Page:Examiner, Journal of Political Economy, v2n12.djvu/5

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ed and agreed that "each State retained its sovereignty, freedom, and independence."

5th. That these sovereign rights have not been sacrificed or surrendered, beyond a certain limited portion, which, by their constitutional compact, the several States have bestowed upon their Federal Government—But have, by the very terms of that compact, expressly retained all others, undiminished and unimpaired.

6th. That the Federal Government, as established by the said constitutional compact, is, in fact, the creature of the several States, and not of the collective body of the people. 1st. Because the number of delegates to the Convention which framed that Government, were not in the ratio of population, the smaller States having, in many instances, a greater number than the larger. 2d. Because the votes in that Convention were taken by States, and not by members, or according to population—each State giving but one vote—(so that a minority of the people constitution seven States in the Convention, with a population of 936,700) may have framed the constitution against a majority of three to one (2,984600,) constituting the five remaining States which attended—or against a still larger majority, if all the States had attended. 3d. Because the adoption and ratification of the constitution was submitted, by its own provisions, to a majority of the States to effect, and not to a majority of the people; by which means the nine smaller States, containing a population of 1,760,200, may have ratified and given life to that instrument, which was previously a mere "dead letter," in opposition to the four larger States, with a population of 2,124,800; in other words, a minority may have overruled a majority of over 360,000. By this means also, if the five smaller States (with a population of 622,000) had refused to acceed, they could have prevented the adoption of that instrument by the eight larger States (with a population of 3,299,300)—in other words, a minority may have overruled a majority of five to one. 4th. Because the number of delegates in each State Convention for adopting the constitution, bore no proportion to their relative population, some of the States having ten times the number of delegates appointed by others. 5th. Because, when the constitution was adopted and ratified by the nine States, it had no virtue or efficacy in those States which did not adopt it, (as North Carolina and Rhode Island) and never could have such efficacy until they chose to accede—even though a majority of the people of five to one, had given it their assent.

In addition to these considerations, it is further evident, from the fifth article of this constitution, that it is the work of the separate States; for that article provides that no amendments or alterations shall be made (or ratified) but by three-fourths of the several States, either by their legislatures or conventions—and whilst this power is possessed by the States, not all the powers of the Federal Government can touch the constitution of the smallest State of the Union. So again, each of these States has an equal representation in the higher branch of the Federal Legislature, of which it cannot be deprived—and in this branch a majority of the States, forming, perhaps, a minority of the people may arrest (or nullify) the measures of a majority of that people in the same house, and of a vast majority of the people in the houses below.

From all these facts in the early history of our country, and from the true nature of the compact itself, it would assuredly seem to be beyond cavil or dispute, that our federal constitution is but a compact between sovereign and independent States, who thereby agreed to form a General Government with certain limited and specific powers, retaining all other powers to themselves.

If, then, this General Government be in reality the creature of the States, is it not preposterous to contend that certain judicial officers appointed by one department of this create, is to rule and govern its own paramount creators—and to decide upon their rights and privileges, when infringed too, by the very "approved good masters" of this deciding tribunal. Does it not, on the contrary, result inevitably from the very nature of the compact, that each of these creating sovereigns must judge for itself of every infraction of its own reserved rights, and of the "mode and measure of redress"—that it must, as its only remedy, (after employing argument and remonstrance in vain) put its sovereign veto or injunction upon the usurpation, in order to protect its own citizens, within its own limits, from tyranny and oppression, and to obtain from a convention of its fellow States, a restitution of its violated rights.

And what more (as I have heard it well asked,) is this right of injunction or nullification, than the power which, in the instance of jury trials, may be, and is in fact, enforced by a single juryman upon the verdict of his numerous companions, in every case in which the convictions of his conscience are firmly fixed in opposition to their verdict. Yet these cases do not, and will not, frequently occur: for in ordinary cases, it is ever found that juries are content to abide by the opinion of a majority—but in those rare cases in which an individual juryman finds himself bound, on principle, to resist to the utmost, and under every privation and suffering, a decision, of whose injustice he has a perfect conviction, he practises a rightful and a righteous nullification, which has often effected the most blessed results, and established the most sacred ends of justice.

Even thus it is with each State of our Union in similar cases of insidious and intolerable injustice—each has the power and the right to arrest the oppression of a majority, by her veto, until justice is vindicated, and the right prevails.

The operation of this remedy would be wholly through the juries of the country—and we consider the following to be a perfect definition of nullification, viz: the arresting of federal usurpation by carrying an entire case to a jury, under a State law, enabling that jury to give a verdict upon the blended fact and law (under the direction of the judge;) and thus, by defeating the ends of tyranny, to compel the call of a convention of the States, either to confirm or deny the power which is claimed.

All apprehensions of the too frequent assertion of this power, are surely idle and unfounded: for the odium of the world would not readily be encountered without abundant cause to justify, and ample grounds to sustain, its adoption.

But it has been said that this power in each state, of arresting within its own limits, the unlawful Acts of the Federal Government, would render that Government less powerful than even the little State of Delaware. To this we reply, that this peculiarity in our system (which is urged as a defect) is its greatest excellence—namely that the smallest State in our Union is more powerful for all Constitutional purposes, than the combined departments of the Federal Government for unconstitutional objects.

And in regard to the supposed danger of a civil War resulting from the employment of this remedy; such danger has already been shown not to exist, the Executive of this Union having no power by the Constitution, (from which alone he derives his powers) to resort to force—which fact is the more