In this chapter, Tazewell argues that the Supreme Court of the United States cannot, for a variety of reasons, act as an arbiter between the federal government and the states.

XII.

Norfolk, January 25, 1833.

While seeking to establish the right of a State, to secede from an Union formed by a Covenant, the terms of which have been broken by other parties, I was not unaware of the objections that have been urged against the existence of such a right, not only by the author of this Proclamation, but by others of the School of Consolidationists. But I did not choose to break the thread of the argument, by replying to these objections at that time. Therefore, I assumed all the facts necessary to present the naked question of mere right. Having established this, I will now attend to these suggestions. Many of them have been before noticed and answered; and I will not here repeat these answers. But there is one which has not yet been presented, and to the examination of this, I propose to dedicate this number.

This objection is, that no State may rightfully assume as a fact, that the Covenant has been broken by any of its co-States, or act upon such an assumption, without violating its own faith: because the covenant itself has provided an arbiter to decide all such questions, by whose decisions the faith of all the parties must be bound. This arbiter is said to be the Supreme Court of the United States. To this objection, which is founded upon the supposed existence of a common arbiter, authorized and capable to decide all infractions of the Constitution, of which any State may have cause to complain, many answers may be given, all equally conclusive to shew, that no such arbiter, clothed with such authority, either does, or ought to be expected to exist.

The first of these answers is, that according to no legal possibility, could the case supposed to exist, ever be presented to the Supreme Court for its decision, even if the sovereign parties were content to abide by that decision.—The Judges of the Supreme Court, like all other Judges, are appointed to decide "cases," and not to amuse themselves or to edify mankind (as the President seeks to do in this Proclamation), with obiter dicta, or with public Lectures, communicating the results of their lucubrations upon mere questions of law, of politics, or of any other art or Science. These cases, too, according to the very terms of the Constitution, must be "cases in law and equity," and we have the authority of this court itself, for saying that there cannot exist any case in law or equity, but one presented to a Court by the representations of parties. The law professor in every College, nay, the very undergraduates of his Class, may deliver theses and dissertations upon questions of Sovereignty, of Politics, or of law, and may amuse and improve themselves by imagining suits brought by John Doe versus Richard Roe, to try these questions. But it would be a high contempt of every court, to attempt to steal from it an opinion, upon any question presented in a case brought by such imaginary parties; and not a less contempt of public justice, if a judge should wander out of the case before him, to prejudge some other, or to determine any mere abstract proposition not necessary to the decision of the matter submitted by the parties to his determination.—Now, the case supposed to exist, is the case of a Covenant of Union, believed by one of the parties to be violated by the government of the United States, the agent of all the parties. In such a case, the act complained of being already done by the government, the United States would have no need to become actors, or to go before any court to assert the power that has been already exerted; and it would be difficult to find the authority under which any one, as an actor, may implead the United States in their own courts.

But here it may be said, perhaps, as is often said, that the government of the United States can only act by Individuals, and upon Individuals; and as the courts are always open to such parties, all questions of constitutional right may so readily be brought before the Supreme Court. To this commonplace assertion, I oppose a flat denial. The evil complained of, may not be the consequence of any act whatever, but of a wilful omission to act, on the part of the government. In such a case, it cannot be pretended, that there is any individual, to whom the aggrieved sufferer may resort for redress, by a suit in court—or the evil complained of, may be an act, which, although palpably wrong, may not require the agency of any individual; or although wantonly oppressive and cruelly unjust upon all the inhabitants of a State, may nevertheless, like every common nuisance, be injurious to no one of them in particular, and therefore would be an act not to be redressed in any private suit. Suppose for example, Congress should pass a law giving a preference to the ports of one State over those of another, which they are expressly forbidden to do in the very terms of the Constitution itself; what Individual could sue, or what Individual might he implead, for the perpetration of an act so ruinous to the injured State?

Even in cases where the Courts might take cognizance of the act done, because done by some Individual to some other Individual, the judgement in such a case could bind none but the parties to the suit. It would not repeal the unconstitutional act; and might not even furnish any compensation to the Individual injured.—Some agent of the law-makers in execution of their orders, which are in direct violation of the Constitution, does me a great injury. I sue him. The court agrees with me, that the act was lawless and unauthorized.

The jury awards an amount of damages to me as a just compensation for the wrong I have sustained. The Court gives me a judgement against him for that sum. But the agent is insolvent or runs away, and I cannot get the intended compensation. Will any one say, that the Court can compel those by whose orders the wicked deed was done, and to test whose authority for directing it to be done, the suit was brought, to pay me? Certainly not. I may petition them to do so, but if they reject my petition, the arm of the Judiciary is impotent to obtain for me the relief to which the Court itself has said I was entitled—even if the judgement proves efficacious in my case, that judgement cannot prevent the perpetration of a similar outrage upon me or my neighbour the next day, under the same usurped authority.

The judgement does not repeal the law, but declares simply, that it constitutes no defence to the defendant in the particular case brought before the Court by the parties then litigant therein. So that until the Legislature will be graciously pleased to repeal their law, every Individual of the State, may be compelled to go through the same tedious and expensive proceedings, and to incur the same hazards, in order to obtain relief against an act of the government which has been already decided by the supposed arbiter to be an unauthorized usurpation of lawless power. Now what a strange arbiter must he be, whose decision, if in favor of one of the parties, is binding and obligatory, but if made against that party, is of no avail to terminate the subject of difference.

The next answer to this objection is this: where a case in law or equity is properly brought before the Court, by actual suitors, if in the progress of this suit, it is found to involve a question of the mere discreet exercise of political power confessedly granted, the Judges themselves acknowledge, that this question they are incompetent to decide, but as to all such matter, they are bound jurare per verba magistri; and, to say, as Judges, that whatever is, is right, although as Individuals, every one of them may know it is not so. While doubt exists, whether the political power exercised is granted or not, the Court may give an opinion upon the subject. But let it be once conceded, that the power has been granted by the Constitution and the Court is then compelled to say, that it has nothing to do with the question of policy, nor is authorized to ask, why such power has been exerted.

If Congress declare a war, although for the most unrighteous purpose for which war ever was declared by the veriest tyrant that ever disgraced a throne, the Judiciary must apply the sanctions of the law, to all acts done contrary to the wicked will of the Legislature.

If the President and Senate make Treaties, sapping the very foundations of the Constitution, the Judiciary cannot declare them void, or prevent their execution by the executive. If Congress wantonly levy duties and imposts for any purpose whatever, the Judicial power is helpless to afford relief.

They cannot injoin the marching of armies, the sailing of fleets, the slaughter of innocent men, the levy of taxes, or the execution of Treaties.

Yet it is precisely in such cases, that the interposition of the Sovereign parties to the Covenant, will, probably, ever be necessary.

It is idle, then, to say, that they may not interpose even in these cases, at least for the reason given. For the very foundation of the objection to such interposition, is, that as there is a common arbiter appointed to decide the case, the parties may not rightfully assume to decide it, each for itself.

The next answer to this objection is, that the evil complained of may be the act of the Judiciary itself, the enforcement of the Sedition law for example, or the application of the common law of England, as a criminal code, to the Citizens of the United States. Both these cases have occurred. Here, it would be monstrous, to refer to the Judiciary to decide whether the Judiciary itself had done right; and yet the objection applies equally to all cases.

Another answer is, that in this government, composed as it is of co-ordinate departments, there exists no reason why more respect should be paid to the acts of one of these departments, than to those of any other; and if it is admitted, that neither of these departments is bound by the act of its co-ordinate, it would be strange indeed to say, that the sovereign of all was bound by such an act. Now, the objection itself asserts, that the Judiciary is not bound by the acts of the Legislature or of the Executive; and no one, it is believed, will contend that either of the other departments is bound by the Judgements of the Judiciary, however obligatory these may be upon the parties.

I speak not of courtesy and respect, but of obligation merely. Should the Judiciary declare an act of the Legislature void, such a declaration, as I have already said, cannot repeal the law, although it may prevent its application to the particular case sub Judice. Congress may establish other Courts or other Judges to execute the law; or the President and Senate, in execution of such laws, may appoint additional Judges of the Supreme Court, who may differ from their associates and over-rule the past decision in the first new case, that comes before the Court. Nay the House of Representatives may impeach and the Senate condemn the Judges, for this very decision given in violation of the law enacted by them.

I do not mean to say, that any of these things would be right: but when reasoning upon the case of a violated Constitution, I have a right to suppose, that all legal means would be employed by the violators, to make their violation effectual; and so to prove, that the Judiciary cannot bind the Legislature.—We have the authority of the President himself for saying, that he feels himself as much bound by his oath to support the Constitution as any one else can do; and therefore, if his agency is required, whether by the Legislature or the Judiciary, to do any act which he believes unconstitutional, he will not be made to sin against his own conscience and to violate his oath. His new partisans used to censure him bitterly for this assertion: but yet he never made one more moral, legal, or constitutional than it is. This is a government of concurring powers, its departments are all co-ordinates, nor can any one of them move far in any direction, without encountering its fellow, by whose concurrence alone, it may proceed in that way.

Of all these departments, the Judiciary is the weakest, because, it cannot act until invited to do so, its sphere of action is very limited, nor can it do any positive act, without the permission of the Legislature, and the co-operation of the Executive.

But lastly, can the human mind conceive a more audacious proposition, than that which suggests, that in a controversy between the parties to a Covenant, by which covenant an agent is created, where the matter in dispute between the principals, regards the authority exerted by the agent, the decision of this controversy must be referred to the agent himself? The very exertion of the authority by the agent, is a decision that he believes he may rightfully do so; and after this, it is gravely proposed, to leave the matter to the final arbitrament of one who has already decided it, and who has decided it, too, with the approbation of the very persons who proposed such a reference. In transactions between man and man, none could hesitate what name to bestow upon such a proposition: but where the Sovereignty of the States and the freedom of their people is concerned, a gross fraud is metamorphosed into a political theory only. Nor will the case be changed materially if the nominated arbiter has never yet decided the question, provided that arbiter be the Supreme Court; this arbiter is not even given by lot. It is appointed by the supposed wrong doer, paid by him, accountable to him, subject at any moment to be punished and cashiered by him, and this too, for giving the very decision its conscience might prompt. Thus, matters which would constitute valid and legal objections, to witnesses, to Jurors, and to the Judges themselves, in the most trifling controversy between man and man, are to be overlooked and disregarded, in the support of a new theory, which seeks to constitute the Federal government the sole Judge of its own power.

I have great respect for the Judiciary of every country, but no lawyer or historian can tell, in what age or in what country, the Judiciary have ever been able, even where it was willing, to protect the rights of the people against the usurpations of Government. England has long been blessed with a Judiciary, composed of men, whose intelligence, whose integrity, and whose firmness, would not suffer in comparison with that of any others who have ever been or are now on earth. But when or who of these Judges have ever been able to save the privileges of the people from the prerogatives of the crown, unless the Judiciary was sustained by another branch of the government? And how many examples are there, of acts of Parliament made for the special purpose of saving the people from the Judiciary? For the Judiciary of the United States, I entertain at least as much respect as I do for any other Judiciary. I will not say more; and I cannot say less. With the individual Judges, I have nothing to do. They shall all be, if any one thinks so, what some of them certainly are, "like Mansfield wise, and as old Foster just." But all must know that the robes of office do not cover angels, but mere men, as prone to err, as any other men of equal intelligence, of equal purity, and of equal constancy. We all know, too, that some of the supreme Judges of the United States, have not thought it unbecoming their high places, to accept Foreign Missions, to present themselves as candidates for other offices, and to enter into newspaper disquisitions upon party topics. I do not mean to blame them for such things, but merely to shew from such facts, that the rights of sovereign States, when assailed by the government of the United States, could not be safely confided to a forum so constituted, even if it was possible that it could take cognizance of the subject. Nor can he be considered as a discreet friend to the Judiciary, I should think, who desired to embark it in this fearful strife.

I have answered this first objection, founded upon the suggestion, that the Supreme Court of the United States is the common arbiter appointed to decide all questions that may arise between a State and its co-States, touching the violation of their mutual covenant. My answer to the remaining objections I must postpone to another number.