5M 



STATES' Uir.HTS. 



tionality of the authority under which the bank ex- 

 ercised r and of th irylnnd ta\ 

 the institution. Tho court aflinm-d tin- authority ol 

 Congress to create the bunk, and denied that chum. .1 

 b.T Maryland. The position assumed by the cmirt. 

 as stated in the opinion of Chief Justice Marshall, i.s 

 substantially as follows: The government of die 

 United States was created liy the people of tlie S: 

 as a sovereign government, though its jurisdiction 

 was limited to certain Hjxu'itied subjects; that in 

 relation to such subjects it was sovereign and sii|x-- 

 rior to the States ; that, in addition to the enumer- 

 ated powers, it was intended to have all such powers 

 as were proper in order to carry into execution the 

 enumerated powers; that in the choice of men:. 

 curry out its powers it was not limited to such as 

 were indispensably necessary for that purpose, but 

 could use such as in its judgment were reasonably 

 necessary and proper for that purpose ; that it was 

 tln> sole 'judge of the propriety of the means adopted 

 so long as those means were suitable to the nature 

 of the powers enumerated ; that the power to bor- 

 row money and levy taxes implied the creation of 

 banks to that end ; that a law of tho State of Mary- 

 land subjecting the powers granted to the bunk to 

 restrictions was inconsistent with the sovereign au- 

 thority of Congress over the subjoct, and was tli. 

 fore unconstitutional and void. 



In 1828 Congress enacted n law imposing duties 

 npon foreign importations, which was claimed to be 

 intended for the protection of domestic manufact- 

 ures, that gave rise to animated discussion both in 

 Congress and in the States. In 1830 this discussion 

 was maintained by Mr. Webster and Mr. Hayne, of 

 South Carolina, in the celebrated debate upon th.- 

 powers of the government. Mr. Webster's position 

 was that, apart from the right of revolution, there was 

 no power in any State to resist the authority of Con- 

 gress under the Constitution. That the government 

 of the United States was established by the people, 

 and its responsibility is to the people alone. Ha ad- 

 mitted that New England had opposed the embargo 

 law on the same grounds that South Carolina opposed 

 the tariff, but had submitted to an unwelcome de- 

 cision against her claims. Ho regards the Virginia 

 resolutions as indefinite as to whether revolutionary 

 or constitutional means of redress were intended. 

 He says : " I hold it to be a popular government, 

 erected by the people ; those who administer it re- 

 sponsible to the people, and itself capable of being 

 amended and modified just as tho people may choose 

 it should be. It is as popular, just as truly emanat- 

 ing from the people, as the State governments. It 

 is created for one purpose, the State governments 

 for another. It has its own powers, they have theirs. 

 There is no more authority with them to arrest the 

 operation of a law of the Congress than with Con- 

 gress to arrest the operation of llieir luws." 



Mr. Hayne in reply claimed that the government 

 of the United States emanated from the sovereignties 

 of the States as organized governments, and hence 

 the agencies created could not control the power by 

 which they were created. He regards the action of 

 a State declaring the action of Congress as unconsti- 

 tutional as a check which ought to be respected 

 until appeal is mode to the States collectively to as- 

 certain their will in the ma'ter, thus excluding the 

 idea of coercion of a State on the part of Con- 

 Mr. Webster, replying to Mr. Hayne. took the 

 ground that, assuming the position that the Consti- 

 tution emanated from the State governments, still 

 tint claim of South Carolina that a single State has 

 an independent right of construing it cannot be 

 maintained, as it could only be construed by the 

 States acting together. And even in that case, where 

 a means of deciding questions of construction was 

 designated by the contracting parties, that means of 



\ would be competent, and tho only compe- 

 tent means. Uut he disputes this assumption, and 

 contends that the people of the S'a'. -. in 1 1n , 



rapacity as the people of the United .States, 

 made the ('institution. 



In ls:(2 the liist attempt was made to put into 

 practical exercise the doctrine that the Constitution 

 was a mere league or compact between sovereign 

 states by which they parted with no part of their 

 sovereign authority, but merely created certain gov- 

 ernmental agencies for the common hem-tit, and sub- 

 ject to their eon'rol. In that year South Carolina 

 adopted, in convention, an ordinance that dcclaied 

 unconstitutional and void the acts of Congress al- 

 leged to have been passed for the pur]K)se of pro- 

 tecting domestic manufactures, and assumed to nul- 

 lify those acts within the territories of that E 

 and threatened that if an attempt was made to apply 

 force to the State she would withdraw from the In ion 

 and establish a separate goveinment. The history 

 of tii.'-e transactions i.s given in another place under 



Nn.MKICATION. 



Assuming the premises claimed by South Caro- 

 lina, that the Constitution created no sovereign au- 

 thority that could be asserted as superior to the 

 States, and that could act as the judge of the extent 

 of the obligations assumed by the States, it would 

 be difficult to deny the right of each State to act for 

 itself in the manner propounded by the Kentucky 

 resolutions, and practically acted upon by South 

 Carolina in 1832. 



The difficulty lies in maintaining the assumption 

 that was tho foundation of the deductions npon 

 which that State sought to act. In addition t 

 gress ami the judicial authority conferred upon the 

 courts of the United States, a supreme arbitrator was 

 cieatcd by the Constitution superior to the Consti- 

 tution itself, and competent to bind the States by 

 obligations that had not been assumed with the Con- 

 stitution. The power of amendment over that in- 

 strument was placed in the hands of three-fourths 

 of the States, and its exercise was to be binding upon 

 j the remaining States. This power of amendment 

 was only limited in two respects, one of which re- 

 lated to control over the migration and importation 

 of persons, and the other to the distribution of di- 

 rect taxes. Beyond this limitation the power of 

 amendment was unlimited. To affirm that a power 

 by which a majority of a collective community of 

 individuals or states may control the entire commu- 

 nity, in an almost unrestricted manner, does not im- 

 port sovereign authority, is the chief difficulty in 

 the argument in favor of separate State liberty. A 

 contract by which the majority of the contracting 

 parties may change the terms of contract is certainly 

 not an ordinary contract, and very clearly implies 

 the existence of governmental authority that is in- 

 separable from the idea of sovereign! v. It is equally 

 difficult for a State to say that it has only parted 

 with so much of its lil>eity as is embodied in tho 

 terms of a certain instrument, where it has lodged 

 in the hands of a power that may act independently 

 of its authority ability to change those terms, and 

 thus to subject it to new obligations. Nor is it easy 

 to conceive by what reasoning it can be maintained 

 that a supreme power that may mould the obligations 

 of States can exist independently of the pos:- 

 of power to judge of infractions of its requirements. 



The attitude of South Carolina called forth tho 

 celebrated proclamation of Pros. Jackson that vindi- 

 cated the national sovereignty of the United > 

 and the supremacy of her judiciary over all eontio- 

 arising out of the terms of the Constitution. 



South Carolina at length yielded to a comproiniso 

 act proposed by Mr. Clay by which tho principle of 

 national imposts for tho protection of domestic man- 

 ufactures was retained but certain economic advan- 



