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The American Commonwealth. Viscount James Bryce
Читать онлайн.Название The American Commonwealth
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isbn 9781614871217
Автор произведения Viscount James Bryce
Издательство Ingram
What happens if the authority of the national government is opposed, if, for instance, an execution levied in pursuance of a judgment of a federal court is resisted, or federal excisemen are impeded in the seizure of an illicit distillery?
Should the United States marshal or other federal officers be unable to overcome the physical force opposed to him, he may summon all good citizens to assist him, just as the sheriff may summon the posse comitatus. If this appeal proves insufficient, he must call upon the president, who may either order national troops to his aid or may require the militia of the state in which resistance is offered to overcome that resistance. Inferior federal officers are not entitled to make requisitions for state force. The common law principle that all citizens are bound to assist the ministers of the law holds in America as in England, but it is as true in the one country as in the other, that what is everybody’s business is nobody’s business. Practically, the federal authorities are not resisted in the more orderly states and more civilized districts. In such regions, however, as the mountains of Tennessee, Eastern Kentucky, and North Carolina the inland revenue officials find it very hard to enforce the excise laws, because the country is wild, concealment is easy among the woods and rocks, and the population sides with the smugglers. And in some of the Western states an injunction granted by a court, whether a federal or a state court, is occasionally disregarded.19 Things were, of course, much worse before the War of Secession had established the authority of the central government on an immovable basis. Federal law did not prove an unquestioned protection either to persons who became in some districts unpopular from preaching abolitionism, or to those Southern slave-catchers, who endeavoured, under the Fugitive Slave laws, to recapture in the Northern states slaves who had escaped from their masters.20 Passion ran high, and great as is the respect for law, passion in America, as everywhere else in the world, will have its way.
If the duly constituted authorities of a state resist the laws and orders of the national government, a more difficult question arises. This has several times happened.
In November 1798 the legislature of Kentucky adopted resolutions declaring that the Constitution was not a submission of the states to a general government, but a compact whereby they formed such a government for special purposes and delegated to it certain definite powers; that when the general government assumed undelegated powers, its acts were unauthoritative and void; and that it had not been made the exclusive or final judge of the extent of the powers delegated to it. Five weeks later the Virginia legislature passed similar but more guarded resolutions, omitting, inter alia, the last of the above-mentioned deliverances of Kentucky. Both states went on to declare that the Sedition and Alien Acts recently passed by Congress were unconstitutional, and asked the other states to join in this pronouncement and to cooperate in securing the repeal of the statutes.21 Seven states answered, all in an adverse sense.
In 1808 the legislatures of some of the New England states passed resolutions condemning the embargo which the national government had laid upon shipping by an act of that year. The state judges, emboldened by these resolutions, took an attitude consistently hostile to the embargo, holding it to be unconstitutional; popular resistance broke out in some of the coast towns; and the federal courts in New England seldom succeeded in finding juries which would convict even for the most flagrant violation of its provisions. At the outbreak of the war of 1812 the governors of Massachusetts and Connecticut refused to allow the state militia to leave their state in pursuance to a requisition made by the president under the authority of an act of Congress, alleging the requisition to be unconstitutional; and in October 1814 the legislatures of these two states and of Rhode Island, states in which the New England feeling against the war had risen high, sent delegates to a convention at Hartford, which, after three weeks of secret session, issued a report declaring that “it is as much the duty of the State authorities to watch over the rights reserved as of the United States to exercise the powers delegated,” laying down doctrines substantially similar to those of the Kentucky resolutions, and advising certain amendments to the federal Constitution, with a menace as to further action in case these should be rejected. Massachusetts and Connecticut adopted the report; but before their commissioners reached Washington, peace with Great Britain had been concluded. In 1828–30 Georgia refused to obey an act of Congress regarding the Cherokee Indians, and to respect the treaties which the United States had made with that tribe and the Creeks. The Georgian legislature passed and enforced acts in contempt of federal authority, and disregarded the orders of the Supreme Court, President Jackson, who had an old frontiersman’s hatred to the Indians, declining to interfere.
Finally, in 1832, South Carolina, first in a state convention and then by her legislature, amplified while professing to repeat the claim of the Kentucky resolutions of 1798, declared the tariff imposed by Congress to be null and void as regarded herself, and proceeded to prepare for secession and war. In none of these cases was the dispute fought out either in the courts or in the field;22 and the questions as to the right of a state to resist federal authority, and as to the means whereby she could be coerced, were left over for future settlement. Settled they finally were by the Civil War of 1861–65, since which time the following doctrines may be deemed established:
No state has a right to declare an act of the federal government invalid.23
No state has a right to secede from the Union.
The only authority competent to decide finally on the constitutionality of an act of Congress or of the national executive is the federal judiciary.24
Any act of a state legislature or state executive conflicting with the Constitution, or with an act of the national government done under the Constitution, is really an act not of the state government, which cannot legally act against the Constitution, but of persons falsely assuming to act as such government, and is therefore ipso jure void.25 Those who disobey federal authority on the ground of the commands of a state authority are therefore insurgents against the Union who must be coerced by its power. The coercion of such insurgents is directed not against the state but against them as individual though combined wrongdoers. A state cannot secede and cannot rebel. Similarly, it cannot be coerced.
This view of the matter, which seems on the whole to be that taken by the Supreme Court in the cases that arose after the Civil War, disposes, as has been well observed by Judge Hare,26 of the difficulty which President Buchanan felt (see his message of December 3, 1860) as to the coercion of a state by the Union. He argued that because the Constitution did not provide for such coercion, a proposal in the Convention of 1787 to authorize it having been ultimately dropped, it was legally impossible. The best answer to this contention is that such a provision would have been superfluous, because a state cannot legally act against the Constitution. All that is needed is the power, unquestionably contained in the Constitution (art. III, § 3), to subdue and punish individuals guilty of treason against the Union.27
Except in the cases hereinbefore specified, the national government has no right whatever of interfering either with a state as a commonwealth or with the individual citizens thereof, and may be lawfully resisted should it attempt to do so.
“What then?” the European reader may ask. “Is the national government without the power and the duty of correcting the social and political evils which it may find to exist in a particular state, and which a vast majority of the nation may condemn? Suppose widespread brigandage to exist in one of the states, endangering life and property. Suppose contracts to be habitually broken, and no redress to be obtainable in the state courts. Suppose the police to be in league with the assassins. Suppose the most mischievous laws to be enacted, laws, for instance, which recognize polygamy, leave homicide unpunished, drive away capital by imposing upon it an intolerable load of taxation. Is the nation obliged to stand by with folded arms while it sees a meritorious minority oppressed, the prosperity