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on this subject, I consider but as an addi-, where, the great difficulty of forming and tional evidence of the great diversity of preserving free institutions.
To guard the human intellect. Had not able, ex- against the unequal action of the laws, perienced, and patriotic individuals, for when applied to dissimilar and opposing whom I have the highest respect, taken interests, is in fact what mainly renders å different views, I would have thought the constitution indispensable; to overlook right too clear to admit of doubt; but I am which in reasoning on our Constitution, taught by this, as well as by many similar would be to omit the principal element by instances, to treat with deference opinions which to determine its character. Were differing from my own. The error may there no contrariety of interests, nothing possibly be with me; but, if so, I can only would be more simple and easy than to say, that after the most mature and con- form and preserve free institutions. The scientious examination, I have not been right of suffrage alone would be a sufficient able to detect it. But with all proper de- guarantee. It is the conflict of opposference, I must think that theirs is the ing interests which renders it the most error, who deny what seems to be an es- difficult work of man. sential attribute of the conceded sovereign Where the diversity of interests exists in ty of the states; and who attribute to the separate and distinct classes of the comgeneral government a right utterly incom- munity, as is the case in England, and was patible with what all acknowledge to be its formerly the case in Sparta, Rome, and limited and restricted character; an error most of the free states of antiquity, the raoriginating principally, as I must think, tional constitutional provision is, that each in not duly reflecting on the nature of our should be represented in the government institutions, and on what constitutes the as a separate estate, with a distinct voice, only rational object of all political consti- and a negative on the acts of its co-estates, tutions.
in order to check their encroachments. In It has been well said by one of the most England the constitution has assumed exsagacious men of antiquity, that the object pressly this form, while in the governments of a constitution is to restrain the govern- of Sparta and Rome the same thing was ment, as that of laws is to restrain indi-effected, under different but not much viduals. The remark is correct, nor is it less efficacious forms. The perfection of less true where the government is vested their organization, in this particular, was in a majority, than where it is in a single that which gave to the constitutions of or a few individuals; in a republic, than these renowned states all of their celebrity, & monarchy or aristocracy. No one can which secured their liberty for so many have a higher respect for the maxim that centuries, and raised them to so great å the majority ought to govern than I have, height of power and prosperity. Indeed, taken in its proper sense, subject to the a constitutional provision giving to the restrictions imposed by the Constitution, great and separate interests of the commuand confined to subjects in which every nity the right of self-protection, must apportion of the community have similar pear to those who will duly reflect on the interests ; but it is a great error to suppose, subject, not less essential to the preservaas many do, that the right of a majority to tion of liberty than the right of suffrage govern is a natural and not a conventional itself. They in fact have a common obright; and, therefore, absolute and unlim-ject, to effect which the one is as necessary ited. By nature every individual has the as the other--to secure responsibility ; that right to govern himself; and governments, is, that those who make and execute the whether founded on majorities or minori- laws should be accountable to those on ties
, must derive their right from the as- whom the laws in reality operate; the only bent, expressed or implied, of the governed, solid and durable foundation of liberty. and be subject to such limitations as they If without the right to suffrage our rulers may impose. Where the interests are the would oppress us, so without the right of same, that is, where the laws that may self-protection, the major would equally benefit one will benefit all, or the reverse, oppress the minor interests of the commuit is just and proper to place them under nity. The absence of the former would the control of the majority; but where make the governed the slaves of the rulers, they are dissimilar, so that the law that and of the latter the feebler interests the may benefit one portion may be ruinous to victim of the stronger. another, it would be, on the contrary, un Happily for us we have no artificial and just and absurd to subject them to its will : separate classes of society. We have wisely and such I conceive to be the theory on exploded all such distinctions; but we are which our Constitution rests.
not, on that account, exempt from all conThat such dissimilarity of interests may trariety of interests, as the present distractexist it is impossible to doubt. They are ed and dangerous condition of our country to be found in every community, in a unfortunately but too clearly proves. With greater or less degree, however small or us they are almost exclusively geographical, homogeneous, and they constitute, every- | resulting mainly from difference of climate,
soil, situation, industry, and production, move in its prescribed orb, is the great and but are not, therefore, less necessary to be difficult problem, on the solution of which protected by an adequate constitutional the duration of our Constitution, of our provision than where the distinct interests Union, and, in all probability our liberty, exist in separate classes. The necessity is, depends. How is this to be effected ? in truth, greater, as such separate and dis The question is new when applied to our similar geographical interests are more peculiar political organization, where the liable to come into conflict, and more dan- separate and conflicting interests of society gerous when in that state than those of any are represented by distinct but connected other description ; so much so, that ours is governments; but is in reality an old ques the first instance on record where they have tion under a new form, long since pernot formed in an extensive territory sepa- fectly solved. Whenever separate and rate and independent communities, or dissimilar interests have been separately subjected the whole to despotic sway. represented in any government; whenever That such may not be our unhappy fate the sovereign power has been divided in also, must be the sincere prayer of every its exercise, the experience and wisdom of lover of his country.
ages have devised but one mode by which So numerous and diversified are the inte- such political organization can be prerests of our country, that they could not be served; the mode adopted in England, and fairly represented in a single government, by all governments, ancient or modern, organized so as to give to each great and blessed with constitutions deserving to be leading interest a separate and distinct called free; to give to each co-estate the voice, as in governments to which I have right to judge of its powers, with a negareferred. A plan was adopted better suited tive or veto on the acts of the others, in to our situation, but perfectly novel in its order to protect against encroachments the character. The powers of the government interests it particularly represents ; a prinwere divided, not as heretofore, in reference ciple which all of our constitutions recogto classes, but geographically. One gener- nize in the distribution of power among al government was formed for the whole, their respective departments, as essential to which was delegated all of the powers to maintain the independence of each, but supposed to be necessary to regulate the which, to all who will duly reflect on the interests common to all of the states, leav- subject, must appear far more essential, ing others subject to the separate control for the same object, in that great and of the states, being from their local and fundamental distribution of powers bepeculiar character such that they could not tween the states and general government. be subject to the will of the majority of the So essential is the principle, that to withwhole Union, without the certain hazard hold the right from either, where the sofof injustice and oppression. It was thus ereign power is divided, is, in fact, to anthat the interests of the whole were sub- nul the division itself, and to consolidate jected, as they ought to be, to the will of in the one left in the exclusive possession the whole, while the peculiar and local in- of the right, all of the powers of the gopterests were left under the control of the ernment; for it is not possible to distinstates separately, to whose custody only guish practically between a government they could be safely confided. This dis- having all power, and one having the right tribution of power, settled solemnly by a to take what powers it pleases. Nor does constitutional compact, to which all of the it in the least vary the principle, whether states are parties, constitutes the peculiar the distribution of power between cocharacter and excellence of our political estates, as in England, or between'distinctsystem. It is truly and emphatically ly organized but connected governments, American, without example or parallel. as with us. The reason is the same in both
To realize its perfection, we must view cases, while the necessity is greater in our the general government and the states as case, as the danger of conflict is greater a whole, each in its proper sphere, sover- where the interests of a society are divided eign and independent; each perfectly geographically than in any other, as has adapted to their respective objects; the already been shown. states acting separately, representing and These truths do seem to me to be inconprotecting the local and peculiar interests ; trovertible; and I am at a loss to underacting jointly, through one general govern- stand how any one, who has maturely rement, with the weight respectively assigned flected on the nature of our institutions, or to each by the Constitution, representing who has read history or studied the prinand protecting the interest of the whole, ciples of free government to any purpose, and thus perfecting, by an admirable but can call them in question. The explanasimple arrangement, the great principle of tion must, it appears to me, be sought in representation and responsibility, without the fact, that in every free state, there are which no government can be free or just. those who look more to the necessity of To preserve this sacred distribution as maintaining power, than guarding against originally settled, by coercing each to its abuses. I do not intend reproach, but
simply to state a fact apparently necessary | the sole and final right of interpreting the to explain the contrariety of opinions, Constitution, thereby reserving the whole among the intelligent, where the abstract system, making that instrument the creaconsideration of the subject would seem ture of its will, instead of a rule of action scarcely to admit of doubt. If such be impressed on it at its creation, and annithe true cause, I must think the fear of hilating in fact the authority which imweakening the government too much in posed it
, and from which the government this case to be in a great measure un- itself derives its existence. founded, or at least that the danger is That such would be the result, were the much less from that than the opposite side. right in question vested in the legislative I do not deny that a power of so high a
or executive branch of the government, is nature may be abused by a state, but conceded by all. No one has been so hardy when I reflect that the states unanimously as to assert that Congress or the President called the general government into exist- ought to have the right, or to deny that, if ence with all of its powers, which they vested finally and exclusively in either, the freely surrendered on their part, under the consequences which I have stated would conviction that their common peace, safety not necessarily follow; but its advocates and prosperity required it; that they are have been reconciled to the doctrine, on bound together by a common origin, and the supposition that there is one departthe recollection of common suffering and ment of the general government, which, common triumph in the great and splen- from its peculiar organization, affords an did achievement of their independence; independent tribunal through which the and the strongest feelings of our nature, government may exercise the high authorand among them, the love of national ity which is the subject of consideration, power and distinction, are on the side of with perfect safety to all. the Union; it does seem to me, that the I yield, I trust, to few in my attachment fear which would strip the states of their to the judiciary department. I am fully sovereignty, and degrade them, in fact, to sensible of its importance, and would mainmere dependent corporations, lest they tain it to the fullest extent in its constitushould abuse a right indispensable to the tional powers and independence; but it is peaceable protection of those interests impossible for me to believe that it was which they reserved under their own pecu- ever intended by the Constitution, that it liar guardianship when they created the should exercise the power in question,orthat general government, is unnatural and un- it is competent to do so, and, if it were, that reasonable. If those who voluntarily it would be a safe depository of the power. created the system, cannot be trusted to Its powers are judicial and not political, preserve it, what power can ?
and are expressly confined by the ConstiSo far from extreme danger, I hold that tution “to all cases in law and equity there never was a free state, in which this arising under this Constitution, the laws of great conservative principle, indispensable the United States, and the treaties made, in all, was ever so safely lodged. In or which shall be made, under its authoriothers, when the co-estates, representing ty;" and which I have high authority in the dissimilar and conflicting interests of asserting, excludes political questions, and the community, came into contact, the comprehends those only where there are only alternative was compromise, submis- parties amenable to the process of the sion or force. Not so in ours. Should court. * Nor is its incompetency less clear, the general government and a state come than its want of constitutional authority. into conflict, we have a higher remedy ; | There may be many and the most dangerthe power which called the general gov- ous infractions on the part of Congress, of ernment into existence, which gave it all which it is conceded by all, the court, as a ity authority, and can enlarge, contract, (judicial tribunal, cannot from its nature or abolish its powers at its pleasure, may take cognisance. The tariff itself is a be invoked. "The states themselves may strong case in point; and the reason apbe appealed to, three-fourths of which, in plies equally to all others, where Congress fact, form a power, whose decrees are the perverts a power from an object intended constitution itself, and whose voice can to one not intended, the most insidious silence all discontent. The utmost extent and dangerous of all the infractions ; and then of the power is, that a state acting in which may be extended to all of its powers, its sovereign capacity, as one of the par- more especially to the taxing and approprities to the constitutional compact, may ating. But supposing it competent to take compel the government, created by that cognisance of all infractions of every decompact, to submit a question touching scription, the insuperable objection still its infraction to the parties who created remains, that it would not be a safe tribuit;, to avoid the supposed dangers of nal to exercise the power in question. which, it is proposed to resort to the novel, the hazardous, and, I must add, fatal pro- the case of Jonathan Robbins. I have not been able to ject of giving to the general government I refer to the speech, and speak from memory.
I refer to the authority of Chief Justice Marshall in