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1. Bac. Abridg. Statute 1.; 2 Plowden R. 369; 1 Inst. 79.
2. See Chisholm v. Georgia, Chief Justice Jay's opinion, 2 Dall. 419; 2 Cond. Rep. 635, 671.
3. Journal of Convention, 67; Id. 83.
4. Yet, strangely enough, this objection was urged very vehemently against the adoption of the constitution; 1 Elliot's debates, 293, 300.
5. See 2 Lloyd's Debates, 1789, p. 178,180,181.
6. By a constitution, is to, be understood (says Mr. Justice Wilson) a supreme law, made and ratified by those, in whom the sovereign power of the state resides, which prescribes the manner, in which that sovereign power wills that the government should be instituted and administered.a
It contributed not a little to the infirmities of the articles of the confederation, that it never had A ratification by the people. The Federalist, 22.
a. 1 Wilson's Lect. 417.
7. The Federalist, No. 22; see also No. 43; 4 Elliot's Debates, 75; ante, p. 248.
8. The Federalist, No. 39; Id. No. 84.
9. Chisholm v. Georgia, 2 Dall. 419; 2 Cond. R. p. 635, 671.
10. See McCulloh v. Maryland, 4 Wheat. R. 316, 404, 405; Cohens v. Virginia, 6 Wheat. R. 264, 413, 414; see also 1 Kent's Comm. Lect. 10, p. 189.
11. Ante, p. 318 to 322.
12. The debates in the Virginia Convention are very pointed on this subject. Mr. Henry, in an especial manner, urged these objections against it in a very forcible manner; (2 Elliot's Virginia Debates, 47, 61, 131;) and he was replied to, and the preamble vindicated with great ability by Mr. Randolph, Mr. Pendleton, Mr. Lee, Mr. Nicholas, and Mr. Corbin. 2 Elliot's Virginia Debates, 51, 57, 97, 98. The subject is also discussed in the North Carolina Debates, 3 Elliot's Deb. 134,145,) and in the Massachusetts Debates. 1 Elliot's Deb. 72, 110. See also 2 Pitk. Hist. 270; 3 Amer. Museum, 536, 546.
13. Chisholm v. Georgia, 2 Dall. R. 419. -- We shall freely use the admirable reasoning of the Federalist on the subject of the Union, without in every instance quoting the particular citations, as they would incumber the text.
14. The Federalist, No. 1, 2, 9,13,14; 3 Wilson's Works, 285, 286; Paley's Moral and Political Philosophy, B. 4, ch. 6.
15. The Federalist, No. 13,14.
16. The Federalist, No. 2, 5, 6, 7; 3 Wilson's Works, 286; Paley's Moral and Political Philosophy, B. 4, ch. 6.
17. The Federalist, No. 6.
18. The Federalist, No. 5, 6, 7.
19. 1 Montesquieu's Spirit of Laws, B. 9, ch. 1. See also Beccaria, ch. 26.
20. The Federalist, No. 9; 1 Wilson's Works, 347 to 350; 3 Wilson's Works, 276 to 278.
21. The Federalist, No. 4. -- The following passages from the Federalist, No. 51, present the subject of the advantages of the Union in a striking light:
| "There are, moreover, two considerations particularly applicable to the federal system of America, which place it in a very interesting point of view.
"First: In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate. departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself. "Secondly: It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority, that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens, as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary, or selfappointed authority. This, at best, is but a precarious security; because a power, independent of the society, may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from, and dependent on the society, the society itself will be broken into many parts, interests, and classes of citizens. that the rights of individuals. or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same, as that for religious rights. It consists, in the one case in the multiplicity of interests and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government; since it shows, that in exact proportion, as the territory of the Union may be formed into more circumscribed confederacies, of states, oppressive combinations of a majority will be facilitated; the best security under the republican form, for the rights of every class of citizens, will be diminished; and consequently. the stability and independence of some member of the government, the only other security, must be proportionably increased, Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued, until it be obtained, or until liberty be lost in the pursuit. In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature, where the weaker individual is not secured against the violence of the stronger. And, as in the latter state, even the stronger individuals are prompted by the uncertainty of their condition to submit to a government, which may protect the weak, as well as themselves: so, in the former state, will the more powerful factions be gradually induced, by a like motive, to wish for a government, which will protect all parties, the weaker, as well as the more powerful. It can be little doubted, that if the state of Rhode Island was separated from the confederacy, and left to itself, the insecurity of rights, under the popular form of government within such narrow limits, would be displayed by such reiterated oppressions of the factious majorities, that some power, altogether independent of the people, would soon be called for by the voice of the very factions, whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place upon any other principles, than those of justice, and the general good; whilst there being thus less danger to a minor, from the will of the major party, there must be less pretext also to provide for the security of the former, by introducing into the government a will not dependent on the latter; or, in other words, a will independent of the society itself. It is no less certain, that it is important, notwithstanding the contrary opinions, which have been entertained, that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle." |
23. The Federalist, No. 3, 4, 5.
24. The Federalist. No. 15.
25. The Federalist, No. 12.
26. The Federalist, No. 11, 12.
27. The Federalist, No. 5, 7, 11, 12; 3 Wilson's Works, 290; I Elliot's Debates, 74, 144; 1 Tucker's Black. Comm. App. 248, 249; Brown v. Maryland, 12 Wheat. R. 419, 445, 446.
28. The Federalist, No. 7.
29. Id. No. 4, 5, 11.
* [Ed. Note: So numbered in the original text.]
30. See the Resolves of Congress, Journals of 1779, p. 86; Penhallow v. Doane, 3 Dall. 54; Jennings v. Carson, 4 Cranch, 2; Chisholm v. Georgia, 2 Dall. 418, 474.
31. See 1 Wait's State Papers, 226 to 388; Ware v. Hylton,3 Dall. R. 199; Hophins v. Bell, 3 Cranch, 454; 3 Wilson's Works, 290; Chisholm v. Georgia, 2 Dall. 419, 474.
32. 5 Marshall's Life of Washington, ch. 1, p. 46 to 49; 2 Pitk. Hist. 180 to 183; Journal of Congress, 1783, p. 194 et seq.; 3 Wilson's Works, 290; 4 Elliot's Debates, 84.
33. See Chase J. in Ware v. Hylton, 3 Dall. 199; 1 Cond. R. 99,111.
34. The case of Trevett v. Welden, in 1786, in Rhode-Island, is an instance of this sort, which is in point, and illustrates the text, though it would not be difficult to draw others from states of larger extent. The judges in that case decided, that a law making paper money a tender in payment of debts was unconstitutional, and against the principles of magna charta. They were compelled to appear before the legislature to vindicate themselves; and the next year (being chosen annually) they were left out of office for questioning the legislative power.
35. 5 Marshall's Life of Washington, 111, 112, etc.; 2 Pitk. Hist. 244; Minot's History of the Insurrection in Massachusetts.
36. The Federalist, No. 44.
37. Id.
38. The Federalist, No. 7.
39. The remarks of Mr. Chief Justice Jay in Chisholm v. Georgia,(2 Dall. R. 419, 474; S. C. 2 Peters's Cond. R. 635, 670,) illustrate the truth of these reasonings in an interesting manner.
| "Prior to the date," says he,. "of the constitution, the people had not any national tribunal, to which they could resort for justice; the distribution of justice was then confined to state judicatories, in whose institution and organization the people of the other states had no participation, and over whom they had not the least control. There was then no general court of appellate jurisdiction, by whom the errors of state courts, affecting either the nation at large, or the citizens of any other state, could be revised and corrected. Each state was obliged to acquiesce in the measure of justice, which another state might yield to her, or to her citizens; and that, even in cases where state considerations were not always favourable to the most exact measure. There was danger, that from this source ani-mosities would in time result; and as the transition from animosities to hostilities was frequent in the history of independent states, a common tribunal for the termination of controversies became desirable, from motives both of justice and of policy.
"Prior also to that period, the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed. In their national character and capacity, the United States were responsible to foreign nations for the conduct of each state, relative to the laws of nations, and the performance of treaties; and there the inexpediency of referring all such questions to state courts, and particularly to the courts of delinquent states became apparent. While all the states were bound to protect each, and the citizens of each, it was highly proper and reasonable, that they should be in a capacity, not only to cause justice to be done to each, and the citizens of each; but also to cause justice to be done by each, and the citizens of each; and that, not by violence and force, but in a stable, sedate, and regular course of judicial procedure." |
41. Id. No. 7.
42. The Federalist, No. 9.
43. Id. No. 10.
44. Id. No. 10.
45. The Federalist, No. 10.
46. Id. No. 9.
47. The Federalist, No. 9, 10.
48. Id. No. 41.
49. The Federalist, No. 11.
50. The Federalist, No. 24, 25.
51. The Federalist, No. 12.
52. The Federalist, No. 12.
53. The Federalist, No. 13,14.
54. The Federalist, No. 11.
55. The Federalist, No. 14.
56. The Federalist, No. 27.
57. Elliot's Debates, 278, 296, 297, 332, 333; 2 Elliot's Debates, 47, 96, 136; 3 Elliot's Debates, 243, 257, 291; The Federalist, No. 39, 45, 17, 31.
58. The Federalist, No. 17.
59. The Federalist, No. 14, 45.
60. Id. No. 45.
61. Id. No. 45.
62. The Federalist, No. 45.
63. The Federalist, No. 31.
64. Id. 17, 45, 46, 31.
65. Mr. Turgot appears to have been strongly impressed with the difficulty of maintaining a national government, under such circumstances. In his letter to Dr. Price, he says: "In the general union of the states, I do not observe a coalition, a fusion of all the parts to form one homogeneous body. It is only a jumble of communities too discordant, and which contain a constant tendency to separation, owing to the diversity in their laws, customs, and opinions, to the inequality of their present strength, but still more to the inequality of their advances to greater strength. It is only a copy of the Dutch republic, with this difference, that the Dutch republic had nothing to fear, as the American republic has, from the future possible increase of any one of the provinces. All this edifice has been hitherto supported upon the erroneous foundation of the most ancient and vulgar policy; upon the prejudice, that nations and states, as such, may have an interest distinct from the interest, which individuals have to be free, and defend their property against the attacks of robber and conquerors," etc. etc. Similar views seem to have occupied the mind of a distinguished American gentleman, who published a pamphlet in 1788, (edit. Worcester,) entitled, " Thoughs upon the Political Situation of the United States of America," etc. p. 37, etc.
66. The Federalist, No. 45, 46, 31.
67. If there be any exception, it is the decision, as to the suability of the states. But even this deserves not the name of usurpation, for the case falls clearly within the words of the constitution.
68. 4 Elliot's Debates, 257. -- President Jefferson himself, under whose administration both these measures were passed, which were, in the highest sense, his own measures, was deliberately of opinion, that an amendment of the constitution was necessary, to authorize the general government to admit Louisiana into the Union. Yet he ratified the very treaty, which secured this right; and confirmed the laws, which gave it effect. 4 Jefferson's Corresp. 1, 2, 3. -- A more particular consideration of these subjects will naturally arise in some future discussions.