sT- ■■'•■.-;/.,•- 
 
 En 
 
j^E We a Natiojn- ? 
 
 i^Ijc (Driicstioii as it !5toatr Ocfore tijc IDar. 
 
 ^/ 
 
 J. M. BUNDY. 
 
 WITH AX HISTORICAL LETTER 
 
 By Senator Howe, of Wisconsin. 
 
 ^ NEW YORK: 
 
 (6. p. putnant vS: 60 its. 
 
 1870. 
 
 ^.A^, 
 
Aee We a Nation ? 
 
 Z\)c (Drucstion as it 6tooti i}cforc tijc iDar. 
 
 J. M. BUNDY. 
 
 WITH AIs" HISTOEICAL LETTEE 
 
 By Senator Howe, of Wisconsin. 
 
 ir,i<r. 
 
 ^ A^UW YORK: 
 
 1870. 
 

 ™ 
 
 The New York Printing Company, 
 8i, 83, and 83 Centre Street, 
 New York. 
 

 
 PREFATORY. 
 
 The excuse for the republication of this pamphlet is to be 
 found in the following request, signed by several eminent mem- 
 bers of the Wisconsin bar : 
 
 Milwaukee, October 26, 1869. 
 J. M. BuNDY, Esq. : 
 
 Dear Sir — We understand that the very able argument published by 
 you m pamphlet form, several years since, upon the general subject of 
 the appellate jurisdiction of the Supreme Court of the United States 
 over State Courts, in matters involving rights claimed under the Con- 
 stitution and laws of the United States, is out of print, and cannot be 
 obtained. It formed part of an interesting discussion in our State, and 
 its ability and research ought not to be lost ; because, although the im- 
 mediate occasion for its original publication has passed, yet the general 
 question, in various phases, will continue for several years, under the re- 
 cent legislation of Congress for the removal of certain cases from State 
 to Federal Courts. 
 
 We therefore suggest that you would render a great service to the 
 profession and the public by republishing your argument, and thus 
 affording the public an opportunity to obtain it. 
 
 Very respectfully. 
 
 Matt. H. Carpenter, 
 Timothy O. Howe, 
 S. J. Todd, 
 N. S. Murphy, 
 WiNFiELD Smith, 
 Emmons & Van Dyke, 
 
 C. A. Hamilton, 
 George Cogswell, 
 J. M. Bingham, 
 Walter S. Carter, 
 James G. Jenkins, 
 
 D. H. Johnson, 
 Geo. H. Goodwin. 
 
4 ARE WE A NATION ? 
 
 The i^amplilet referred to was written in the winter of 1859 
 and in the early spring of 1860, while I was a young law- 
 yer, without clients, in the small interior city of Beloit. in 
 Wisconsin. It first appeared in the shape of a series of articles 
 contributed from week to week to the Beloit Journal^ which 
 were intended to influence thoughtful Republicans to withhold 
 their support from the Calhoun theories of government at that 
 time popular in the State. Having at my disposal a very 
 good collection of the authorities which develop the his- 
 tory of our Government, and having a strong tendency to- 
 wards the investigation of such subjects, I lived at that time 
 among my books, and from the great men who founded our 
 Government was enabled to overlook the party exigencies of the 
 time, and to examine the issues they brouglit with more calmness 
 than a successful lawyer or iDolitician could have commanded. 
 
 The immediate issue which my argument was intended to 
 meet was whether, in the choice of a Chief Justice, Wisconsin 
 would virtually vote to nullify the Fugitive Slave Law, and 
 to deny the sovereign power of the Union. Those who were 
 not in the State at that time can form no conception of the 
 strength of the popular sentiment which then ran in this direc- 
 tion. In 1857 this sentiment was so strong that Judge Howe, 
 then confessedly the foremost Republican leader in the State, was 
 defeated for the United States Senate, because he would not, by 
 a non-committal letter, enable the Republican members of the 
 Legislature to follow their own choice and at the same time to 
 reconcile their constituents to their action. This happened, 
 although Judge Howe was one of the earliest and most deter- 
 mined enemies of the Fugitive Slave Law. It was not until the 
 ominous threatenings of another phase of " State Rights " agita- 
 tion were heard from the South that this sacrifice of a fearless 
 and honest statesman was atoned for by his almost unanimous 
 election, in the winter of 1860-01, to the seat he has since held 
 and honored. 
 
 As Senator Howe was the foremost leader of those Wisconsin 
 Republicans who sustained the national authorit}', even when 
 that authority presented itself in its most odious character, I 
 
ARE WE A STATION ? 5 
 
 wrote to Lim last winter, asking him to give a brief history of 
 the discussion which called out my humble argument. I also 
 intended to rewrite the argument itself, and to eliminate its cru- 
 dities and imperfections. But the engrossing cares of journalism 
 have left me no time for such a task, while, until recently, Sena- 
 tor Howe has not been able to find leisure to comply with my 
 request. 
 
 On the receipt of his very kind letter, which is given below, 
 I determined to reissue the argument just as it was originally 
 published, and to ask the indulgence of its readers for its many 
 imperfections. The letter of Judge Howe speaks for itself, and 
 will explain better than anything I could write why and how it 
 was that such a State as Wisconsin came so near to the dan- 
 gerous attitude of actual nullilication. I give this letter with- 
 out further comment : 
 
 Green Bat, Wisconsin, Sejyt. 26, 1870. 
 Mt dear Major Bundy : 
 
 I am glad to learn, as I do, that you are about to publish a new edi- 
 tion of your excellent essay on the question of State Rights, the first 
 issue of which came out in 1860. It is true that the special occasion 
 which called the pamphlet out is long since passed. It is true that 
 the great debate in wliich it bore a prominent part is closed, it is 
 to be hoped, forever. It is true that the pecuhar theory of government 
 which it so ably combated is finally exploded. But, notwithstanding, I 
 think it well and timely to reproduce your great argument. 
 
 The world is agreed upon the propriety of building monuments to 
 comiueraorate the birth of great truths. AYhy is it not well, also, to 
 place head-boards by the graves where great errors are buried ? No more 
 specious, and, if judged by its ft-uits, no more malignant falsehood than 
 that you assaulted has been buried during this century. Few, in any 
 century, have been destroyed at greater cost. It seems almost incred- 
 ible now that there could have been lawyers, statesmen, patriots, so 
 recently as ten years ago, who could seriously insist that each State of 
 our Union had secured to it, in and by the Federal Constitution, the 
 high prerogative of determining for itself what Federal enactments were 
 or were not valid. Historically we know — and we always knew when 
 we would listen to history — that it was tbat very prerogative which 
 
6 ARE WE A NATION ? 
 
 proved so fatal to the States under the Confederation. It was that 
 very prerogative which it was the leading purpose of the Constitution 
 to wrest away from the States. 
 
 But there was a party iu the country of those who did not mean to 
 surrender that prerogative. They were willing to enter into almost any 
 sort of league, but they w^ere not willing to submit to a government. 
 
 And it must be confessed that it requires the exercise of great mag- 
 nanimity, or the presence of urgent necessity, to persuade thirteen sov- 
 ereigns to be resolved into one. But that necessity was upon the 
 fathers, and their magnanimity was equal to it. 
 
 Still, the party which protested against the surrender of that bane- 
 ful State prerogative was very reluctant, after the Constitution was 
 adopted, to acknowledge that it had been surrendered. Accordingly, 
 it has been asserted, more or less explicitly, on several different occa- 
 sions in our history. 
 
 It was avowed with considerable emphasis in Virginia and Kentucky, 
 as a means of resistance to the obnoxious measures of John Adams' 
 administration. 
 
 It was rather vaguely threatened in New England, as a resort against 
 the war measures of Mr. Madison's administration. 
 
 It was openly proclaimed in South Carolina, as a method of abro- 
 gating the tariff" laws, during General Jackson's administration. 
 
 It was urged with much popular zeal in Wisconsin, in opposition to 
 the Fugitive Slave Law. 
 
 It was finally asserted by the authorities of eleven States, in repudi- 
 ation of all Federal control, under the administration of Mr. Lincoln. 
 It was then brought to the arbitrament of solemn war — as all knew, if 
 persisted in, it must sooner or later come. 
 
 The result, very fortunately for all the. future, was a vindication of 
 national rights, and a condemnation of State pretences. 
 
 The particular occasion which gave rise to your pamphlet was the 
 discussion which this doctrine of State supremacy underweut in this 
 State during the years from 1854 to 1860. 
 
 Perhaps in no State of the Union was hostility to the Fugitive Slave 
 code more pronounced or more general than in Wisconsin. That hos- 
 tility was not confined to the ranks of any one political party. 
 
 In 1854 a fugitive, arrested under the provisions of that code, was 
 rescued by a mob, and sent out of the country. Men of all political 
 parties joined in the rescue. Subsequently two of the rescuers were 
 
AEE WE A ISTATION J i 
 
 arrested upon complaint for a violation of tbat law. A writ of Plaboas 
 Corpus was issued and returned before a Democratic Justice of the 
 Supreme Court. To the satisfaction of nearly the whole people, and 
 to the great delight of a large majority, he ordered the alleged culprits 
 to be discharged, and he pronounced the act to be unconstitutional 
 and void. 
 
 Subsequently the same parties were arrested in the United States Dis- 
 trict Court for this district, for the same offence. They were tried, con- 
 victed, sentenced to imprisonment, and actually imprisoned in pursuance 
 of the sentence. Application was thereupon made to the Supreme Court 
 for another writ of Habeas Corpus, which was issued, and upon its re- 
 turn the prisoners were again discharged. The three Judges, two of whom 
 were Democrats, held that no offence within the provisions of the 
 Fugitive Slave Act was charged in the indictment upon which the pris- 
 oners had been convicted. One of the Judges went further, and asserted 
 the ultimate of the State sovereignty theory. He argued that the law 
 having been pronounced unconstitutional by the Supreme Court of the 
 State, it was therefore void within the State, regardless of what might 
 be thought or resolved by the Federal Courts. Even this proposition, as 
 it seemed to offer the surest protection against an odious act, was 
 hailed with great satisfaction by the great majority of those who op- 
 posed that law. And, although there were many Republicans wbo did 
 not believe in the soundness of that political theory, yet there was more 
 or less talk of incorporating the principles into the creed of \Yisconsin 
 Republicanism. 
 
 The judgment of our Supreme Court, in the Habeas Corpus case, 
 was taken to the Supreme Court of the United States, and there re- 
 versed. 
 
 Here was open conflict between the highest judicial tribunals of the re- 
 spective governments. The Supreme Court of the United States held the 
 imprisonment legal. The Supreme Court of this State held it illegal. 
 The question as to which of these two judgments should bear rule in 
 Wisconsin became one of absorbing interest in the State. 
 
 In 185'9 the composition of our Supreme Court had been considerably 
 changed. The fomier Chief Justice had died, and the present Chief 
 Justice had been appointed in his place. The term of one Associate 
 had expired ; and the present Judge Paine, who had been of Counsel 
 for the prisoners in the Habeas Corpus cases, had been elected in his 
 place. 
 
8 ARE WE A ]S"ATI0:N^ ? 
 
 The prisoners had been again confined, in pursuance of the judgment 
 of the Supreme Court of the United States. And to our court, consti- 
 tuted as above, they again applied for a discharge. The application was 
 denied. But it was understood that one Judge favored the application, 
 that another opposed it, and that Judge Paine, because of his former re- 
 lations to the parties, declined to give any opinion in the case. In the 
 spring of 1860 an election was to take place for a Chief Justice in 
 place of Chief Justice Dixon, whose appointment would then expire. 
 The canvass for his successor at once commenced. As he had decided 
 to follow the judgment of the Federal Court, a very lively interest was 
 manifested to secure a successor who would concur in issuing the order 
 for the defiance of the judgment of the Supreme Court of the United 
 States. 
 
 Had that effort succeeded, it is not easy to see how Wisconsin could 
 have escaped an open rupture with the National Government ; so that 
 Mr. Lincoln, upon his advent to the Presidency, would have found in- 
 stead of one, two hostile forces in the field,, having not the least sym- 
 pathy with each other, yet both denying the National authority. 
 
 It was during that canvass that your essay made its first appearance. 
 It was admitted then to be a very candid, dispassionate, and able dis- 
 cussion of the question. It contained the most complete presentation 
 of the authorities bearing upon the question which had appeared in the 
 Avhole course of the debate. 
 
 It is not too much to claim that it had an important influence in 
 producing the happy result of that struggle. 
 
 But notwithstanding the masterly array of authorities you presented 
 on the National side, it is somewhat doubtful if they were then con- 
 sidered with that enlightened candor to which they were entitled. 
 There is reason to believe that your argument would be read much 
 more considerately now than it was then. Its soundness has been vin- 
 dicated by the result of the war. Its truth has been sanctified by the 
 sacrifice of a great deal of precious life. For these, among other reasons, 
 I am glad you are to give it again to the public. 
 
 Yours sincerely, 
 
 TIMOTHY 0. HOWE. 
 
STATE EIGHTS 
 
 APPELLATE JURISDICTION OF THE SUPREME COURT OF 
 THE UNITED STATES. 
 
 The questions involved in a consideration of the Appellate 
 Jurisdiction of the Supreme Court of the United States, are of 
 a purely legal character. 
 
 They arise in the interpretation of the Constitution, and are 
 to be determined by a reference to the terms of that instru- 
 ment, aided by all the light which the history of its formation, 
 and of the contemporaneous and subsequent exposition of, 
 and practice under it, may afford. 
 
 If, from all of these sources of investigation, there arises a 
 fair construction of the Constitution which is contrary to our 
 notions of what ought to be, we should still recognize its force 
 in considering what is, the fundamental law of the land. We 
 should, as a matter of course, in endeavoring to ascertain 
 the powers given by the Constitution, throw aside all consid- 
 erations as to the inconveniences, or even as to the dangers, 
 likely to ensue from any construction to which we may be 
 led in an honest and thorough study of its provisions. 
 
 If dangerous powers are given by that instrument, it is cer- 
 tainly matter for deep regret, and the consideration of them 
 M'ould have been proper for the Convention which made, and for 
 
10 AEE WE A NATION ? 
 
 the people wlio ratified it ; and we find that both the Conven- 
 tion and the people did consider nearly all of the objections 
 which have since been made to the Constitution. 
 
 Or, if dangers are now apprehended from the exercise, by 
 any branch of the Government, or by the Government of the 
 United States collectively, of powers granted by the people in 
 the Constitution, that instrument provides a peaceful remedy 
 by amendment. 
 
 If the people of the United States have so far degenerated, 
 that under their authority unendurable oppression is sufiered 
 by any portion of them, and there is no liope of peaceable 
 redress, there remains the Divine Eight of Revolution. 
 
 But if we would ascertain what is the meaning of the. Con- 
 stitution, we must, as I have said before, look to its terms, 
 its history, and the expositions and practice of those whose 
 authority is the most conclusive upon the sul»ject. 
 
 As those who have controverted the Appellate Jurisdiction 
 of the Supreme Court have always sought extraneous support 
 for their construction of the Constitution in a peculiar theory 
 of the nature and objects of that instrument, it will be proper 
 to go into a fuller consideration of the purposes of its 
 framers than would otherwise be necessary, A plain and 
 unforced interpretation presents so many difliculties in tlie 
 way of a denial of this jurisdiction, that it has always been 
 deemed necessary, by those who have wished to argue it out 
 of the Constitution, to go outside of that instrument for phrases 
 and theories, apt for their object. 
 
 These phrases and theories may have had a limited circula- 
 tion, and may have been adopted and believed in by a very 
 small moiety of the American people previously to 1829-30, 
 but it was not until the treasonable ambition of Mr. Calhoun 
 had found its fit supporters in the disloyal State government 
 
ARE WE A I^ATIOX ? 11 
 
 of Soutli Carolina, tliat the hideous features of nullification 
 were presented to the countrj^ in such a manner as to excite 
 much attention. The " Virginia resohitions of 179S," of which 
 so much use has been made, were in no sense the precursois 
 of uullilication, as I slinll liereafter show by the very best ot 
 all authorities, that of the author of them — Mr. Madison. 
 The bare suspicion of nullification which attached to the 
 " Hartford Convention," sufiiced to wither the prospects of 
 some of the most worthy and ablest public men of New Eng- 
 land. Yet, we know now that this suspicion was a bitter in- 
 justice to them. It was the unenviable distinction of the 
 " Tory State of the Kevolution," under the leadership of her 
 restless and far-seeing statesman, to fling the gauntlet before 
 an astonished country, in behalf of doctrines which, at that 
 time, seemed to men of all parties to be dangerous innovations 
 upon the established political faith of the American people. 
 
 Mr. Calhoun was wise enough to see that in a few j-ears the 
 control of the General Government would pass from iSouthern 
 to jSTorthern statesmen, and he wished to establish in advance 
 a theory of the Constitution which would enable the Southern 
 States to defeat the national policy when it should become hos- 
 tile to slavery. This theory, at whose birth Mr. Webster acted 
 rather unacceptably as accoucheur, was brought before the 
 Senate of the United States in 1830, and may be stated thus, 
 as Mr. Webster stated it, without any demur on the part of 
 Mr. Calhoun : — 
 
 " 1. That the political system under which we live, and under which 
 • Congress is now assembled, is a compact to which the people of the 
 several States, as separate and sovereign communities, are tlie parties. 
 
 " 2. That these sovereign parties have a right to judge, each for 
 itself, of any alleged violation of the Constitution by Congress ; and in 
 case of such violation to choose each for itself its own mode and man- 
 ner of redress." 
 
12 AKE WE A ]SrATIO]Sr ? 
 
 In these propositions, and in tlieir expositions by Mr. Cal- 
 houn, in the course of the debates arising out of them, we find 
 the originals of all the subsequent judicial decisions, speeches, 
 and newspaper articles upon his side of the "State Rights" 
 question. The arguments, the theories, the phrases, are all his, 
 and the question of the Appellate Jurisdiction is involved in 
 their truth or falsity. 
 
 I propose, therefore, to present, as briefly as the subject will 
 admit, what I regard as the main features of the government 
 "established" by the Constitution. In doing so, I shall follow 
 the safe rule of interpretation laid down by Mr. Jefferson, in 
 answer to doubts expressed by the Legislature of Rhode Island 
 as to the policy of his administration, he being supposed to be 
 hostile to the Constitution as it was. 
 
 Said he : " The Constitution shall be administered by me 
 according to the safe and honest meaning of the people at the 
 time of its adoption, a meaning to be found in the explana- 
 tions of those M-ho advocated, not of those who opposed it. 
 These explanations are presented in the publications of the 
 time." Of these publications, the " Federalist," written by 
 Jay, Madison, and Hamilton, who had as great a share in 
 making the Constitution as any, was the chief, and by far tlie 
 most influential, in securing the adoption of it b}^ the people. 
 
 Looking first, then, to tlie Constitution itself, we find in the 
 Preamble a short, succinct, and authoritative declaration of 
 the great objects which were to be secured by its adoption, 
 and of the source of the powers to be exercised under it, 
 namely, the people of the United States. The first of these 
 objects was, '' to form a more perfect Union." "More perfect" 
 tlian what? Every one knows to what this refers, and what 
 must liave been in the minds of those who inserted it. 
 
 Tlie colonies had made several attempts at union. As early 
 
ARE WE A NATION ? 13 
 
 as 16-43, Massachusetts, Pljniioutli, Connecticut, and New 
 Haven, united for protection from the Indians and Dutch, 
 This union gave power to three-fourths of the delegates to bind 
 the whole confederacy, and lasted until 1686. In 1751: there 
 was a Congress of Commissioners from New Hampshire, Mai- 
 sachusetts, Rhode Island, Connecticut, New York, Pennsyl- 
 vania, and Maryland. This was calletl by the "Lords Com- 
 missioners for Trade and the Plantations,"" to consider the 
 defence of America in the case of a war with France, then 
 impending. The object of the British government in this 
 movement was to make treaties with the Indians ; the object 
 of Massachusetts in seconding it was to form articles of union 
 and confederation with the other colonies, for their general 
 security in peace as well as in war. This Convention resolved 
 unanimously that a union of the colonies was absolutely 
 necessary for their preservation. They proposed a plan of 
 Federal government, consisting of a general council of dele- 
 gates to be chosen by the Provincial Assemblies, and a Presi- 
 dent-General, to be appointed by the crown. This council 
 were to have powers of war and peace in respect to the 
 Indians ; to make laws for the government of new territories ; to 
 raise troops, and to make laws, and to levy general duties, 
 imposts, and taxes for these necessary purposes, subject to the 
 immediate negative of the President, and the eventual negative 
 of .the King. This, phm was rejected by every provincial 
 assembly, as well as by the crown, on account of tlie jealousy 
 on the part of the crown and the people of each other. Soon 
 after the first attempt upon chartered privileges by the Stamp 
 Act, a Congress of delegates from nine colonies assembled at 
 New York in October, 1765. 
 
 This Congress digested a Bill of Rights. It was preparatory 
 to a more general Congress in September, 1771. The acts and 
 
14 ARE WE A NATION ^ 
 
 claims of the British government alarmed the whole country, 
 and the twelve colonies united in sending delegates to Phila- 
 delphia. This, the first Continental Congress, asserted the 
 unalienable rights of British freemen, pointed out the system 
 of violence preparing against those rights, and bound them by 
 " the ties of honor and country " to renounce commerce with 
 Great Britain. The action of this Congress received prompt 
 and universal obedience, and the Union thus formed was con- 
 tinued by a succession of delegates in Congress. In May, 
 1775, a Congress again assembled in Philadelphia, and was 
 clothed with ample discretionary powers. This Congress pre- 
 pared the colonies for resistance, published a declaration as to 
 the causes and necessity of taking up arms, and proceeded at 
 once to levy and organize an army, to prescribe rules for the 
 government of their land and naval forces, to contract debts 
 and emit a paper currency ; assuming all the powers of national 
 sovereignty, until they at last, on the Fourth of Julj^, 1776, took 
 a separate and equal station among the nations of the earth, 
 by declaring the United Colonies to be " free and independent 
 States." 
 
 The general conviction of the importance and value of the 
 Union appears evident in all the proceedings of Congress ; and 
 as early as the Declaration of Independence it was thought 
 expedient, for its security and duration, to define with precision 
 and by a formal instrument the nature of the compact,* the 
 powers of Congress, and Eesiduary Sovereignty of the States. 
 On the lltli of June, Congress undertook to digest and prepare 
 articles of confederation ; but notwithstanding the great perils 
 of delay, it was not until the 15th of November, 1777, that 
 Congress could so far unite the discordant interests and preju- 
 dices of thirteen distinct communities as to agree to the articles 
 of confederation. And when these were submitted to the State 
 
ARE WE A NATION ? 15 
 
 Legislatures, they were declared to be the result of impending 
 necessity and of a disposition to conciliate ; and were agreed to, 
 not for their intrinsic excellence, but as the best practical ap- 
 proximation thereto. These articles were merely a digest, and 
 even a limitation in the shape of a compact, of those undefined 
 and discretionary powers delegated by the people to the Con- 
 gress of 1775, which had been freely exercised and implicitly 
 obeyed. 
 
 The confederation, from its very nature, was found less and 
 less adequate to the purposes of a united government, having, 
 in fact, scarcely any of tlie attributes of a government; and by 
 1785 it vras a mere nullity, as all mere compacts between 
 sovereign powers must ever befcome. Still, it will be seen by 
 any one who reads the history of this country, that from the 
 beginning the most advanced minds were looking for a closer 
 and more intimate Union of all the colonies ; and it is 
 pleasing to trace the successive steps of the colonists in this 
 direction. Each attempt of this kind served as the basis for 
 another, more comprehensive and eifectual. The colonists 
 had tried the system of a compact between sovereign States, 
 and found it wholly deficient in meeting the needs of the 
 country, and, to use the words of John Jay, in the " Federalist," 
 " Still continuing no less attached to Union than enamored of 
 Liberty, they observed the danger which immediately threat- 
 ened the former, and more remotely the latter; and being 
 persuaded that ample security for both could only be found in 
 a national government more wisely framed, they, as with one 
 voice, convened the late convention at Philadelphia to take 
 that important object into consideration." 
 
 The second object was, " to establish justice." The States 
 acting individually under the confederation gave undue pref- 
 erence to their own citizens in their legislation and in their 
 
1 6 AEE WE A NATION ? 
 
 courts, and interfered with private contracts ; refusing to pay 
 foreign creditors, and involving the whole country in difficul- 
 ties, by unjust and injudicious legislation. With no more 
 efficient control over thein than was possessed by the Fed- 
 eral Congress, these results were inevitable. This was brought 
 prominently before the conventions called to consider the 
 adoption of the Constitution, and ably presented in all of 
 them. The remarks of Oliver Ellsworth, one of the leading 
 minds of the old Federal Congress, and of the Convention 
 which framed the Constitution, are a fair specimen of the 
 views of those who advocated its adoption. Addressing the 
 Connecticut Convention, he said, among other things: " Union 
 is necessary to preserve commutative justice between the 
 States, ifec, &c. A more energetic system is necessary. The 
 present is merely advisory. 'It has no coercive power. With- 
 out this, government is insufficient, or rather is no government 
 at all. But, it is said, such a power is not necessary. States 
 will not do Avrong. They need only to be told their duty, and 
 they will do it. I ask, sir, what warrant there is for this as- 
 sertion ? " {HoUister^s History Conn.^ vol. 2,j?. iSY.) 
 
 Tlie third object was to " ensure domestic tranquillity." 
 There M'ere many strong reasons why a more vigorous and 
 national government was needed to secure this object. I 
 shall mention but a few, bearing on the questions to be con- 
 sidered. The controversies between Connecticut and Penn- 
 S3'lvania, between !New York and Vermont, Connecticut and 
 Rhode Island, and in fact between nearly all of the States ; 
 the apportionment of the public debt ; laws in violation of pri- 
 vate contracts, amounting to as-o-ressions on the rights of the 
 States injured by them, and a hundred other sources of inter- 
 minable domestic difficulties — appeared to the framers of the 
 Constitution to demand somethino- more than a mere league of 
 
ARE WE A NATION ? 17 
 
 the States — something more than a mere compact, which the 
 States might construe as seemed right to each of them. 
 
 Oliver Ellsworth fairly expressed the wants of that time, 
 in his speech before the Connecticut Convention, which is 
 given at length in Hollister's History, vol. 2, p. 457. " We 
 must unite," said he, " in order to preserve peace among our- 
 selves. If we are divided, what is to hinder wars from break- 
 ing out among the States ? States, as well as individuals, are 
 subject to ambition, to avarice, to those jarring passions which 
 disturb the peace of society. What is to check them ? If 
 there is a parental hand over the whole, this and nothing else, 
 can restrain the unruly conduct of the members." 
 
 The next object was " to provide for the common defense." 
 The infinite difficulties which constantly beset the operations 
 of the army during the revolution, from the lack of a coercive 
 power in the confederation compact to enforce its requisitions, 
 had demonstrated the necessity of a General Government 
 vested with powders coextensive with all the exigencies of war. 
 The Congress of the Confederation had, nominally, unlimited 
 ■ discretion in making requisitions of men and money, in the 
 government of the army and navy, and in the direction of 
 their operations, but in the words of Hamilton {Fed. No. 23) : 
 " As their requisitions were made constitutionally binding on 
 the States, * * the intention evidently was that the United 
 States should command whatever resources were by them 
 judged requisite to the common defense and general wel- 
 fare. '^ " The experiment has, however, demonstrated that 
 this expectation was ill-founded and illusory, * * * and 
 that there is an absolute necessity for an entire change in the 
 first principles of the system." 
 
 The next object was to "promote the general welfare." 
 
 Says Judge Story, in his commentary upon this passage, § 56 : 
 
 2 
 
1 8 AEE WE A NATION ? 
 
 " The idea of a permanent and zealous co-operation of all the 
 States in any one scheme for the common welfare, is vision- 
 ary. ISTo scheme could be devised whicli would not bear un- 
 equally upon some particular section of the country ; and 
 these inequalities could not be, as they now are, ameliorated 
 and corrected under tlie General Government, by other corre- 
 sponding benefits." The adversaries of the Constitution, who 
 opposed it because too great powers were given by it to the 
 Federal Government, were thus answered by Hamilton {Fed. 
 No. 23) : " The powers are not too extensive for the objects 
 of Federal administration, or, in other words, for the manage- 
 ment of the national interests." The friends of the Consti- 
 tution saw no other adequate means of " promoting the general 
 welfare," than in the establishment of a government having 
 powers as extensive as the interests it was to foster. 
 
 The concluding object stated in the Preamble is " to secure 
 the blessings of liberty to us and our posterity." This was the 
 grand object, that which with the friends of the Constitution 
 included all others dear to a people who had suffered, and 
 dared — as had our fathers in its defence. That no mere com- 
 pact could secure its blessings to them permanently, was the 
 expressed conviction of nearly all the more prominent states- 
 men who had witnessed the weakness and imbecility of the 
 Confederation. "Washington expressed the sense of the best 
 minds in the country when he wrote, in reply to a gloomy letter 
 of John Jay's, the following words of wisdom : — " We have 
 errors to correct. We have probably had too good an ojiinion 
 of human nature in forming our Confederation. Experience 
 has taught us that men will not adopt and carry into execution 
 measures the best calculated for their own good, without the 
 intervention of coercive power. I*do not conceive we can exist 
 long as a nation without lodging, somewhere, a power which 
 
AEE WE A NATION ? 19 
 
 will pervade the whole Uulon in as energetic a manner as the 
 anthority of the State governments extends over the States." — 
 Irving's Life, vol. 4, p. 449. 
 
 It was the opinion of the friends of the Constitution, " that 
 the vigor of government is essential to the security of liberty ; 
 that, in the contemplation of a sonnd and well-informed judg- 
 ment, this interest can nev^er be separated ; and that a danger- 
 ous ambition more often lurks behind the specious mask of zeal 
 for the rights of the people, than under the forbidding appear- 
 ance of zeal for the firmness and efficiency of government." 
 Hamilton, Fed. Ko. 1. 
 
 Tlfese practical men, who had bitter experience of the dangers 
 to liberty growing ont of a Union of the States, which, having 
 no cohesive power except the sovereign will of each of them, 
 knew that no Union would secure the liberty of the people, from 
 foreign foes and domestic factions, unless it was " established 
 by the people," and though limited in its power, should be 
 supreme within its sphere of action." 
 
 The concluding phrase or predicate of the Preamble, and 
 the opening or subject, indicate plainly the nature of the Con- 
 stitution. " We, the people of the United States, * * - do 
 ordain and establish this Constitution for the United States." 
 
 Here we have the source of the power given, namely, the 
 people of the United States ; and the nature of the act which 
 gives them, namely, an act of sovereignty — the words " do 
 ordain and establish," being as authoritative as any which a 
 sovereign could use. These words were a mere form until the 
 people had given them vitality and power — then, they became 
 the fiat of the sovereign authority, declaring by their ratification 
 the will of the sovereign people of the United States, which, by 
 tlie American philosophy, is the highest of all authorities. 
 This act, of course, derogated in many respects from the powers 
 
20 AEE TVE A NATION ? 
 
 of the existing State sovereignties. This fact was frequently 
 urged by the opponents, and admitted by the friends of the 
 Constitution when it was before the people for their ratifica- 
 tion. It established a supreme law of the land, and a govern- 
 ment adequate to its execution and administration. AYithin 
 the sphere in which it was designed to operate, the people 
 thereby established a government as complete in all its depart- 
 ments and endowed with as plenary powers as any of the State 
 governments within the limits of the States. What trace is 
 there of a " compact between the States," in this unmistakable 
 declaration of the people's will ? 
 
 If the States had desired to make a compact, they would 
 certainly have done so, and called it a compact, not a Consti- 
 tution. The men of those days knew the meaning of words of 
 a legal or political character, and were as exact in the use of 
 them as the men of any time or countr3% 
 
 Of all the words in the language, this sacred word Constitu- 
 tion was to their minds surcharged with meaning, and of the 
 most definite and important character. In it was embodied 
 their noblest conception of legitimate and orderly Freedom 
 and their highest ideal of earthly authority, as a direct emana- 
 tion from the will of the people, through whatever means it 
 may be expressed. The meaning of the word compact was, too, 
 quite as well understood by the framers of the Constitution, 
 as it is now, even with the aid of Mr. Calhoun's metaphysics. 
 They were tired of the confederation, principally, because it was 
 a compact, and they wanted in place of this a Constitutional 
 government, established by the people, for the whole Union. 
 It seems impossible that any one should study the language of 
 the Constitution and of the articles of Confederation, and not 
 see that while the latter may be construed as a compact be- 
 tween the States, the former is declarative of the sovereign 
 
ARE WE A NATION 1 21 
 
 will of the people. In fact, the very first resolution which the 
 Convention adopted, was " that a national go,vernment onght 
 to be established, consisting of a supreme legislature, judiciary, 
 and executive." 
 
 And in the final report of the Convention, submitted by 
 " George Washington. President. By unanimous order of 
 the Convention," we find the following emphatic declaration 
 of that body, which indicates unmistakably what they meant to 
 effect. 
 
 Says the report : " It is obviously impracticable, in the Fed. 
 eral government of these States, to secure all rights of indepen- 
 dent sovereignty to each, and yet provide for the interest and 
 safety of all. Individuals entering into society must give up 
 a share of liberty to preserve the rest." 
 
 In further proof that it was because of the inefficiency 
 of the then existing compact between the States that the 
 friends of the Constitution desired a government deriving its 
 powers from the people, and supreme, as to the objects com- 
 mitted by it, to the people — let us see what Hamilton {Fed. 
 No. 22), said in advocacy of the Constitution : 
 
 "It has not a little contributed to the infirmities of the ex- 
 isting federal system, that it never had a ratification by the 
 People. Posting on no better foundation than the consent of 
 the several legislatures, it has been exposed to frequent and 
 intricate questions concerning the validity of its powers, and 
 has in some instances given birth to the enormous doctrine of 
 legislative repeal. Owing its ratification to a law of a State, 
 it has been contended that the same authority might repeal 
 the law by which it was ratified. However gross a heresy it 
 may be to maintain that a party to a compact has a right to 
 revoke that compact, the doctrine itself has had respectable 
 advocates. The possibility of a question of this nature proves 
 
22 AKE WE A natio:n^ ? 
 
 tlie necessity of laying the foundations of onr national govern- 
 ment deeper than in the mere sanction of delegated authority. 
 The fabric of American empire ought to rest on the solid basis 
 of the consent of the people. The streams of national power 
 ought to flow immediately from that pure original fountain of 
 all legitimate authority." 
 
 The only function which the States performed in their gov- 
 ernmental capacity, in relation to the Constitution, was of a 
 purely preparative character. The powers of the State sove- 
 reignties, being entirely derivative, and for purposes and with 
 jurisdictions bounded by their respective territorial limits, it 
 was clearly impossible for them to establish a government 
 transcending these limits. Accordingly we find that they 
 only afforded the machinery by which the people in their 
 original sovereign capacity could act. They (the State sover- 
 eiirnties) appointed the delegates to the Convention which 
 framed the Constitution. It was reported to Congress, with a 
 recommendation " that it might be submitted to a Convention 
 of delegates, chosen in eacli State by the people thereof, for their 
 assent and ratification." In pursuance of this recommenda- 
 tion, and through the means provided by the State sovereign- 
 ties, the people of each of the States assembled in convention 
 and ratified the proposal made to them through the instrumen- 
 tality of their servants and agents, and then it became the 
 supreme law of the land. The government thus established 
 derived none of its powers from the existing State sovereign- 
 ties, but proceeded directly from the people, as directly as any 
 of the State governments, and much more directly than some 
 of them. The State sovereignties "prepared the way" for 
 the action of a '' greater than they." They "proposed," but the 
 people " disposed." 
 
 The powers of the former were exhausted when they had 
 
ARE WE A NATIOISr ? 23 
 
 provided a convenient method of ascertaining tlie popular 
 will ; the latter alone, the people, conld create a new govern- 
 ment, snpreme within the limits assigned by them, over their 
 State sovereignties, which they retained for State and local 
 objects, while thus, by the most solemn expression of their will, 
 they subordinated them, in some respects, to the government 
 of the Union. 
 
 Says Chief Justice Marshall, in his decision of McCulloch 
 vs. State of Maryland, 4 Wheaton, 316: "It is true they as- 
 sembled in their several States; and where else should they 
 have assembled? ISTo political dreamer was wild enough to 
 think of breaking down the lines which separate the States, 
 and of compounding the American people into one common 
 mass. Of consequence, when they act, they act in their States. 
 But the measures they adopt do not on that account cease to be 
 the measures of the people themselves, or become the measures 
 of the State governments. From these conventions the Consti- 
 tution derives its whole authority. The government proceeds 
 directly from the people, and is "ordained and established" 
 in the name of the people. * * * " The assent of the 
 States in their sovereign capacity is implied in calling a 
 convention, and thus submitting that instrument to the people. 
 But the people were at perfect liberty to accept or reject it ; 
 and their act was final. It required not the affirmance, and 
 could not be negatived by the State sovereignties. 
 
 " It has been said that the people had already surrendered 
 all their powers to the State sovereignties, and had nothing 
 more to give. But surely the question whether they may re- 
 tain and modify the powers granted to government does not 
 remain to be settled in this country. Much more might the 
 legitimacy of the General Government be doubted, had it been 
 created by the States. The powers delegated to the State 
 
24 AEE WE A NATION ? 
 
 sovereignties were to be exercised by themselves, not by a dis- 
 tinct and independent sovereignty created by themselves. To 
 the formation of a league, such as was the Confederation, the 
 State sovereignties were certainly competent. But when, " in 
 order to secure a more perfect union," it was deemed neces- 
 sary to change their alliance into an effective government, 
 possessing grave and sovereign powers, the necessity of refer- 
 ring it to the people, and deriving its powers directly from 
 them, was felt and acknowledged by all. The government of 
 the Union, then, * * * is practicall^^^ and truly a govern- 
 ment of the people. In form and in substance it emanates 
 from them. Its powers are granted by them, and are to be 
 exercised directly on them, and for their benefit." 
 
 No apology is necessary for so lengthy an extract from this 
 celebrated decision. Aside from the high authority which has 
 always, among all classes of Americans, attached to the deci- 
 sions of this greatest of our jurists, Avhose accession to and 
 long continnance in his high office was regarded as a national 
 blessing, second only to that vouchsafed to ns in the services 
 of Washington, there is a clearness and precision of statement 
 in this extract, as indeed there is in the whole decision, which 
 must win assent from all unprejudiced minds. 
 
 Twenty-five years before this decision was made, and only a 
 few years after the adoption of the Constitution, while yet 
 nearly all the framers of it were alive, and influential in direct- 
 ing public opinion. Judge AVilson decided against the high 
 claims of the State of Georgia, together with the majority of 
 the Court. The decision is of a highly philosophical character, 
 and I should like to extract the exhaustive discussion of the 
 word " Sovereignty" contained in it, but can only quote a few 
 words, pertinent to the immediate question in hand. The case 
 is reported in Dallas, 419, Feb. Term, 1793. 
 
AEE WE A NATION ? 25 
 
 "To the Constitution of the United States, the term 'sover- 
 eign ' is totally unknown. There is but one place where it 
 could have been used with propriety. But, even in that place, 
 it would not, perhaps, have comported with the delicacy of 
 those who ' ordained and established ' the Constitution. They 
 might have announced themselves ' sovereign people of the 
 United States;' but serenely conscious of the fact, they avoided 
 the ostentatious declaration. * * As a citizen, I know the 
 government of that State (Georgia) to be republican, and my 
 short definition of such a government is, one constructed on this 
 principle, that the supreme power resides in the people. 
 
 " As a judge of this Court I know, and will decide upon the 
 knowledge, that the citizens of Georgia, when they acted upon 
 the large scale of the Union, as a part of the ' people of the 
 United States,' did not surrender the supreme power to that 
 State; but, as to the purposes of the Union, retained it to 
 themselves. As to the purposes of the Union, therefore, 
 Georgia is not a sovereign State." 
 
 I have thus shown from the history and contemporaneous 
 construction of the Constitution, as well as from the obvious 
 meaning of the Preamble, the nature and objects of the govern- 
 ment established by it. I have cited from Chief Justice Mar- 
 shall and Judge Wilson, and will now proceed to cite from 
 Judge Story, whose fame as a jurist, unimpeachable integrity 
 of judgment, and great ability as an expounder of the Consti- 
 tution, entitle whatever he says upon this matter to very great 
 weight, aside from the authority belonging to his position upon 
 the Supreme Bench. Says he, in " Martin vs. Hunter's Lessee." 
 1 Wheaton, 304: "The Constitution of the United States 
 was ordained and established, not by the States in their sover- 
 eign capacities, but emphatically, as the Preamble declares, by 
 " the people of the United States.'.' There can be no doubt, 
 
26 AEE WE A NATIOISr ? 
 
 that it was competent to the people to invest the General Gov- 
 ernment with all the powers which they might deem proper 
 and necessary ; to restrain these powers according to their own 
 good pleasure, and to give them a paramount and supreme 
 authority. As little doubt can there be that the people had a 
 right to prohibit to the States the exercise of any powers which 
 were, in their judgment, incompatible with the objects of the 
 general compact, to make the powers of the State governments, 
 in given cases, subordinate to those of the nation ; or to reserve 
 to themselves those sovereign authorities which they might not 
 choose to delegate to either." 
 
 We have, thus, an emphatic and authoritative exposition, 
 by two of the greatest jurists of this or any other country, as 
 to the true meaning and import of the Constitution, in respect 
 to the nature and powers of the government established by it. 
 These expositions have been received as correct by the courts 
 of nearly every State in the Union, by the executive and legis- 
 lative branches of the General Government, with few exceptions, 
 and have become incorporated into the belief of a great major- 
 ity of the American people capable of considering them. I 
 may say farther, and can prove, that they are accepted by nearly 
 all of the leaders of both political parties, especially by the lead- 
 ers of the Eepubhcan party,* the Calhoun doctrines having 
 
 * Note. — Since writing the above, I happened upon the following passage 
 in a speech of Judge Collamer, in the Senate, delivered March 8th of this 
 year. These remarks of the Senator were directed to Senator Toombs of 
 Georgia, and were in reply to some of the ' ' State Rights " notions of the 
 brilliant but illogical Georgian. The extract here given is worthy of careful 
 attention for its vigor and conciseness of argument. It need hardly be ad- 
 ded that Judge Collamer is one of the ablest jurists in the Senate or the 
 country. 
 
 Says the Judge : 
 
 " I deny, in the first place, that the States, as several States, entered into 
 this compact. That, however, is repeated so often that, upon the whole, I do 
 not know but it is believed. When a State acts, it acts in its organized capa- 
 
AEE WE A NATION ? 27 
 
 lately spread to a considerable extent among tlic pro-slavery 
 fanatics of the Sonth. 
 
 As Mr. Madison's name has been used somewhat freel_y, in 
 connection with nullificatiori doctrines, and as he is an au- 
 thority of the highest character, and is tree, besides, from any 
 imputation of " Federalism," his testimony upon this question 
 is certainly worthy of the careful study of every one. Mr. 
 Benton's " Tliirty Years' Yiew " furnishes it for us, in very 
 convenient shape. The following extracts are from the 1st vol" 
 ume of that work, p. 355. 
 
 The first extracts are from a letter to Mr. Everett, pub- 
 lished in the North American Eeview of August, 1830: 
 
 "It (the Constitution of the United States) was formed by 
 
 the States, that is, by the people in each of the States, acting 
 
 in their highest sovereign capacity ; and formed consequently 
 
 by the same authority which formed the State Constitutions. 
 
 city, by its organs, by its legislature, or by its Executive. There never was 
 one of the States of this nation that acted in that way in the adoption 
 of the present Constitution. The people of the United States, meeting in 
 the conventions of their several States, adopted the United States Consti- 
 tion. The States never acted upon it as States. It would be a paradox that 
 they should have done so. How could the legislature of North Carolina, 
 for instance, invested as it was, at the time, by the people with the power to 
 levy and collect duties upon imports — how could the State, in its organized 
 capacity, through that organ, delegate that power to another body ? It could 
 not be done. It never was done. It never was attempted to be done. The 
 people of the United States had to meet in their several States in their origi- 
 nal condition, as people in convention, for these reasons : first, it was more 
 convenient; next, if the people of North Carolina had invested their legis- 
 lature with the power to levy and collect duties, the people of North Carolma 
 alone would have the power to invest that in another body, to wit, Congress. 
 If you called the whole people of the United States, it would be a different 
 set of people to take that power away from the one who gave it. No, sir, it 
 is not true that this is in that sense a confederacy. It is a national Govern- 
 ment. I say it is a national Government, operating by its own act on indi- 
 viduals, and enforcing its own laws by its own executive power. The old 
 Confederation was a failure. This is a national Government." 
 
 There is, as far as I know, no Republican Senator of national reputation 
 who does not agree with Judge Collamer upon this question. 
 
28 AEE WE A NATION ? 
 
 " Being thus derived from the same source as the Constitu- 
 tions of the States, it has, within each State, the same authori- 
 ty as the Constitution of the State, and is as much a Constitu- 
 tion in the strict sense of the term, within its prescribed sphere, 
 as the Constitutions of the States within their respective 
 spheres ; but with this obvious and essential diiference, that, 
 being a compact among tlie States in their highest sovereign 
 capacity, and constituting the people thereof one people for 
 certain purposes, it cannot be altered, or annulled at the will 
 of the States individually, as the constitution of a State may 
 be, at its individual will. 
 
 " N^or is the Government of the United States, created by 
 the Constitution, less a government, in the strict sense of the 
 term, within the sphere of its powers, than the governments 
 created by the Constitutions of the States are, within their 
 several spheres. It is, like them, organized into legislative, 
 executive and judicial departments. It operates like them, 
 directly on persons and things. And, like them, it has at 
 command a physical force for executing the powers commit- 
 ted to it. 
 
 "Between these different constitutional governments, the 
 one operating in all the States, the others operating separate- 
 ly in each, with the aggregate powers of government divided 
 between them, it could not escape attention, that controver- 
 sies would arise concerning the boundaries of jurisdiction. 
 
 "That to have left a final decision, in such cases, to the 
 States, could not fail to make the Constitution and laws of the 
 United States different, in different States, was obvious, and 
 not less obvious, that this diversity of independent decisions 
 must altogether distract the Government of the Union, and 
 speedily put an end to the Union itself. 
 
 " To have made the decision under the authority of the in- 
 
ARE WE A NATION ? 29 
 
 dividual States co-ordinate, in all cases, with decisions under 
 the authority of the United States, would unavoidably produce 
 collisions incompatible with the peace of Society, 
 
 " To have referred every clashing decision under the two 
 authorities, for a final decision, to the States as parties to the 
 Constitution, would be attended with delays, with inconve- 
 niences and expenses, amounting to a prohibition of the ex- 
 pedient. 
 
 " To have trusted to negotiation for adjusting disputes be- 
 tween the Government of the United States and the State 
 governments, as between independent and separate sovereign- 
 ties, would have lost sight altogether of a Constitution and 
 Government of the Union, and opened a direct road, from a 
 failure of that resort, to the ulthria ratio between nations 
 wholly independent of and alien to each other. ****** 
 Although the issue of negotiation might sometimes avoid this 
 extremity, how often would it happen among so many States, 
 that an unaccommodating spirit would render that resource 
 unavailing ? " 
 
 After thus stating, with other powerful reasons, why all 
 those fanciful and impracticable theories were rejected in the 
 Constitution, the letter proceeds to show wdiat the Constitution 
 does adopt and rely on, " as a security of the rights and 
 powers of the States," namely : 
 
 1. " The responsibility of the Senators and Eepresentatives, 
 in the Legislature of the United States, to the legislatures and 
 people of the States ; 2. The responsibility of the President 
 to the people of the United States; and, 3. The liability of 
 the executive and judicial functionaries of the United States 
 to impeachment by the representatives of the people of the 
 States, in one branch of the legislature, and trial by the repre- 
 sentatives pf the States in the other branch." 
 
30 ARE WE A NATION ? 
 
 In the letter to Mr. Cabell, of May 31, 1830, lie says : 
 
 " You will see, in vol. III., page 429, of Mr. Jefferson's cor- 
 respondence, a letter to W. C. Nicholas, proving that he had 
 notliing to do with the Kentucky resolutions of 1799, in which 
 the word ' nullilication ' is found. The resolutions of that 
 State, in 1798, which were drawn by him, and have been re- 
 published with the proceedings of Yirginia, do not contain 
 this or any equivalent word." 
 
 In another letter to Mr. Trist, dated August 25, 1834 : " The 
 letter from Mr. Monroe to Mr. Jefferson, of which you ejiclose 
 an extract, is important. I have one from Mr. Monroe, on 
 the same occasion, more in detail, and not less emphatic in its 
 anti-nullifying language." 
 
 Says Mr. Benton, in concluding this testimony, which he 
 gives more at large: " These extracts, voluminous as they are, 
 are far from exhausting the abundant material whicli these 
 admirable writings of Mr. Madison contain on the topic of 
 nullification. They come to us for our admonition and guid- 
 ance, with the solemnity of a voice from the grave; and I 
 leave them without comment, to be pondered in the hearts of 
 his countrymen." 
 
 The nature of tlie subject suggests the name of the heroic 
 President who met the first overt ebullitions of State Rights 
 fanaticism so coolly and triumphantly, by his iron nerve and 
 good 'hard sense' suppressing the treason so artfully masked 
 in the refined metaphysical theories of Mr. Calhoun, and afiix- 
 ing an odium to these theories which can never be wholly 
 shaken ofl". 
 
 Said Andrew Jackson, in his memorable " Proclamation," 
 Avhicli was hailed with hearty enthusiasm, by men of all 
 parties and sections outside of South Carolina : " The right 
 to secede is deduced from the nature of the Constitution, 
 
ARE WE A NATION ? 31 
 
 Avliicli, tliev sa}', is a compact between sovereign States, who 
 have preserved their whole sovereignty, and therefore are sub- 
 ject to no superior ; that, because they made the compact, they 
 can break it, when, in their opinion, it has been departed from 
 by the other States. Fallacious as this reasoning is, it enlists 
 State pride, and finds advocates in the honest prejudices of 
 those who have not studied the nature of our government suffi- 
 ciently to see the radical error on which it rests. 
 
 " The people of the United States formed the Constitution, 
 acting through the State legislatures in making the compact, 
 to meet and discuss its provisions, and acting in separate con- 
 ventions they ratified those provisions ; but the terms used in 
 its construction show it to be a government in which the peo- 
 ple of all the States collectively are represented. 
 
 " The Constitution of the United States, then, formed a gov- 
 ernment, not a league ; and whether it be formed by a com- 
 pact between the States, or in any other manner, its character 
 is the same. It is a government in which all the people are 
 represented, and which operates directly on the people indi- 
 vidually, not upon the States — they retained all the power 
 they did not grant." 
 
 As I began with a quotation from Mr. Calhoun, I will conclude 
 this branch of the subject with a quotation from that speech of 
 his great opponent which has since had such wide-spread 
 fame and has become an authority almost as highly respect- 
 ed as an}^ judicial decision. 
 
 Said Mr. Webster (Senate Debates, IGth Feb., 1833) : "There 
 is no language in the whole Constitution applicable to a con- 
 federation of States. If the States be parties, as States, wliat 
 are their rights, and what their respective covenants and stip- 
 ulations ? And where are their rights, stipulations and cove- 
 
32 ARE WE A NATION ? 
 
 nants expressed ? The States engage for nothing — they prom- 
 ise nothing. In the articles of the confederation, they did 
 make promises, and did enter into engagements, and did plight 
 the faith of each State for their fulfilment ; but in the Consti- 
 tution there is nothing of that kind. The reason is, that in 
 the Constitution, it is the people who speak, and not the States. 
 The people ordain and therein address themselves to the States 
 and to the legislatures of the States, in the language of in- 
 junction and prohibition. The Constitution utters its behests 
 in the name and by the authority of the people, and it exacts not 
 from the States any plighted public faith to maintain it. On 
 the contrary, it makes its own preservation depend on indi- 
 vidual duty, and individual obligation. * * * If the Con- 
 stitution is a government, existing over all the States, though 
 with limited powers, it necessarily follows that, to the extent 
 of those powers, it must be supreme. If it be not superior to 
 the authority of a particular State, it is not a national govern- 
 ment. But as it is a Government, as it has a legislative power 
 of its own, and a judicial power coextensive with the legisla- 
 tive, the inference is irresistible, that this Government thus 
 created by the whole, and for the whole, must have an author- 
 ity superior to that of the particular government of any one 
 part." 
 
 If I had access to large libraries, it would be easy to enlarge 
 immensely the list of authorities corroborating the views I 
 have set forth ; but the limits necessarily imposed upon an 
 essay like this would prevent more numerous citations. If, 
 however, from these obvious reasons, my authorities are few, 
 they are certainly the highest and most venerable known to 
 our Constitutional Jurisprudence. 
 
 I have cited from Washington, Jeiferson, Madison, and 
 Jackson ; from Ellsworth, Jay, Wilson, Marshall, and Story ; 
 
ARE WE A NATION ? 33 
 
 from Hamilton, Webster and Benton. Mr. Jefferson's opin- 
 ions were different, in many respects, from those of the fram- 
 ers of the Constitntion, bnt as President, sworn to observe tlie 
 Constitution, as it was, as " the " supreme law of the land," he 
 felt bound by its provisions, " as interpreted by its advocates. " 
 All of these " advocates and friends of the Constitution, at 
 the time of its adoption, " believed that it established a national 
 Government, limited in its sphere of operations, and instituted 
 for certain definite purposes, but supreme w'ithin that sphere, 
 and for those purposes. 
 
 It is obvious that the recorded opinions of these men are of 
 the greatest weight, in reference to the meaning of that which 
 was, to a great extent, the work of their hands. The great 
 oracle of the old common law. Lord Coke, has given us a can- 
 on of interpretation which is strictly applicable to our present 
 subject. 
 
 " Great regard, " says he, " ought, in construing a statute, 
 to be paid to the construction which the sages of the law, who 
 lived about the time, or soon after it was made, put upon it ; 
 because they were best enabled to judge of the intention of 
 the makers at the time when the law was made. " — Dwarris 
 on Stat. C93. 
 
 This sound rule of interpretation never applied with more 
 force, than to the " Federalist, " of which that great jurist. 
 Chancellor Kent, says, in his Commentaries, vol. 1, page 256. 
 " There is no work on the subject of the Constitution, and on 
 Eepublican and Federal governments generally, that deserves 
 to be more thoroughly studied * •" •=■ " The numbers of 
 the Federalist were read with admiration, and enthusiasm as 
 they successively appeared. No Constitution of government 
 ever received a more masterly and successful vindication. I 
 
 know not, indeed, of any work on the principles of free gov- 
 3 
 
34 ARE WE A NATION ? 
 
 eminent, that is to be compared, in instruction, and in intrinsic 
 value to this small, and unpretending volume of the Federal- 
 ist ; not even if we resort to Aristotle, Cicero, Machiavel, 
 Montesquieu, Milton, Locke, or Burke. * * -^ Mr. Justice 
 Story acted wisely in making it the basis of his Commentary." 
 
 AVith the strong support of so high an authority, expressed 
 so emphatically, I need not apologize for the frequent use I 
 have made, and shall make, of the " Federalist," in ascertain- 
 ing the contemporaneous construction of the Constitution. A 
 work so illustrious from its authorship, which was so influen- 
 tial in forming public opinion in a great crisis, which has 
 been, ever since its publication, the text book of statesmen, 
 and judges to an extent unparalled in political literature, 
 and which, by the masculine vigor of its thought, the range of 
 its historical illustrations, and the plain, unanswerable cogency 
 of its reasoning, is sure of an immortality of usefuUness ; such 
 a work as this, is surely in no danger from newspaper squibs 
 or Judicial, or Senatorial 'oratory.' 
 
 After this brief, and perhaps necessary digression, I will 
 return to the more direct consideration of my subject. 
 
 The framers of the Constitution, felt the difficulties insepara- 
 ble from a merely recommendatory general government, 
 whose powers were snbject to the interpretation of thirteen 
 independent sovereignties, and so they provided that the 
 ''Constitution and the laws of the United States which shall 
 be made in pursuance thereof, and all the treaties made or 
 which shall be made, under the authority of the United States, 
 shall be the supreme law of the land ; and the judges of every 
 State shall be bound thereby, anything in the Constitution or 
 laws of any State to the contrary notwithstanding." This 
 would have been of bnt little utility, but for the previous pro- 
 vision, that " The judicial power shall extend to all cases in law 
 
ARE WE A NATION ? 35 
 
 and in equity, arising under this Constitution, the laws of the 
 United States, and treaties made, or which shall l)C made, under 
 their authority, &c." 
 
 This provision was made definite and etFectual, by the pre- 
 vious section vesting the judicial power — in these words : 
 1, " The Judicial power of the United States shall be vested 
 in one Supreme Court, and in such inferior courts as the Con- 
 gress may, from time to time ordain and establish, &c." 
 
 In pursuance of these provisions, the first Congress, at its 
 first session, established, in the Judiciary Act, a method of 
 effecting them, and for bringing all questions of constitutional 
 power to the final decision of the Supreme Court. 
 
 This, together with the act organizing the Northwestern 
 Territory, having been passed under the influence of the men 
 who made the Constitution, and as a completion of their de- 
 signs, is of nearly the same solemnity, and authority, as the 
 Constitution itself, and these acts stand on higher ground than 
 any subsequent enactments of the national will. 
 
 Sixteen of the thirty-nine framers of the Constitution, w^ere 
 in that Congress, and of the members of the Committee who re- 
 ported the Judiciary act, five out of the eight, had been mem- 
 bers of tlie Convention, viz. : Oliver Ellsworth, Wm. Patter- 
 son, Caleb Strong, Richard Bassett, and "Wm. Few. 
 
 It may be presumed of such men as these, that they knew 
 liow to frame a Constitutional Act, and it will hardly be sug- 
 gested that they would knowingly violate the letter or spirit 
 of the Constitution which they had helped to make and sworn 
 to observe. 
 
 The 25tli section of the act of the first Congress of the 
 United States, approved September 2tl:th, 1789, provides as 
 follows : 
 
 " That a final judgment or decree in any suit in the liighest 
 
36 ARE WE A NATION ? 
 
 court of law or equity of a State in which a decision of the 
 suit could be had, where is drawn in question the validity of a 
 treaty or statute, or an authorit}^ exei'cised under the United 
 States, and the decision is against their validity ; or where is 
 drawn in question the validit}^ of a statute or of an authority 
 exercised under any State on the ground of their being repug- 
 nant to the Constitution, treaties, or laws of the United States, 
 and the decision is in favor of their validity; or where is 
 drawn in question the construction of any clause of tlie Con- 
 stitution, or of a treaty or statute, or of a commission held 
 under the United States, and the decision is against the title, 
 right, privilege or exemption specially set up or claimed by 
 either party, under such clause of the Constitution, treaty, 
 statute, or commission, may be re-examined, and reversed or 
 affirmed in the Supreme Court of the United States upon a 
 writ of error, the citation being signed by the Chief Justice or 
 Judge, or Chancellor of the Court, rendering or passing the 
 judgment or decree complained of or by a justice of the Su- 
 preme Court of the United States, in the same manner, and 
 under tlie same regulations, and the writ shall have the same 
 effect as if the judgment or decree complained of had been 
 rendered or passed in a Circuit Court, and the proceedings 
 upon the reversal shall also be the same, except that the Su- 
 preme Court, instead of remanding the case for a final deci- 
 sion, as before provided, may, at their discretion, if the cause 
 shall have been once remanded before, proceed to a final de- 
 cision of the same, and award execution. But no other error 
 shall be assigned or regarded as a ground of reversal in any 
 such case as aforesaid, tiian such as appears on the face of the 
 record, and immediately respects the before mentioned ques- 
 tion of validity or construction of the said Constitution, trea- 
 ties, statues, commissions, or authorities in dispute." 
 
ARE WE A NATIoisr ? 37 
 
 When tills act was passed, the government was complete in 
 all its branches. As Mr. Webster said in reply to Hayne : 
 
 '^ It then, sir, became a government. It had the means of 
 self-protection; and bnt for this, wonld, in all probability, 
 have been now, among the things which are past. Having 
 constituted the government, and declared its powers, tlie peo- 
 ple have further said, that, since somebody must decide on the 
 extent of these powers, the government shall itself decide, sub- 
 ject always, like other popular governments, to its responsibil- 
 ity to the people," 
 
 I will now show with what view these clauses of the Con- 
 stitution and the legislation in pursuance of them were re- 
 garded by the framers of that instrument, and with what in- 
 terpretation they were presented to the people for their rati- 
 fication and assent. 
 
 Mr, Madison, whose name is so often used by the opponents 
 of the Appellate Jurisdiction, and Mr, Hamilton, both seem to 
 have entertained the same opinions as to the eifect of these 
 provisions. 
 
 Says Mr, Madison, Fed. No. 39, after showing in what 
 respect the government established by the Constitution was 
 neither wholly national, nor wholly federal: "In this rela- 
 tion, then, the proposed government cannot be deemed a 
 national one ; since its jurisdiction extends to certain enumer- 
 ated objects only, and leaves to the several States a residuary 
 and inviolable sovereignty over all other objects. It is true, 
 that in controversies relating to the boundary between the two 
 jurisdictions, the tribunal which is ultimately to decide, is to 
 be established under the General Government (the Supreme 
 Court). But this does not change the principle of the case. 
 The decision is to be impartially made, according to the rules 
 of the Constitution ; and all the usual and efl'ective precautions 
 
38 ARE WE A NATION" ? 
 
 are taken to secure this impartiality. Some such tribunal is 
 clearly essential to prevent an appeal to the sword, and a dis- 
 solution of the compact ; and that it ought to be established 
 under the general, rather than the local government ; or to 
 speak more properly, that it could be safely established under 
 the first alone, is a position not likely to be combated." 
 
 It is to this decided expression of his views that Mr. Mad- 
 ison refers in the following extract from the letter to Mr. 
 Everett, already quoted from, which was written forty years 
 after the publication of the " Federalist." 
 
 '' With respect to the judicial power of the United States, and 
 the authority of the Supreme Court in relation to the boundary 
 of jurisdiction between the Federal and the State govern- 
 ments, I may be permitted to refer to the thirty-ninth number 
 of the " Federalist," for the light in which it was regarded by 
 its writer, at the period when the Constitution was depending ; 
 and it is believed, that the same was the prevailing view then 
 taken of it, that the same view has continued to prevail, and 
 that it does so at this time notwithstanding the eminent excep- 
 tions to it." 
 
 Says Hamilton, Fed. No. 80, " If there are such things as 
 political axioms, the propriety of the Judiciary power of a 
 government, being co-extensive with its legislative, may be 
 ranked among the number. The mere necessity of uniformity 
 in the interpretation of national laws, decides the question. 
 Thirteen independent courts of final jurisdiction, over the same 
 causes, arising upon the same laws, is a Hydra in government 
 from which nothing but contradiction and confusion can pro- 
 ceed." 
 
 Again, in treating the same subject, No. 82, " Here another 
 question occurs : what relation would subsist between the Na- 
 tional and State Courts, in these instances of concurrent juris- 
 
ARE WE A NATION ? 39 
 
 diction ? I answer, that an appeal would certainly lie from 
 the latter to the Supreme Court of the United States. The 
 Constitution in direct terms, gives an appellate jurisdiction to 
 tlie Su})reme Court, in all the enumerated cases of federal 
 cognizance, in which it is not to have an original one, without 
 a single expression to confine its operation to the inferior Fed- 
 eral Courts. * ^' * the National and State systems are to 
 be regarded as one whole. The Courts of the latter, will, of 
 course, be natural auxiliaries to the execution of the laws of 
 the Union, and the appeal from them will naturally lie, to that 
 tribunal, which is destined to unite and assimilate the princi- 
 ples of national justice, and the rules of national decision. 
 The evident aim of the Convention is, that all the causes of 
 the specified classes shall, for weighty public reasons, receive 
 their original, or final determination in the Courts of the 
 Union." 
 
 Oliver Ellsworth, one of the greatest of the framers of the 
 Constitution, in a speech advocating its adoption by the Con- 
 necticut Convention, said : 
 
 " This Constitution delines the extent of the powers of the 
 General Government. If the general legislature should, at 
 any time, overleap its limits, the Judicial department is a 
 constitutional check. If the United States go beyond their 
 powers, if they make a law which the Constitution does not 
 authorize, it is void ; and the judiciary power, the national 
 judges, who, to secure their impartiality, are to be made inde- 
 pendent, will declare it to be void. On the other hand, if the 
 States go beyond their limits, if they make a law which is an 
 usurpation upon the General Government, the law is void ; 
 and upright, independent judges will declare it to be so." 
 Mr. Ellsworth reported the judiciary act of 1789. 
 
 It is often assumed, it is to be hoped ignorantly, that the old 
 
40 ARE WE A ]SrATIO]Sr ? 
 
 "Republican" party, or a majority of its leaders, entertained 
 views similar to those now advocated by the opponents of the 
 Appellate Jurisdiction, and that they regarded this jurisdiction 
 as dangerous to the freedom of the citizen. I have not the 
 space, had I the time, to develop the historical evidence which 
 might easily be brought to bear upon this question ; still, a 
 few representative and illustrative facts may be presented, 
 which will, perhaps, be acceptable to those who have not in- 
 vestigated this subject. 
 
 A majority of the N. Y. Convention, called to consider the 
 Constitution, were decidedly hostile to Federalism, and, for 
 some time, to the adoption of the Constitution. It was not 
 until they heard of the unexpected accession of the Virginia 
 Convention, and after the ratification of the Constitution by the 
 nine States, which was necessary to the establishment of the 
 new government, that they were brought to the point of ratifi- 
 cation. Yet, even then there was only the small majority of 
 five, and they accompanied their consenting vote with several 
 proposed amendments. Among these, we find one for depriv- 
 ing the " Inferior Courts," to be established by Congress in 
 pursuance of the " Judiciary Clause," of their original juris- 
 diction, except in Admiralty and Maritime cases, and others 
 of like character, 'land in all other cases, to which the judi- 
 cial power of the United States extended, and in which the 
 Supreme Court had not original jurisdiction, the causes should 
 be heard in the State Courts, with right of appeal to the Su- 
 preme or other Courts of the United States." Pitkin's History 
 U. S., vol. 2, p. 282. 
 
 In other words, they wished to remove as many cases of 
 original jurisdiction from the Federal District Courts as pos- 
 sible, without limiting or altering the revisory power of the Su- 
 preme Court. The " Republicans " of those days disliked ; not 
 
ARE WE A NATION ? 41 
 
 the Appellate jurisdiction of the Supreme Court, but the origi- 
 nal jurisdiction of the District Courts, Tliese Courts were 
 odious to them, because they were to discharge functions pre- 
 viously performed by the State Courts, because they would 
 entail unnecessary expense in Court Houses, salaries and fees, 
 and because they would be likely to alienate the friendly feel- 
 ings of the people from the General Government. 
 
 These objections were all fully brought out, in the course of 
 the debates in the first Congress upon the Judiciary Bill. 
 
 Mr. Livermore, one of the New Hampshire Representatives, 
 was an ardent and leading " Republican," was opposed to the 
 provisions of the " Judiciary Act," reported by the Senate 
 committee, and moved a change in some of tliese provisions ; 
 yet, as m'c shall see, recognized as an uncjuestionable fact the 
 Appellate Jurisdiction. He opposed the system of Inferior 
 Courts, provided for in the act : — 
 
 " Because it would be attended with great inconvenience and 
 expense. The salaries of thirteen district Judges, and the 
 necessary buildings for their accommodation, is no inconsider- 
 able saving to a people oppressed so severely by the burdens of 
 the late war. * * The Bill proposes tliat the State courts 
 shall have concurrent jurisdiction with the District Courts. 
 Now, under these two establishments, debtors may be worried, 
 and distressed more than is necessary for the plain and simple 
 administration of justice," &:e. Debates of Congress, vol. 1, 
 page 827. 
 
 Mr. Jackson, of Georgia, another leading "Republican," 
 coincided witli these views. Tliese gentlemen, who may be 
 considered as fair exponents of the " Republicanism " of that 
 day, in their respective sections, argued that the State Courts, 
 and Federal Admiralty Courts, being bound by oath to observe 
 the Constitution, would be safe tribunals for trying all the 
 
42 AEE WE A IS^ATION^ i 
 
 cases proposed to be included within the jurisdiction of the 
 District Courts. But, what were the arguments of these men, 
 who were the most jealous of Federal power ? Sajs Mr. Liver- 
 more, "If Justice cannot be had here (in the State and 
 Admiralty Courts), there will be an appeal to the Federal Su- 
 preme Court, which is all that can be required." Says Mr. 
 Jackson : " He was clearly of opinion that the people would 
 much rather have but one appeal, which, he conceived, would 
 answer every purpose; he meant from the State Courts imme- 
 diately to the Supreme Court of the Continent." And after- 
 wards, in reference to the necessity that every government 
 should have the means of enforcing its own laws : "Are not the 
 Judges of the different States bound by oath to support that 
 Supreme law? * * * But does there not remain the Appellate 
 Jurisdiction of the Supreme Court, to control them and bring 
 them to their reason ? Can they not reverse or confirm the 
 State decrees, as they may find them right or wrong ? " 
 
 Both of these learned gentlemen coincided with Judge Smith 
 in his supposition that the State Judges were bound by the 
 Constitution, and that they might be relied upon to be governed 
 by it in their decisions ; but neither entertained the notion that 
 from these decisions there was to be no appeal, but seemed to 
 regard it as a matter of course that the Supreme Court was to 
 be the final arbiter. 
 
 Mr. Livermore's amendment to the Senate Bill, which pro- 
 vided for State and Admiralty Courts, in the place of the Dis- 
 trict Courts, was supported by such thorough "Republicans," 
 as Mr. Burke, Mr. Sumter, of South Carolina, and Mr. Stone, 
 of Korth Carolina, and it will be remembered that Mr. Liver- 
 • more contemplated a direct appeal from the State Courts to the 
 Supreme Court. 
 
 The same views were expressed in the heated Congressional 
 
ARE WE A NATIOISr ? 43 
 
 debates upon tlie Judiciary, in 1S02, by the majority of tbe 
 leaders of the '' Eepublican " party of that d^j. Tlie appoint- 
 ment, by John Adams, of an army of District Judges for 
 whom offices had been created, during the last days of his ad- 
 ministration, was calculated to provoke the wrath of the in- 
 coming party, and it would not have been, strange, had the 
 whole system of our Federal Judiciary, been materially 
 changed, if not destroyed ; yet we find in the debates, no ar- 
 guments, or but few at least — so few as to be difficult of dis- 
 covery — against the Appellate Jurisdiction. 
 
 Governeur Morris and Mr. Jackson took opposite posi- 
 tions in these debates, in the Senate. Senator Morris repre- 
 sented the " Federal," and Senator Jackson, the " Eepubli- 
 can" party, and both of them spoke as ably as any members 
 of either House. Towards the close of this debate (Annals of 
 Cong. 1802, p. 181), there was a warm appeal and reply, on 
 the part of these Senatoi-s respectively. 
 
 " Experience under the old confederation had shown," said 
 Senator Morris, "that applications made to Congress, to 
 large communities, were nugatory, and that to carry on the 
 business of the iS"ational Government, it should be vested with 
 the right of applying directly to individuals. But then, the 
 danger that it might swallow up the sovereignty of the States, 
 became evident. To provide against this danger, the Consti- 
 tutional doctrine was established, that no powers should be 
 exercised by Congress, but sucli as are expressly given, or 
 were necessarily incident, and as a farther security, provision 
 was made, prohibiting certain acts. But of what avail are 
 such securities, when your legishitive autliority is bounded 
 only by your discretion ?" 
 
 In reply to this, and other remarks, Senator Jackson, citing 
 the Judiciary clause of tl\e Constitution, said. " the gentleman 
 
44 ARE WE A NATION ? 
 
 therefore, may dismiss his fears, as to what may be done by 
 the inferior (that is, the State Courts), for there is always an 
 appeal to the Supreme Court. ^ 
 
 Such was the unanimity among the men of both parties, 
 during the generation whicli was cotemporary with the Con- 
 stitutional Convention, and the first administrations under it, 
 in regard to the construction of the Judiciary clause, as to the 
 xlppellate Jurisdiction, The objects which were to be attain- 
 ed by the new government, as well as the keenly remembered 
 evils of the old confederation, and the predominant influence 
 of the great men who had led them from the anarchy and 
 woes of the latter, to to the order and blessings resulting from 
 the former, all concurred in producing a great uniformity of 
 opinion on this point. 
 
 In pursuance of the provisions of the " Judiciary Act," of 
 1789, appeals were taken from the Supreme Courts of various 
 States. The first, was from Ehode Island, and the question 
 of the Appellate Jurisdiction was not even raised, and after 
 this, there were appeals from Maryland, Connecticut, New 
 York and South Carolina successively, and in none of these 
 cases, was the Jurisdiction of the Supreme Court, questioned. 
 In the case of Snnth vs. State of Maryland, 6 Cranch 286, de- 
 cided in 1810, the question was raised, but not noticed by the 
 court. Then, in the case of Fairfax vs. Hunter, 7 Cranch 603, 
 the judgment of the Virginia court of Appeals, was reversed. 
 The decision in that court was rendered in 1810, and it fur- 
 nished a certified copy of its record to the Supreme Court, 
 without questioning its appellate power, thus sanctioning the 
 action of the Legislature of that State, which, in that year, re- 
 sponded to a proposition on the part of Pennsylvania, "to 
 amend the Constitution, so as to provide a separate and inde- 
 pendent tribunal, for the settlement of conflicts between the 
 
ARE WE A NATION ? 45 
 
 State and Federal aiitliorities," that the Supreme Court of the 
 United States, as then constituted, had all needful jurisdiction, 
 and that, they had confidence in its rectitude, and impartiality. 
 This resolution was passed in the Virginia Legislature by a 
 unanimous vote. 
 
 But in 1814, where the mandate from the Supreme Court, 
 came to the Virginia Court, tlie State was intensely excited, 
 on account of the difficulties between ISfew England and the 
 South, growing out of the Embargo ; the federal principles of 
 the former section, were involved in the unpopularity of cer- 
 tain acts and measures, and the action of the Court of Ap- 
 peals was biased by the prevailing political excitement, as ap- 
 pears from the record itself. On the refusal of the Court of 
 Appeals to obey the mandate in Fairfax vs. Hunter, the case 
 was again presented to the Supreme Court, in ISIG. Up to 
 this time, tlie Supreme Court of the United States had not 
 been called upon to determine expressly the limits of its Ap- 
 pellate Jurisdiction. In other words, the government had 
 gone on for a quarter of a century, under the guidance of 
 "the Fathers," who made the Constitution, with such unanimi- 
 ty of opinion, as to tlie true construction of the Constitution, 
 upon this point, that a case had never been presented to the 
 Supreme Tribunal of the Union, in Avhich the Appellate Juris- 
 diction had been fairly, and fully, put in question. — During 
 all this time, appeals had gone up^ from the highest courts of 
 several of the States, as quietly, as naturally, and as unques- 
 tioned, as from their various Circuit, or County Cuurts, to the 
 Supreme Tribunals of the States. And no question might 
 have 'been made, for years longer, had not extraneous consid- 
 erations warped the Virginia Court. 
 
 Yet it was fortunate, that the question was thus raised, at 
 this time, when the Supreme Court was in the palmiest days 
 
46 AEE WE A NATION ? 
 
 of its renown, when it was honored, and revered, to a greater 
 degree than any other Judicial Tribunal in the world, not so 
 much for the exalted prei'ogatives with which it was clothed, 
 as for the distinguished talents, the spotless characters, and 
 the great learning of its 'Judges. 
 
 In the great case which I have mentioned, and which is re- 
 j)orted in , 1 Wheaton 304, the whole question of the Ap]iel- 
 late Jurisdiction was ably discussed, and as ably decided. The 
 case excited the attention of the whole country at that time, 
 and the decision of the Court upon it, became incorporated in- 
 to the public opinion of the nation, to an extent wdiicli we, 
 who live in the times of " Dred Scott" decisions, and partisan 
 Judges, can hardly realize. A clearer, more luminous and 
 convincing decision, was never pronounced. It would be well 
 were every citizen of Wisconsin to read it carefully and 
 thoughtfully, and yield to the force of its reasoning what might 
 be denied to the mere authority of any judicial opinion, as 
 such. The opinion of the court was delivered by Judge Story, 
 then in the zenith of his reputation. 
 
 After stating several cases, in which points of Constitutional 
 law might be raised in the State courts, and in which, they 
 ought, from obvious reasons, to entertain jurisdiction, " It 
 must therefore," says the Judge, "be conceded, that the Consti- 
 tution not only contemplated, but meant to provide for, cases 
 within the scope of the judicial power of the United States, 
 which might 3'et depend before the State Tribunals. It was 
 foreseen that in the ordinary exercise of their jurisdiction 
 State courts would, incidentally, take cognisance of cases aris- 
 ing under the Constitution, the laws, and treaties of the Uni- 
 ted States. Yet to all of these cases, the judicial power, by 
 the very terms of the Constitution is to extend. It cannot ex- 
 tend by original jurisdiction, if that was rightfully, aud exclu- 
 
AEE WE A NATION ? 47 
 
 sivelj attached in the State courts, which as has been ah-eadj 
 shown, may occur. It must, therefore, extend by appellate 
 jurisdiction, or not at all. 
 
 " It would seem to follow, that the appellate power of the 
 United States mast, in such cases, extend to State tribunals; 
 and if, in such cases, tliere is no reason why it should not 
 equally to all others within the purview of the Constitution. 
 It has been argued, that such an appellate jurisdiction over 
 State Courts is inconsistent with the genius of our Government 
 and the spirit of the Constitution. That the latter was never 
 designed to act upon State sovereignties, but only upon the 
 people ; and that if the power exists, it will materially impair 
 the sovereignty of the States and the independence of their 
 Courts. We cannot yield to the force of this reasoning ; it 
 assumes principles and draws conclusions to which we do not 
 assent. It is a mistake that tlie Constitution was not designed to 
 operate upon States in their corporate capacities. It is crowd- 
 ed with provisions which restrain, or annul, the sovereignty of 
 the States, in some of the highest branches of their prerogatives. 
 The 10th section of the 1st Article contains a long list of dis- 
 abilities and prohibitions imposed upon the States. Surely, 
 when such essential portions of State sovereignty are taken 
 away, or prohibited to be exercised, it cannot be correctly 
 asserted that the Constitution does not act upon the States. 
 The language of the Constitution is also imperative upon the 
 State legislatures, to make laws prescribing the time, ]>laces, 
 and manner of holding elections for Senators and Representa- 
 tives, and for Electors for President and Yice President. And 
 in these, as well as some other cases, Congress have a right to 
 revise, amend, or supercede, the laws which may be passed by 
 the State Legislatures. 
 
 " AVlien, therefore, the States are stripped of some of the 
 
48 AEE WE A NATIOIN- ? 
 
 highest attributes of sovereignty, and the same are given to 
 the United States ; wiien the legislatures of the States are, in 
 some respects, under the control of Congress, and in every 
 case are, under the Constitution, bound by the paramount au- 
 thority of the United States; it is certainly diliicult to sup- 
 port the argument, that the appellate power over the decisions 
 of State Courts is contrary to the genius of our institutions. 
 The Courts of the United States can, without question, revise 
 the proceedings of the executive and legislative authorities 
 of the States, and if they are found to be contrary to the 
 Constitution, may declare them to be of no legal vitality. 
 Surely, the exercise of the same right over judicial tribunals 
 is not a higher, or more dangerous act of sovereign power, 
 Nor can such a right be deemed to impair the independence 
 of State Judges. It is assuming the very ground in controver- 
 sy, to assert that they possess an absolute independence of the 
 United States. In respect to the powers granted to the Unit- 
 ed States, they are not independent ; they are expressly bound 
 to obedience by the letter of the Constitution. And if they 
 should, unintentionally, transcend their authority, or miscon- 
 strue the Constitution, there is no more reason for giving their 
 judgments an absolute and irresistible force, than for giving it 
 to the acts of the other co-ordinate departments of State sov- 
 ereignty. 
 
 " The arguments used from the possibility of the abuse of the 
 revising power, is equally unsatisfactory. It is always a 
 doubtful course to argue against the existence of a power, from 
 the possibility of its abuse. It is still more difhcult, by such 
 an argument, to ingraft upon a general power a restriction, 
 which is not to be found in the terms in which it is given. 
 From the very nature of things, the absolute right of decision, 
 in the last resort, must rest somewhere. Wherever it may be 
 
ARE WE A ]NJ"ATION ? 49 
 
 vested, it is susceptible of abuse. In all questions of jurisdic- 
 tion, the inferior or appellate Court must pronounce the final 
 jndp;inent ; and common sense, as well as legal reasoning, lias 
 conferred it upon the latter. It has been further argued against 
 tlie existence of this appellate power, that it would form a 
 novelty in our judicial institutions. This is certainly a mis- 
 take." 
 
 The Judge here instanced the right of appeal, in all cases of 
 captures given in the Articles of Confederation, to Courts to 
 be created by Congress. " It is further argued, that no great 
 public mischief can result from a construction which shall 
 limit the appellate pow^r of the United States, to cases in 
 their own Courts : first, because State Judges are bound by 
 an oath to support the Constitution of the United States, and 
 must be presumed to be men of learning and integrity ; and 
 secondly, because Congress must have an unquestionable right 
 to remove all cases within the judicial power, from the State 
 Courts to tlie Courts of the United States, at any time before 
 final judgment, though not afterward. As to the first reason, 
 admitting that the judges of the State Courts are, and always 
 will be, of as much learning, integrity and wisdom as those of 
 the United States, which we very cheerfully admit, it does not 
 aid the argument. 
 
 " It is manifest that the Constitution has proceeded upon a 
 theory of its own, and given, or withheld powers, according to 
 the judgment of the American people, by whom it was adopt- 
 ed. We can only construe its powers, and cannot inquire 
 into the policy or principles which induced the grant of them. 
 The Constitution has presumed, whether rightly or wrongly, 
 we do not inquire, that State attachments. State prejudices, 
 State jealouses, and State interests, might sometimes obstruct 
 and control, or might be supposed to obstruct and control, the 
 
50 ARE WE A NATION ? 
 
 regular administration of justice. Hence, in controversies 
 between States; between citizens of different States ; between a 
 State and its citizens, or foreigners ; it enables the parties, under 
 the authority of Congress, to have the controversies heard, tried, 
 and determined before the national tribunals. 
 
 " This is not all. A motive of another kind, perfectly com- 
 patible with the most sincere respect for State tribunals, might 
 induce the grant of appellate power over their decisions. That 
 motive is the importance, and even the necessity of uniformity 
 of decisions throughout the whole United States upon all sub- 
 jects within the purview of the Constitution. Judges of equal 
 learning and integrity, in different States, might differently 
 interpret a statute or a treaty of the United States, or even the 
 Constitution itself. If there were no revising authority to con- 
 trol these jarring and discordant judgments, and harmonize 
 them into uniformity, the laws, the treaties, and the Constitu- 
 tion of the United States, would be different in different States, 
 and might, perhaps, never have precisely the same construc- 
 tion, obligation, or efficacy, in any t\vo States. The public mis- 
 chiefs that would attend such a state of things would be truly de- 
 plorable ; and it cannot be believed that they could have escaped 
 the enlightened Convention which framed the Constitution. 
 
 " What indeed miglit have been prophecy, has now become 
 fact; and the appellate jurisdiction must continue to be the 
 only adequate remedy for such evils, 
 
 " There is an additional consideration, which is entitled to 
 srreat weight. The Constitution of the United States was 
 designed for the common and equal benefit of all the people of 
 the United States. The judicial power was granted for the 
 same benign and salutary purposes. It was not to be exercised 
 exclusively for the benefit of parties wdio might be plaintiffs, 
 and would elect the national forum ; but also for the protection 
 
ARE WE A NATIOIS" ? 51 
 
 of defendants, who might be entitled to defend tlieir rights, or 
 assert their privileges before the same forum. Yet, if the con- 
 struction contended for be correct, it will follow that, as the 
 plaintifi may always elect the State Court, the defendant may 
 be deprived of all the security which the Constitution intended 
 in aid of his rights. Such a state of things can in no respect 
 be considered as giving equal rights." The Judge, after show- 
 ing the inadequacy of the supposed power of removal of suits 
 from State to Federal Courts by Congress, to meet the ends of 
 the Constitution, concludes: 
 
 " On the whole, the Court are of opinion that the appellate 
 power of the United States does extend to cases pending 
 in the State Courts ; and that the twenty-fifth section of the 
 Judiciary Act, which authorizes the exercise of the jurisdiction 
 in the specified cases by a Writ of Error, is supported by the 
 letter and spirit of the Constitution. We find no clause in that 
 instrument which limits this power ; and we dare not oppose a 
 limitation where the people have not been disposed to create 
 one. Strong as this conclusion stands upon the general 
 language of the Constitution, it may still derive support from 
 other sources. It is an historical fact that this exposition of the 
 Constitution extending its appellate power to State Courts was, 
 previous to its adoption, uniformly and publicly avowed by its 
 friends and admitted by its enemies, as the basis of their re- 
 spective reasonings, both in and out of the State Conventions. 
 
 " It is an historical fact that at the time when the Judiciary 
 Act was submitted to the deliberations of the first Congress, 
 composed, as it was, not only of men of great learning and 
 ability, but of men who had acted a principal part in framing, 
 supporting, or opposing that Constitution, the same exposition 
 was explicitly declared and admitted by the friends and the 
 opponents of that system. 
 
52 AEE WE A NATION ? 
 
 " It is an liistorical fact that the Supreme Court of the United 
 States have, from time to time, sustained this appellate juris- 
 diction in a great variety of cases, brought from the tribunals 
 of many of the most important States of the Union ; and that 
 no State tribunal has ever breathed a judicial doubt on the 
 subject, or declined to meet the mandate of the Supreme Court, 
 nntil the present occasion. This weight of contemporaneous 
 exposition, by all parties, this acquiescence of enlightened 
 State Courts, and these judicial decisions of the Supreme 
 Court, through so long a period, do, as we think, place the 
 doctrine upon a foundation of authority which cannot be 
 shaken without delivering over the subject to perplexing and 
 irremediable doubts." 
 
 So absolute and complete a demonstration as this is calcu- 
 lated to compel the assent of every man's reason ; nor can its 
 force be resisted by any one who reads it, unless he is under 
 the thraldom of very strong prejudices ; and, indeed, the 
 reasoning of the Court appears to have overcome even the 
 violent prejudices of Virginia, since w^e do not find her ques- 
 tioning the appellate jurisdiction after this ; for in 1821, when 
 the case of Cohens vs. Yirginia came up, the Court of Appeals 
 recognized it by making a return to the writ of Error, though 
 the question was discussed, and Chief Justice Marshall decided 
 it again, and as an original question ; bringing to bear upon it, 
 all of his unrivalled powers of reasoning, his massive judicial 
 englowments, and his intimate acquaintance with the events, 
 the men, and the measures of our Revolutionary and Constitu- 
 tional eras. I regret that I cannot give any extracts from this 
 decision, since I have already made as extensive quotations as 
 my limits will permit. 
 
 During the interval between the case of Fairfax vs. Hunter 
 in 1814, and the year of this case, in 1821, the appellate juris- 
 
^ A EE WE A I^ATION ? 53 
 
 diction was assertedTwrchout denial on the part of the State 
 Courts, over cases from Masg»chnsetts, Rhode Island, New 
 York, Pennsylvania, Maryland, in the historical case of Dart- 
 mouth College vs. Woodward, from Xew Hampshire, so often 
 quoted and recognized as the law of the land, and again ni 
 a case from Pennsylvania, the decision of which has moulded 
 the jurisprudence and legislation of that State ever since, 
 upon the questions and principles involved in it. Soon alter 
 this, the legislative and judicial policy of the State of New 
 York, in reference to the steamboat monopoly of its waters, 
 was reversed by the decree of the Supreme Court in the 
 memorable case of Gibbons vs. Ogden, which not only involved 
 millions, but M-as calculated to enlist State pride, and to stimu- 
 late the feeling of State sovereignty in the " Empire State " of 
 the Union ; and notwithstanding all of the Courts of that State 
 had solemnly pronounced the legislation thus completely set 
 aside to be Constitutional. In this case no question of jurisdic- 
 tion was raised. 
 
 After this, appeals were taken successively from the Supreme 
 tribunals of Ohio, Vermont, New York, Tennessee, Louisiana, 
 Kentucky, Maryland, Mississippi, Delaware, Pennsylvania, 
 South Carolina, and Missouri; from some of them more 
 than once ; all of them obeying the mandates of the Su- 
 preme Court, and recognizing its appellate jurisdiction. Then 
 there were two cases from the State of Georgia, Worcester vs. 
 State of Georgia, and Butler vs. State of Georgia, 6 Peters 
 515 and 537, in which the Supreme Court of that State 
 refused obedience to the mandates of the Federal Court. The 
 plaintiffs in these cases were convicted of the crime of preach- 
 ing the gospel to the Cherokees. But the moving cause 
 of the popular excitement, and that which swayed the Court, 
 was jealousy of suspected interference with the institution of 
 
54 AEE WE A NATIOlSr ? 
 
 slavery. Under the pressure of tliis outside excitement, the 
 Georgia Court assumed for its decrees a finality, which they 
 knew was necessary to avert the just judgment of the Supreme 
 Court, as they may again, under the first Administration, 
 which really tries to punish the slave traders of that State ; 
 citing, perhaps, the decision of our own Judge Smith as au- 
 thority. 
 
 Since these " Georgia cases," the mandates of the Supreme 
 Court have been obeyed by the Courts of nearly every State 
 in the Union, including Wisconsin. ]S[o I'esistance has been 
 made to the exercise of the appellate jurisdiction, except in 
 the J3ooth case. From an able contribution upon this subject 
 in the State Journal^ which has rendered my labor much 
 easier in this particular, we learn that " upwards of Two Hun- 
 dred cases have been removed from State Courts to the Su- 
 preme Court of the United States, as follows : 
 
 From Rhode Island 3 From Virginia 5 
 
 " Maryland 16 " Massachusetts 13 
 
 " Connecticut 2 " Pennsylvania 13 
 
 " New York 17 " New Hampshire 2 
 
 " South CaroHna 3 " Vermont 4 
 
 " Ohio 16 " Tennessee 5 
 
 " Louisiana. 28 " Georgia 2 
 
 " Mississippi 8 " Arkansas 11 
 
 " Delaware 3 " Maine 2 
 
 " Missouri 17 " Illinois 6 
 
 " Kentucky 8 " Alabama 19 
 
 " Michigan 3 " Iowa 4 
 
 " Indiana 4 " Wisconsin 4 
 
 " Texas 2 " Florida 2 
 
 " Of these, sixty-five have been dismissed as not coming 
 within the act of Congress; sixty-eight have been reversed, 
 and the judgments of reversal acquiesced in, in all, it is be- 
 lieved, except the cases from Georgia and the Booth case 
 from Wisconsin. In the remainder of these cases, the judg- 
 ments of the State Courts were affirmed." 
 
AEE TTE A NATI02f ? 55 
 
 Tims, it has been shown that the constitutionality of the 
 Judiciary Act of 1789, under the provisions of which the ap- 
 pellate jurisdiction has been exercised for seventy years, has 
 been recognized as unquestionable by the highest Courts of 
 nearly all of the States of the Union, and has been denied in no 
 case save in Virginia, whose Court has since twice recognized 
 it, in Georgia, and in Wisconsin, in the Booth case,* and our 
 own Court has recognized this jurisdiction in other cases. In 
 the exercise of its controlling power as a Court of Appeals 
 the Supreme Court has reversed the judicial policy of great 
 States, again and again, in cases where State interests or State 
 prejudices have distorted the principles of law. 
 
 Every citizen of the Union has received his share of the 
 benefits arising from the uniformity, the impartiality, and the 
 beautiful synnnetry of our Jurisprudence ensured by this 
 system of appeals : which was designed by the Fathers to pro- 
 duce these happy results, and which has so uniformly met the 
 approbation of the wisest Judges of the various State tribu- 
 nals, that a Judge who dissents from this, their uniformity of 
 ao-reement, is apt to become, perforce, an Ishmael among his 
 
 * Note.— It is singular that there should exist so much misapprehension as 
 to the positions taken by the different Justices of the Supreme Court in this 
 
 case. 
 
 Judge Smith's "State Rights" theories, developed m the various stages 
 of this case, are strengthened in the minds of many by a supposed concur- 
 rence, to a greater or less extent, of Chief Justice AMiiton, a Judge who never 
 was famous for "theories," but rather for his clear, practical insight into the 
 law as it is, and a studious avoidance of extraneous matters in his decisions. 
 
 This supposed concurrence of Judge Whiton is well known to be a mis- 
 take, by those who have read the Report of the case. 
 
 For the benefit of such as have not the time to read this rather volumin- 
 ous document. I will state briefly the various stages of this case, as far as is 
 given in the 3d vol. of our Reports. The later proceedings are fresher and 
 more familiar 
 
 The first appUcation of Mr. Booth was made to Justice Smith alone. In 
 his decision upon this application, the Judge criticises the course of Mr. 
 
56 ARE WE A NATIOX ? 
 
 judicial brethren, and to make use of the vague generalities of 
 the politician, instead of tlie precise langnage of Jnrispru- 
 dence. 
 
 He is likely to insist on reiterating phrases applicable only 
 to a state of things which the Constitution was made to remedy, 
 as if reassertions could endow them with vitality or could clothe 
 them with truth. 
 
 He is compelled, in order to sustain his position, to assert 
 that the Constitution is a " compact between the States,^' not- 
 withstanding it contains no covenants between the States, that 
 the States are not mentioned in it as parties, that, by its own 
 terms it emanates from " the people " as directly as the Con- 
 stitutions of the States, that its language throughout is not the 
 language of compact or treaty, but the imperative dialect of 
 command, to the States as well as to the citizen ; and in face 
 
 Booth in allowing two opportunities of applying to the whole Court to pass 
 unimproved. Says the Judge : "I am at a loss to conceive the motive 
 which may have induced him or his advisers to forego such opportunities. 
 " Whether by design or from neccessity, this application has been made to 
 me." (Rep. vol. 3, p. 9.) ]\Ir. Booth had waived the technical defences 
 which were sufficient to discharge him, and saw fit, in the words of the Judge 
 ' ' to demand his discharge upon the invalidity of the law by vu-tue of which 
 the warrant was issued, or not at all," and the Judge remarks most properly, 
 " I can neither permit, nor accept an such issue. " It seems rather strange, 
 after such an introduction, that the Judge shox^ld go on, and give a very 
 lengthy opinion, not only as to the constitutionaUty of the Fugitive Slave 
 Law, but also as to the nature of our Government, enunciating the State 
 Rights theories which have been so much talked abou.t, and so little under- 
 stood, in this State. One is led to fear that the Judge did, in this way 
 (involuntarily) further the very designs which Mr. Booth entertained. 
 
 This was the first proceeding. 
 
 Afterwards a writ of " Certiorari " was allowed, and the case came before 
 the whole Court, where it should have come in the first instance. The 
 Justices delivered separate opinions, all of them agreeing as to the vital 
 point in the case, viz., the discharge of ]VIr. Booth on account of the defective- 
 ness of the process by which he was held, but each giving his own views as to 
 other matters. Chief Justice WTiiton beheved the Fugitive Slave Law 
 imconstitutional, but nowhere assents, any more than Justice Crawford, to 
 the State Rights Theories of Justice Smith. In fact, he expressly admits the 
 
ARE WE A NATION ? 57 
 
 of the fiict that those who made the Constitution intended to 
 supercede an inefficient "compact" by a Government endowed 
 with the sovereig-n characteristics inherent in the very idea of a 
 government. 
 
 He is compelled to say that the State and general govern- 
 ments are "co-ordinate and co-equal witliin the respective 
 spheres of the departments of the system," while, in fact, these 
 terms are no more applicable than they would be to the respec- 
 tive orbital spheres of Saturn, and of this Earth, which groans 
 under so manv fallacies. 
 
 authority of the Federal Supreme Court, for in reply to the objection that the 
 Supreme Coui-t of the XJ. S. had passed upon the Law in question, he says 
 that there had been no adjudication by that Court upon the " Act of 1850," 
 consequently (these are his very words), "we are not at liberty to consider 
 the question of the right of a person claimed as a fugitive to a trial by jury 
 before he can be surrendered, or delivered up to the claimant, as already 
 settled by the Coiu-t which has the power finally to decide all questions gi'owing 
 out of an alleged violation of the Constitution of the United States by an Act 
 of Congress. We must consider the question an open one." Wis. Rep., vol. '^. 
 p. 63. 
 
 Let this be always remembered, when it is sought to fortify the individual 
 views of Judge Smith, by the supposed concuiTence, in some degree, of the 
 venerable Chief Justice. This was the second proceeding. 
 
 Then, on the 21st of July, 1854, Mr. Booth made another application for a 
 " Habeas Corinis," to deliver him from imprisonment on a warrant from the 
 District Court of the U. S. This the Court refused to grant, on the ground 
 that the District Court had obtained jurisdiction. 
 
 This was the third proceeding. 
 
 Then, the two applications of Booth and Rj'ecraft, which were the same 
 in all respects, were presented to the Court, Jan. 2G, 1855. These applica- 
 tions prayed for relief from imprisonment by virtue of a verdict rendered in 
 the District Court. The Justices deHvered their opinions seriatim. Chief 
 Justice ^^^liton declaring the petitioners entitled to their discharge, on the 
 ground that the District Court had, in these cases, " no jurisdiction to pro- 
 nounce a judg-ment," referring to the opinion of Justice Crawford for a fuller 
 exposition of that question. Justice Smith comes to the same result, but theo- 
 rizes quite at large upon the Constitution. Judges unanimous as to the dis- 
 charge of the petitioners, Judge Smith, as in the previous instances, alone and 
 unsupported in his State Rights theories, by his Associates. The subsequent 
 proceedings are familiar to every body. 
 
58 AEE WE A NATION ? 
 
 He is compelled to assert that " the Fathers provided no 
 iinal umpire to decide, in the last resort, between the States 
 and the General Government,"' in face of the recorded declara- 
 tions of these "Fathers " to the contrary, expressed so plainly, 
 and with so ranch precision, that one would suppose that 
 even the Calhoun metaphysics could not refine away their 
 meaning. 
 
 He is compelled to reply to the objection of an endless 
 diversity of interpretations, were the State Courts the Una] 
 arbiters of Constitutional construction, by the trifling query, 
 " what of it'^ " But it must have been difficult to have forgot- 
 ten, that it was the avowed object of the Fathers who made the 
 Constitution, to terminate the discordant wranglings of Thirteen 
 Independent States, each construing, finally and differently, the 
 Articles of the Confederation. 
 
 He is compelled to argue the equal propriety of an appeal 
 from the Federal to a State Court, with that of a State to 
 the Federal Court, by putting the irrelevant inquiry, " Is his 
 Honor, Mr. Justice Nelson, any more competent to determine 
 the law or the Constitution in Wasliington than in Albany? 
 as a Judge of the Supreme Court of the United States, than of 
 the Court of Appeals of his own State ?" while it would have 
 been just as apposite to ask " why his Honor Judge Paine, 
 sitting at Madison, on the Supreme Bench, should be more 
 competent to construe the law finally, rather than when sitting 
 as County Judge at Milwaukee?" 
 
 It is difficult to ignore the plain meaning of the Constitu- 
 tion, the circumstances of its origin, and the objects which 
 were sought by its framers, which were presented by its 
 friends and advocates to the people who adopted it as their 
 supreme law, and which indicate plainly the extent of the 
 powers thus granted by them. It would seem difficult to im- 
 
AEE WE A NATION ? 59 
 
 pngn the wisdom of the greatest judicial minds of the country, 
 who have, for seventy years, in the various State tribunals, 
 acknowledged the appellate jurisdiction of the Supreme Court 
 as the "key-stone of our Constitutional Fabric." 
 
 But there are, unfortunately, no limits to assumptions or to 
 their acceptance. The wildest legal chimeras that ever sprung, 
 "like Minerva, full-grown from the head of Jove," if clad 
 with some tattered rags of legal and political phraseology, 
 however motley or ill-adjusted, and tricked out with a few 
 "grand, swelling phrases" of liberty, will find disciples, de- 
 fenders, and friends enough to drown the "still, small voice" 
 of dissenting reason. 
 
 The people are always sound in their fundamental convic- 
 tions of right and wrong, but are apt to associate the errors 
 and iniquities of the ofhcer with any question involving the 
 powers belonging to his office, and to desire the curtailment of 
 powers which have been abused. If our own State Court 
 were to decree palpable and gross injustice, or to pervert our 
 laws to any dangerous extent, it M^ould soon find that the 
 powers entrusted to it were given for good, and not for evil 
 purposes, and that these powers would be treated as nullities 
 by an indignant people. There is a " Higher Law," of earlier 
 and more authoritative origin than any human enactments ; a 
 law which is the ideal standard of wise law-givers, and which, 
 as human laws approach, in that pro])ortion are they excel- 
 lent — whose mandates can never be disobeyed without danger 
 of penalties which are awful and infinite. 
 
 But men of education and ability should never attempt to 
 deceive the people, to trifle with the high behests of con- 
 science, or make it the interpreter of a written and definite 
 Constitution ; they should not pervert historical facts ; con- 
 temn the authoritv of men who are entitled to our reverence ; 
 
60 ARE WE A I^ATION ? 
 
 nor substitute fanciful speculations as to what our government 
 should be, for the real government established by the people, 
 and endowed by them with substantial powers ; which has 
 been efiectual for good, yet is liable in bad hands to produce 
 evil ; which has accomplished, and is yet to accomplish, the 
 work of a substantial government, supreme within its clearly 
 defined sphere, and which is no more than adequate to the 
 growing exigencies of a vigorous and homogenous people. 
 
 We have embarked, as a people, upon a new and untried 
 experiment in self-government, in the success or failure of 
 which we all feel a common interest. The fibres of our na- 
 tional life are all knitted closely together in a solidarity of 
 happiness or woe, and are all affected when one is unstrung 
 or diseased. We are all in one boat, are exposed to common 
 dangers, and all suffer from the evils or the misfortunes of 
 the remotest districts. Maine and California, Wisconsin and 
 Georgia, are as far apart as England and Turkey, as France 
 and Egypt, but the ties of interest and the pulsations of feeling 
 are as strong and tremulous as between any neighboring 
 counties of England. 
 
 When our fellow-citizens in Kentucky or Virginia are wan- 
 tonly stripped of their constitutional rights, we in Wisconsin 
 instinctively feel that the Aegis of our common government 
 ought to shelter them from the fierce storms of State fanati- 
 cism. When the jurisprudence of great States has become 
 perverted into an instrument of oppression and cruelty, 
 we all, from Maine to California, naturally look to the Tri- 
 bunal which was instituted by our fathers "to establish justice," 
 and we feel assured that they gave to it powers adequate for 
 the attainment of this benign object. 
 
 Nor will we, if we are wise, abridge or refine away the 
 plainly given and necessary |;)Owers of the government to suit 
 
ARE WE A NATION ? 61 
 
 the requirements of a finely-gpun theory, which was devised 
 thirty years ago by the subtlest and most dangerous brain 
 ever influential in our politics, in anticipation of events which 
 are yet fully to develop themselves, and to provide for an 
 unfortunate section of our country in advance, a Constitutional 
 doctrine, by virtue of which the rights of citizens of the 
 United States, the Constitutional safeguards to life, liberty 
 and property, and the authority and laws of the General Gov- 
 ernment, might all be subject to the "discretion" of State 
 despotism. 
 
 If dangers thicken around the pathway of our national pro- 
 gress ; if the " whole head " of our nation is sick, and the 
 " whole heart faint," by reason of Executive corruption, and 
 of judicial partizanship which poisons the very fountains of 
 justice and paralyzes the influence which has belonged, and 
 will yet belong, to the tribunal of final resort ; it becomes, 
 more than ever, the duty and necessity of the people to fill 
 these high places with true men, and such as are equal to the 
 stern requirements of the times. The work will be arduous, 
 protracted, and beset with trials of our faith, but it must be 
 done ; it will be done. Even now all the omens are en- 
 couraging. 
 
 It is not, however, by evasive or forced constructions, which 
 would palsy the energy and powers of the General Govern- 
 ment, and would lead us back to chaos again, that we can restore 
 the glorious era of our first Presidents, when the Executive 
 arm was efficient for the good of the whole country, when 
 the National Legislature cared for all of the national interests, 
 and when the Supreme Tribunal of the Union was the uni- 
 versally venerated fountain of our jurisprudence, the recog- 
 nized arbiter of every Constitutional question which assumed 
 the form of a case for its decision, and the refuge of the 
 
62 ARE WE A NATION? 
 
 wronged aud oppressed, from the erroneous or prejudiced 
 judgments of State Courts. 
 
 The whole government, through the dominant influence of 
 an immense monied interest, corrupt and corrupting, through 
 the criminal political apathy of good men and the demoral- 
 izing strifes of parties, has been drifting away from the noble 
 purposes and aims of its founders, until it seems to be already 
 upon the fatal rocks and breakers ; but, now that we are thus 
 brought face to face with near perils involving all Americans 
 in common disasters, shall we take to the boats, because our 
 pilots have betrayed their trust ? Should we not, rather, 
 speedily fill their places with loyal men, and strain every sail 
 and spar, until we have regained our lost track, and are 
 again steering by the old charts, over the old course, cheered 
 by the auspicious constellations which beamed upon our 
 fathers ? 
 
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