Page:Unconstitutionality of the Fugitive Act.djvu/2

 Among the Virginia Resolutions of 1798, which I read from the 4th of Elliot's debates, we find the following:

"That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government as resulting from the compact to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable and dangerous exercise of other powers not granted by said compact, the States, who are the parties thereto, have the right and are in duty bond, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. That the General Assembly doth also express its deep regret that a spirit has, in sundry instances, been manifested by the Federal Government to enlarge its powers by force constructions of the constitutional charter which defines them."

The following is the first of the Kentucky Resolutions referred to:

"Resolved, That the several states composing the United States of America are not united on the principle of unlimited submission to their General Government; but that by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force; that to this compact each state acceded as a state, and is an integral party;—that this Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself as well of infractions, as of the mode and measure of redress."

I now read from Mr. Madison's Report on the Virginia Resolutions, found in the same work:

"The Resolution supposes that dangerous powers not delegated may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the constitution; 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 one delegated authority as well as by another,—by the Judiciary, as well as by the Executive or the Legislature.

"However true, therefore, it may be that the Judicial Department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government, not in relation to the rights of the parties to the Constitutional Compact, from which the Judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the reach of any rightful remedy, the very Constitution which all were instituted to preserve."

It will be seen from this that those men saw the difficulties in which this question is involved; that they examined it with a rigid scrutiny, and that having done so, they met it boldly and asserted the just rights and sovereignty of the States. They did not deny that the General Government is supreme within its limits, but asserted that the States are also supreme within their limits, and as a necessary consequence of that supremacy, that they must have the power to judge when their sovereign rights are encroached upon, and to adopt measures for their defense. While this doctrine has had many powerful advocates, it has also had many powerful opponents. And the most powerful of all was Daniel Webster, who assailed it in the Sent of the United States in 1830, with the whole force of his gigantic intellect. He demonstrated beyond all question that difficulties and conflicts might result from it. That cannot be denied. But the answer is that the opposite doctrine may also lead to difficulties.—If the doctrine of State Rights may lead to conflicts, the other may lead to destruction! And conflicts are, after all, not the most fatal things that may happen in human affairs. Storm is not so fatal as stagnation. It is by conflicts that Liberty has always been maintained; it is for the want of them that it has always been lost. The position taken by Mr. Webster in his great argument upon this question, is, that there is no medium ground between absolute submission to the laws of Congress that are sustained by the Federal Courts, and a direct exercise of the right of revolution by the people, which right he admits they have. This position leads by a short road to the consolidation of the powers of the nation in the hands of the Federal Government, and to the annihilation of the powers of the States. Because, whenever the General Government usurps their rights, and the usurpation is sustained by its Judiciary, according to this theory, those rights cease to exist, and the State is without redress. They may therefore all be swallowed up one after another; and if there be any one of those rights dearer and more important than another, the State has no assurance that it will not be first seized upon. It has not even the poor promise that Polyphemus gave Ulysses, while breakfasting every day upon one of his companions, that he should be the last one to be devoured. If this theory is true, the General Government is supreme, not only in its limits, but out of them; it is sovereign over everything, and the States are sovereign over nothing. For can we conceive of a sovereign power that may be stripped of its sovereignty, without any right of resistance or defense? Such a sovereignty would be a shadow without a substance—a mere name without the thing itself. And what are the States, that their influence should be thus undervalued and their rights overlooked? Do they alone perform so insignificant functions in our system, as to make them the only parts to which the doctrine of passive obedience is to be applied? On the contrary they are sovereign and independent nations, in all things except those which have been delegated to the General Government. They have written constitutions, establishing organized governments with executive, legislative, and judicial departments, and have all the various and complicated machinery of those governments in constant and successful operation. They have control over life and death, over the liberties and property, over the hopes and happiness of the people. All the great mass of ordinary legislation belongs to them. To them the people look for the enactment of such laws and the adoption of such a policy, as shall protect their rights and promote their welfare and happiness. And they are to such an extent complete and perfect governments, that if by any political change any one State should be separated from the General Government and from all the others, it could go on performing all the functions of government without re-organization and without confusion or delay. Can it be then that States, possessing such vast powers upon subjects over which it is admitted that they are sovereign—clothed to such an extent with all the attributes of independent governments, may be deprived of them all, without the power or right to do one act in their own defense? Such a doctrine never can be admitted with safety. It is a right inherent in sovereignty to defend itself. It is a reserved right of the States which they hold, not under the constitution, but as a matter of necessity, to defend themselves from destruction. And why should they not have it? Is it not justified by analogies found in all constitutional governments? In a simple government the powers are divided among various departments upon a system of checks and balances, so that each department may protect itself from invasion, and may operate to restrain the others.—The legislature makes the laws, the judiciary keeps them in their proper limits by construction, the executive executes them, but is clothed with the veto power by which he may protect his prerogatives from encroachment.

These analogies justify the position that under a system of compound government like ours, the States sho'd have the right to judge in the last resort when their sovereignties are encroached upon, and to take measures for their protection. It is further justified by the right of revolution which is admitted to exist in the people. This right is asserted in the Declaration of Independence; it is expressly admitted by Mr. Webster in his argument against State Rights, and it is probably not denied by anybody in this country. They people, although they have established a government, with appropriate tribunals to judge of the extent of its powers, yet retain the right to defend themselves against a perversion of those powers by the violence of a revolution. And the right for which we contend in the States, is similar in its character to the right of revolution in the people. It is true that in a single, simple government where there is no power between it and the people, there is no medium ground between absolute submission to its acts and a direct revolution. But it by no means follows that under our peculiar system, where