Thursday, January 11, 1810, Mr. Peyton, from the committee to whom was referred that part of the governor's communication which relates to the amendment proposed by the state of Pennsylvania, to the constitution of the United States, made the following report:

The committee to whom was referred the communication of the governor of Pennsylvania, covering certain resolutions of the legislature of that state, proposing an amendment of the constitution of the United States, by the appointment of an impartial tribunal to decide disputes between the States and Federal Judiciary, have had the same under their consideration, and are of opinion, that a tribunal is already provided by the constitution of the United States, to wit: the Supreme Court, more eminently qualified, from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid, in an enlightened and impartial manner, than any other tribunal which could be created.

The members of the Supreme Court are selected from those in the United States who are most celebrated for virtue and legal learning, not at the will of a single individual, but by the concurrent wishes of the President and Senate of the United States; they will, therefore, have no local prejudices and partialities. The duties they have to perform, lead them, necessarily, to the most enlarged and accurate acquaintance with the jurisdiction of the Federal and State Courts together, and with the adinirable symmetry of our government. The tenure of their offices enables them to pronounce the sound and correct opinions they may have formed, without fear, favor, or partiality.

The amendment to the constitution proposed by Pennsylvania, seems to be founded upon the idea that the Federal Judiciary will, from a lust of power, enlarge their jurisdiction, to the total annihilation of the jurisdiction of the state courts; that they will exercise their will, instead of the law and the constitution.

This argument, if it proves anything, would operate more strongly against the tribunal proposed to be created, which promised so little, than against the Supreme Court, which, for the reasons given before, have everything connected with their appointment calculated to ensure confidence. What security have we, were the proposed amendment adopted, that this tribunal would not substitute their will and their pleasure in place of the law? The Judiciary are the weakest of the three departments of government, and least dangerous to the political rights of the constitution; they hold neither the purse nor the sword; and, even to enforce their own judgments and decisions, must ultimately depend upon the Executive arm. Should the Federal Judiciary, however, unmindful of their weakness, unmindful of the duty which they owe to themselves and their country, become corrupt, and transcend the limits of their jurisdiction, would the proposed amendment oppose even a probable barrier in such an improbable state of things?

The creation of a tribunal, such as is proposed by Pennsylvania, so far as we are able to form an idea of it, from the description given in the resolutions of the legislature of that state, would, in the opinion of your committee, tend rather to invite, than to prevent, collisions between the Federal and State Courts. It might also become, in process of time, a serious and dangerous embarrassment to the operations of the general government.

Resolved, therefore, That the legislature of this state do disapprove of the amendmen to the constitution of the United States, proposed by the legislature of Pennsylvania. Resolved, also, That his excellency the governor, be, and he is hereby, requested to transmit forthwith, a copy of the foregoing preamble and resolutions, to each of the senators and representatives of this state in Congress, and to the executive of the several states in the union, with a request that the same be laid before the legislatures thereof.

The said resolutions being read a second time, were, on motion, ordered to be referred to a committee of the Whole House on the state of the Commonwealth.

Tuesday, January 23, 1810.

The House, according to the order of the day, resolved itself into a Committee of the Whole House on the state of the Commonwealth, and after sometime spent therein, Mr. Speaker resumed the chair, and Mr. Stanard, of Spottsylvania reported that the committee had, according to order, had under consideration the preamble and resolutions of the select committee, to whom was referred that part of the governor's communication which relates to the amendment proposed to the constitution of the United States, by the legislature of Pennsylvania, had gone through with the same, and directed him to report them to the House without amendment; which he handed in at the clerk's table.

And the question being put on agreeing to the said preamble and resolutions, they were agreed to by the House unanimously.

Ordered, That the clerk carry the said preamble and resolutions to the Senate, and desire their concurrence.

IN SENATE Wednesday, January 24, 1810.

The preamble and resolutions on the amendment to the constitution of the United States proposed by the legislature of Pennsylvania, by the appointment of an impartial tribunal to

decide disputes between the State and Federal Judiciary, being also delivered in and twice read, on motion, was ordered to be committed to Messrs. Nelson, Currie, Campbell, Upshur, and Wolfe.

Friday, January 26.

Mr. Nelson reported, from the committee to whom was committed the preamble and resolutions on the amendment proposed by the legislature of Pennsylvania, &c. &c. that the committee had, according to order, taken the said preamble, &c. under their consideration, and directed him to report them without any amendment.

And on the question being put thereupon the same was agreed to unanimously.

MR. WEBSTER'S LAST REMARKS.

Mr. HAYNE having rejoined to Mr. WEBSTER, especially on the constitutional question

Mr. WEBSTER rose, and, in conclusion, said:

A few words, Mr. President, on this constitutional argument, which the honorable gentleman has labored to reconstruct.

His argument consists of two propositions, and an inference. His propositions are

1. That the Constitution is a compact between the States.

2. That a compact between two, with authority reserved to one to interpret its terms, would be a surrender to that one, of all power whatever.

3. Therefore, (such is his inference) the general government does not possess the authority to construe its own powers.

Now, sir, who does not see, without the aid of exposition or detection, the utter confusion of ideas, involved in this, so elaborate and systematic argument.

The constitution, it is said, is a compact between states; the states, then, and the states only, are parties to the compact. How comes the general government itself a party? Upon the honorable gentleman's hypothesis, the general government is the result of the compact, the creature of the compact, not one of the parties to it. Yet the argument, as the gentleman has now stated it, makes the government itself one of its own creators. It makes it a party to that compact, to which it owes its own existence.

For the purpose of erecting the constitution on the basis of a compact, the gentleman considers the states as parties to that compact; but as soon as his compact is made, then he chooses to consider the general government, which is the offspring of that compact, not its offspring, but one of its parties; and so, being a party, has not the power of judging on the terms of compact. Pray, sir, in what school is such reasoning as this taught?

If the whole of the gentleman's main proposition were conceded to him, that is to say-if I admit for the sake of the argument, that the constitution is a compact between states, the inferences, which he draws from that proposition, are warranted by no just reason. Because, if the constitution be a compact between states, still, that constitution, or that compact, has established a government, with

certain powers; and whether it be one of those powers, that it shall construe and interpret for itself, the terms of the compact, in doubtful cases, is a question which can only be decided by looking to the compact, and inquiring what provisions it contains on this point. Without any inconsistency with natural reason, the government, even thus created, might be trusted with this power of construction. The extent of its powers, therefore, must still be sought for in the instrument itself.

If the old confederation had contained a clause, declaring that resolutions of the Congress should be the supreme law of the land, any state law or constitution to the contrary notwithstanding, and that a committee of Congress, or any other body created by it, should possess judicial powers, extending to all cases arising under resolutions of Congress, then the power of ultimate decision would have been vested in Congress, under the confederation, although that confederation was a compact between states; and, for this plain reason: that it would have been competent to the states, who alone were parties to the compact, to agree, who should decide, in cases of dispute arising on the construction of the compact.

For the same reason, sir, if I were now to concede to the gentleman his principal propositions, viz. that the constitution is a compact between states, the question would still be, what provision is made, in this compact, to settle points of disputed construction, or contested power, that shall come into controversy? and this question would still be answered, and conclusively answered, by the constitution itself. While the gentleman is contending against construction, he himself is setting up the most loose and dangerous construction. The constitution declares, that the laws of Congress passed in pursuance of the constitution shall be the supreme law of the land. No construction is necessary here. It declares, also, with equal plainness and precision, that the judicial power of the United States shall extend to every case arising under the laws of Congress. This needs no construction. Here is a law, then, which is declared to be supreme; and here is a power established, which is to interpret that law. Now, sir, how has the gentleman met this? Suppose the constitution to be a compact, yet here are its terms, and how does the gentleman get rid of them? He cannot argue the seal off the bond, nor the words out of the instrument. Here they are-what answer does he give to them? None in the world, sir, except, that the effect of this would be to place the states in a condition of inferiority; and because it results, from the very nature of things, there being no superior, that the parties must be their own judges! Thus closely and cogently does the honorable gentleman reason on the words of the constitution. The gentleman says, if there be such a power of final decision in the general government, he asks for the grant of that power. Well, sir, I show him the grant-I turn him to the very words-I show him that the laws of Congress are made supreme; and that the Judicial power extends, by express words, to the interpretation of these laws. Instead of answering this, he retreats into the general reflection, that it must result from the nature of things, that the states, being parties, must judge for themselves.

I have admitted, that, if the constitution were to be considered as the creature of the state governments, it might be modified, interpreted, or construed, according to their pleasure. But, even in that case, it would be necessary that they should agree. One, alone, could not interpret it conclusively; one, alone, could not construe it; one, alone, could not modify it. Yet the gentleman's doctrine is, that Carolina, alone, may construe and interpret that compact which equally binds all, and gives equal rights to all.

So then, sir, even supposing the constitution to be a compact between the states, the gentleman's doctrine, nevertheless, is not maintainable; because, first, the general government is not a party to that compact, but a government established by it, and vested by it with the powers of trying and deciding doubtful questions; and, secondly, because, if the constitution be regarded as a compact, not one state only, but all the states, are parties to that compact, and one can have no right to fix upon it her own peculiar construction.

So much, sir, for the argument, even if the premises of the gentleman were granted, or could be proved. But, sir, the gentleman has failed to maintain his leading proposition. He has not shown, it cannot be shown, that the constitution is a compact between state governments. The constitution itself, in its very front, refutes that idea: it declares that it is ordained and established by the people of the United States. So far from saying that it is established by the governments of the several states, it does not even say that it is established by the people of the several states; but it pronounces that it is established by the people of the United States, in the aggregate. The gentleman says, it must mean no more than the people of the several states. Doubtless, the people of the several states, taken collectively, constitute the people of the United States; but it is in this, their collective capacity, it is as all the people of the United States, that they establish the constitution. So they declare; and words cannot be plainer than the words used.

When the gentleman says the constitution is a compact between the states, he uses language exactly applicable to the old confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The confederation was, in strictness, a compact; the states, as states, were parties to it. We had no other general government. But that was found insufficient, and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a general government, which should stand on a new basis-not a confederacy, not a league, not a compact between states, but a constitution; a popular government, founded in popular election, directly responsible to the people themselves, and divided into branches, with prescribed limits of power, and prescribed duties. They ordained such a government; they gave it the name of a constitution, and therein they established a distribution of powers between this, their general government, and their several state governments. When they shall become dissatisfied with this distribution, they can alter it. Their own power over their own

instrument remains. But until they shall alter it, it must stand as their will, and is equally binding on the general government and on the states.

The gentleman, sir, finds analogy where I see none.

He likens

it to the case of a treaty, in which, there being no common superior, each party must interpret for itself, under its own obligation of good faith. But this is not a treaty, but a constitution of government, with powers to execute itself, and fulfil its duties.

I admit, sir, that this government is a government of checks and balances; that is, the House of Representatives is a check on the Senate, and the Senate is a check on the House, and the President a check on both. But I cannot comprehend him, or, if I do, I totally differ from him, when he applies the notion of checks and balances to the interference of different governments. He argues, that if we transgress, each state, as a state, has a right to check us. Does he admit the converse of the proposition, that we have a right to check the states? The gentleman's doctrines would give us a strange jumble of authorities and powers, instead of governments of separate and defined powers. It is the part of wisdom, I think, to avoid this; and to keep the general government and the state governments, each in its proper sphere, avoiding, as carefully as possible, every kind of interference.

Finally, sir, the honorable gentleman says, that the states will only interfere, by their power, to preserve the constitution. They will not destroy it-they will not impair it-they will only save, they will only preserve, they will only strengthen it! Ah! sir, this is but the old story. All regulated governments, all free governments, have been broken up by similar disinterested and well disposed interference! It is the common pretence. But I take leave of the subject.