ture of its will, instead of a rule of action impressed on it at its creation, and annihilating in fact the authority which imposed it, and from which the government itself derives its existence.

That such would be the result, were the right in question vested in the legislative or executive branch of the government, is conceded by all. No one has been so hardy as to assert that Congress or the President ought to have the right, or to deny that, if vested finally and exclusively in either, the consequences which I have stated would not necessarily follow; but its advocates have been reconciled to the doctrine, on the supposition that there is one department of the general government, which, from its peculiar organization, affords an independent tribunal through which the government may exercise the high authority which is the subject of consideration, with perfect safety to all.

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 scarcely to admit of doubt. If such be the true cause, I must think the fear of weakening the government too much in this case to be in a great measure unfounded, or at least that the danger is much less from that than the opposite side. I do not deny that a power of so high a nature may be abused by a state, but when I reflect that the states unanimously called the general government into existence with all of its powers, which they freely surrendered on their part, under the conviction that their common peace, safety and prosperity required it; that they are bound together by a common origin, and the recollection of common suffering and common triumph in the great and splendid achievement of their independence; and the strongest feelings of our nature, and among them, the love of national power and distinction, are on the side of the Union; it does seem to me, that the fear which would strip the states of their sovereignty, and degrade them, in fact, to mere dependent corporations, lest they should abuse a right indispensable to the peaceable protection of those interests which they reserved under their own peculiar guardianship when they created the general government, is unnatural and unreasonable. If those who voluntarily created the system, cannot be trusted to preserve it, what power can?

So far from extreme danger, I hold that there never was a free state, in which this great conservative principle, indispensable in all, was ever so safely lodged. In others, when the co-estates, representing the dissimilar and conflicting interests of the community, came into contact, the only alternative was compromise, submission or force. Not so in ours. Should the general government and a state come into conflict, we have a higher remedy; the power which called the general government into existence, which gave it all its authority, and can enlarge, contract, or abolish its powers at its pleasure, may be invoked. The states themselves may be appealed to, three-fourths of which, in fact, form a power, whose decrees are the constitution itself, and whose voice can silence all discontent. The utmost extent then of the power is, that a state acting in its sovereign capacity, as one of the parties to the constitutional compact, may compel the government, created by that compact, to submit a question touching its infraction to the parties who created it; to avoid the supposed dangers of which, it is proposed to resort to the novel, the hazardous, and, I must add, fatal project of giving to the general government

I yield, I trust, to few in my attachment to the judiciary department. I am fully sensible of its importance, and would maintain it to the fullest extent in its constitutional powers and independence; but it is impossible for me to believe that it was ever intended by the Constitution, that it should exercise the power in question, or that it is competent to do so, and, if it were, that it would be a safe depository of the power.

Its powers are judicial and not political, and are expressly confined by the Constitution "to all cases in law and equity arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under its authority;" and which I have high authority in asserting, excludes political questions, and comprehends those only where there are parties amenable to the process of the court.* Nor is its incompetency less clear, than its want of constitutional authority. There may be many and the most dangerous infractions on the part of Congress, of which it is conceded by all, the court, as a judicial tribunal, cannot from its nature take cognisance. The tariff itself is a strong case in point; and the reason applies equally to all others, where Congress perverts a power from an object intended to one not intended, the most insidious and dangerous of all the infractions; and which may be extended to all of its powers, more especially to the taxing and appropriating. But supposing it competent to take cognisance of all infractions of every description, the insuperable objection still remains, that it would not be a safe tribunal to exercise the power in question.

the case of Jonathan Robbins. I have not been able to refer to the speech, and speak from memory.

I refer to the authority of Chief Justice Marshall in

It is an universal and fundamental political principle, that the power to protect, can safely be confided only to those interested in protecting, or their responsible agents-a maxim not less true in private than in public affairs. The danger in our system is, that the general government, which represents the interests of the whole, may encroach on the states, which represent the peculiar and local interests, or that the latter may encroach on the

former.

would be to retard, and not finally to resist, the will of a dominant majority.

But it is useless to multiply arguments. Were it possible that reason could settle a question where the passions and interests of men are concerned, this point would have been long since settled for ever, by the state of Virginia. The report of her legis lature, to which I have already referred, has really, in my opinion, placed it beyond controversy. Speaking in reference to this subject, it says, "It has been objected" (to In examining this point, we ought not the right of a state to interpose for the to forget that the government, through all protection of her reserved rights), "that of its departments, judicial as well as the judicial authority is to be regarded as others, is administered by delegated and the sole expositor of the Constitution; on responsible agents; and that the power this subject it might be observed first that which really controls ultimately all the there may be instances of usurped powers movements, is not in the agents, but those which the forms of the Constitution could who elect or appoint them. To under- never draw within the control of the judi stand then its real character, and what cial department; secondly, that if the dewould be the action of the system in any cision of the judiciary be raised above the supposable case, we must raise our view sovereign parties to the Constitution, the from the mere agents, to this high con- decisions of the other departments, not trolling power which finally impels every carried by the forms of the Constitution movement of the machine. By doing so, before the judiciary, must be equally auwe shall find all under the control of the thoritative and final with the decision of will of a majority, compounded of the that department. But the proper answer majority of the states, taken as corporate to the objection is, that the resolution of bodies, and the majority of the people of the General Assembly relates to those the states estimated in federal numbers. great and extraordinary cases, in which all These united constitute the real and final of the forms of the Constitution may prove power, which impels and directs the move-ineffectual against infraction dangerous to ments of the general government. The the essential rights of the parties to it. majority of the states elect the majority of the Senate; of the people of the states, that of the House of Representatives; the two united, the President; and the President and a majority of the Senate appoint the judges, a majority of whom and a majority of the Senate and the House with the President, really exercise all of the powers of the government with the exception of the cases where the Constitution requires a greater number than a majority. The judges are, in fact, as truly the judicial representatives of this united majority, as the majority of Congress itself, or the Against these conclusive arguments, as President, is its legislative or executive they seem to me, it is objected, that if one representative; and to confide the power of the parties has the right to judge of into the judiciary to determine finally fractions of the Constitution, so has the and conclusively what powers are dele- other, and that consequently in cases of gated and what reserved, would be in real-contested powers between a state and the ity to confide it to the majority, whose agents they are, and by whom they can be controlled in various ways; and, of course, to subject (against the fundamental principle of our system, and all sound political reasoning) the reserved powers of the states, with all of the local and peculiar interests they were intended to protect, to the will of the very majority against which the protection was intended. Nor will the tenure by which the judges hold their office, however valuable the provision in many other respects, materially vary the case. Its highest possible effect

The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the judicial department may also 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, well as by the executive or legislative.'

as

general government, each would have a right to maintain its opinion, as is the case when sovereign powers differ in the construction of treaties or compacts, and that of course it would come to be a mere question of force. The error is in the assumption that the general government is a party to the constitutional compact. The states, as has been shown, formed the compact, acting as sovereign and independent communities. The general government is but its creature; and though in reality a government with all the rights and authority which belong to any other government,

within the orb of its powers, it is, never-pact of every defect and uncertainty, by theless, a goverment emanating from a an amendment of the instrument itself. It compact between sovereigns, and partak- is impossible for human wisdom, in a sysing, in its nature and object, of the charac- tem like ours, to devise another mode ter of a joint commission, appointed to super- which shall be safe and effectual, and at intend and administer the interests in the same time consistent with what are which all are jointly concerned, but hav- the relations and acknowledged powers of ing, beyond its proper sphere, no more the two great departments of our governpower than if it did not exist. To deny ment. It gives a beauty and security this would be to deny the most incontestable peculiar to our system, which, if duly facts, and the clearest conclusions; while appreciated, will transmit its blessings to to acknowledge its truth, is to destroy ut- the remotest generations; but, if not, our terly the objection that the appeal would splendid anticipations of the future will be to force, in the case supposed. For if prove but an empty dream. Stripped of all each party has a right to judge, then under its covering, and the naked question is, our system of government, the final cogni- whether ours is a federal or a consolidated sance of a question of contested power government: a constitutional or absolute would be in the states, and not in the gen- one; a government resting ultimately on eral government. It would be the duty of the solid basis of the sovereignty of the the latter, as in all similar cases of a con- states, or on the unrestrained will of a test between one or more of the principals majority; a form of government, as in all and a joint commission or agency, to refer other unlimited ones, in which injustice the contest to the principals themselves. and violence, and force, must finally preSuch are the plain dictates of reason and vail. Let it never be forgotten, that where analogy both. On no sound principle can the majority rules, the minority is the subthe agents have a right to final cognisance, ject; and that if we should absurdly attrias against the principals, much less to use bute to the former the exclusive right of force against them, to maintain their con- construing the Constitution, there would struction of their powers. Such a right be in fact between the sovereign and subwould be monstrous; and has never, here- ject, under such a government, no constitofore, been claimed in similar cases. tution; or at least nothing deserving the name, or serving the legitimate object of so sacred an instrument.

That the doctrine is applicable to the case of a contested power between the states and the general government, we How the states are to exercise this high have the authority not only of reason and power of interposition which constitutes so analogy, but of the distinguished statesman essential a portion of their reserved rights already referred to. Mr. Jefferson, at a that it cannot be delegated without an enlate period of his life, after long experience tire surrender of their sovereignty, and and mature reflection, says, "With respect converting our system from a federal into to our state and federal governments, I do a consolidated government, is a question not think their relations are correctly un- that the states only are competent to dederstood by foreigners. They suppose the termine. The arguments which prove former subordinate to the latter. This is that they possess the power, equally prove not the case. They are co-ordinate de- that they are, in the language of Jefferson, partments of one simple and integral "the rightful judges of the mode and whole. But you may ask if the two de-measure of redress." But the spirit of partments should claim each the same forbearance, as well as the nature of the subject of power, where is the umpire to right itself, forbids a recourse to it, except decide between them? In cases of little in cases of dangerous infractions of the urgency or importance, the prudence of Constitution; and then only in the last both parties will keep them aloof from the resort, when all reasonable hope of relief questionable ground; but if it can neither from the ordinary action of the governbe avoided nor compromised, a convention ment has failed; when, if the right to inof the states must be called to ascribe the terpose did not exist, the alternative would doubtful power to that department which be submission and oppression on the one they may think best."-It is thus that our side, or resistance by force on the other. Constitution, by authorizing amendments, That our system should afford, in such exand by prescribing the authority and mode treme cases, an intermediate point between of making them, has by a simple contriv- these dire alternatives, by which the govance, with its characteristic wisdom, pro- ernment may be brought to a pause, and vided a power which, in the last resort, thereby an interval obtained to comprosupersedes effectually the necessity and mise differences, or, if impracticable, be even the pretext for force; a power to compelled to submit the question to a conwhich none can fairly object; with which stitutional adjustment, through an appeal the interests of all are safe; which can to the states themselves, is an evidence of definitely close all controversies in the its high wisdom; an element not, as is only effectual mode, by freeing the com- supposed by some, of weakness, but of

thorough consciousness of the justness of the cause which I have espoused, and by a persuasion I hope not presumptuous, that it has the approbation of that Providence who has so often smiled upon these United States.

strength; not of anarchy or revolution, | people great truths, intimately connected but of peace and safety. Its general re- with the lasting welfare of my country. I cognition would of itself, in a great mea- should, indeed, sink overwhelmed and subsure, if not altogether, supersede the neces-dued beneath the appalling magnitude of sity of its exercise, by impressing on the the task which lies before me, if I did not movements of the government that mod- feel myself sustained and fortified by a eration and justice so essential to harmony and peace, in a country of such vast extent and diversity of interests as ours; and would, if controversy should come, turn the resentment of the aggrieved from the system to those who had abused its powers (a point all important), and cause them to seek redress, not in revolution or overthrow, but in reformation. It is, in fact, properly understood, a substitute where the alternative would be force, tending to prevent, and if that fails, to correct peaceably the aberrations to which all political systems are liable, and which, if permitted to accumulate, without correction, must finally end in a general catastrophe.

Speech of Henry Clay

Eight years ago it was my painful duty to present to the other House of Congress, an unexaggerated picture of the general distress pervading the whole land. We must all yet remember some of its frightful features. We all know that the people were then oppressed and borne down by an enormous load of debt; that the value of property was at the lowest point of depression; that ruinous sales and sacrifices were everywhere made of real estate; that stop laws, and relief laws, and paper money were adopted to save the people from impending destruction; that a deficit in the

In Defence of the American System* in which is given the public revenue existed, which compelled

Previous History of Tarif Contests in the Senate

of the United States, February 2d,

3d and 6th, 1832.

Mr CLAY, having retired from Congress soon after the establishment of the American System, by the passage of the Tariff of 1824, did not return to it till 1831-2, when the opponents of this system had acquired the ascendency, and were bent on its destruction. An act reducing the duties on many of the protected articles, was devised and passed. The bill being under considera tion in the Senate, Mr. CLAY addressed that body as follows:]

government to seize upon, and divert from its legitimate object the appropriations to the sinking fund, to redeem the national debt; and that our commerce and navigation were threatened with a complete paralysis. In short, sir, if I were to select any term of seven years since the adoption of the present constitution which exhibited a scene of the most wide-spread dismay and desolation, it would be exactly that term of seven years which immediately preceded the establishment of the tariff of 1824.

In one sentiment, Mr. President, expressed by the honorable gentleman from South Carolina, (General Hayne,) though perhaps not in the sense intended by him, I have now to perform the more pleasing I entirely concur. I agree with him, that task of exhibiting an imperfect sketch of the decision on the system of policy em- the existing state of the unparalleled prosbraced in this debate, involves the future perity of the country. On a general surdestiny of this growing country. One way vey, we behold cultivation extended, the I verily believe, it would lead to deep and arts flourishing, the face of the country general distress, general bankruptcy and improved, our people fully and profitably national ruin, without benefit to any part employed, and the public countenance exof the Union: the other, the existing pros-hibiting tranquillity, contentment and happerity will be preserved and augmented, piness. And if we descend into particuand the nation will continue rapidly to lars, we have the agreeable contemplation advance in wealth, power, and greatness, of a people out of debt, land rising slowly without prejudice to any section of the in value, but in a secure and salutary confederacy. degree; a ready though not extravagant Thus viewing the question, I stand here market for all the surplus productions of as the humble but zealous advocate, not of our industry; innumerable flocks and the interests of one State, or seven States herds browsing and gamboling on ten only, but of the whole Union. And never thousand hills and plains, covered with before have I felt more intensely, the over-rich and verdant grasses; our cities expowering weight of that share of respon- panded, and whole villages springing up, sibility which belongs to me in these de- as it were, by enchantment; our exports liberations. Never before have I had more and imports increased and increasing; our occasion than I now have to lament my tonnage, foreign and coastwise, swelling want of those intellectual powers, the pos- and fully occupied; the rivers of our insession of which might enable me to un- terior animated by the perpetual thunder fold to this Senate, and to illustrate to this and lightning of countless steam-boats; the . *In this extended abstracts are given and data refer- currency sound and abundant; the public debt of two wars nearly redeemed; and, to

ences omitted not applicable to these times.

It is now proposed to abolish the system, to which we owe so much of the public It includes all our foreign tonnage, with prosperity, and it is urged that the arrival the inconsiderable exception made by of the period of the redemption of the pub-treaties of reciprocity with a few foreign lic debt has been confidently looked to as presenting a suitable occasion to rid the It embraces our fisheries, and all our country of evils with which the system is hardy and enterprising fishermen. alleged to be fraught. Not an inattentive observer of passing events, I have been