« AnteriorContinuar »
of a deed. Although signed and sealed, yet as long as it remains in the hands of the party himself, it is in fieri only, it is not a deed, and can be made so only by its delivery. In the hands of a third person it may be made an escrow. But whatever is in the executive offices is certainly deemed to be in the hands of the President; and in this case, was actually in my hands, because, when I countermanded them, there was as yet no Secretary of State. Yet this case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversion on its being merely an obiter dissertation of the Chief Justice.
It may be impracticable to lay down any general formula of words which shall decide at once, and with precision, in every case, this limit of jurisdiction. But there are two canons which will guide us safely in most of the cases. 1st. The capital and leading object of the constitution was to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other States: to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it ; and in favor of the States in the former, if possible to be so construed. And indeed, between citizens and citizens of the same State, and under their own laws, I know but a single case in which a jurisdiction is given to the General Government. That is, where anything but gold or silver is made a lawful tender, or the obligation of contracts is any otherwise impaired. The separate legislatures had so often abused that power, that the citizens themselves chose to trust it to the general, rather than to their own special authorities. 2d. On every question of construction, carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed. Let us try Cohen's case by these canons only, referring always, however, for full argument, to the essays before cited.
1. It was between a citizen and his own State, and under a law of his State. It was a domestic case, therefore, and not a · foreign one.
2. Can it be believed, that under the jealousies prevailing against the General Government, at the adoption of the constitution, the States meant to surrender the authority of preserving order, of enforcing moral duties and restraining vice, within their own territory? And this is the present case, that of Cohen being under the ancient and general law of gaming. Can any good be effected by taking from the States the moral rule of their citizens, and subordinating it to the general authority, or to one of their corporations, which may justify forcing the meaning of words, hunting after possible constructions, and hanging inference on inference, from heaven to earth, like Jacob's ladder ? Such an intention was impossible, and such a licentiousness of construction and inference, if exercised by both governments, as may be done with equal right, would equally authorize both to claim all power, general and particular, and break up the foundations of the Union. Laws are made for men of ordinary understanding, and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties, which may make anything mean everything or nothing, at pleasure. It should be left to the sophisms of advocates, whose trade it is, to prove that a defendant is a plaintiff, though dragged into court, torto collo, like Bonaparte's volunteers, into the field in chains, or that a power has been given, because it ought to have been given, et alia talia. The States supposed that by their tenth amendment, they had secured themselves against constructive powers. They were not lessoned yet by Cohen's case, nor aware of the slipperiness of the eels of the law. I ask for no straining of words against the General Government, nor yet against the States. I believe the States can best govern our home concerns, and the General Government our foreign ones. I wish, therefore, to see maintained that whole. some distribution of powers established by the constitution for the limitation of both ; and never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold as at market.
But the Chief Justice says, “there must be an ultimate arbiter somewhere.” True, there must ; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.
I rejoice in the example you set of seriatim opinions. I have heard it often noticed, and always with high approbation. Some of your brethren will be encouraged to follow it occasionally, and in time, it may be felt by all as a duty, and the sound practice of the primitive court be again restored. Why should not every judge be asked his opinion, and give it from the bench, if only by yea or nay? Besides ascertaining the fact of his opinion, which the public have a right to know, in order to judge whether it is impeachable or not, it would show whether the opinions were unanimous or not, and thus settle more exactly the weight of their authority.
The close of my second sheet warns me that it is time now to relieve you from this letter of unmerciful length. Indeed, I wonder how I have accomplished it, with two crippled wrists, the one scarcely able to move my pen, the other to hold my paper. But I am hurried sometimes beyond the sense of pain, when unbosoming myself to friends who harmonize with me in principle. You and I may differ occasionally in details of minor consequence, as no two minds, more than two faces, are the same in every feature. But our general objects are the same; to preserve the republican form and principles of our constitution, and cleave to the salutary distribution of powers which that has established. These are the two sheet anchors of our Union. If driven from either, we shall be in danger of foundering. To my prayers for its safety and perpetuity, I add those for the continuation of your health, happiness, and usefulness to your country.
TO PRESIDENT MONROE.
MOTICELLO, June 23, 1823. DEAR SIR, I have been lately visited by a Mr. Miralla, a native of Buenos Ayres, but resident in Cuba for the last seven or eight years; a person of intelligence, of much information, and frankly communicative. I believe, indeed, he is known to you. I availed myself of the opportunity of learning what was the state of public sentiment in Cuba as to their future course. He says they would be satisfied to remain as they are ; but all are sensible that that cannot be; that whenever circumstances shall render a separation from Spain necessary, a perfect independance would be their choice, provided they could see a certainty of protection; but that, without that prospect, they would be divided in opinion between an incorporation with Mexico, and with the United States.—Columbia being too remote for prompt support. The considerations in favor of Mexico are that the Havana would be the emporium for all the produce of that immense and wealthy country, and of course, the medium of all its commerce; that having no ports on its eastern coast, Cuba would become the depot of its naval stores and strength, and, in effect, would, in a great measure, have the sinews of the government in its hands. That in favor of the United States is the fact that three-fourths of the exportations from Havana come to the United States, that they are a settled government, the power which can most promptly succor them, rising to an eminence promising future security; and of which they would make a member of the sovereignty, while as to England, they would be only a colony, subordinated to her interest, and that there is not a man in the island who would not resist her to the bitterest extremity. Of this last sentiment I had not the least idea at the date of my late letters to you. I had supposed an English interest there quite as strong as that of the United States, and therefore, that, to avoid war, and keep the island open to our own commerce, it would be best to join that power in mutually guaranteeing its independence. But if there is no danger of its falling into the possession
of England, I must retract an opinion founded on an error of fact. We are surely under no obligation to give her, gratis, an interest which she has not; and the whole inhabitants being averse to her, and the climate mortal to strangers, its continued military occupation by her would be impracticable. It is better then to lie still in readiness to receive that interesting incorporation when solicited by herself. For, certainly, her addition to our confederacy is exactly what is wanting to round our power as a nation to the point of its utmost interest.
I have thought it my duty to acknowledge my error on this occasion, and to repeat a truth before acknowledged, that, retired as I am, I know too little of the affairs of the world to form opinions of them worthy of any attention; and I resign myself with reason, and perfect confidence to the care and guidance of those to whom the helm is committed. With this assurance, accept that of my constant and affectionate friendship and respect.
TO GEORGE TICKNOR.
MONTICELLO, July 16, 1823. DEAR SIR, I received in due time your favor of June 16th, and with it your Syllabus of lectures on Spanish literature. I have considered this with great interest and satisfaction, as it gives me a model of course I wish to see pursued in the different branches of instruction in our University. i. e. a methodical, critical, and profound explanation by way of protection of every science we propose to teach. I am not fully informed of the practices at Harvard, but there is one from which we shall certainly vary, although it has been copied, I believe, by nearly every college and academy in the United States. That is, the holding the students all to one prescribed course of reading, and disallowing exclusive application to those branches only which are to qualify them for the particular vocations to which they are destined. We shall, on the contrary, allow them uncontroled choice in the lectures they shall choose to attend, and require