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may hold in this institution, in common with other property of the same description throughout the State. But this is a tax on the operation of the bank, and is consequently a tax on the operation of an instrument employed by the government of the Union to carry its powers into execution. Such a tax must be unconstitutional.”"
Here is a case where the power of the people comes in play, independent of the State authority, and the court justifies the power; and, in the course of their observations, they say the “sovereignty of a State extends to every thing which exists by its own authority, or is introduced by its permission.” If man was a thing, we might ask, does he exist by the authority of a State, or is he introduced into a State by its permission? We answer, no. Also it is not in the power of the States to prevent any person from coming within their borders: this power now lays alone in congress, and it is by permission of congress alone any one can take up their residence in this country; (though we trust this power of prevention will not be exercised;) and, consequently, the sovereignty over him for certain purposes remains alone in congress, according to the reasoning here adopted by the court.
The court comments justly, we think, on the word confidence. Since the late developements of the feeling of the South on the subject of slavery, what confidence, we may now ask, can be put in communities who have shown such a disposition to depart from all the established principles of our government, and declarations of our fathers, as is now manifested in the desire to continue slavery in our land. It is well, we trust, there is a power some where to put a check to this departure from our principles, and we trust, ere long, we shall be able to exercise it. Instead of preparing the slave for freedom, as it was understood they would do, they have constantly been drawing the chains closer, and, by legislative acts, endeavoring to render his case perfectly hopeless, thereby preventing the country from receiving that service from him which it might otherwise have done. The taking our capitol at Washington by the British soldiers might, it is said, have been prevented, had the colored population had their freedom ; for, instead of being a body of men on whom they could rely, they were, on the contrary, to be dreaded ; in fact, if our impression is right, many chose the British camp rather than the homes their masters had provided for them ; consequently we see not but the holding men in slavery is as much a tax on the operations of the government, as a tax would be on the operation of a bank, established by them. Is not the Florida war, also, a tax on the operation of our government, as also the removing the Cherokees; and yet both of them took their rise from the system of slavery ; the former, from the unwarrantable claiming children of Indian parentage, and the latter, because the slave had rather reside among savages than to receive what has been called the Christian treatment of the white man. And have we any assurances our
* Marshall on the Constitution, p. 187. r
country will not be constantly kept in broils of a similar description, and have we no right to prevent them by remoying the cause The doctrine here put forth by the court would, we think, justify it. -In the case of Cohens vs. the State of Virginia, they speak of the power of the court, and the powers of the United States, on this wise:
“The use intended to be made of this exposition of the first part of the section, defining the extent of the judicial power, is not clearly understood. If the intention be merely to distinguish cases arising under the Constitution from those arising under a law, for the sake of precision in the application of this argument, these propositions will not be controverted. If it be to maintain a case arising under the Constitution, or a law, we think the construction too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution, or a law of the United States, whenever its correct decision depends on the construction of either. Congress seems to have intended to give its own construction to this part of the Constitution in the twentyfifth section of the judiciary act; and we perceive no reason to depart from that construction. “The jurisdiction of the court, then, being extended by the letter of the Constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction must sustain the exemption they claim on the spirit and true meaning of the Constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed.” “The American States, as well as the American people, have believed a closer and firmer union to be essential to their liberty and to their happiness. They have been taught by experience that this union cannot exist without a government for the whole, and they have been taught by the same experience that this government would be a mere shadow that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent States. Under the influence of this opinion, and thus instructed by experience, the American people, in the convention of their respective States, adopted the present Constitution. “If it could be doubted whether from its nature it were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all 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 in every State shall be bound thereby ; any thing in the Constitution or laws of any State to the contrary notwithstanding. “This is the authoritative language of the American people, and, if the gentleman please, of the American States. It marks, with lines too strong to be mistaken, the characteristic distinction between the government of the Union and those of the States. The general government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the Constitution; and if there be any who deny its necessity, none can deny its authority. “To this supreme government ample powers are confided ; and if it were possible to doubt the great purposes for which they were so confided, the people of the United States have declared that they are given ‘in order to form a more perfect union, establish justice, insure the domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity.” “With the ample powers confided to this supreme government, for these interesting purposes, are connected many express and important limitations on the sovereignty of the States, which are made for the same purposes. The powers of the Union, on the great subjects of war, peace, and commerce, and on many others, are in themselves limitations of the sovereignty of the States ; but, in addition to these, the sovereignty of the States is surrendered, in many instances, when the surrender can only operate for the benefit of the people, and when, perhaps, no other power is conferred on congress than a conservative power to maintain the principles established in the Constitution. The maintenance of these principles in their purity, is certainly among the great duties of the government. One of the instruments by which this duty may be peaceably performed is the judicial department. It is authorized to decide all cases, of every description, arising under the Constitution or laws of the United States. From this general grant of jurisdiction no exception is made to those cases in which a State may be a party. When we consider the situation of the government, of the Union, and of the States, in relation to each other, the nature of our Constitution, the subordination of the State governments to that Constitution, the great purpose for which jurisdiction over all cases arising under the Constitution and laws of the United States is confided to the judicial department, are we at liberty to insert in this general grant an exception of those cases in which a State may be a party 2 Will the spirit of the Constitution justify this attempt to control its words 2 We think it will not. We think a