Of sovereignty is
that which depends on the will Of an
, other? To admit reserved powers in
, the States, and then to affirm that the
federal government is the sole and ex-
elusive Judge of what, or whether any
powerswere reserved, their kind and ex-
tent, and yet to affirm that the States
|, are sovereign to a degree, is simply to
assert that they are just as sovereign as
the federal government shall choose to
permit, that is, they may play sover-
eign as loEg as their gracious Uncle shall
: think it safe for the little ones to amuse
: themselves. ~.


Undoubtedly the fedora, government
I has the right to protect and defend all
the powers delegated to it by the con-
; stitution. 1t possesses none other
They are all derivative. All other
powers pertaining to sovereignty not
so delegated, are reserved to the States
> and the people, When the States and