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View of the Constitution of the United States - St. George Tucker, View of the Constitution of the United States with Selected Writings 
View of the Constitution of the United States with Selected Writings, ed. Clyde N. Wilson (Indianapolis: Liberty Fund 1999).
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View of the Constitution of the United States
Having in the preceding pages taken a slight view of the several forms of government, and afterwards examined with somewhat closer attention the constitution of the commonwealth of Virginia, as a sovereign, and independent state, it now becomes necessary for the American student to inquire into the connection established between the several states in the union by the constitution of the United States. To assist him in this inquiry, I shall now proceed to consider: First, the nature of that instrument, with the manner in which it hath been adopted; and, Secondly, its structure, and organization; with the powers, jurisdiction, and rights of the government thereby established, either independent of, or connected with, those of the state governments; together with the mutual relation which subsists between the federal, and state governments, in virtue of that instrument.
I. I am to consider the nature of that instrument by which the federal government of the United States, has been established, with the manner of its adoption.
The constitution of the United States of America, then, is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several states of North-America, and ratified by the people thereof, respectively; whereby the several states, and the people thereof, respectively, have bound themselves to each other, and to the federal government of the United States; and by which the federal government is bound to the several states, and to every citizen of the United States.
1. It is a compact; by which it is distinguished from a charter, or grant; which is either the act of a superior to an inferior; or is founded upon some consideration moving from one of the parties, to the other, and operates as an exchange, or sale: but here the contracting parties, whether considered as states, in their politic capacity and character; or as individuals, are all equal; nor is there any thing granted from one to another: but each stipulates to part with, and to receive the same thing, precisely, without any distinction or difference in favor of any of the parties. The considerations upon which this compact was founded, and the motives which led to it, as declared in the instrument itself, were, to form a more perfect union than theretofore existed between the confederated states; to establish justice, and ensure domestic tranquility, between them; to provide for their common defense, against foreign force, or such powerful domestic insurrections as might require aid to suppress them; to promote their general welfare; and to secure the blessings of liberty to the people of the United States, and their posterity.
2. It is a federal compact; several sovereign and independent states may unite themselves together by a perpetual confederacy, without each ceasing to be a perfect state. They will together form a federal republic: the deliberations in common will offer no violence to each member, though they may in certain respects put some constraint on the exercise of it, in virtue of voluntary engagements.1 The extent, modifications, and objects of the federal authority are mere matters of discretion; so long as the separate organization of the members remains, and from the nature of the compact must continue to exist, both for local and domestic, and for federal purposes; the union is in fact, as well as in theory, an association of states, or, a confederacy.2 The state governments not only retain every power, jurisdiction, and right not delegated to the United States, by the constitution, nor prohibited by it to the states, but they are constituent and necessary parts of the federal government; and without their agency in their politic character, there could be neither a senate, nor president of the United States; the choice of the latter depending mediately, and of the former, immediately, upon the legislatures of the several states in the union.
This idea of a confederate, or federal, republic, was probably borrowed from Montesquieu, who treats of it as an expedient for extending the sphere of popular government, and reconciling internal freedom with external security, as hath been mentioned elsewhere. The experience of the practicability and benefit of such a system, was recent in the memory of every American, from the success of the revolutionary war, concluded but a few years before; during the continuance of which the states entered into a perpetual alliance and confederacy with each other. Large concessions of the rights of sovereignty were thereby made to congress; but the system was defective in not providing adequate means, for a certain, and regular revenue; congress being altogether dependent upon the legislatures of the several states for supplies, although the latter, by the terms of compact, were bound to furnish, whatever the former should deem it necessary to require. At the close of the war, it was found that congress had contracted debts, without a revenue to discharge them; that they had entered into treaties, which they had not power to fulfil; that the several states possessed sources of an extensive commerce, for which they could not find any vent. These evils were ascribed to the defects of the existing confederation; and it was said that the principles of the proposed constitution were to be considered less as absolutely new, than as the expansion of the principles contained in the articles of confederation: that in the latter those principles were so feeble and confined, as to justify all the charges of inefficiency which had been urged against it; that in the new government, as in the old, the general powers are limited, and that the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdictions. This construction has since been fully confirmed by the twelfth article of amendments,3 which declares, “that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This article was added “to prevent misconstruction or abuse” of the powers granted by the constitution,4 rather than supposed necessary to explain and secure the rights of the states, or of the people. The powers delegated to the federal government being all positive, and enumerated, according to the ordinary rules of construction, whatever is not enumerated is retained; for, expressum facit tacere tacitum is a maxim in all cases of construction: it is likewise a maxim of political law, that sovereign states cannot be deprived of any of their rights by implication; nor in any manner whatever by their own voluntary consent, or by submission to a conqueror.
Some of the principal points mutually insisted on, and conceded, by the several states, as such, to each other, were, that representatives and direct taxes should be apportioned among the states, according to a decennial census; that each state should have an equal number of senators; and that the number of electors of the president of the United States, should in each state be equal to the whole number of senators and representatives to which such state may be entitled in the congress; that no capitation or other direct tax shall be laid, unless in proportion to the census; that full faith and credit shall be given in each state to the public acts, records, and proceedings of every other state; that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states; that persons charged with treason, felony, or other crime, in one state, and fleeing from justice to another state, shall be delivered up, on demand of the executive authority of the state from which he fled; that no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned; that the United States shall guarantee to every state in the union a republican form of government, and shall protect each of them against invasion; and, on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence; that amendments to the constitution, when proposed by congress, shall not be valid unless ratified by the legislatures of three fourths of the several states; and that congress shall, on the application of two thirds of the legislatures of the several states, call a convention for proposing amendments, which when ratified by the conventions in three fourths of the states shall be valid to all intents and purposes, as a part of the constitution; that the ratification of the conventions of nine states, should be sufficient for the establishment of the constitution, between the states so ratifying; and lastly, by the amendment before mentioned, it is declared, that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Thus far every feature of the constitution appears to be strictly federal.
3. It is also, to a certain extent, a social compact; the end of civil society is the procuring for the citizens whatever their necessities require, the conveniences and accommodations of life, and, in general, whatever constitutes happiness: with the peaceful possession of property, a method of obtaining justice with security; and in short, a mutual defense against all violence from without. In the act of association, in virtue of which a multitude of men form together a state or nation, each individual is supposed to have entered into engagements with all, to procure the common welfare: and all are supposed to have entered into engagements with each other, to facilitate the means of supplying the necessities of each individual, and to protect and defend him.5 And this is, what is ordinarily meant by the original contract of society. But a contract of this nature actually existed in a visible form, between the citizens of each state, respectively, in their several constitutions; it might therefore be deemed somewhat extraordinary, that in the establishment of a federal republic, it should have been thought necessary to extend its operation to the persons of individuals, as well as to the states, composing the confederacy. It was apprehended by many, that this innovation would be construed to change the nature of the union, from a confederacy, to a consolidation of the states; that as the tenor of the instrument imported it to be the act of the people, the construction might be made accordingly: an interpretation that would tend to the annihilation of the states, and their authority. That this was the more to be apprehended, since all questions between the states, and the United States, would undergo the final decision of the latter.
That the student may more clearly apprehend the nature of these objections, it may be proper to illustrate the distinction between federal compacts and obligations, and such as are social by one or two examples. A federal compact, alliance, or treaty, is an act of the state, or body politic, and not of an individual; on the contrary, the social contract is understood to mean the act of individuals, about to create, and establish, a state, or body politic, among themselves. … Again; if one nation binds itself by treaty to pay a certain tribute to another; or if all the members of the same confederacy oblige themselves to furnish their quotas of a common expense, when required; in either of the cases, the state, or body politic, only, and not the individual is answerable for this tribute, or quota; for although every citizen in the state is bound by the contract of the body politic, who may compel him to contribute his part, yet that part can neither be ascertained nor levied, by any other authority than that of the state, of which he is a citizen. This is, therefore, a federal obligation; which cannot reach the individual, without the agency of the state who made it. But where by any compact, express, or implied, a number of persons are bound to contribute their proportions of the common expense; or to submit to all laws made by the common consent; and where, in default of compliance with these engagements the society is authorized to levy the contribution, or, to punish the person of the delinquent; this seems to be understood to be more in the nature of a social than a federal obligation. … Upon these grounds, and others of a similar nature, a considerable alarm was excited in the minds of many, who considered the constitution as in some danger of establishing a national, or consolidated government, upon the ruins of the old federal republic.
To these objections the friends and supporters of the constitution replied,6 “that although the constitution would be founded on the assent and ratification of the people of America, ye that assent and ratification was to be given by the people, not as individuals composing one entire nation; but as composing the distinct and independent states, to which they respectively belong. It is to be the assent and ratification of the several states, derived from the supreme authority in each state, the authority of the people themselves. The act, therefore establishing the constitution, will not,” said they, “be a national but a federal act.
“That it will be a federal and not a national act, as these terms are understood by the objectors, the act of the people, as forming so many independent states, not as forming one aggregate nation, is obvious from this single consideration, that it is the result neither from the decision of a majority of the people of the union, nor from a majority of the states. It must result from the unanimous assent of the several states that are parties to it, differing no otherwise from their ordinary assent, than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority; in the same manner as the majority in each state must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes; or by considering the will of the majority of the states, as evidence of the will of the majority of the people of the United States. Neither of these rules have been adopted. Each state in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation then the new constitution will be a federal, and not a national, constitution.
“With regard to the sources from which the ordinary powers of government are to be derived. The house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state. So far the government is national, not federal. The senate, on the other hand, will derive its powers from the states, as political and co-equal societies; and these will be represented on the principle of equality in the senate, as under the confederation. So far the government is federal, not national. The executive power will be derived from a very compound source. The immediate election of the president is to be made by the states, in their political character. The votes allotted to them are in a compound ratio, which considers them partly as distinct and co-equal societies; partly as unequal members of the same societies. The eventual election again is to be made, by that branch of the legislature which consists of the national representatives: but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and co-equal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many federal, as national features.
“The difference between a federal and national government, as it relates to the operation of the government, is, by the adversaries of the plan of the convention, supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy in their political capacities; in the latter, on the individual citizens composing the nation in their individual capacities. On trying the constitution by this criterion, it falls under the national, not the federal character, though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only. In some instances the powers of the federal government, established by the confederation, act immediately on individuals: in cases of capture, of piracy, of the post office, of coins, weights, and measures, of trade with the Indians, of claims under grants of land by different states, and, above all, in the cases of trials by courts martial in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the confederation operate immediately on the persons and interests of individual citizens. The confederation itself authorizes a direct tax to a certain extent on the post-office; and the power of coinage has been so construed by congress, as to levy a tribute immediately from that source also. The operation of the new government on the people in their individual capacities, in its ordinary and most essential proceedings, will, on the whole, in the sense of its opponents, designate it, in this relation, a national government.
“But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them within its own sphere. In this relation then the government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects, only, and leaves to the several states a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made according to the rules of the constitution; and all the usual and most effectual precautions are taken to secure the impartiality.
“If we try the constitution by its last relation, to the authority by which amendments are to be made, we find it neither wholly national, nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in a majority of the people of the union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal on the other hand, the concurrence of each state in the union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national, and advances towards the federal character; in rendering the concurrence of less than the whole number of states sufficient, it loses again the federal, and partakes of the national character.
“The proposed constitution, therefore, even when tested by the rules laid down by its antagonists, is in strictness neither a national nor a federal constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal, and partly national; in the operation of those powers, it is national, not federal; in the extent of them, it is federal, not national; and finally, in the authoritative mode of introducing amendments, it is neither wholly federal, nor wholly national.”
4. It is an original compact; whatever political relation existed between the American colonies, antecedent to the revolution, as constituent parts of the British empire, or as dependencies upon it, that relation was completely dissolved and annihilated from that period. … From the moment of the revolution they became severally independent and sovereign states, possessing all the rights, jurisdiction, and authority, that other sovereign states, however constituted, or by whatever title denominated, possess; and bound by no ties but of their own creation, except such as all other civilized nations are equally bound by, and which together constitute the customary law of nations. A common council of the colonies, under the name of a general congress, had been established by the legislature, or rather conventional authority in the several colonies. The revolutionary war had been begun, and conducted under its auspices; but the first act of union which took place among the states after they became independent, was the confederation between them, which was not ratified until March 1781, near five years from the commencement of their independence. The powers thereby granted to congress, though very extensive in point of moral obligation upon the several states, were perfectly deficient in the means provided for the practical use of them, as has been already observed. The agency and cooperation of the states, which was requisite to give effect to the measures of congress, not infrequently occasioned their total defeat. It became an unanimous opinion that some amendment to the existing confederation was absolutely necessary, and after a variety of unsuccessful attempts for that purpose, a general convention was appointed by the legislatures of twelve states, who met, consulted together, prepared, and reported a plan, which contained such an enlargement of the principles of the confederation, as gave the new system the aspect of an entire transformation of the old. The mild tone of requisition was exchanged for the active operations of power, and the features of a federal council for those of a national sovereignty. These concessions it was seen were, in many instances, beyond the power of the state legislatures, (limited by their respective constitutions) to make, without the express assent of the people. A convention was therefore summoned, in every state by the authority of their respective legislatures, to consider of the propriety of adopting the proposed plan; and their assent made it binding in each state; and the assent of nine states rendered it obligatory upon all the states adopting it. Here then are all the features of an original compact, not only between the body politic of each state, but also between the people of those states in their highest sovereign capacity.
Whether this original compact be considered as merely federal, or social, and national, it is that instrument by which power is created on the one hand, and obedience exacted on the other. As federal it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question;7 as a social compact it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute; because every person whose liberty, or property was thereby rendered subject to the new government, was antecedently a member of a civil society to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government. The few particular cases in which he submits himself to the new authority, therefore, ought not to be extended beyond the terms of the compact, as it might endanger his obedience to that state to whose laws he still continues to owe obedience; or may subject him to a double loss, or inconvenience for the same cause.
And here it ought to be remembered that no case of municipal law can arise under the constitution of the United States, except such as are expressly comprehended in that instrument. For the municipal law of one state or nation has no force or obligation in any other nation; and when several states, or nations unite themselves together by a federal compact, each retains its own municipal laws, without admitting or adopting those of any other member of the union, unless there be an article expressly to that effect. The municipal laws of the several American states differ essentially from each other; and as neither is entitled to a preference over the other, on the score of intrinsic superiority, or obligation, and as there is no article in the compact which bestows any such preference upon any, it follows, that the municipal laws of no one state can be resorted to as a general rule for the rest. And as the states, and their respective legislatures are absolutely independent of each other, so neither can any common rule be extracted from their several municipal codes. For, although concurrent laws, or rules may perhaps be met within their codes, yet it is in the power of their legislatures, respectively to destroy that concurrence at any time, by enacting an entire new law on the subject; so that it may happen that that which is a concurrent law in all the states today may cease to be law in one, or more of them tomorrow. Consequently neither the particular municipal law of any one, or more, of the states, nor the concurrent municipal laws of the whole of them, can be considered as the common rule, or measure of justice in the courts of the federal republic; neither hath the federal government any power to establish such a common rule, generally; no such power being granted by the constitution. And the principle is certainly much stronger, that neither the common nor statute law of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption: which, not being permitted by the original compact, by which the government is created, any attempt to introduce it, in that or any other mode, would be a manifest breach of the terms of that compact.
Another light in which this subject may be viewed is this. Since each state in becoming a member of a federal republic retains an uncontrolled jurisdiction over all cases of municipal law, every grant of jurisdiction to the confederacy, in any such case, is to be considered as special, inasmuch as it derogates from the antecedent rights and jurisdiction of the state making the concession, and therefore ought to be construed strictly, upon the grounds already mentioned. Now, the cases falling under the head of municipal law, to which the authority of the federal government extends, are few, definite, and enumerated, and are all carved out of the sovereign authority, and former exclusive, and uncontrollable jurisdiction of the states respectively: they ought therefore to receive the strictest construction. Otherwise the gradual and sometimes imperceptible usurpations of power, will end in the total disregard of all its intended limitations.
If it be asked, what would be the consequence in case the federal government should exercise powers not warranted by the constitution, the answer seems to be, that where the act of usurpation may immediately affect an individual, the remedy is to be sought by recourse to that judiciary, to which the cognizance of the case properly belongs. Where it may affect a state, the state legislature, whose rights, will be invaded by every such act, will be ready to mark the innovation and sound the alarm to the people: and thereby either effect a change in the federal representation, or procure in the mode prescribed by the constitution, further “declaratory and restrictive clauses,” by way of amendment thereto. An instance of which may be cited in the conduct of the Massachusetts legislature: who, as soon as that state was sued in the federal court, by an individual, immediately proposed, and procured an amendment to the constitution, declaring that the judicial power of the United States shall not be construed to extend to any suit brought by an individual against a state.
5. It is a written contract; considered as a federal compact, or alliance between the states, there is nothing new or singular in this circumstance, as all national compacts since the invention of letters have probably been reduced to that form: but considered in the light of an original, social, compact, it may be worthy of remark, that a very great lawyer, who wrote but a few years before the American revolution, seems to doubt whether the original contract of society had in any one instance been formally expressed at the first institution of a state.8 The American revolution seems to have given birth to this new political phenomenon: in every state a written constitution was framed, and adopted by the people, both in their individual and sovereign capacity, and character. By this means, the just distinction between the sovereignty, and the government, was rendered familiar to every intelligent mind; the former was found to reside in the people, and to be unalienable from them; the latter in their servants and agents: by this means, also, government was reduced to its elements; its object was defined, its principles ascertained; its powers limited, and fixed; its structure organized; and the functions of every part of the machine so clearly designated, as to prevent any interference, so long as the limits of each were observed. The same reasons operated in behalf of similar restrictions in the federal constitution. Whether considered as the act of the body politic of the several states, or, of the people of the states, respectively, or, of the people of the United States, collectively. Accordingly we find the structure of the government, its several powers and jurisdictions, and the concessions of the several states, generally, pretty accurately defined, and limited. But to guard against encroachments on the powers of the several states, in their politic character, and of the people, both in their individual and sovereign capacity, an amendatory article was added, immediately after the government was organized, declaring; that the powers not delegated to the United States, by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people. And, still further, to guard the people against constructive usurpations and encroachments on their rights, another article declares; that the enumeration of certain rights in the constitution, shall not be construed to deny, or disparage, others retained by the people. The sum of all which appears to be, that the powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question.
The advantages of a written constitution, considered as the original contract of society must immediately strike every reflecting mind; power, when undefined, soon becomes unlimited; and the disquisition of social rights where there is no text to resort to, for their explanation, is a task, equally above ordinary capacities, and incompatible with the ordinary pursuits, of the body of the people. But, as it is necessary to the preservation of a free government, established upon the principles of a representative democracy, that every man should know his own rights, it is also indispensably necessary that he should be able, on all occasions, to refer to them. In those countries where the people have been deprived of the sovereignty, and have no share, even in the government, it may perhaps be happy for them, so long as they remain in a state of subjection, to be ignorant of their just rights. But where the sovereignty is, confessedly, vested in the people, government becomes a subordinate power, and is the mere creature of the people’s will: it ought therefore to be so constructed, that its operations may be the subject of constant observation, and scrutiny. There should be no hidden machinery, nor secret spring about it.
The boasted constitution of England, has nothing of this visible form about it; being purely constructive, and established upon precedents or compulsory concessions betwixt parties at variance. The several powers of government, as has been elsewhere observed, are limited, though in an uncertain way, with respect to each other; but the three together are without any check in the constitution, although neither can be properly called the representative of the people. And from hence, the union of these powers in the parliament hath given occasion to some writers of that nation to stile it omnipotent: by which figure it is probable they mean no more, than to inform us that the sovereignty of the nation resides in that body; having by gradual and immemorial usurpations been completely wrested from the people.
6. It is a compact freely, voluntarily, and solemnly entered into by the several states, and ratified by the people thereof, respectively: freely, there being neither external, nor internal force, or violence to influence, or promote the measure; the United States being at peace with all the world, and in perfect tranquility in each state: voluntarily, because the measure had its commencement in the spontaneous acts of the state-legislatures, prompted by a due sense of the necessity of some change in the existing confederation: and, solemnly, as having been discussed, not only by the general convention who proposed, and framed it; but afterwards in the legislatures of the several states, and finally, in the conventions of all the states, by whom it was adopted and ratified.
The progress of this second revolution in our political system was extremely rapid. Its origin may be deduced from three distinct sources: The discontents of the army, and other public creditors; . … the decay of commerce, which had been diverted from its former channels; and the backwardness, or total neglect of the state-legislatures in complying with the requisitions, or recommendations of congress.
The discontents of the army had at several periods, during the war, risen to an alarming height, and threatened, if not a total revolt, at least a general disbandment. They were checked, or palliated by various temporary expedients and resolves of congress; but, not long before the cessation of hostilities, some late applications to congress, respecting the arrears of their pay and depreciation, not having produced the desired effect; an anonymous address to the army, couched in the most nervous language of complaint, made its appearance in camp; it contained a most spirited recapitulation of their services, grievances, and disappointments, and concluded with advising, “an appeal from the justice to the fears of government.” The effects, naturally to have been apprehended from so animated a performance, addressed to men who felt their own injuries in every word, were averted by the prudence of the commander in chief;9 and congress, as far as in them lay, endeavoured to do ample justice to the army; which was soon after entirely disbanded: but, as congress had not the command of any revenue, requisitions to the states were the only mode, by which funds for the discharge of so honorable a debt, could be procured. The states, already exhausted by a long and burdensome war, were either in no condition to comply with the recommendations of congress, or were so tardy and parsimonious in furnishing the supplies required, that the clamors against the government became every day louder and louder. Every creditor of government, of which there were thousands, besides the army now dispersed among the citizens, became an advocate for the change of such an inefficient government, from which they saw it was in vain to hope for satisfaction of their various demands.
But it is not probable that the discontents or clamors of the creditors of government, alone, would have been sufficient to effectuate a fundamental change in the government, had not other causes conspired to render its inefficiency the subject of observation and complaint, among another very numerous class of citizens … these were the commercial part of the people, inhabiting almost exclusively all the sea-ports, and other towns on the continent, and dispersed at small intervals through the whole country. The New-England states, in a great measure, dependent upon commerce, had before the war enjoyed a free trade with the West-India Islands, subject to the crown of Great-Britain; they had likewise maintained a very beneficial intercourse with the French Islands, from whence they drew supplies of molasses for their distilleries. The whale and cod-fisheries might be said to have been almost monopolized by them, on the American coast; at least the advantages they enjoyed for carrying on these branches of trade, bade fair to exclude every other nation from a competition with them on their native coasts. New-York and Pennsylvania had likewise the benefit of an advantageous fur-trade, through the channels lately occupied by the British posts, on the frontiers of the United States, which by the treaty of peace were to have been evacuated with all convenient speed. The possession of these being still retained, and the utmost vigilance exerted by the British government to prevent any communication with the Indian country; that very lucrative branch of the trade of the United States had been wholly diverted into the channel of Canada. … The ports of the English West-India Islands, which, it was expected would have been open to our vessels, as before the revolution, were, immediately after the conclusion of the peace, strictly prohibited to the American traders: . … those of the French islands were under such restrictions as greatly impaired the former advantageous intercourse with them:. … The protection formerly enjoyed under the British flag from the depredations of the corsairs of the Barbarian states, being now withdrawn, the commerce with the Mediterranean and the ports bordering thereupon, whither a great part of the produce of the fisheries, as well as the surplus of grain, was exported, was entirely cut off, from the danger of annoyance from those piratical states. … Great-Britain had, formerly, not only afforded a market for the whale oil, but had given a liberal bounty on it, both of which she now ceased to do, and no other country could be found to supply either of these advantages. Thus the sources of commerce in those states, were either dried up, or obstructed on every side, and the discontents prevailing among the newly liberated states, were little short of those of the Israelites in the wilderness. … Commotions in the northern states, seemed to threaten a repetition of the horrors of a civil war; these were ascribed to the inadequacy of the general government to secure or promote the interest and prosperity of the federal union: but whether their origin was not also to be ascribed to the administration of the state governments, is at least highly questionable.
The little regard which was paid to the requisitions of congress for money from the states, to discharge the interest of the national debt, and in particular that part due to foreigners, or foreign states, and to defray the ordinary expenses of the federal government, gave rise to a proposition, that congress should be authorized, for the period of twenty-five years, to impose a duty of five percent on all goods imported into the United States. Most of the states had consented to the measure, but the number required by the confederation could not be prevailed on to adopt it: New-York and Rhode-Island were particularly opposed to it. Thus a project which might perhaps have answered every beneficial purpose, proposed afterwards by the new constitution, was disconcerted, from the jealousy of granting a limited power for a limited time, by the same people, who, within three years after, surrendered a much larger portion of the rights of sovereignty without reserve.
In addition to this measure, congress in their act of April 18th, 1783, had proposed, that the eighth article of the confederation, which made the value of lands the ratio of contribution from the several states, should be revoked, and instead thereof the ratio should be fixed among the states, in proportion to the whole number of white inhabitants and three-fifths of all other persons, according to a triennial census. This proposition was agreed to in Virginia, but like the former, was not acceded to by a sufficient number of the states to form an article of the confederation. … Yet this ratio is precisely the same, which has been since fixed by the new constitution as the rate by which direct taxes shall be imposed on the several states.
The total derangement of commerce, as well as of the finances of the United States, had proceeded to such lengths before the conclusion of the year 1785, that early in the succeeding year commissioners were appointed by the state of Virginia, to meet such commissioners as might be appointed by other states, for the purpose of “considering how far an uniform system in the commercial regulations may be necessary to their common interests, and their permanent harmony; and to report to the several states such an act, relative to that object, as when unanimously ratified by them, would enable congress effectually to provide for the same.” The commissioners assembled at Annapolis accordingly, in September 1786, but were met only by commissioners from four of the other twelve states. … They considered the number of states represented to be too few to proceed to business … but before they separated, wrote a letter to their constituents, recommending the appointment of deputies to meet in Philadelphia the succeeding May, for the purpose of extending the revision of the federal system to all its defects. … In pursuance whereof the legislature of Virginia passed an act, appointing seven commissioners to meet such deputies as may be appointed by other states, to assemble, as recommended, and join in “devising and discussing, all such alterations, and further provisions as may be necessary to render the federal constitution adequate to the exigencies of the union; and in reporting such an act for that purpose to the United States in congress, as when agreed to by them, and duly confirmed by the several states, would effectually provide for the same. Similar measures were adopted by all the states in the union, except Rhode Island: deputies assembled from all the other states; but instead of amendments to the confederation, they produced a plan for an entire change of the form of the federal government, and not without some innovation of its principles. The moment of its appearance all the enemies of the former government lifted up their voices in its favor. Party zeal never ran higher without an actual breach of the peace. Had the opposers of the proposed constitution been as violent as its advocates, it is not impossible that matters would have proceeded to some pernicious lengths: but the former were convinced that some change was necessary, which moderated their opposition; whilst the latter were animated in the pursuit of their favorite plan, from an apprehension that no other change was practicable. In several of the states, the question was decided in favor of the constitution by a very small majority of the conventions assembled to consider of its adoption. In North Carolina it was once rejected, and in Rhode Island twice: nor was it adopted by either, until the new government was organized by the ratifying states. Considerable amendments were proposed by several states; by the states of Massachusetts, South Carolina, Virginia, and New York, particularly. It was finally adopted by all the States, after having been the subject of consideration and discussion for a period little short of two years.
The form of ratification, and the amendments proposed by the convention of Virginia, were as follows:
“We, the delegates of the people of Virginia, duly elected, in pursuance of a recommendation of the general assembly, and now met in convention, having fully and fairly investigated and discussed the proceedings of the federal convention, and being prepared, as well as the most mature deliberation will enable us, to decide thereon, do, in the name and behalf of the people of Virginia, declare and make known, that the powers granted under the constitution, being derived from the people of the United States, may be resumed by them, whenever the same shall be perverted to their injury or oppression; and that every power not granted thereby, remains with them and at their will: that therefore no right, of any denomination, can be cancelled, abridged, restrained, or modified by the congress, by the senate, or house of representatives, acting in any capacity, by the president, or any department or office of the United States, except in those instances where power is given by the constitution for those purposes: that among other essential rights, the liberty of conscience and of the press, cannot be cancelled, abridged, restrained, or modified by any authority of the United States.
“With these impressions, with a solemn appeal to the searcher of hearts for the purity of our intentions, and under the conviction, that whatsoever imperfections may exist in the constitution, ought rather to be examined in the mode prescribed therein, than to bring the union into danger by delay, with a hope of obtaining amendments previous to the ratification: we, the said delegates, in the name and in behalf of the people of Virginia, do, by these presents, assent to, and ratify the constitution recommended on the 17th day of September, 1787, by the federal convention for the government of the United States; hereby announcing to all those whom it may concern, that the said constitution is binding upon the said people, according to an authentic copy hereto annexed, in the words following:10
“The declaration of rights, and the amendments to the new constitution agreed by the convention of Virginia, to be recommended to the consideration of the congress which shall first assemble under the said constitution.11
In Convention, June 27, 1788.
amendments to the new constitution.
And, the convention do, in the name and behalf of the people of this commonwealth, enjoin it upon their representatives in congress, to exert all their influence, and use all reasonable and legal methods to obtain a ratification of the foregoing alterations and provisions, in the manner provided by the fifth article of the said constitution; and in all congressional laws to be passed in the meantime, to conform to the spirit of these amendments, as far as the said constitution will admit.
Extract from the Journal,
I have said that the constitution was ratified by the conventions of the several states, assembled for the purpose of considering the propriety of adopting it. As the tenor of the instrument imports that it is the act of the people, and as every individual may, to a certain degree, be considered as a party to it, it will be necessary to add a few words on the subject of representation, and of the power which a majority have to bind the minority.
The right of suffrage is one of the most important rights of a free citizen; and in small states where the citizens can easily be collected together, this right ought never to be dispensed with on any great political question. But in large communities, such a measure, however desirable, is utterly impracticable, for reasons too obvious to be dwelt upon: hence the necessity that the people should appoint a smaller and more convenient number to represent the aggregate mass of the citizens. This is done not only for the purposes of ordinary legislation, but in large states, and on questions which require discussion and deliberation, is the most eligible mode of proceeding, even where the vote of every individual of the nation should be desired. Therefore, when the convention at Philadelphia had made their report, the ordinary legislatures, with great propriety, recommended the appointment of state-conventions, for the sole and especial purpose of considering the propriety of adopting the constitution, thus proposed by the convention of the states. The deputies in most of the counties were chosen according to the prevailing sentiments of the people in favor of the constitution, the opinions of the candidates being generally previously known. It is much to be wished that this had been universally the case, since the will of the people would in that case have been unequivocally expressed.
The right of the majority to bind the minority, results from a due regard to the peace of society; and the little chance of unanimity in large societies or assemblies, which, if obtainable, would certainly be very desirable; but inasmuch as that is not to be expected, whilst the passions, interests, and powers of reason remain upon their present footing among mankind, in all matters relating to the society in general, some mode must be adopted to supply the want of unanimity. The most reasonable and convenient seems to be, that the will of the majority should supply this defect; for if the will of the majority is not permitted to prevail in questions where the whole society is interested, that of the minority necessarily must. The society therefore, in such a case, would be under the influence of a minority of its members, which, generally speaking, can on no principle be justified.
It is true there are cases, even under our own constitution, where the vote of a bare majority is not permitted to take effect; but this is only in points which have, or may be presumed to have, received the sanction of a former majority, as where an alteration in the constitution is proposed. In order, therefore, to give the greater stability to such points, they are not permitted to be altered by a bare majority: in cases also which are to be decided by a few, but which may, nevertheless, affect a variety of interests, it was conceived to be safest to require the assent of more than a bare majority; as, in concluding treaties with foreign nations, where the interests of a few states may be vitally affected, while that of a majority may be wholly unconcerned. Or, lastly, where the constitution has reposed a corresponding trust in different bodies who may happen to disagree in opinion; as, where the president of the United States shall return a bill to congress with his reasons for refusing his assent to it; in all these cases more than a bare majority are required to concur in favor of any measure, before it can be carried into complete effect.
7th. It is a compact by which the several states and the people thereof, respectively, have bound themselves to each other, and to the federal government.
Having shown that the constitution had its commencement with the body politic of the several states; and, that its final adoption and ratification was by the several legislatures referred to, and completed by conventions, especially called and appointed for that purpose, in each state; the acceptance of the constitution was not only an act of the body politic of each state, but of the people thereof respectively, in their sovereign character and capacity: the body politic was competent to bind itself so far as the constitution of the state permitted; but not having power to bind the people, in cases beyond their constitutional authority, the assent of the people was indispensably necessary to the validity of the compact, by which the rights of the people might be diminished, or submitted to a new jurisdiction, or in any manner affected. From hence, not only the body politic of the several states, but every citizen thereof, may be considered parties to the compact, and to have bound themselves reciprocally to each other, for the due observance of it; and, also to have bound themselves to the federal government, whose authority has been thereby created, and established.
8. Lastly. It is a compact by which the federal government is bound to the several states, and to every citizen of the United States.
Although the federal government can, in no possible view, be considered as a party to a compact made anterior to its existence, and by which it was, in fact, created; yet as the creature of that compact, it must be bound by it, to its creators, the several states in the union, and the citizens thereof. Having no existence but under the constitution, nor any rights, but such as that instrument confers; and those very rights being in fact duties; it can possess no legitimate power, but such as is absolutely necessary for the performance of a duty, prescribed and enjoined by the constitution. Its duties, then, become the exact measure of its powers; and wherever it exerts a power for any other purpose, than the performance of a duty prescribed by the constitution, it transgresses its proper limits, and violates the public trust. Its duties, being moreover imposed for the general benefit and security of the several states, in their politic character; and of the people, both in their sovereign, and individual capacity, if these objects be not obtained, the government will not answer the end of its creation: it is therefore bound to the several states, respectively, and to every citizen thereof, for the due execution of those duties. And the observance of this obligation is enforced, by the solemn sanction of an oath, from all who administer the government.
The constitution of the United States, then being that instrument by which the federal government hath been created; its powers defined, and limited; and the duties, and functions of its several departments prescribed; the government, thus established, may be pronounced to be a confederal republic, composed of several independent, and sovereign democratic states, united for their common defense, and security against foreign nations, and for the purposes of harmony, and mutual intercourse between each other; each state retaining an entire liberty of exercising, as it thinks proper, all those parts of its sovereignty, which are not mentioned in the constitution, or act of union, as parts that ought to be exercised in common. It is the supreme law of the land, and as such binding upon the federal government; the several states; and finally upon all the citizens of the United States. … It can not be controlled, or altered without the express consent of the body politic of three fourths of the states in the union, or, of the people, of an equal number of the states. To prevent the necessity of an immediate appeal to the latter, a method is pointed out, by which amendments may be proposed and ratified by the concurrent act of two thirds of both houses of congress, and three fourths of the state legislatures; but if congress should neglect to propose amendments in this way, when they may be deemed necessary, the concurrent sense of two thirds of the state legislatures may enforce congress to call a convention, the amendments proposed by which, when ratified by the conventions of three fourths of the states, become valid, as a part of the constitution. In either mode, the assent of the body politic of the states, is necessary, either to complete, or to originate the measure.
Here let us pause a moment, and reflect on the peculiar happiness of the people of the United States, thus to possess the power of correcting whatever errors may have crept into the constitution, or may hereafter be discovered therein, without the danger of those tremendous scenes which have convulsed every nation of the earth, in their attempts to ameliorate their condition; a power which they have already more than once successfully exercised. “Americans,” says a writer whom I have before quoted, “ought to look upon themselves, at present, as almost the sole guardians and trustees of republican freedom: for other nations are not, as we are, at leisure to show it in its true and most enticing form. Whilst we contemplate with a laudable delight, the rapid growth of our prosperity, let us ascribe it to its true cause, the wholesome operation of our new political philosophy. Whatever blessings we enjoy, over and above what are to be found under the British government, whatever evils we avoid, to which the people of that government are exposed; for all these advantages are we indebted to the separation that has taken place, and the new order of things that has obtained among us. Let us be thankful to the parent of the universe, that he has given us, the first enjoyment of that freedom, which is intended in due time for the whole race of man. Let us diligently study the nature of our situation, that we may better know how to preserve and improve its advantages. But above all, let us study the genuine principles of democracy, and steadily practice them, that we may refute the calumnies of those who would bring them into disgrace.
“Let us publish to the world, and let our conduct verify our assertions, that by democracy we mean not a state of licentiousness, nor a subversion of order, nor a defiance of legal authority. Let us convince mankind, that we understand by it, a well ordered government, endued with energy to fulfill all its intentions, to act with effect upon all delinquents, and to bring to punishment all offenders against the laws: but, at the same time, not a government of usurpation; not a government of prescription; but a government of compact, upon the ground of equal right, and equal obligation; in which the rights of each individual spring out of the engagement he has entered into, to perform the duties required of him by the community, whereby the same rights in others, are to be maintained inviolate.”12
That mankind have a right to bind themselves by their own voluntary acts, can scarcely be questioned: but how far have they a right to enter into engagements to bind their posterity likewise? Are the acts of the dead binding upon their living posterity, to all generations; or has posterity the same natural rights which their ancestors have enjoyed before them? And if they have, what right have any generation of men to establish any particular form of government for succeeding generations?
The answer is not difficult: “Government,” said the congress of the American States, in behalf of their constituents, “derives its just authority from the consent of the governed.” This fundamental principle then may serve as a guide to direct our judgment with respect to the question. To which we may add, in the words of the author of Common Sense, a law is not binding upon posterity, merely, because it was made by their ancestors; but, because posterity have not repealed it. It is the acquiescence of posterity under the law, which continues its obligation upon them, and not any right which their ancestors had to bind them.
Until, therefore, the people of the United States, whether the present, or any future generation, shall think it necessary to alter, or revoke the present constitution of the United States, it must be received, respected, and obeyed among us, as the great and unequivocal declaration of the will of the people, and the supreme law of the land.
II. I shall now proceed to the second branch of our inquiry; namely; the structure and organization of the federal government of the United States, with its powers, jurisdiction, and rights, as established by the constitution of the United States, either independent of or connected with, those of the state governments, respectively; together with the mutual relation which subsists between the federal and state governments in virtue of that instrument.
And, here, we may be permitted shortly to repeat some former observations: That, when the whole body of the people are possessed of the supreme power in the state, it is a democracy. That in such a government, the people are in some respects the sovereign, and in others, the subject. That, in the establishment of the constitution or fundamental law by which the state is to be governed, and in the appointment of magistrates, they are the sovereign: when the constitution of the state is fixed, the government organized, and the magistrates are appointed, every citizen is bound to obedience to the sovereign will thus expressed, and consequently becomes a subject.
That, in a democracy, the people ought to do, themselves whatever they conveniently can; that, what they can not do of themselves, must be committed to the management of ministers chosen by themselves; that they are their trustees and agents; and that a government thus formed and organized, may be styled a representative democracy. That, the choice of ministers may be made, either, personally, by the whole body of the people; or by their deputies, chosen for that especial purpose, and in whom they can repose a proper confidence.
That, a number of independent states may unite themselves by one common bond or confederacy, for the purposes of common defense and safety, and for the more perfect preservation of amity between themselves, without any of them ceasing to be a perfect, independent, and sovereign state, retaining every power, jurisdiction and right, which it has not expressly agreed shall be exercised in common by, the confederacy of the states, and not by any individual state of the confederacy.
In the commonwealth of Virginia, the constitution, which is the fundamental law of the republic, hath been shown to be the act of the people. The establishment of this constitution was an immediate act of sovereignty by them. They declared, that all power is vested in, and consequently derived from the people. That magistrates are their trustees and servants, and at all times amenable to them. That government is instituted for the common benefit, protection, and security of the people. That no man or set of men are entitled to exclusive or separate emoluments or privileges but in consideration of public services. That the people have a right to uniform government; and, that no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue; and by frequent recurrence to fundamental principles.13 This is the principle of democracy.
By the establishment of this constitution, without any dependence upon any foreign power, Virginia became an independent and sovereign state: her rights were naturally the same as any other state’s. She might, therefore, perform every act, which any other sovereign state, however constituted, could perform: she was also equal to any other state, or nation, being sovereign and independent.14
In becoming a member of the federal alliance established between the American states, by the articles of confederation, she expressly retained her sovereignty and independence. The constraints put upon the exercise of that sovereignty, by those articles, did not destroy its existence.
We have already shown that this system was defective in not providing the means, for a certain and regular revenue; and, that the inefficiency of the system, in that, and perhaps in some other aspects, gave rise to the new constitution. Of the immediate causes, and the particular motives and reasons which may be supposed to have led to the adoption of this important measure, together with a short history of its origin, progress, and final consummation; as also, of the foundation, and general nature of the new instrument of union between the states, a short explanation has likewise been attempted; nevertheless, we shall not infrequently have occasion to recur to, and perhaps to repeat, the same points, already touched upon; that the student may more perfectly understand, and bear in mind the reasons for the several provisions contained in the constitution, and the subsequent amendments to it, which have been proposed and ratified, and now form a part of it.
In the new instrument of union, there is no express reservation, as in the former, of the sovereignty of the several states; a subject of considerable alarm, and discussion, among those who were opposed to everything that resembled, or might hazard, a consolidation of them. The advocates of the constitution answered, that “an entire consolidation of the states into one complete national sovereignty, would imply a complete subordination of all the parties; and whatever power might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union, the state governments will clearly retain all the rights of sovereignty, which they had before, and which are not by that act exclusively delegated to the United States. That this exclusive delegation, or rather this alienation of state sovereignty, would only exist in three cases; where the constitution in express terms grants an exclusive authority to the union; where it grants in one instance an authority to the union, and in another prohibits the states from exercising the like authority; and where it grants an authority to the union, to which a similar authority in the states, would be absolutely, and totally contradictory, and repugnant.”15 The same writer elsewhere adds, “that it is not a mere possibility of inconvenience in the exercise of some powers, but an immediate and constitutional repugnancy that can by implication alienate and extinguish a preexisting right of sovereignty.” And further, that “the necessity of a concurrent jurisdiction in certain cases, results from the division of the sovereign power; and the rule that all authorities of which the states are not explicitly divested in favor of the union, remain with them in full vigor, is not only a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument.”16 And this constitution, as we have already had occasion to remark, is now confirmed by the subsequent amendments to the constitution, Art. 12. The right of sovereignty, therefore, in all cases not expressly ceded to the United States by the constitution, or prohibited by it to the several states, remains inviolably, with the states, respectively. What powers are comprehended under this reservation, will form a part of our present inquiry.
The institutions of all well constructed governments, as we have before had occasion to remark, have regard to two distinct objects; their connections, intercourse, and commerce with other states, and nations; and, the administration of justice between individuals, the preservation of their own domestic peace, and that of their citizens, and the advancement and promotion of the general happiness and prosperity of all who put themselves under their protection. Where the form of government is national, it is the duty of the body politic of the state to attend to all these objects. But where the government is not national, but federal, a division of power necessarily results from such a form of government; and the connections, intercourse and commerce of the confederate republic, with foreign states and nations; and with each other, as sovereign and independent states, naturally fall under the jurisdiction of the federal government, whilst the administration of all their other concerns, whatsoever, as naturally, remains with the states forming the confederacy.
This distinction may be considered as marking out the grand boundary between the limits of federal and of state jurisdiction; but a more intimate union between the states, in certain respects, being thought desirable, this grand boundary has not been strictly adhered to in the federal constitution, but in some few instances the authority of the federal government has been extended beyond it; a remarkable instance of which occurs in the power granted to congress to make uniform laws on the subject of bankruptcies, throughout the United States; a regulation in the strictest sense, municipal, and not federal. These instances are, however, few, and being in derogation of the municipal jurisdiction of the several states, ought for reasons already given to be strictly construed.
With regard to the principles of the organization, and structure of the federal government, whenever it departs from those of a confederate republic, it appears to conform to those of a representative democracy. The representatives in congress are chosen immediately by the people: the president may be chosen in a manner very nearly approaching a popular election, as in this state; though in some others, the election is further removed from the people; or rather, may be considered as taken away from them by their own legislatures, as in some of the northern states. All officers of the government, including the president, are impeachable for misconduct in office, and on conviction may be removed, and otherwise punished. These are prominent features of a representative democracy. In the appointment of senators its type is federal: in the mode of appointing the judges, it has been regarded as “squinting at monarchy.”17
The grand boundary which was noticed above, as marking the obvious limits between the federal and state jurisdictions, may be considered as allotting to the former, jurisdiction in all cases arising under the political laws of the confederacy, or such as relate to its general concerns with foreign nations, or to the several states, as members of the confederacy; and to the latter the cognizance of all matters of a civil nature, or such as properly belong to the head of municipal law; except in some few cases, where, by a special provision contained in the constitution either concurrent, or exclusive, jurisdiction is granted to the federal government. Of this distribution we shall endeavor to take a nearer survey.
The objects of the political laws of a state as mentioned by an eminent writer, are, first, to provide for the necessities of the nation.
To encourage labor and industry, to provide necessary workmen, to promote agriculture, to advance commerce, to establish an easy communication between the different parts of the state, to regulate the rates of money, are ranked among the first objects of a good government. To encourage education, the liberal arts, and sciences, justice and polity, and to fortify itself against attacks from without; to preserve peace, to support the dignity and equality of the nation, and to form advantageous connections, and a beneficial intercourse with other states and nations, may be considered as forming the aggregate of the political laws of a nation.18 I say nothing of the advancement of piety and religion; the present age seems to doubt of the necessity of any connection between church and state.
The powers delegated to congress by art. 1. sect. 8. of the new constitution; to the president and senate by art. 2. sect. 2. and 3. and to the judiciary by art. 3. sect. 2. may severally be arranged under one, or the other of these heads.
Of these powers some appear to be exclusively vested in congress, or some other department of the federal government; in others, the states certainly have concurrent, though perhaps subordinate, powers; in a third class is not easy to determine, the limits of either the state, or federal authority. The administration of justice between the citizens of the same state, appears to be left without reserve, (except in a few instances which will be particularly noticed, in the sequel) to the jurisdiction and control of the state governments.
Thus have we endeavored to trace the line of separation between the jurisdictions of the federal and the state governments: … it is however a broad line, extending like the ecliptic, sometimes on one side, and sometimes on the other, of our political equator: but let us examine it more minutely.
All the powers delegated by the people of the United States to the government, whether the federal, or that of the state, must fall under one of the four following heads.
These powers are either legislative, executive, or judiciary: we shall examine them under their respective heads.
In which two last cases, I am inclined to suppose, that congress are not restrained from vesting the cognizance of any case, comprehended under those heads, in the state courts, should they find it advisable so to do, especially in fiscal proceedings, and lesser offenses against the peace.
The preceding enumeration seems to comprehend all the cases applicable to our first head: we shall now proceed to consider.
To these we may add, that the judicial power of the state must be presumed to possess concurrent, though perhaps subordinate powers with the courts of the United States in the following cases:
It is no less true, that the federal government possessing powers of deciding in these cases, the decision of the federal judiciary, is according to the principles and nature of our government, paramount to that of the state judiciary. Causes instituted in the state courts are therefore liable to reexamination in the federal courts; and, perhaps in all these cases to removal in the manner pointed out by the act of congress.
If, however, a doubt should arise respecting the former, it might be presumed, that the rights intended to be conferred by this uniform rule of naturalization, should be, in general, confined to such as might be derived from the federal government, without infringing those rights which peculiarly appertain to the states. Thus a person naturalized pursuant to the laws of the United States, would undoubtedly acquire every right that any other citizen possesses, as a citizen of the United States, except such as the constitution expressly denies, or defers the enjoyment of; and such as the constitution of laws of the individual states require on the part of those who are candidates for office under the authority of the states. Five years residence, for example, is required by the laws of Virginia, before any naturalized foreigner is capable of being elected to any office under the state. It is presumable that his being naturalized under the laws of the United States would not supercede the necessity of this qualification.
In respect to bankruptcies it may be questioned whether the power of congress extends to cases arising between citizen and citizen of the same state, since their power does not extend to the internal or domestic commerce of the state, as we have already shown. Yet, on the other hand it may with great strength of reasoning be insisted, that here is a special case in which the power of the federal government extends to internal as well as foreign commerce; and that a contrary construction would probably defeat the constitution, which could not prescribe an uniform rule, without comprehending such cases as well as others.
This finishes the actual enumeration of the powers granted to the federal government, except what relates to the ceded territory, and the erection of new states, and some of the provisions which do not seem necessary to be recapitulated here, though we shall have occasion to notice them hereafter. There remains only to mention,
IV. The powers reserved to the states exclusively,
The twelfth article of the amendments to the constitution of the United States, declares, that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The powers absolutely prohibited to the states by the constitution, are, shortly, contained in article 1. section 10, viz.
All other powers of government whatsoever, except these, and such as fall properly under the first or third heads above-mentioned, consistent with the fundamental laws, nature, and principle of a democratic state, are therefore reserved to the state governments.20
From this view of the powers delegated to the federal government, it will clearly appear, that those exclusively granted to it have no relation to the domestic economy of the state. The right of property, with all its train of incidents, except in the case of authors, and inventors, seems to have been left exclusively to the state regulations; and the rights of persons appear to be no further subject to the control of the federal government, than may be necessary to support the dignity and faith of the nation in its federal or foreign engagements, and obligations; or its existence and unity as the depositary and administrator of the political councils and measures of the united republics. … Crimes and misdemeanors, if they affect not the existence of the federal government; or those objects to which its jurisdiction expressly extends, however heinous in a moral light, are not cognizable by the federal courts; unless committed within certain fixed and determinate territorial limits, to which the exclusive legislative power granted to congress, expressly extends. Their punishment, in all other cases, exclusively, belongs to the state jurisprudence.
The federal government then, appears to be the organ through which the united republics communicate with foreign nations, and with each other. Their submission to its operation is voluntary: its councils, its sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, as such, in the most unlimited extent.
But until the time shall arrive when the occasion requires a resumption of the rights of sovereignty by the several states (and far be that period removed when it shall happen) the exercise of the rights of sovereignty by the states individually, is wholly suspended, or discontinued, in the cases before mentioned: nor can that suspension ever be removed, so long as the present constitution remains unchanged, but by the dissolution of the bonds of union. An event which no good citizen can wish, and which no good, or wise administration will ever hazard.
Let us now take a view of the federal and state constitutions, and examine the structure and organization of the government, arising from their mutual connection, and the distribution of power among the several branches or departments of each, respectively.
The powers of government, both by the federal and state constitution, are distributed under three heads, the Legislative, Executive, and Judiciary; and these three departments the state constitution expressly declares shall be separate and distinct, so that neither exercise the powers properly belonging to the other. We shall nevertheless find that the constitution itself has in many respects blended them; assigning to the legislative body, duties, which, in strictness, belong to the executive; as in the appointment of the officers of government, &c. Yet this is undoubtedly conformable to the nature of a democracy in this, that the appointments is vested in the immediate representatives of the people. The constitution of the United States seems upon the same principle to have vested congress, in whom the legislative power is reposed, with powers absolutely foreign from the exercise of legislation, strictly speaking; but which will appear upon a scrutiny to have been more safely and beneficially entrusted to that department, than they could have been to any other whatsoever. Yet these deviations from the fundamental maxims of the government are to be construed strictly, and not made use of as precedents to justify others, where the constitution by its silence must be presumed to have referred it to that head under which it properly falls.
In the course of this investigation, we shall have occasion to inquire into the constituent parts of these several departments; with the mode of constituting them; the periods for which they are chosen; their respective qualifications, duties, and privileges; with the manner of removing them from, and punishing them for, any misconduct in office.
We shall begin with the federal government.
The same article provides that representatives and direct taxes shall be apportioned among the several states according to their respective numbers, to be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons; according to an actual enumeration to be made every ten years: but the number of representatives is limited to one for every thirty thousand persons.
This mode of ascertaining the number of representatives, and the inseparable connection thereby established between the benefits and burdens of the state, seems to be more consonant with the true principles of representation than any other which has hitherto been suggested. For every man, in his individual capacity, has an equal right to vote in matters which concern the whole community: no just reason therefore can be assigned why ten men in one part of the community should have greater weight in its councils, than one hundred in a different place, as is the case in England, where a borough composed of half a dozen freeholders, sends perhaps as many representatives to parliament, as a county which contains as many thousands; this unreasonable disparity appears to be happily guarded against by our constitution. It may be doubted indeed how far the apportionment of the numbers, as it respects slaves, is founded upon the principles of perfect equality; and if it be not, it may be a further question whether the advantage preponderates on the side of the states that have the most, or the fewest slaves amongst them; for, if on the one hand it be urged, the slaves are not in the rank of persons, being no more than goods or chattels, according to the opinion of the Roman jurists, and consequently not entitled to representation, it may be answered that the ratio of representation and taxation being the same, this additional weight in council is purchased at an expense which secures the opposite party from the abuse of it in the imposition of burdens on the government. On the other hand, it must be remembered, that the two fifths of this class of people who are not represented, are by that means exempted from taxation. An exemption which probably took its rise from the unprofitable condition of that proportion of the number of slaves.
The times, places and manner of holding elections for representatives and senators, shall be prescribed in each state by the legislature; subject nevertheless to such alterations as congress may make, except as to the places of choosing senators.
It cannot be denied, that this article vests a power in congress, the exercise of which, if not really dangerous to the liberties of the states, may at least interrupt their tranquility, unless dictated by the utmost wisdom and discretion. In some of the states the vote is conducted by ballot, in others viva voce. In some the members are chosen by a general ticket or ballot of the whole state; in others the representatives are chosen by districts. Without entering into the discussion of the preference due to either of these modes, we may venture to pronounce that the states respectively will be tenacious of that to which their own constitution or laws may have given the preference: any attempt to render the manner of election uniform must therefore inevitably produce discontents among the states. Hitherto the congress has wisely left this article to the direction of the state governments. The manner of proceeding in this state, as established by the act of 1788, (V.L.) c. 2. amended by the act of 1792. c. 1, is shortly, as follows.
The act divides the states into as many districts, as there are representatives to be chosen, and directs that the persons qualified by law to vote for members to the house of delegates, in each county composing a district, shall assemble at their respective court houses, on the third Monday in March, (now altered by the act of 1798. c. 14. to the fourth Wednesday in April) in every second year, and then and there vote for a proper person as a representative in congress. The election to be conducted by the high sheriff, or in case of sickness or inability to attend, one of his deputies, in the same manner as the elections for delegates, except that as no determination is to be had by view, but only by the polls, the votes being publicly taken viva voce. Immediately after the closing of the poll, the clerk having first signed the same and made oath to the truth thereof, is to deliver it to the sheriff; the sheriffs of the respective counties in the district shall within seven days thereafter, assemble at the court house of the county first named in the district, compare their respective polls, and return the person having the greater number of votes, or in case of an equality of votes, giving their own votes. Duplicates of such return under the hands and seals of the sheriffs are to be sent one to the governor, the other to the representative elected, with ten days thereafter under the penalty of 100$, and poll book under a similar penalty are to be returned again to the clerk of the counties respectively. The governor is moreover required to transmit to congress without delay the returns made to him. The act further provides that no person shall, during the same election, vote more than once for the same candidate; under the penalty of one hundred dollars. This provision was made to prevent persons voting in several counties within the same district.
The representatives by this bill are chosen immediately by the people, in a public manner, by the electors within an aggregate number of counties composing a district. The person chosen seems to be strictly the delegate of those by whom he is chosen, and bound by their instructions whenever they think proper to exercise the right. This principle has been denied by the British writers on their own government, and a deference to the maxims of that government probably prevented the decision of the question, when agitated in congress in the form of an article to a proposed bill of rights: but if the maxim be true, that all power is derived from the people; that magistrates are their trustees and servants, and at all times amenable to them for their conduct, it seems impossible to withhold our assent from the proposition, that in a popular government the representative is bound to speak the sense of his constituents upon every subject, where he is informed of it. The difficulty of collecting the sense of the people upon any question, forms no argument against their right to express that sense when they shall think proper so to do. Otherwise, by whatever denomination the government may be called, it is a confined aristocracy, in which the people have nothing more to do than to choose their rulers, over whose proceedings, however despotic, and repugnant to the nature and principles of the fundamental laws of the state, they have no control. It will be answered, that the power of removing and punishing is not denied by this doctrine, I answer, that the power of preventing offenses against the commonwealth, is to be preferred to that of punishing offenders; and if the government is virtually in the people, it ought to be so organized, that whenever they choose to exercise the right of governing, they may do it without destroying its existence. Corruption and mal-administration, unchecked, may drive them to a resumption of all the powers which they have entrusted to the government, and bring on tumults and disturbances which will end only with its final dissolution: an event to be apprehended in all governments, but particularly in democracies, since dissatisfaction towards the administration may produce a desire of change in the constitution itself; and every change by which the government is in the smallest degree removed from its republican nature and principle, must be for the worse. This danger is effectually avoided by the principle here contended for. The aggregate of mankind understand their own interest and their own happiness better than any individual: they never can be supposed to have resigned the right of judging for themselves to any set of men whatsoever; it is a right which can never be voluntarily resigned, though it may be wrested from their hands by tyranny, or violated by the infidelity and perfidy of their servants.
When vacancies happen in the representation from any state, the executive authority thereof, shall issue writs of election to fill the vacancies.
The manner of electing senators is much shorter, being vested in the legislatures of the several states; each state being entitled to two senators, whose periods of service are six years, and each senator is entitled to one vote.
The election of representatives we have seen, is by a mode strictly popular. Had the distinction of states been entirely done away, there could have been no good reason assigned, perhaps, why the election of senators should not have been assimilated thereto, at least in respect to numbers, since in a government where all parts are equal, no preference under any pretext whatsoever ought to be allowed to any one part, over the rest. Why then should Rhode Island and Delaware have as many representatives in the senate as Virginia and Massachusetts, which contain ten times their respective numbers? It has been answered, the senate are chosen to represent the states in their sovereign capacity, as moral bodies, who as such, are all equal; the smallest republic, as a sovereign state, being equal to the most powerful monarchy upon earth. As states, then, Rhode Island and Delaware are entitled to an equal weight in council on all occasions, where that weight does not impose a burden upon the other states in the union. Now as the relation between taxation and representation, in one branch of the legislature, was fixed by an invariable standard, and as that branch of the legislature possesses the exclusive right of originating bills on the subject of revenue, the undue weight of the smaller states is guarded against, effectually, in the imposition of burdens. In all other cases their interests, as states, are equal, and deserve equal attention from the confederate government. This could no way be so effectually provided for, as in giving them equal weight in the second branch of the legislature, and in the executive whose province it is to make treaties, &c. … Without this equality, somewhere, the union could not, under any possible view, have been considered as an equal alliance between equal states. The disparity which must have prevailed, had the apportionment of representation been the same in the senate as in the other house, would have been such as to have submitted the smaller states to the most debasing dependence. I cannot, therefore, but regard this particular in the constitution, as one of the happiest traits in it, and calculated to cement the union equally with any other provision that it contains.
This body is not, like the former, dissolved at the end of the period for which its members were elected; it is a permanent, perpetual body; the members, indeed, are liable to a partial change every two years, the senate being divided into three classes, one of which is vacated every second year, so that a total change in the members may be made in six years, but cannot possibly be effected, without the intervention of death, in less time. … According to the arrangements of the classes actually made, both the senators from the same state shall never vacate their seats at the same time; a provision which certainly has its advantages, as no state is thereby in danger of being not represented at any time.
This mode of constituting the senate, seems liable to some important objections.21 The perpetuity of the body is favorable to every stride it may be disposed to make towards extending its own power and influence in the government: a tendency to be discovered in all bodies, however constituted, and to which no effectual check can be opposed, but frequent dissolutions and elections. It is no satisfactory answer to this objection, that the members are removable, though the body itself be perpetual. The change, even were the members ineligible a second time, would be too gradual, to effect any counterpoise to this prevailing principle.
It has been insisted that the perpetuity of this body, is the only security to be found in the constitution against that instability of councils and of measures which has marked the proceedings of those states, where no such check is provided by the constitution.22 To which it may be answered, that every newly established government must be a government of experiment. … The design of a machine may appear correct, the model perfect, and adapted to all the purposes which the original inventor proposed: yet a thousand defects may be discovered when the actual application of its powers is made, and, many useful improvements, in time, become obvious, to the eyes of a far less skillful mechanic. Their success and perfection must, however, still depend upon actual experiment, and that experiment may suggest still further improvement. Are we to reject these because they did not occur to the first projector, though evidently growing out of his original design? Or, if on the other hand we have unwarily adopted that as an improvement, which experiment shall evince to be a defect, shall we be so wedded to error as to persist in the practice of it, for no better reason than that we have once fallen into it.
In case of vacancies in the office of senator, the executive of the state are authorized to make a temporary appointment until the next meeting of the legislature, who are then to fill the vacancy.
4. The qualifications of the members of these bodies respectively, are, that both senators and representatives should have been citizens of the United States, the former nine, and the latter seven years, and be citizens also of that state for which they shall be chosen, at the time of their election; to which the law of the state adds, that a representative should be a free holder and resident of the district for which he is chosen: a wise provision and perfectly consonant with the principles of representation, which should be made from the body of the people with whom the representative must be presumed to have a common interest, but which perhaps may be rendered nugatory, by the constitution which imposes no such condition, and which makes each house the judge of the qualifications, as well as of the elections and returns of its own members. The constitution further requires that a representative should be twenty-five, and a senator thirty years of age, to which may be added that no person holding any office under the United States shall be a member of either house during his continuance in office.
So much for the qualifications of the members of congress, to which we may subjoin their incapacities, as individuals, during the period for which they are elected; these are shortly an incapacity of being appointed to any civil office under the United States, which shall have been created or the emoluments thereof increased during their time. An admirable provision against venality, but which, it is to be feared, is not sufficiently guarded to prevent evasion. And to preclude undue influence on the part of the federal government over that of the commonwealth, it is provided by a law of the state, that the members of congress shall be ineligible to, and incapable of holding any seat in either house of assembly, or any legislative, executive, or judicial office, or other lucrative office whatsoever, under the government of this commonwealth: and this last provision is by the same act extended to all persons holding any legislative, executive, judicial or other lucrative office whatsoever under the United States, with a proviso in favor of militia officers, and county court magistrates.
5. Senators and representatives during their attendance in congress, as also in travelling to and returning from the place of their session, are privileged from arrest in all cases, except treason, felony, and breach of the peace, and no speech or debate in either house can be questioned in any other place. They are also entitled to a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.
These are all the personal privileges which the constitution gives to the members of the federal legislature. And here I shall transcribe the words of one of its former members on a similar occasion. … “The members of the legislature ought certainly to have no privilege but what is demonstrably essential to the freedom, and welfare of their constituents. The state is not made to dignify its officers, but the officers to serve the state. The dignity of a commonwealth does not consist in the elevation of one, or a few, but in the equal freedom of the whole. The privileges of the legislature ought to be defined by the constitution, and should be fixed as low as is consistent with the public welfare.”23 … This is the point which the constitution appears to have had in view, and every happily to have attained; and it is to be sincerely wished, the question may never arise whether they ought to have been more, or less, limited.
Thus much for the privileges of the members; each house has moreover its own distinct privileges and powers; those of the house of representatives are,
The vice-president of the United States is, by virtue of his office, president of the senate; but has no vote unless they be equally divided.
This power may at first view appear to be of no great consequence: it is however of the utmost importance; and the occasions on which it is said to have been exercised, will demonstrate the necessity of leaving it, as seldom as possible, to its full scope.24 In fact this part of the constitution gives a decided influence in the legislature to that part of the United States from which the vice-president shall be elected. He has eventually a veto, without being obliged to assign his reasons for it; it is otherwise with the president. But to return to the senate.
Exclusive of these privileges which the two houses possess, as contradistinguished from each other, each house possesses the right of determining the rules of its own proceedings; of punishing its members for disorderly behavior; and of expulsion, provided two-thirds concur therein.
What further powers or privileges the several houses of congress may constitutionally possess, has now become a question of no small importance. The great Bacon observes,25 “that as exception strengthens the force of a law, in cases not excepted, so enumeration weakens it, in cases not enumerated.” The powers vested in congress, the privileges of the members, and of each house, are severally enumerated in the constitution; not made exceptions from general powers, not enumerated. Consequently it would appear that they were not capable of extension, beyond the letter of the constitution itself. The twelfth article of the amendments to the constitution seems also not to favor a constructive extension of the powers of the federal government, or any department thereof; yet a case has occurred, which shows that the house of representatives have put a different construction on their powers. … On the 28th day of December, 1795, on information given by several members in their places (not upon oath,) of an attempt to corrupt them made by one Robert Randall, it was “resolved, that Mr. Speaker do issue his warrant directed to the sergeant at arms attending this house, commanding him to take into custody, wherever to be found, the body of the said Robert Randall, and the same in his custody to keep, subject to the further order and direction of the house.”
“A warrant, pursuant to the said resolution, was accordingly prepared, signed by Mr. Speaker under his seal, attested by the clerk, and delivered to the sergeant, with order forthwith to execute the same, and make due return thereof to the house.” The next day Randall was brought before the house in custody. He was detained in custody from that time to the 6th day of January, when a motion was made and seconded, that the house do come to the following resolution:
“Whereas any attempt to influence the conduct of this house, or its members, on subjects appertaining to their legislative functions, by motives other than the public advantage, is a high contempt of this house, and a breach of its privileges: and whereas it does appear to this house, by the information on oath of sundry members, and by the proceedings thereon had before the house, that Robert Randall did attempt to influence the conduct of the said members, in a matter relating to their legislative functions, to wit, the sale of a large portion of the public property, by motives of private emolument to the said members, other than, and distinct from the public advantage: therefore,
“Resolved, That the said Robert Randall has thereby committed a high contempt of this house, and a breach of its privileges.
“The previous question thereon was called for by five members, to wit . … shall the main question, to agree to the said resolution, be now put?
“And on the question . … shall the said main question be now put?
“It passed in the negative.
“A motion was then made and seconded, that the house do come to the following resolution:
“Resolved, that it appears to this house, that Robert Randall has been guilty of a contempt to, and a breach of the privileges of this house, by attempting to corrupt the integrity of its members, in the manner laid to his charge.
“And on the question thereupon,
“It was resolved in the affirmative, Yeas, 78. Nays, 17.
“Another motion was then made and seconded, that the house do come to the following resolution:
“Resolved, that the said Robert Randall be brought to the bar, reprimanded by the speaker, and committed to the custody of the sergeant at arms, until the further order of this house.
“And on the question thereupon,
“It was resolved in the affirmative.
“Pursuant thereto, the said Robert Randall was brought to the bar in custody, reprimanded by Mr. Speaker, and remanded in custody of the sergeant at arms, until further order of the house.
“The 18th of January, the house proceeded to consider the petition of Robert Randall, praying to be released from the imprisonment to which he is subject, by the order of this house, which lay on the table: whereupon,
“Resolved, That Robert Randall be discharged from the custody of the sergeant at arms, upon the payment of fees. … Proceedings of the house of representatives of the United States, in the case of Robert Randall and Charles Whitney. … Published by order of the house of representatives.”
Upon these proceedings a few remarks may not be deemed impertinent in this place.
1. By the amendments to the constitution, no person shall be deprived of life, liberty, or property, without due process of law.
Due process of law as described by Sir Edward Coke, is by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law. Due process of law must then be had before a judicial court, or a judicial magistrate. The judicial power of the United States is vested in one supreme court, and such inferior tribunals, as congress may establish, and extends to all cases in law and equity, arising under the constitution, &c. In the distribution of the powers of government, the legislative powers were vested in congress . … the executive powers (except in the instances particularly enumerated,) in the president and senate. The judicial powers (except in the cases particularly enumerated in the first article) in the courts: the word the, used in defining the powers of the executive, and of the judiciary, is with these exceptions, co-extensive in its signification with the word all: for all the powers granted by the constitution are either legislative, and executive, or judicial; to keep them for ever separate and distinct, except in the cases positively enumerated, has been uniformly the policy, and constitutes one of the fundamental principles of the American governments.
2. It will be urged, perhaps, that the house of representatives of the United States is, like a British house of commons, a judicial court: to which the answer is, it is neither established as such by the constitution (except in respect to its own members,) nor has it been, nor can it be so established by authority of congress; for all the courts of the United States must be composed of judges commissioned by the president of the United States, and holding their offices during good behavior, and not by the unstable tenure of biennial elections.
3. The amendments to the constitution expressly provide, “that no warrant shall issue but upon probable cause supported by oath or affirmation.” The speaker’s warrant for apprehending Randall was not supported by either: for the word affirmation must be understood as such a solemn asseveration by persons religiously scrupulous of swearing, as amounts in judicial proceedings to an oath, in point of obligation and penal consequences, and not to a bare assertion, however positive, made in any other manner. That the information of the members was made in the solemn manner before mentioned, or that their oath was dispensed with on account of religious scruples, cannot be presumed, since they were all sworn to their several declarations on the fourth of January, and not before.
4. The amendments to the constitution expressly provide, that no person shall be held to answer to a capital, or otherwise infamous crime, unless on presentment, or indictment of a grand jury. Randall’s offense was certainly an infamous crime, for which he deserved exemplary punishment. On the twenty-ninth of December, being brought to the bar in custody, it was demanded of him, whether he did admit or deny the truth of the charge against him; to which he answered, that he was not prepared to admit or deny the same. On the fourth of January, being again brought to the bar in custody, it was demanded of him by Mr. Speaker what he had to say in his defense; to which he answered, that he was not guilty. Here then Randall was held to answer for an infamous crime, without indictment or presentment of a grand jury.
5. The constitution provides, that the trial of all crimes, except in cases of impeachment, shall be by a jury.
After the prisoner had pleaded not guilty, and made an application to the house that the information might be sworn to, the house (after some preliminary proceedings) “resumed the hearing of his trial, and made some progress therein”; the next day they resumed it; and resolved to “proceed to a final decision on the said case” the next day.
6. The amendments to the constitution provide, that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district where the crime shall have been committed.
On the sixth of January the house proceeded to a final decision on the case of Robert Randall.
Five members of the house were his accusers, triers, and judges; four of these voted him guilty; the fifth voted with the minority; whether, as not conceiving him guilty, or as not conceiving the house to be a proper tribunal to condemn him, (both questions being blended in the resolution), does not appear. … Was this a trial by an impartial jury? Again,
By the amendments to the constitution, the jury should be from the state and district in which the crime was committed. The triers were composed of members, huc undique collatis.
Each house is moreover the judge of the elections, returns, and qualifications of its own members, as we have before observed; a majority of each is requisite to form a quorum to do business; a provision of no small importance, since otherwise it is possible that the concerns of the nation might be decided by a very small portion of its representatives; if, as has been done in other assemblies, the quorum were left to the decision of the body itself. In England, where there are near six hundred members in the house of commons, the number of 45 constitutes a quorum to do business. Is it possible that the nation can be represented by that number, whilst the elections stand upon their present footing? But although it requires a majority of the house of representatives, or the senate, to do the business of the nation, a smaller number may adjourn from day to day, and compel the attendance of absent members.
Each house is moreover required to keep a journal of its proceedings, and from time to time to publish the same; excepting such parts as may in their judgments require secrecy; a provision evidently calculated to defeat the salutary purposes of the former part of the rule; since every measure which intrigue may dictate, or cabal enforce, may thus be hid from the public eye, by being consigned to the secret journals; an expedient too obvious to be neglected whenever it may be found advisable.
The yeas and nays of the members of either house, on any question, shall, at the desire of one-fifth of those present, be entered on the journal. Any member of the house of lords in England may enter his protest on the journals of the house, but the commons possess no such privilege. In a representative government, it is of the utmost consequence that the people should be informed of the conduct of their delegates individually, as well as collectively. This purpose is fully answered by the rule here spoken of. But to prevent a call of the yeas and nays too frequently, as is said to have been practiced in the former congress, the constitution has set some reasonable limits to the exercise of this power, by requiring that at least one-fifth of the members present should concur in the expediency of it.
To prevent those inconveniences which might arise from the national legislatures omitting to assemble as often as the affairs of the nation require, the constitution provides, that congress shall assemble, at least once a year, and fixes the period of assembling to the first Monday of December, unless they shall by law appoint another day. It likewise vests the president of the United States with the power of convening them, or either house, on extraordinary occasions.
Lastly, to prevent the evils which might result from the want of a proper concert and good understanding between the houses, it is provided, that neither house, during the session of congress shall, without consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. And further to guard against any inconvenience which might result from their disagreement, it is provided, that in such case the president may adjourn them to any time he shall think proper. This is the only instance in which the constitution permits an interference with the duration of the session, on the part of the executive; and we have already seen, that though the power of convening the congress is entrusted, on extraordinary occasions, to the president of the United States, yet he has none to prevent, or even retard their assembling, at any time, by their own adjournment, or at certain stated periods fixed by law, or by the constitution.
The duration of congress is necessarily limited to two years, the period for which the house of representatives is chosen. The period of its commencement seems to have been fixed to the fourth day of March, the day on which the first congress assembled, and that of its expiration to the third of that month biennially. … It is incapable of any other mode of termination, there being no power in any part of the government to dissolve it. By these wise and salutary provisions, it is effectually guarded against every possible encroachment on its independence. Very different from the constitution of the British parliament, since the crown may, at any time, put an end to a session by a prorogation, or to the existence of a parliament by a dissolution.
The president of the United States may be considered sub modo, as one of the constituent parts of congress, since the constitution requires that every bill, order, resolution, or vote, to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment) shall be presented to him: if he approve he shall sign it, but if not he shall return it with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that house agree to pass it, it shall be sent, together with the objections to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house shall become a law. In all such cases the yeas and nays shall be entered on the journals of both houses. If any bill, &c. be not returned by the president within ten days, Sundays excepted, unless in case of adjournment, whereby the return is prevented, it shall nevertheless be a law &c.
This closes our hasty sketch of the constituent parts of the congress of the United States, with a short view of the duration and the outlines of the distinct powers, and privileges of both houses, as also of the individuals who compose them. Before we proceed to the investigation of the powers of the whole body thus formed, let us compare some of its most distinguished features, with those of the two houses of the British parliament, long held in idolatrous veneration, as a palladium of political freedom which some partial deity had bestowed upon that favorite nation, and presenting a model of perfection which the combined wisdom of nations, and of ages, could but faintly imitate, and never equal. We shall occasionally resume this comparison at different periods of our inquiry, in order to assist the student in the application of what he will meet with in authors on the subject of that far famed constitution, to the more recent institutions of our own.
In the course of this investigation I shall select those parts of the constitution of the British parliament, which in the opinion of one of its ablest advocates,26 constitutes its superior excellence, and not infrequently quote his opinions in his own words. To these I shall occasionally oppose the sentiments of later writers of his own country, on the same subject; the maxims of our own government, or the adaptation of those of the British government to the constitution of the United States: by these means I apprehend a fair comparison of their respective merits, as tending to promote the liberty and general happiness of the community, may be made.
I. The constituent parts of the British parliament, are, the house of commons, the house of lords, and the king, sitting there in his royal political capacity, in the union of which three estates the body politic of the kingdom consists. Analogous to which, though very differently constituted, we have seen the house of representatives and senate of the United States, and sub modo the president of the United States forming the general congress, or the supreme political legislature of the federal government. Thus far the great outlines of both governments appear to run parallel: they will however upon a nearer scrutiny be found frequently to diverge. We shall begin with the house of commons, which forms the democratical part of the British constitution.
“In a free state” says the author of the commentaries “every man who is supposed a free agent, ought to be in some measure his own governor, and therefore a branch at least of the legislative power should reside in the whole body of the people. In so large a state as Britain, therefore, it is very wisely contrived that the people should do that by their representatives, which it is impracticable to perform in person; representatives, chosen by a number of minute and separate districts, wherein all the voters are, or easily may be, distinguished.” He adds, elsewhere, “In a democracy there can be no exercise of sovereignty, but by suffrage, which is the declaration of the people’s will. In all democracies, therefore, it is of the utmost importance to regulate by whom and in what manner the suffrages are to be collected. In England where the people do not debate in a collective body, but by representation, the exercise of this sovereignty consists in the choice of representatives.”
Such are the principles laid down by this distinguished writer, from whence one would be led to conclude that the elections for members of the house of commons were regulated in a manner as conformable thereto as possible. That where there was an equality of right, an equality of representation would also be found; and that the right of suffrage would be regulated by some uniform standard, so that the same class of men should not possess privileges in one place, which they are denied in another.
1. By equality of representation, it will be understood, that I mean the right which any given number of citizens possessing equal qualifications in respect to the right of suffrage, have, to an equal share in the councils of the nation by their representatives, as an equal number of their fellow citizens in any other part of the state enjoy.
In England and in Wales there are fifty-two counties, represented by knights, elected by the proprietors of lands; the cities and boroughs are represented by citizens and burgesses, chosen by the mercantile part, or supposed trading part of the nation. … The whole number of English representatives, is 513 and of Scots, 45. The members of boroughs now bear above a quadruple proportion to those for counties: from whence one would, at first, be apt to conclude, that the population or at least the number of electors in the counties were equal; and, that the boroughs were at least four times as populous as the counties, collectively. The former of these suppositions would be perfectly unfounded in truth; the latter perhaps may approach nearer to it. In truth, were the latter supposition well founded, the equality of representation would not be much advanced by it. … In London which is supposed to contain near a seventh part of the number of the inhabitants of all England, they are entitled to four members only in parliament. The inconsiderable borough of Melcomb Regis in Dorsetshire sends as many. Manchester and Birmingham, two large populous, flourishing, manufacturing towns, have no representative, whilst the depopulated borough of Old Sarum, without a house or an inhabitant, is the vehicle through which two members obtain their seats in parliament; a representation equal to that of the most populous county.
Many other corresponding instances might be adduced to prove the inequality of representation; but they are unnecessary. … In America the representation is in exact proportion to the inhabitants. Every part of the states is therefore equal represented, and consequently has an equal share in the government. Here the principle that the whole body of the people should have a share in the legislature, and every individual entitled to vote, possess an equal voice, is practically enforced. … In England it is a mere illusion.
It is but justice to acknowledge that attempts have repeatedly been made, to effect a reform in this part of the British constitution: the voice of the nation has more than once loudly demanded it . … but their rulers, like the god Baal, have been otherwise employed; or deaf, or per-adventure asleep, and could not be awaked.
2. As to the right of suffrage in the individual, nearly the same principle seems to prevail in respect to the qualification in lands, in both countries; and the different manner of ascertaining it, is not sufficient to require any remark. I shall only observe that copy-holders, whose interest, in almost every other respect in their lands, seem to be equal to that of a free-holder, (at least, such as have inheritances in them) are not admitted to the right of suffrage. The proportion of copy-holders for life, or of inheritance, to the freehold tenants of the counties, I have never heard estimated: it is, however, very considerable.
“The right of voting in boroughs is various,” says Blackstone, “depending entirely on the several charters, customs, and constitutions of the respective places, which has occasioned infinite disputes.” It may vary no less perhaps in the different states of America, but there is this advantage, that however various, there can be little room for doubts, or disputes on the subject. In Virginia the qualification to vote in boroughs, is as fixed and invariable as in the counties. One principle however must not be lost sight of, which perhaps should have come under the last head. No borough can ever be entitled to a representative, whenever the number of inhabitants shall, for the space of seven years together, be less than half the number of the inhabitants of any county in Virginia. In England the boroughs retain the right of representation, as we have seen, even after they have lost their inhabitants. Another circumstance respecting them is no less notorious; though the right of suffrage is in the burgher, the power of sending the member to parliament is in the lord of the soil; a number of boroughs being private property, and the burghers, who are tenants, bound to vote as their lord shall direct: the shadow of the right of suffrage is all these burghers possess . … to the exercise of that right they are as much strangers, as to the pyramids of Egypt, or the ruins of Palmyra. It is scarcely possible that the electors of America should ever be degraded to a similar state of political mechanism.
3. The qualification of the members is the next object of our comparison. In England a knight of the shire must possess an estate in lands of the value of 600£ sterling, per annum, and a member for a borough of one half that value, except the eldest sons of peers; and of persons qualified to be knights of shires, and members of the two universities.
This at first view appears to be a proper and necessary precaution, as far as it extends, to secure the independence of the members of that branch of the legislature. But this argument is neither conclusive in fact, nor even in theory. Neither of these sums is an adequate support for a man moving in the rank of a member of the British parliament. Luxury has taken too deep root in the nation to authorize the supposition generally; and if it fails in general, it is of little avail that a few instances may be found of persons in that sphere, whose expenses do not exceed the requisite qualification in point of fortune. But if the principle be admitted that an independent fortune be necessary to secure the independence of the member in his legislative conduct, it would seem that the measure ought to be the same to all the members, since, according to the doctrine laid down by our author, a member though chosen by a particular district, when elected, serves the whole realm, the end of his election not being particular, but general. An equality of qualification should then have taken place; and if 600£ is necessary to secure the independence of the member, those who possess but half as much ought to be excluded; on the other hand, if 300£ be a competent sum for that purpose, how injurious must that law be to the rights of the citizen, which requires the qualification which is acknowledged to be sufficient for every good purpose, to be doubled. But a qualification in respect to estate is neither equally nor uniformly required; if the member elected should happen to be the eldest son of a peer, or of a person qualified to be knight of the shire; in either of these cases it is altogether dispensed with. The effect of this, as it respects the former of these classes of men, we shall speak of hereafter. As to the latter, it is sufficient to say, that presumption is allowed to supply the place of evidence; and both the exceptions prove the deviation from the general principle to have originated in the influence of the aristocratical interest of the nation.
In America no qualification in point of estate is required in the representative in congress by the constitution; and perhaps we may with some propriety insist that any such qualification would be not only unnecessary, but contrary to the true interests of their constituents. In England the interests of the crown, of the nobles, and of the people, are confessedly distinct and often diametrically opposite. In America all are citizens possessing equal rights in their civil capacities and relations; there are no distinct orders among us, except while in the actual exercise of their several political functions. When the member quits his seat, or the magistrate descends from the bench, he is instantly one of the people. The pageantry of office reaches not beyond the threshold of the place where it is exercised; and civil distinctions, privileges or emoluments independent of the office are interdicted by the principles of our government. To secure the independence of the members conduct, perhaps no previous qualification, in point of estate may be requisite; though such a qualification might for another reason have been not improper: that by sharing in the burdens of government, he might be restrained from an undue imposition of them upon his constituents. The law of the state indeed requires that the representative should be a freeholder, as well as a resident in the district; but both these provisions, as they require qualifications which the constitution does not, may possibly be found to be nugatory, should any man possess a sufficient influence in a district in which he neither resides nor is a freeholder, to obtain a majority of the suffrages in his favor. But how strong soever the reasons in favor of a qualification in point of estate might have been, on the grounds last spoken of, they were overbalanced probably by two considerations.
First, that in a representative government, the people have an undoubted right to judge for themselves of the qualification of their delegate, and if their opinion of the integrity of their representative will supply the want of estate, there can be no reason for the government to interfere, by saying, that the latter must and shall overbalance the former.
Secondly; by requiring a qualification in estate it may often happen, that men the best qualified in other respects might be incapacitated from serving their country. To which we may add, that the compensation which the members receive for their services, is probably such an equivalent, as must secure them from undue influence, or concessions from motives of interest.
A second qualification required by the British constitution is, that the person elected shall be of the age of twenty-one years at the time of his election: ours with more caution and perhaps with better reason, requires that he shall have attained to the age of twenty-five years.
These are all the positive qualifications, in which there appears to be any very material difference worth remarking. Of negative ones, those which relate to the incapacity of certain descriptions of placemen and pensioners in England, are limited to a very small part of the host of the former who depend upon the crown for support; and in respect to the latter only such pensioners as hold during the pleasure of the crown, are excluded. A list of placemen and pensioners in either the present or last parliament of England was published some years ago. … I do not recollect their exact number, but I can be positive that it exceeded two hundred. A number sufficient to secure the most unlimited influence in the crown: to these let us add the eldest sons of peers, and ask whether in a question between the commons and the nobility, it would be probable that they would give an independent vote, against the order in which they soon hoped to obtain a permanent rank and station.
Lastly, let me ask, if the conduct of those borough members who hold their seats by the appointment of members of the other house, or perhaps of their own, may reasonably be expected to be uninfluenced by the nod of their patrons? Can a house thus constituted be said to represent the people, the democratic part of the government? Can they be said to form a check upon the proceedings of the nobility, or the measures of the crown?27 The question only requires to be understood, to be answered decidedly in the negative.
We have seen that no person holding any office under the United States, shall be a member of either house during his continuance in office; and that no member of congress shall during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments thereof increased during such time. These provisions appear to be more effectual to secure the independence of the members, than any qualification in respect to estate: but, they seem not to have been carried quite far enough.
In the course of this parallel, we have seen that every deviation in the constitution of the United States from that of Great Britain has been attended with a decided advantage and superiority on the part of the former. We shall perhaps discover, before we dismiss the comparison between them, that all its defects arise from some degree of approximation to the nature of the British government.
The exclusive privileges of the house of commons, and of our house of representatives, with some small variation are the same. The first relative to money bills, in which no amendment is permitted to be made by the house of lords, is modified by our constitution so as to give the senate a concurrent right in every respect, except in the power of originating them: and this upon very proper principles; the senators not being distinguished from their fellow citizens by any exclusive privileges, and being in fact the representatives of the people, though chosen in a different manner from the members of the other house; no good reason could be assigned why they should not have a voice on the several parts of a revenue bill, as well as on the whole taken together. The power of impeachment by the house of representatives corresponds, precisely with that of the British house of commons.
II. We are now to draw a parallel between the house of lords, and the senate of the United States, as a second constituent part of the national legislature; and could the parallel between them end there, it might have been said, that all the branches of our political legislature, were, like a well chosen jury, omni exceptiono majores.
The house of lords are to be considered in two distinct points of view. … First, as representing a distinct order of men, with exclusive privileges annexed to their individual capacity, and secondly, as representing the nation.
1. As to the necessity of a distinct order of men in a state, with exclusive privileges annexed to the individual capacity, the author of the commentaries observes, “That the distinction of rank and honors is necessary in every well governed state, in order to reward such as are eminent for their public services, in a manner the most desirable to individuals, and yet without burden to the community; exciting thereby an ambitious, yet laudable ardor, and generous emulation, in others. A spring of action, which however dangerous or invidious in a mere republic, will certainly be attended with good effects under a monarchy. And since titles of nobility are thus expedient in the state, it is also expedient that their owners should form an independent and separate branch of the legislature. If they were confounded with the mass of the people, and like them only had a vote in electing representatives their privileges would soon be borne down and overwhelmed by the popular torrent, which would effectually level all distinctions.”
The conclusion which evidently arises from the former part of this quotation, “that no mere republic can ever be a well governed state,” inasmuch as honors and titles, the necessity of which, is here so pointedly urged, are dangerous and invidious in such a government, may be proved to be false, both from reasoning and example. But it will be time enough to controvert our author’s conclusion, when the truth of the principle upon which it is founded is established. The British constitution, with him, is somewhat like the bed of Procrustes; principles must be limited, extended, narrowed, or enlarged, to fit it. If they are not susceptible of so convenient a modification, they are to be wholly rejected. … But to return:
The vital principle of mixed governments is the distinction of orders, possessing, both collectively and individually, different rights, privileges or prerogatives. In an absolute monarchy, a confirmed aristocracy, or a pure democracy, this distinction cannot be found. There being no distinction of orders, there can be no contention about rights, in either of these forms of government, so long as the government remains in the full vigor of its constitution. When either of these three forms of government departs from its intrinsic nature, unless it assumes one of the other instead thereof, it becomes a mixed government. … And this mixture may consist in the combination of monarchy with aristocracy, as in Poland; or with democracy, as in France, under its late constitution, as modelled by the national assembly, and ratified by the king; or, in the blending of the aristocratic and democratic forms, as was the case with the Roman republic after the establishment of the tribunes; or of all three, as in the British constitution. The existence of either of these combinations are said to form the constitution of the state, in all the governments of the world, except those of America, and France under its late constitution; in these the constitution creates the powers that exist: In all others, the existing powers determine the nature of the constitution. To preserve those existing powers in their full tone and vigor, respectively, it may be necessary that each should possess an independent share in the supreme legislature, for the reasons assigned by the author of the commentaries; but this no more proves the necessity of the order, in a well governed state, than the necessity of wings to the human body would be proved, by a critical dissertation, on the structure, size, and position, of those of the fabulous deities of antiquity.
Our author considers those rewards which constitute a separate order of men, as attended with no burden to the community; nothing can be more false than such a supposition. If the distinction be personal, only, it must be created at the expense of the personal degradation of the rest of the community, during the life of the distinguished person. If hereditary, this degradation is entailed upon the people: personal distinctions cannot be supported without power, or without wealth; these are the true supporters of the arms of nobility; take them away, the shield falls to the ground, and the pageantry of heraldry is trodden underfoot.28 What character is less respected in England, than a poor Scotch lord, who is not one of the sixteen peers of that kingdom? That lord in his own clan, possesses comparative wealth and power sufficient among his humble dependents, to be looked up to as a Caesar in wealth, and a Caesar in authority.
“A titled nobility,” says a late distinguished English writer,29 “is the most undisputed progeny of feudal barbarism. Titles had in all nations denoted offices; it was reserved for Gothic Europe, to attach them to ranks. Yet this conduct admits explanation, for with them offices were hereditary, and hence the titles denoting them become hereditary too. These distinctions only serve to unfit the nobility for obedience, and the people for freedom; to keep alive the discontent of the one and to perpetuate the servility of the other; to deprive the one of the moderation that sinks them into citizens, and to rob the other of the spirit that exalts them into freemen. The possession of honors by the multitude, who have inherited, but not acquired them, engrosses and depreciates these incentives and rewards of virtue.” If these are the genuine fruits of that laudable ardor, and generous emulation, which give life and vigor to the community, and sets all the wheels of government in motion, heaven protect those whom it encounters in its progress.
But is there no stimulus to that laudable ardor and generous emulation which the commentator speaks of, to be found in a pure democracy, which may compensate for the absence of ranks and honors? Yes. virtue; that principle which actuated the Bruti, a Camillus, and a Cato in the Roman republic, a Timoleon, an Aristides, and an Epaminondas among the Greeks, with thousands of their fellow citizens whose names are scarcely yet lost in the wreck of time. That principle whose operation we have seen in our own days and in our own country, and of which, examples will be quoted by posterity so long as the remembrance of American liberty shall continue among men. … “Virtue,” says Montesquieu, “in a republic is a most simple thing; it is a love of the republic. Love of the republic in a democracy is a love of the democracy: love of the democracy is that of equality. The love of equality in a democracy limits ambition to the sole desire, to the sole happiness, of doing greater services to our own country than the rest of our fellow citizens. … But all cannot render equal services: hence distinctions arise here from the principle of equality, even when it seems to be removed, by signal services, or superior abilities.”
This distinction, the only one which is reconcilable to the genius and principle of a pure republic, is, if we may reason from effect to cause,30 the most powerful incentive to good government that can animate the human heart, with this advantage over those hereditary honors for which the commentator is so zealous an advocate, that the ambition excited by the former must of necessity be directed to public good, whilst the latter springing from self love, alone, may exist in the breast of a Caesar or a Cataline. A Franklin, or a Washington, need not the pageantry of honors, the glare of titles, nor the pre-eminence of station to distinguish them. Their heads like the mountain pine are seen above the surrounding trees of the forest, but their roots engross not a larger portion of the soil.
Equality of rights, in like manner, precludes not that distinction which superiority in virtue introduces among the citizens of a republic. Washington in retirement was equal, and only equal, in rights, to the poorest citizen of the state. Yet in the midst of that retirement the elevation of his character was superior to that of any prince in the universe, and the lustre of it far transcended the brightest diadem.
But even where it conceded that distinctions of rank and honors were necessary to good government, it would by no means follow that they should be hereditary; the same laudable ardor which leads to the acquisition of honor, is not necessary to the preservation of its badges; and these are all which its hereditary possessors, in general, regard. Had nature in her operations shown that the same vigor of mind and activity of virtue which manifests itself in a father, descends unimpaired to his son, and from him to latest posterity, in the same order of succession, that his estate may be limited to, some appearance of reason in favor of hereditary rank and honors might have been offered. But nature in every place, and in every age, has contradicted, and still contradicts this theory. The sons of Junius Brutus were traitors to the republic; the emperor Commodus was the son of Antoninus the philosopher; and Domitian was at once the son of Vespasian, and the brother of Titus.
If what has been said be a sufficient answer to the necessity of the distinction of ranks and honors to the well government of a state, the commentator himself hath afforded an unanswerable argument against their expedience in a republic, by acknowledging them to be both dangerous and invidious in such a government. And herewith agrees the author of the Spirit of Laws, who informs us, that the principle of a democracy is corrupted, when the spirit of equality is extinct. The same admirable writer gives us a further reason why so heterogeneous a mixture ought not to have a place in any government where the freedom and happiness of the people is thought an object worthy the attention of the government. “A nobility,” says he, “think it an honor to obey a king, but consider it as the lowest infamy to share the power with the people.”
We are indebted to the same author, for the following distinguished features of aristocracy: “If the reigning families observe the laws, aristocracy is a monarchy with several monarchs: but when they do not observe them, it is a despotic state governed by a great many despotic princes. In this case the republic consists only in respect to the nobles, and among them only. It is in the governing body; and the despotic state is in the body governed. The extremity of corruption is when the power of the nobles becomes hereditary; they can hardly then have any moderation.” Such is the picture of that order of men who are elevated above the people by the distinctions of rank and honors. When the subjects of a monarchy, they are the pillars of the throne, as the commentator styles them; or, according to Montesquieu, the tools of the monarch. … When rulers, as in an aristocracy, they are the despots of the people. … In a mixed government, they are the political Janizaries of the state, supporting and insulting the throne by turns, but still threatening and enslaving the people.
In America the senate are not a distinct order of individuals, but, the second branch of the national legislature, taken collectively. They have no privileges, but such as are common to the members of the house of representatives, and of the several state legislatures: we have seen that these privileges extend only to an exemption from personal arrests, in certain cases, and that it is utterly lost, in cases of treason, felony, or breach of the peace. They are more properly the privileges of the constituents, than of the members, since it is possible that a state might have no representative, and the United States no legislature, if the members might be restrained from attending their duty, by process issued at the suit of a creditor, or other person who might suppose he had cause of action against them. In England the privileges of the peerage are in some instances an insult to the morals of the people, the honor of a peer, on several occasions, being equivalent with the oath of a commoner. The exemption from personal arrests in civil cases is extended as well to his servant, as to the lord of parliament; to the injury of creditors, and the no small encouragement of fraud and knavery. And the statutes of scandalum magnatum hang in terrorem over the heads of those who dare to scrutinize, or to question the reality of those superior endowments which the law ascribes, to the immaculate character of a peer or peeress of the realm. Happy for America that her constitution and the genius of her people, equally secure her against the introduction of such a pernicious and destructive class of men.31
Secondly. We shall now consider the British house of lords, as representing the nation.
The superior degree of wisdom which is to be found in aristocracies, forms the principal argument in favor of this branch of the British legislature. Let us examine how far this requisite to national councils, is to be attained by the constitution of that house.
The house of lords is composed either of new made peers, or of such to whom that honor has been transmitted by hereditary right; we may admit, though the fact will hardly justify it, that the new made peers have a chance of being selected for their superior wisdom; nay that this is universally the case; the portion of wisdom thus acquired, even in the creative reign of George the third, could never be sufficient to counterbalance the large majority of hereditary peers, who affect to hold in great contempt the talents and learning of their new created brethren. The wisdom of this body rests then upon the chance of natural talents, with the advantages of education to improve and mature them. As to the latter, should we admit that a child, who, from the moment he is capable of making any observation, sees himself treated as a superior being, would have the same stimulus to improve, as one who is taught to consider the road to science as the only one which leads to distinction, no advantage could be claimed in favor of the hereditary legislator, unless it should be proved that the benefits of education are necessarily confined to that class of men. … The question rests then solely upon the mode by which the nobility become legislators, and here every argument against the transmission of talents and virtue in hereditary succession, recurs with accumulated force, the chance of this inheritance being confined by the laws to the eldest son.32
The senate of the United States, as we have seen, is composed of individuals selected for their probity, attachment to their country, and talents, by the legislatures of the respective states. They must be citizens of the states for which they are chosen . … their merits must be known, must have been distinguished, and respected. Age must have matured the talents, and confirmed the virtues which dawned with childhood, or shine forth with youth. Principles must have been manifested, and conduct have evinced their rectitude, energy, and stability. … Equivocation of character can scarcely obtain admittance where the trust is important, elections rare, and limited to an individual, or, at most, to two. The whole number of senators are at present limited to thirty-two . … it is not probable that they will ever exceed fifty. … A late writer33 has observed, that an assembly of Newtons, if they exceeded a hundred, would be a mob. The British house of peers consists of twice that number at the least, and may be increased, at the will of the prince, to any number. …34 The senators of America have the interest of a state to promote, or to defend. A British house of peers has the privileges of the order, the interests of the corporation of aristocracy, to advance. Their wisdom, their exertions, are directed to their own personal aggrandizement. … Those of an American senator can scarcely find an object, except the good of the nation, or of the individual state which he represents. A peer holds himself responsible to no one for his conduct; a senator is responsible to his constituents, and if he abuses their confidence, will be sure to be displaced, whilst the former hugs himself in the security and stability of his station. I say nothing of the bench of bishops. The independence of that body has been too frequently questioned to render them respectable, even in the eyes of their own nation, as a part of the legislature.
A member of the house of lords, may make another lord his proxy, to vote for him in his absence; a privilege which he is supposed to derive from sitting there in his own right; and not as one of the representatives of the nation. He may likewise, by leave of parliament enter his protest against any measure, analogous to which we have seen that the yeas and nays of either house of congress shall be called, if one fifth part of the members present concur therein.
The lord chancellor, or any other person appointed by the king’s commission is speaker of the house of lords; and if none be so appointed, the house of lords may elect; and if the speaker be a lord of parliament he may also give his opinion upon any question which the speaker of the commons cannot. … The vice president of the United States is in like manner speaker of the senate, but he is prohibited from voting unless the senate be equally divided. The necessity of providing for the case of a vacancy in the office of president doubtless gave rise to the creation of this officer: and for want of something else for him to do, whilst there is a president in office, he seems to have been placed, with no very great propriety, in the chair of the senate.
An idea probably originating from the tendency which we have sometimes discovered, to imitate the model of the British constitution. The casting vote, which this officer is entrusted with, (as was before observed,) is a very important trust, and ought to have been so modified as to leave the exercise of it, to as few cases as possible. … If a measure originates in the senate, indeed, it would seem to be less dangerous, to permit the exercise of this casting vote, than where it was made use of, to negative a measure, perhaps unanimously adopted by the other house, and upon which the senate have been divided merely from the absence of some of its members. This has actually happened once, on a very important occasion, as we have seen, and may happen again, on others equally interesting to the rights of the citizen.
3. The third constituent part of the British parliament, is the king, without whose assent no bill can pass into a law. The reason for this seems to be the protection of the Jura Coronae from the encroachments of the legislature, but this protection, says the Commentator, consists in the power of rejecting rather than resolving: in like manner we have seen, that the president of the United States, to whom the executive power is entrusted, has a kind of suspensive veto . … not an absolute, but a qualified negative; and so qualified too, that no salutary measure can be so long delayed by his objection to it, if two thirds of both houses concur in the expediency. In England since the revolution, the royal negative, as to the practical and ostensible exercise of it, seems to be a mere fiction of the constitution, the influence of the crown in both houses, having always proved sufficient to prevent the obtrusion of any obnoxious bill upon the throne; as has been proved on more than one occasion. The power of calling up any number of new lords, ad libitum, is a sufficient guarantee against the necessity of exercising this unpopular prerogative in the crown. But if that were to be found insufficient, a prorogation which puts an end to all matters depending in parliament would effectually answer the purpose. … And should the parliament upon being reassembled give any indications of reviving the offensive subject, a dissolution is sure to pave the way for a more complying body in the house of commons. The history of the present administration in England affords facts to justify what has here been offered. … In America the executive authority does not extend to the creating new members of the legislature: the president has no power of dissolution, or prorogation, nor even of adjournment, but in case of actual disagreement on that subject between the two houses. His assent if held longer than ten days exclusive of Sundays, is not necessary to the force of a law; and his negative, if it be exercised at all, must be notified within the same period to congress, together with his reasons in support of it: if they should be deemed insufficient for the rejection of the bill by two thirds of both houses, it will become a law without his approbation: which seems rather to have been intended as a precaution, provided by the constitution against the hasty passage of impolitic, or unconstitutional acts, than as an essential to the completion of a law; as we have before observed.
This concludes a short sketch of the constituent parts of the supreme legislatures of Great Britain and the United States, with a parallel between them, and the mutual checks and balances provided by the constitution of both countries against the possible encroachments of one of these constituent parts upon the rights of the other. A late English writer35 of popular eminence, undertakes to prove that these governments of balance and control have never existed but in the vision of theorists. I leave the affirmative to be proved by the advocates for the British constitution, confessing that my own conviction inclines rather to the doctrines of the political heretic, than to those of the most orthodox supporters of the creed which he controverts. But before I quit the subject of checks and balances, I shall say a few words on those required by the political situation, and provided by the constitution of the United States.
The territory of the United States extends along the seacoast from north to south, about one thousand miles, and westward from the coast about eight hundred, affording a variety of productions, and holding forth a variety of pursuits to the inhabitants, corresponding with that of climate, soil and situation. … To secure an equal representation of the interests of the individuals inhabiting this extensive country, united in one political bond, as to their correspondence and intercourse with the other nations of the globe, the house of representatives was constituted upon the principles of equality and reciprocity, between burdens and representation in the manner that we have already seen. But although the interests of the individuals might be common in many respects, throughout the United States, yet the territorial, as well as political division, constitution and laws of the several states, created or manifested a contrariety of interests between them, which all were perhaps equally tenacious of maintaining unimpaired. The territorial extent of Virginia being at least one hundred times as great as that of Delaware, and her representation in the proportion of nineteen to one, at present; the interest of the latter could never stand in competition with the former, if the whole legislature were composed of a single house constituted as the house of representatives is: but in the senate, Delaware, as a state; has an equal share in council with Virginia. Her separate interests are there put upon the same footing, with those of the largest states in the union, nor can she be oppressed, but in such a case as would render any other state liable to the same fate. This appears to me to be a wise and effectual balance. Should it fail, the suspensive negative of the president may counteract the machinations of an oppressive majority, in either, or both houses of congress by requiring, the concurrence of a larger proportion of both, than are likely to agree in any impolitic, unconstitutional, or partial measure. On the other hand should state interest prevail in the senate it would meet an effectual check in the house of representatives, where the number of members is not regulated by states, but by the right of suffrage. The influence of states on the latter house, can never be so great hereafter, as it was during the first and second congress, after the adoption of the constitution; that influence received a check from the negative of the president36 which restored the constitution to its principles, and manifested the happy effects to be derived from a well organized government, so long as any part of it remains uninfluenced by partial or corrupt motives.
Before we dismiss our parallel, a short notice of some other points may not be improper. And first, the privileges of the parliament of England, and of its members, are indefinite, and depend upon their own construction of them when a new case occurs. In America the privileges of the members of congress are, as we have seen, defined, and I presume limited, by the constitution; and the powers of congress are equally prescribed thereby, whilst those of the British parliament have no constitutional limits whatsoever, “and if by any means a misgovernment should any way fall upon it, the subjects of the kingdom are left without all manner of remedy.”37 In America two methods are pointed out, by which any defects in the constitution may be remedied, and, should congress prove too corrupt to adopt the one, it is in the power of the state legislatures to enforce the other; besides the chance which frequent elections afford, of remedying an evil before it has taken root in the several branches of government too firmly to be eradicated. Frequent elections of the representatives of the people, have been justly esteemed one of the best securities to the liberties of the people. The most frequent elections of parliaments in England have been triennial . … they have been protracted to seven years, professedly says Blackstone; to prevent the great and continued expenses of frequent elections. Frequent elections would certainly offer the most effectual remedy for this evil, by diminishing that parliamentary influence which septennial elections tend to secure, and to secure which is the great object of election expenses. Whether biennial election of representatives to congress will be sufficiently frequent to secure the due dependence of the members upon their constituents, must be ascertained by experiment. I incline to think, that the reasons in favor of that period are at least equal to those against it: Every objection against its extension beyond the period assigned to the duration of our state legislature, must apply with accumulated force against the duration of the parliament of Great Britain. In England, the convening of the parliament, the continuance of the session, and the existence of the parliament depend on the pleasure of the crown. In America, the periods of election, convening, and duration of congress are fixed by the constitution or by law: the adjournments depend upon themselves, the executive have no control over any matter relative thereto, except in one instance before mentioned, and that must arise from a disagreement between the houses. In England, forty-five members constitute a house to do business, where the whole number consists of 558. In America there must be a majority of both houses to constitute a quorum.
The manner of conducting the business in congress is very similar to that observed in the British parliament. At the opening of the session, the president meets the congress in one or other of their chambers, and addresses them upon the general affairs of the union.38 This address has generally received a separate answer from each house, which is presented by the whole house, to the president in his audience chamber, that is, at his own house. Every resolution to which the concurrence of the senate is necessary, must be laid upon the table on a day, preceding that, in which it is moved, unless, by express commission of the house. Petitions, memorials, &c. addressed to the house must be proceeded upon in like manner. Bills are introduced by motion for leave, or by order of the house on the report of a committee, and in either case a committee is appointed to prepare the bill. Revenue bills, as was observed elsewhere, must originate in the house of representatives; but the senate may originate any other bill, and may also propose, or concur to amendments, in revenue bills, as well as others. As the senate constitutes a part of the executive department, this power of origination must have a strong tendency to strengthen, and give activity to that branch of the government.39 Every bill receives three readings; but no bill can be twice read on the same day without special order of the houses. If upon the first reading of a bill it be opposed, the question put is, whether it shall be rejected; upon the second reading, the speaker states that it is ready for commitment or engrossment. The commitment may be either to a select committee or to the whole house. In a committee of the whole, the speaker quits the chair, and a chairman is appointed, who, when the committee rises, reports to the house the progress therein made. After commitment and report, a bill may be recommitted, or at any time after, before its passage. Previous to the third reading of a bill, it is ordered to be engrossed, or written in a fair round hand; when passed in the house of representatives, it is sent to the senate for concurrence. Bills, except for imposing taxes, may originate in either house. If an amendment be agreed to, in one house, and dissented to in the other, if either house request a conference, a committee is appointed in each house, to meet in the conference chamber, to state to each other, verbally, or in writing the reasons of their respective houses, for and against the amendment. After a bill has passed both houses it is enrolled on parchment, examined by a joint committee of both houses, signed by the speaker of the house of representatives, and president of the senate, and is then presented by the committee of enrolment to the president of the United States for his approbation: with an indorsement thereon, specifying in which house it originated, and the day of presentation is entered on the Journals of such house. If the president approve the bill, he signs it; it is then received from him by the secretary of state, recorded, and deposited among the rolls in his office; a copy of it is published in at least three of the public papers, and one printed copy is delivered to each senator and representative, and two others, duly authenticated, are sent to the executive authority of each state. The same course is to be observed, where a bill is not returned by the president, within the time limited by the constitution, and thereby becomes a law: or, having been returned, reconsidered, and approved by two thirds of both houses, becomes law. The manner of proceeding in case a bill be not approved and signed by the president, has been already fully mentioned.
We shall now resume our inquiry into the powers the exercise of which, is by the constitution confided to the congress of the United States. Most of these we have had occasion to enumerate in the course of our examination into the distribution of power between the federal and state governments. This examination we shall now resume more at large; another object of our further inquiry will be, how, these powers are adjusted and to whom confided, in other governments, particularly that of Great Britain: this will lead us frequently to resume our parallel, and I trust, it will scarcely be found, that upon a fair comparison, the superiority can in any instance be denied to the constitution of the United States.
The powers of congress are the next subject to which our inquiries are to be directed; these are in general legislative; yet in some few instances; they extend also to other subjects, which fall under the executive department in most other nations.
1. Congress is authorized to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense, and general welfare of the United States: but all duties, imposts, and excise shall be uniform throughout the United States; and no capitation, or other direct tax shall be laid, unless in proportion to the census, or enumeration, before directed to be taken: nor shall any tax or duty be laid on articles exported from any state.
The principle upon which the right of taxation is founded, is here shortly expressed; viz. “To pay the debts and provide for the common defense, and general welfare of the United States.” For since the government is bound to defend the lives and fortunes of the citizen, which protection cannot be afforded, unless the government be furnished with adequate supplies for that purpose, it is but reasonable that the individual should, on his part, contribute his proper proportion thereof.40 On the other hand, since the citizen is on no other account obliged to pay taxes, or undergo any other public burden, but as they are necessary to defray the expenses of the state, it ought to be the singular care of the government to draw no further supplies than the exigencies of the public require; and to see likewise that the citizens be as little as possible incommoded with the charges they are forced to put them to; and moreover, that the public impositions be laid in just and fair proportions, without favoring and exempting of one, to the defrauding or oppression of another. Such are the principles which the constitution establishes, by requiring that direct taxes should be “according to the census”; and that indirect taxes, viz. duties, imposts, and excises should be “uniform” throughout the United States.
The distinction which the constitution thus creates between direct taxes, and others, renders an inquiry into the grounds and nature of that distinction particularly interesting.
The author of the treatise upon political economy defines a tax, to be “a certain contribution of fruits, service, or money imposed upon the individuals of a state.”41 He adds; “this definition may include, in general, all kinds of burdens which can possibly be imposed, whether under the name of tribute, tithe, tally, impost, duty, gable, custom, subsidy, excise, or any other.”
As this definition includes the several species of burdens which the congress are authorized to impose, it may be proper to see in what manner the same author distinguishes them. … This he does into three classes: 1. Those upon alienation, which he calls proportional: 2. Those upon possessions, which he calls cumulative, or arbitrary: 3. Those exacted in service, as in the militia, on the roads, &c.
1. A proportional tax is paid by the buyer, who intends to consume, at the time of the consumption; and is consolidated with the price of the commodity.
Two requisites are necessary to fix this tax upon any one; first, he must be a buyer; secondly he must be a consumer.
Examples of this tax are all excises, customs, (viz. duties on imposts or exports) stamp duties, postage, coinage, and the like.
2. A cumulative or arbitrary tax may be known; 1. By the intention; which is, to affect the possessor in such a manner as to make it difficult for him to augment his income in proportion to the tax he pays: 2. By the object; when instead of being laid on any determinate piece of labor, or consumption, it is made to affect past, and not present, gains: 3. By the circumstances, under which it is levied; which imply no transition of property from hand to hand.
Examples of cumulative taxes, are land taxes, poll taxes, window taxes, duties upon coaches, servants, &c.
The taxes, duties, imposts, and excises, mentioned in the constitution of the United States, appear naturally to fall under a similar division, and the words direct, and indirect, may consequently be substituted for the terms cumulative and proportional, used by that author.
It is the nature of a cumulative (or direct tax) to affect the possessions, income, and profit, of every individual, without suffering it to be in their power to draw it back again in any way whatever. A proportional, (or indirect tax) on the contrary may be said to be paid voluntarily; being paid by a voluntary purchaser, who is also a consumer.
This distinction it is conceived may be illustrated by the following example: If a tax be laid upon wheels, so that every person in the state shall be liable to pay a certain sum in proportion to the number of carriages he has for his convenience; this, according to the author last mentioned, would be a cumulative, or direct tax; but if a similar tax be collected in the hands of the wheel-wright, it would be a proportional, or indirect tax: in the first case, he who pays the tax upon the carriages, which he keeps for his convenience, cannot possibly draw the tax back again, after he has once paid it, by any means whatever; in the second, the wheel-wright only advances the tax, but is repaid by the purchaser who buys it for his convenience: inasmuch as he advances the price of his wheels, in proportion to the duty or tax, he has paid upon them.
Supposing this to be the true distinction to be taken between direct and indirect taxes, a correspondent distinction in the mode of imposing the tax should be adopted; if, for example, the last mentioned tax is to be levied upon the person who uses the carriage for his convenience; this being a direct tax, the whole sum required to be raised thereby, must first be apportioned among the several states; but the tax itself, need not be uniform throughout the state; if it be levied on the wheelwright, the tax becomes an indirect one, and must be uniform throughout the states; but there need not be any previous apportionment of the quotas of the several states.42
Whilst the constitution of the United States was under consideration, objections were offered in this state, and in some others, against the power of direct taxation, thereby granted to congress. One of the amendments proposed by the convention of this state, was, “That when congress shall lay direct taxes or excises, they shall immediately inform the executive power of each state, of the quota of such state according to the census by the constitution directed, which is proposed to be thereby raised; and if the legislature of any state shall pass a law, which shall be effectual for raising such quota, at the time required by congress, the taxes and excises laid by congress shall not be collected in such state.” This amendment was passed over in silence by congress; but the exercise of the right of direct taxation, which it was intended to qualify, has never yet been exerted; and probably will not, so long as any other expedient can be fallen upon to raise money for the support of the government.43 Not only Virginia, but Massachusetts, South-Carolina, New-York, and North-Carolina, concurred in expressing a disapprobation of this part of the constitution. It may, however, be doubted, whether there is as much reason for the objection, as the concurring sense of five such considerable states induces a supposition that there may be in its favour. The power of taxation seems indispensably necessary to constitute an efficient government, and appears inseparable from the right of deciding upon any measure, which requires the aid of taxes, to carry it into effect. By the same article of the constitution we shall find, that congress have power to declare war, and to raise and support armies. What could this declaration avail without the further power of procuring the means for their support? The effects of paper-emissions, lotteries, loan-offices, impressments, and requisitions from the states, the occasional expedients, and ultimate resources of a feeble confederacy, had been sufficiently seen, and felt during the revolutionary war. How often were the sinews of government unstrung; how often were its operations stopped in the most critical conjunctures; how few of them were carried into vigorous effect, from the imbecility of the federal government, and the deranged state of the finances of the union?. … Nor is the mode proposed by the amendment, altogether free from objection: the states might pass laws apparently effectual, for the purpose of raising the sum required, and yet the execution of those laws be so retarded by the delinquency of collectors, as to render the suspension of the act of congress a matter no longer reconcilable to the pressing emergencies of the government. In this case, the government must either be deprived of its resources, or the citizens be doubly burdened. Was there an instance where the requisitions of the revolutionary congress were strictly complied with, both as to the time of payment, and the quantum required? Were not arrears upon arrears continually the subject of their demands from the respective states? If this was the case during the struggle for independence, what may not be apprehended upon other occasions? It will be alleged, perhaps, that the quotas of the several states were not adjusted upon equal principles by the confederation: that each state supposed, and even complained, that it had already contributed more than its proper quota; and that this may well account for their tardiness in complying with the requisitions of congress. This, it is true, was the ostensible excuse with most of them: but it is no less true that the states who were under-rated, or who were actually in arrears, were not less positive, or vehement, in their complaints of the inequality of the burden, than those who had reason and justice on their side; consequently they were not less tardy in complying with any new requisition. If the experience of former evils ought to make us wise, the United States have surely derived sufficient information from this source.
It is observable, that the objection only goes to the exercise of the right of direct taxation; and the imposition of excises; all other indirect modes of taxation seem to be given up without a question: but if the necessity of investing congress with a power to impose taxes be admitted, it may be questioned, whether more numerous, and important objections may not be offered against indirect, than direct taxation, as a source of revenue in a free state. If, on the one hand, indirect taxation may be considered as least burdensome in the mode of collection, on the other hand it may be remarked, that the increase of burden upon the consumer, who ultimately pays every indirect tax, is probably more than an equivalent for this convenience; which is moreover fully counterbalanced by that unavoidable inequality of burdens, resulting from indirect taxes, which it should be the object of direct taxation to avoid. Indeed, if equality of taxation be desirable, the only mode by which it can be obtained, seems to be by direct taxes, imposed in the mode prescribed by the constitution. It was, perhaps, impracticable to fix the ratio of direct taxes, in any just proportion, by reference to any particular species of property, even land, that kind of property, which, of all others, is most susceptible of such an adjustment, being of very unequal value, although perfectly equal in quality and produce, in different parts of the United States. And this circumstance, alone, appears to afford a sufficient reason against uniformity, in the imposition of direct taxes. The attempt was made under the confederation to apportion the burdens of the union among the states, according to the value of all lands within each state, granted to, or surveyed for any person, with the buildings and improvements thereon. But congress, by their act of April 18, 1783, proposed to the states to rescind that part of the articles of confederation, and in lieu thereof, to adopt precisely the same mode which the present constitution establishes. A bill to that effect was passed in this state; but whether the proposal was favorably received by the other states, I am not informed. It appears then to be somewhat extraordinary, that the opposition to direct taxation was so strong in Virginia, where the proportion proposed, had already received the approbation of her legislature. A proportion established by reference to labor, the original source of wealth, may be considered as the best medium, by which to ascertain the rate of actual wealth; and if it be remembered, that two-fifths of the slaves in the southern states are thrown out of the calculation, we should conclude that they could not reasonably be dissatisfied with the ratio thereby established.44
One of the objections to the power of direct taxation most strongly insisted on, was, that a representative of Massachusetts, or Georgia, could not be a proper judge of the most fit objects of taxation in Virginia; this objection, however, the constitution seems to have guarded against effectually, by requiring that the sum to be raised by direct taxes should be apportioned among the several states in the first instance. What motive, then, could a representative from Massachusetts, or from Georgia, have for opposing any mode of raising the tax in Virginia, which might be proposed by the representatives from that state? As the sum to be contributed by the state would be previously fixed, it could neither be augmented nor diminished by the mode of collection: of this, the members from the several states might be considered as the best judges, respectively. Uniformity not being required by the constitution to be observed in the imposition of direct taxes, the tax in New-England might be a poll-tax, in Pennsylvania a land-tax, and in South Carolina a tax on slaves, if those modes, respectively, should be recommended by the representatives of those states, without either violating the constitution, or disadvantage to any other state. In the imposition of such taxes, therefore, congress might pursue the system of each state, respectively, within that state.45 The inequality of indirect taxes, among states, as well as among individuals, is perfectly unavoidable. It may in time become so great as to shift all the burdens of government from a part of the states, and to impose them, exclusively, on the rest of the union. The northern states, for example, already manufacture within themselves, a very large proportion, or perhaps the whole, of many articles, which in other states are imported from foreign parts, subject to heavy duties. They are consequently exempted, in the same proportion, from the burden of duties paid on these articles. Hence a considerable inequality already exists between the contributions from the several states; this inequality daily increases, and is indeed daily favored, upon principles of national policy: for whenever any species of manufacture becomes considerable in the United States, it is considered proper to impose what are called protecting duties, upon foreign articles of the same kind. Nor does the matter rest here; for several American manufactures are now subject to an excise: this species of tax, though advanced by the manufacturer, is paid by the consumer, as has been already shown: consequently, the duty upon every excised commodity is in fact paid by the state where it is consumed, whilst the manufacturing state is not only exempt from the burden, but enriched by it.46 This inequality is not otherwise to be avoided but by direct taxes. The same disproportion also obtains among individuals of the same state; where it operates as a tax on luxury, it may be considered in a beneficial light; but there are a thousand instances where a tax upon consumption will produce an inequality of burdens, though the tax should operate only upon the necessaries, and not the luxuries of life: a person in health may dispense with many comforts which a sick man stands in the utmost need of; he can better afford to pay a tax on what he consumes; but the sick man must either pay an additional tax, or perish because he cannot afford it. Indirect taxes, therefore, not infrequently impose the burden upon those who are least able to sustain it; a direct tax on the contrary may always be apportioned according to the means of defraying it.
It seems agreed among political writers, that another objection to indirect taxes arises from the tax being so interwoven with the price, that the consumer blends them together, and is thus rendered ignorant of the burdens imposed upon him by the government. This is conceived to be peculiarly dangerous in a free government, and utterly incompatible with that responsibility, which ought to subsist between the representative and his constituents; whose burdens are thus imperceptibly increased, to the great hazard of their liberties, whenever the government shall thus insensibly acquire an independent revenue; the source and amount of which may be equally unknown to the generality of the people. If, for example, a duty of 10 per cent. ad valorem, be imposed upon any foreign article imported, or upon any domestic manufacture made for sale in the United States, the duty is in a very few years entirely forgotten, being wholly lost in the price of the article, in the consumer’s estimation; an additional 5 per cent. is laid; this, like the former, is equally forgotten, and blended with the price in a few years more. This may be repeated at no very distant periods, till the duty is doubled, trebled, or quadrupled, and the effect still be the same: in another generation the same experiment may be repeated with like success, and each succeeding generation undergo the like additional burdens, until it would require the most consummate skill in political arithmetic to calculate the amount; whereas, if direct taxes were increased in the like proportion, every individual would at once perceive from what source this additional burden arose, and would be led to inquire for what reason he was subjected to it. Hence it would seem to be the interest of every freeman, in a free state, that his taxes should be imposed in such manner as to be subject to his immediate observation; since whatever inconvenience he may thereby sustain, must be amply recompensed by the security thus afforded to his liberty.
The power of imposing direct taxes, excises, and duties, except on imports or exports, is one of those, in which, according to our distribution, the United States and the individual states possess concurrent authority. It was apprehended by the opposers to the constitution, that this power in the congress would, like Aaron’s rod, swallow up that of the state legislatures.47 The government must be wholly corrupted whenever this happens; so long as the taxes imposed by the federal legislature are limited to constitutional purposes, it is impossible that the states should be without a revenue sufficient to support their civil lists. Beyond that object, so long as the federal government is properly administered, the states can have no urgent occasion for any revenue.48
The abuse of the powers of government should be guarded against by the constitution as far as possible. The purposes for which any grievous tax can, with any shadow of necessity, be imposed by the federal legislature, must be the raising and supporting armies. Appropriations for that purpose are limited to two years. The duration of congress is limited to the like period. Would not a new election strike at the root of the evil? If it should not, the people must resort to first principles. Even annual elections would probably be an insufficient protection against such a total depravity, as could not be curbed by these provisions in the constitution.
Excises, the second branch of revenue which created an alarm in the minds of the opposers of the constitution, are defined to be an inland imposition, usually paid upon the retail sale of a commodity. It appears, however, that they are generally imposed on manufactures, and paid by the manufacturer, who advances the price of his commodity in proportion. The author of the commentaries on the laws of England acknowledges, that the rigor and arbitrary proceedings of excise laws, seems hardly compatible with the temper of a free nation. … This observation, founded on the experience of a nation whose accumulated debts, financial embarrassment may have driven them to its adoption, it might have been expected, would have cooperated with the clamors of a considerable part of the union, against the admission of such a principle of taxation into the constitution, to deter congress from an immediate resort to an experiment of its effects upon the minds of their constituents. It is said that this mode of taxation is familiar to the New England states, and that it is by no means obnoxious to the people there. This circumstance probably paved the way for its reception in congress; in this state it was a perfect novelty, and was made the subject of one of the amendments, proposed to the constitution. The arguments in favor of this, as an economical mode of taxation, abstractedly considered, appear to be much in its favor; it being alleged, that the charges of levying, collecting, and managing the excise duties in England, are considerably less in proportion, than in any other branches of the revenue. This may be true in a country abounding in manufacturing towns; but in a country where the objects of the excise are few, and those dispersed over an immense tract of country, it is perhaps demonstrable from the number of salaried officers employed in the collection, that a smaller portion of the excise, than of any other tax goes into the treasury of the United States. The giving salaries to these officers is an irrefragable proof of this position: for if the tax to be collected were so considerable, as that a moderate percentage would afford a sufficient compensation to the collectors, for their trouble, there would be no need of resorting to salaries, which may perhaps amount to fifteen, or twenty percent, in some places, and in others, prove almost commensurate with the tax itself. On the other hand, it must be acknowledged, that the excise contributes in some measure to restore the balance arising from the inequality produced by duties on foreign imports; and this, not only among individuals, but in a small degree among the states; the manufacturing states being thereby subject to some portion of the tax on consumption: but this last benefit can only last so long as each state shall manufacture for its own consumption, only; and it will be entirely lost, and even become doubly oppressive, whenever the manufactures of one part of the union, are exported from thence and consumed in the other states. Excises will then operate as the most burdensome species of impost, on those part of the union, where consumption takes place.
Duties and imposts, in their common acceptation mean those taxes which merchants are compelled to pay upon merchandise imported, or exported, from any state, and which have in many countries obtained the general name of customs; probably from the usual and constant demand made of them for the use of the princes, state, or government. But in the constitution of the United States they seem to have obtained a more extensive signification, and were probably intended to comprehend every species of tax, or contribution, not included under the ordinary terms, taxes and excises. Taken in the general and comprehensive sense, the states respectively possess the power of imposing them, concurrently with the federal government, with the single exception of customs, or duties upon imports or exports; the right of imposing which, is either exclusively vested in the congress of the United States, or can only be exercised by the respective states with the assent of congress, except what may be absolutely necessary for executing their inspection laws; and the net produce of all duties and imposts laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws are subject to the revision and control of the congress; nor can any state without the consent of congress lay any duty on tonnage. Frequent instances have occurred where the assent of congress has been given to acts of the state legislatures, made for especial purposes, such as erecting piers, appointing health officers, deepening the navigation.
In February 1781, the congress of the United States made a proposal to the several states to authorize congress to impose a duty of five percent ad valorem, on certain goods, wares and merchandise, (such as wines and ardent spirits, &c.) and on all prizes and prize goods, which might be imported, or brought, into the United States. The legislature, at their next session, passed an act, in conformity thereto. Several of the states as was afterwards alleged, neglected to pass similar laws, and their unanimous consent was requisite, under the existing articles of confederation, to give effect to such an important change in the system; in consequence of which, the act of this state was suspended, by a law passed at the ensuing session, until the several states in the union should concur in adopting the measure: it has been said that the non-concurrence of a single state, (and that, one of the smallest in the union,) prevented the proposition from taking effect; but this not the reason, assigned by the legislature of this state, for repealing their act of assent. An ill timed jealousy at that period had crept into the legislature, who declared by their act of October, 1782, c. 137. “That the permitting any power, other than the general assembly of the commonwealth to levy duties or taxes upon the citizens of this state, within the same, is injurious to its sovereignty, and may prove destructive of the rights and liberties of the people”; for which reason they repealed the act of the preceding year, by which the concurrence of the state was yielded to the proposed measure. In the month of April 1783, the proposition was new modelled by congress, and again presented to the states, for their assent and concurrence; and was a second time acceded to by the state of Virginia, in the month of October, in the same year, but, with a suspending clause, until the other states, in the union, should likewise, concur in the proposed concession. The preamble to this act recites, that congress had recommended to the several states as indispensably necessary to the restoration of public credit, and to the punctual and honorable discharge of the public debt, to invest the United States in congress assembled with a power to levy, for the use of the United States, certain duties upon goods imported into the said states from any foreign part, for the period of twenty-five years. The powers thereby granted were moreover guarded by a number of provisoes and restrictions, and limited to a period, barely sufficient to answer the purpose of reviving the confidence of the creditors of the union. … Yet this measure like the former, miscarried for the want of the unanimous concurrence of the states, so cautious were they at that time, in their concessions of power to the federal government. It was at this session, likewise, (Oct. 1783,) that the legislature of Virginia, passed an act to authorize the congress of the United States to adopt certain regulations respecting the British trade; the object of which was to authorize that body to prohibit the importation of the growth or produce of the British West-India Islands, in British vessels; or, to adopt any other mode which might most effectually tend to counteract the designs of Great Britain, with respect to the American commerce, so long as the growth or produce of any of the United States of America should be prohibited from being carried to those islands, by any other than British subjects, in British built ships, owned by British subjects, and navigated according to the laws of that kingdom. This measure, which, if it had been adopted would have operated to the exclusive benefit of the navigating states, likewise failed, from the same causes as the two former. When peace was concluded with Great Britain a commercial rivalship very soon began to manifest itself among the several states, but between none more remarkable than Maryland and Virginia, to both which the waters of the Chesapeake, and the Potomac, were as a common highway. Scarcely a session of the general assembly passed over in either state, without some change in the duties upon imports, and tonnage, with a view to counteract some law, or regulation, of the other. Various attempts were made to produce an uniformity in their custom-house systems, but without effect. At this period, likewise, the inefficiency of the federal government began to excite loud clamors, as we have had occasion to mention, elsewhere. The want of an uniform system of commercial regulations, among the states, and the total want of funds, in the hands of congress, for the discharge of the continental debt, as well foreign, as domestic, convinced every one of the propriety of investing congress with power over these subjects, and gave rise to the measures already mentioned elsewhere. Hence, no opposition was ever made, to these branches of the authority of congress, when the question respecting the adoption of the constitution of the United States was agitated.
All duties and imposts (as contradistinguished from direct taxes) and all excises, as we have seen, must be uniform throughout the United States, by which means the principle of equality, as far as the nature of the subject will admit, is still adhered to in the constitution. A candid review of this part of the federal constitution, cannot fail to excite our just applause of the principles upon which it is founded. All the arguments against it appear to have been drawn from the inexpediency of establishing such a form of government, rather than from any defect in this part of the system, admitting that a general government was necessary to the happiness and prosperity of the states, individually. This great primary question being once decided in the affirmative, it might be difficult to prove that any part of the powers granted to congress in this clause, ought to have been altogether withheld: yet being granted, rather as an ultimate provision in any possible case of emergency, than as a means of ordinary revenue, it is to be wished that the exercise of powers, either oppressive in their operation, or inconsistent with the genius of the people, or irreconcilable to their prejudices, might be reserved for cogent occasions, which might justify the temporary recourse to a lesser evil, as the means of avoiding one more permanent, and of great magnitude.
2. Congress have power to borrow money on the credit of the United States; a power inseparably connected with that of raising a revenue, and with the duty of protection which that power imposes upon the federal government. For, though in times of profound peace, it may not be necessary to anticipate the revenues of a state, yet the experience of other nations, as well as our own, must convince us that the burden and expense of one year, in time of war, may be more than equal to the revenues of ten years. Hence a debt is almost unavoidable, whenever a nation is plunged into a state of war. The least burdensome mode of contracting a debt is by a loan: in case of a maritime war, the revenues arising from duties upon merchandise imported, and upon tonnage, must be greatly diminished. Had not congress a power to borrow money, recourse must be had to direct taxes in the extreme, or to impressments, lotteries, and other miserable and oppressive expedients. A system of revenue being once organized, and the ability of the states to pay their debts, being known, money may easily be procured on loan, to be repaid when all the sources of revenue shall have regained their operation, and flow in their proper channel.
But while we contend for the power, let it not be supposed that it is meant to contend for the abuse of it. When used as a means of necessary defense, it gives energy, vigor and dispatch to all the measures of government; inspires a proper confidence in it, and disposes every citizen to alacrity and promptitude, in the service of his country. By enabling the government punctually to comply with all its engagements, the soldier is not driven to mutiny for want of his subsistence, nor the officer to resign his commission to avoid the ruin of himself, and his family. By this means also, the pressure and burden of a war, undertaken for the benefit of posterity, as well as the present generation, may be in some degree alleviated, and a part of the burden transferred to those who are to share the advantage. On the other hand, where loans are voluntarily incurred, upon the principle that public debt is a public blessing, or to serve the purposes of aggrandizing a few at the expense of the nation, in general, or of strengthening the hands of government, (or more properly those of a party grasping at power, influence and wealth,) nothing can be more dangerous to the liberty of the citizen, nor more injurious to remotest posterity, as well as to present generations.
Congress had power, under the former articles of confederation, to borrow money upon the credit of the United States, and to pledge their faith for the repayment. But not possessing any revenue independent of the states, their loans were obtained with difficulty, and, very rarely in time to answer the purposes for which they were intended. The consequences of these, and other corresponding defects in the system, have been too frequently noticed to require a repetition of them in this place.
3. Congress have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
We have already had occasion to mention the state of foreign commerce, upon the conclusion of the peace with Great-Britain, and the conduct of the government of that nation in excluding our vessels from their ports in the West-India Islands. The proposition made by the state of Virginia to authorize congress to prohibit the importation of the growth or produce of those islands into the United States in British vessels, and even to adopt more energetic measures, by refusing the necessary supplies to those islands, if adopted, would probably have counteracted the designs of that politic nation: but, that fatal want of unanimity among the states, which at that period marked all their councils, defeated the proposal. The boldness of the measure on the part of Great-Britain, evinced a determination to secure her commercial advantages, even at the risk of the existence of her colonies; yet it is not to be imagined that she would have persevered in such a conduct towards her own colonies, if the United States had offered to retaliate her policy, by refusing them provisions, lumber, and other articles of the first necessity, unless they were admitted to send them thither in their own vessels, as well as in those of British subjects. For, independent of the injustice and inhumanity of such a conduct in the predominant state, the prosperity of the sugar colonies must have been of more consequence to Great-Britain, than the whole of the carrying trade between those islands and the United States. True it is, that it was pretended by the British ministry, and their adherents, that Nova Scotia and Canada could supply those islands, with every necessary formerly derived from the United States. But the bare admission of those articles from the United States, in any manner whatsoever, might be relied on as an unequivocal evidence that they had no confidence in the sufficiency of the resources which might be drawn from Canada or Nova Scotia; and experience is said to be strongly in favor of the opinion that those colonies cannot supply the sugar islands, either with provisions or lumber, in any degree proportionate to their necessities. The conduct of Great-Britain in declining any commercial treaty with America, at that time, was unquestionably dictated at first by a knowledge of the inability of congress to extort terms of reciprocity from her; and of that want of unanimity among the states, which, under the existing confederation, was a perpetual bar to any restriction upon her commerce with the whole of the states; and any partial restriction would be sure to fail of effect.
Having repeatedly noticed the defect of the former confederation, in respect to the regulation of the commerce between the several states, and the inconveniences resulting from it, I shall only mention one not yet touched upon: I mean the burdens which might be imposed by some of the states, on others, whose exports and imports must necessarily pass through them. Thus a duty on salt imported into Virginia, or on tobacco exported from thence, might operate very extensively as a taxation on the citizens of the western parts of North Carolina and Tennessee, to the exclusive emolument of the state of Virginia. So unreasonable an advantage ought not to prevail among members of the same confederacy, and without a power to control its burden somewhere, it would be impossible that it should not be exerted: the repetition of such exertions could scarcely fail to lay the foundation of irreconcilable jealousies, and animosities among the states. And it was evidently with a view to prevent these inconveniences, that the constitution provides that no state shall, without the consent of congress, lay any imposts, or duties on exports or imports, except what may be absolutely necessary for executing its inspection laws.
A direct consequence of this power of regulating commerce with foreign nations, and among the several states, is that of establishing ports; or such places of entry, lading, and unlading, as may be most convenient for the merchant on the one hand, and for the easy and effectual collection of the revenue from customs, on the other. In England, this is one of the branches of the royal prerogative, but is vested in the supreme federal legislature, and not in the executive, by the constitution of the United States.
Previous to the revolution the ports of Virginia were co-extensive with her tide waters. The ships anchored wherever their navigators thought proper, and discharged or took on board their cargoes, as suited their own convenience, or contributed to the saving of expense. Nothing could be more favorable to the practice of smuggling; and consequently the revenue was frequently defrauded with impunity. Nothing could be more unfavourable to the internal navigation by small vessels, although few countries possess greater advantages for its encouragement and promotion. The employment of a considerable number of these, would not only afford a nursery for seamen, but prove an actual mercantile saving to the state, so long as commerce should be carried on in foreign bottoms, as was at that time pretty generally the case. The legislature became sensible of these things, and in the year 1784, (May session, c. 32.) passed an act, whereby ships and other vessels trading to this commonwealth, from foreign parts, being the property of other than citizens of the commonwealth, were obliged to lade, and unlade at certain particular ports, and no where else, within the commonwealth. The number of ports was increased, by the act of 1786. c. 42. and the restrictions as to unloading was extended to all vessels whatsoever, coming into the state; but any vessel built within the United States, and wholly owned by any citizens thereof, was permitted to take in her lading at any port or place within the state. These acts underwent some further amendments by the acts of 1787. c. 3, among which were some wholesome regulations respecting river craft: but these appear to have been considered as repealed, by the act of 1 cong. 1 sess. c. 11. sec. 22 and 23, on the subject of the coasting trade. But the constitutionality of that act may perhaps be questioned,49 so far as it relates to vessels trading wholly within the limits of any particular state. The policy of the before-mentioned acts of this state, appears to have been well founded: the effects begun to manifest themselves in the production of a greater number of river craft, than had ever been known at any former period. … But the acts of congress, for the establishment of ports, having extended the number for foreign ships to fourteen, and even permitted them to proceed as far as the tide-water flows in James’ River, Rappahannock, and Potomac, these salutary regulations in the state laws, have undoubtedly been, in a great measure, frustrated. It seems rather extraordinary, that on a subject of this nature, no regard should have been paid to the former policy of the state legislature, especially, as that policy was evidently favourable to the collection of the revenue arising from the customs.
A distinction between the admission of foreign ships, and those of our own confederacy, into the ports of the state, obviously appears to be proper to be made on other grounds. The navigation of our rivers was found, in the time of the revolutionary war, to be infinitely too familiar to our enemies, in consequence of the privilege before-mentioned, which had so long been enjoyed by the trading ships of Great Britain. A renewal of the same policy will probably produce the same consequences, whenever the occasion will permit. But if these reasons be not sufficiently cogent for restraining foreign ships to a few ports, and those as near to the sea as might be consistent with safety; the promotion of an internal domestic navigation, as a nursery for domestic seamen, appears of itself to be an object of sufficient importance to have engaged the attention of congress to this subject.
Another consequence of the right of regulating foreign commerce, seems to be the power of compelling vessels infected with any contagious disease, or arriving from places usually infected with them, to perform their quarantine. The laws of the respective states, upon this subject, were, by some persons, supposed to have been virtually repealed by the constitution of the United States. But congress have manifested a different interpretation of the operation of that instrument, and had passed several acts for giving aid and effect to the execution of the laws of the several states respecting quarantine. The last act upon the subject, 5. cong. c. 118, enjoins it as a duty upon the collectors, and other officers of the revenue, the masters and crews of the revenue-cutters, and the commanding officers of forts or stations upon the sea-coasts, duly to observe, and aid in the execution of those laws. Upon the like principle, I presume that the act of this commonwealth concerning wrecks, (1794. c. 6.) remains in force, until congress shall think proper to pass some law upon that subject. A contrary construction of the operation of the federal constitution in these and other similar cases, upon which congress may be authorized to legislate, but omit doing it, might be productive of infinite inconvenience and disorder.
The right of regulating foreign commerce, draws after it also, the right of regulating the conduct of seamen, employed in the merchant service; and by a continued chain, that of punishing other persons harboring or secreting them, as well on land, as elsewhere; and the act of 1. cong. 2 sess. c. 29, accordingly makes it penal in any person to harbor or secret any seaman regularly engaged in the service of any ship.
There seems to be one class of laws which respect foreign commerce, over which the states still retain an absolute authority; those, I mean, which relate to the inspection of their own produce, for the execution of which, they may even lay an impost, or duty, as far as may be absolutely necessary for that purpose: of this necessity it seems presumable, they are to be regarded as the sole judges. (C.U.S. Art. 1. Sec. 10.) The article, indeed, is not altogether free from obscurity; but as no controversy has hitherto arisen upon the subject, it is not my intention to begin one.
But, this power of regulating commerce is qualified by some very salutary restrictions; for the constitution expressly declares, Art. 1. Sec. 9. “That no tax or duty shall be laid on articles exported from any state . … that no preference shall be given by any regulation of commerce, or revenue, to the ports of one state, over those of another; and that vessels bound to, or from, one state, shall not be obliged to enter, clear, or pay duties in another.” These restrictions are well calculated to suppress those jealousies, which must inevitably have arisen among the states, had any tax or duty been laid upon any particular article of exportation; and, at the same time, to curb any disposition towards partiality in congress, should it at any time be likely to manifest itself.
An amendment to the constitution proposed by the convention of this state, and concurred in by that of North Carolina, was, “That no commercial treaty should be ratified without the concurrence of two-thirds of the whole number of the members of the senate. … And, that no navigation law, or law regulating commerce should be passed without the consent of two-thirds of the members present in both houses.” It is somewhat remarkable, that the treaty of navigation and commerce concluded with Great Britain in the year 1794, notwithstanding the very general repugnance to it in almost every part of the United States, was, nevertheless, ratified precisely in the manner proposed by the first of these amendments. It appears that a proposition somewhat like the second, viz. “that no treaty should be binding upon the United States, which was not ratified by law,” had been made in the general convention at Philadelphia, and rejected.50 Nevertheless, the experience which we have had upon the subject of treaties, seems to recommend the adoption of some further precautions against the indiscreet use of this extensive power. On this subject we shall say something more hereafter.
The regulation of commerce with the Indian tribes, as distinguished from foreign nations, seems, in some degree, to be founded upon this principle, that those tribes which are not settled within the limits of any particular state, could only be regarded as tributary to the United States in their federal capacity; as to those who reside within the limits of particular states, it was thought necessary to unfetter them from two limitations in the articles of confederation which rendered the provision obscure, and perhaps contradictory. The power is there restrained to Indians not members of any of the states, and is not to violate or infringe the legislative right of any state within its own limits. What description of Indians were to be deemed members of a state, had been a question of frequent contention and perplexity in the federal councils. And how the trade with Indians, though not members of a state, yet residing within its legislative jurisdiction, could be regulated by an external authority, without so far intruding on the internal rights of legislation, seems altogether incomprehensible.51
4. Congress have power to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States.
As to the former of these powers; by the first articles of confederation and perpetual union between the states, it was agreed, that the free inhabitants of each state, paupers, vagabonds, and fugitives from justice excepted, should be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall, in every other, enjoy all the privileges of trade and commerce. The dissimilarity of the rules of naturalization in the several states, had long been remarked as a fault in the system, and, as combined with this article in the confederation, laid a foundation for intricate and delicate questions. It seems to be a construction scarcely avoidable, that those who come under the denomination of free inhabitants of a state, (although not citizens of such state), were entitled in every other state to all the privileges of free citizens of the latter, that is, to greater privileges than they may be entitled to in their own state: our free negroes, for example, though not entitled to the right of suffrage in Virginia, might, by removing into another state, acquire that right there; and persons of the same description, removing from any other state, into this, might be supposed to acquire the same right here, in virtue of that article, though native-born negroes are undoubtedly incapable of it under our constitution: so that every state was laid under the necessity, not only to confer the rights of citizenship in other states, upon any whom it might admit to such rights within itself, but upon any whom it might allow to become inhabitants within its jurisdiction. But were an exposition of the term “inhabitants” to be admitted, which would confine the stipulated privileges to citizens alone, the difficulty would not be removed. The very improper power would still have been retained by each state, of naturalizing in every other state. In one state, residence for a short time conferred all the rights of citizenship; in another, qualifications of greater importance were required: an alien, therefore, legally incapacitated for certain rights in the latter, might, by previous residence only in the former, elude his incapacity; and thus the law of one state, be preposterously rendered paramount to the law of another, within the jurisdiction of such other. By the laws of several states, certain descriptions of aliens, who had rendered themselves obnoxious, and other persons whose conduct had rendered them liable to the highest penalties of the law, were laid under interdicts inconsistent, not only with the rights of citizenship, but with the privileges of residence, beyond the short period allowed by the treaty of peace with Great Britain. We owe it to mere casualty, that very serious embarrassments on this subject have not occurred. The constitution, and the several acts of naturalization passed by congress, have therefore wisely provided against them by this article, and by an explicit declaration contained in the law, that no person heretofore proscribed by any state, shall be admitted a citizen, except by an act of the legislature of the state in which such person was proscribed.
The federal court, consisting of judges Wilson and Blair, of the supreme court, and judge Peters, district judge in Pennsylvania, at a circuit court held for the district of Pennsylvania, in April, 1792; decided, “that the states, individually, still enjoy a concurrent jurisdiction upon the subject of naturalization: but that their individual authority cannot be exercised so as to contravene the rule established by the authority of the union: the true reason for investing congress with the power of naturalization (said the court,) was to guard against too narrow, instead of too liberal a mode of conferring the right of citizenship. Thus the individual states cannot exclude those citizens, who have been adopted by the United States; but they can adopt citizens upon easier terms, than those which congress may deem it expedient to impose.”
But this decision seems to have been afterwards doubted by judge Iredel. And the act of 5 cong. c. 71. declares, that “no alien shall be admitted to become a citizen of the United States, or of any state, unless in the manner prescribed by that act.” And by a subsequent act, passed 7 cong. chapter 28, it is also declared, that any alien, being a free white person, may become a citizen of the United States, or any of them on the conditions therein mentioned, “and not otherwise.” These legislative expositions of the constitution do not accord with the judicial opinion above-mentioned. A very respectable political writer makes the following pertinent remarks upon this subject.52 “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by the birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. In the states of Kentucky and Virginia, the privileges of alien friends depended upon the constitution of each state, the acts of their respective legislatures, and the common law; by these they were considered, according to the time of their residence, and their having complied with certain requisitions pointed out by these laws, either as denizens, or naturalized citizens. As denizens, they were placed in a kind of middle state between aliens and natural born citizens; by naturalization, they were put exactly in the same condition that they would have been, if they had been born within the state, except so far as was specially excepted by the laws of each state. The common law has affixed such distinct and appropriate ideas to the terms denization, and naturalization, that they can not be confounded together, or mistaken for each other in any legal transaction whatever. They are so absolutely distinct in their natures, that in England the rights they convey, can not both be given by the same power; the king can make denizens, by his grant, or letters patent, but nothing but an act of parliament can make a naturalized subject. This was the legal state of this subject in Virginia, when the federal constitution was adopted; it declares that congress shall have power to establish an uniform rule of naturalization; throughout the United States; but it also further declares, that the powers not delegated by the constitution to the United States, nor prohibited by it to the states, are reserved to the states, respectively or to the people. The power of naturalization, and not that of denization, being delegated to congress, and the power of denization not being prohibited to the states by the constitution, that power ought not to be considered as given to congress, but, on the contrary, as being reserved to the states. And as the right of denization did not make a citizen of an alien, but only placed him in a middle state, between the two, giving him local privileges only, which he was so far from being entitled to carry with him into another state, that he lost them by removing from the state giving them, the inconveniences which might result from the indirect communication of the rights of naturalized citizens, by different modes of naturalization prevailing in the several states, could not be apprehended. It might therefore have been extremely impolitic in the states to have surrendered the right of denization, as well as that of naturalization to the federal government, inasmuch as it might have operated to discourage migration to those states, which have lands to dispose of, and settle; since, it might be a disagreeable alternative to the states, either to permit aliens to hold lands within their territory, or to exclude all who have not yet completed their probationary residence within the United States, so as to become naturalized citizens, from purchasing, or holding lands, until they should have acquired all other rights appertaining to that character.”
Here, another question presents itself: if the states, individually, possess the right of making denizens of aliens, can a person so made a denizen of a particular state, hold an office under the authority of such state? And I think it unquestionable that each state hath an absolute, and uncontrollable power over this subject, if disposed to exercise it. For every state must be presumed to be the exclusive judge of the qualifications of its own officers and servants: for this is a part of their sovereignty which they can not be supposed to have intended ever to give up. And if there be nothing in their constitutions, respectively, to the contrary, the legislature may unquestionably, by a general law, limit, or extend such qualifications, so far as they may think proper. The law of Virginia declares, “that all persons other than alien enemies, who shall migrate into this state, and give satisfactory proof by oath or affirmation that they intend to reside therein, and take the legal oath of fidelity to the commonwealth shall be entitled to all the rights, privileges and advantages of citizens, except that they shall not be capable of election or appointment to any office, legislative, executive or judiciary, until an actual residence in the state for five years thereafter; nor until they shall have evinced a permanent attachment to the state, by intermarrying with a citizen thereof, or of some one of the United States, or purchased lands of the value of three hundred dollars therein.” Now although the act of congress may operate to repeal this act, so far as relates to the rights of naturalization, or, a state of perfect citizenship, under the constitution and laws of the union; yet, as it respects the rights which the state hath power to grant, such as holding lands, or an office under the sole, and distinct authority of the state, I see no reason to doubt that the law is as valid at this day, as it was before the adoption of the constitution of the United States.
The periods of residence, required by the several acts of congress before an alien can be admitted a citizen, have been various. The act of 1 congress, 2 session, c. 3, required two years only: this period was increased to five years, by the act of 3 congress, c. 85, which was still further extended to fourteen years, by the act of 5 congress, c. 71, but the act of, 7 cong. c. 28. has reduced it to five years, again. Any alien who shall have borne any hereditary title; or been of any order of nobility, in any other state, must renounce the same, on oath, at the time of his admission to take the oath of a citizen. A wise provision, the benefit of which it is to be hoped, may reach to the latest posterity.
There are few subjects upon which there is less practical information to be obtained in Virginia, than that of bankruptcies. The English statutes of Bankruptcy have never been regarded as in force, here; and the manner in which the commerce of the colony was conducted, before the revolution, by no means seemed to favor their adoption. In a commercial country, such as England, the necessity of good faith in contracts, and the support of commerce, oblige the legislature to secure for the creditors the persons of bankrupts. It is, however, necessary to distinguish between the fraudulent and the honest bankrupt: the one should be treated with rigor; but the bankrupt, who, after a strict examination, has proved before proper judges, that either the fraud, or losses of others, or misfortunes unavoidable by human prudence, have stripped him of his substance, ought to receive a very different treatment. Let his whole property be taken from him, for the benefit of his creditors; let his debt, if you will, not be considered as cancelled, till the payment of the whole; let him be refused the liberty of leaving his country without leave of his creditors, or of carrying into another nation that industry, which, under a penalty, he should be obliged to employ for their benefit; but what pretence can justify the depriving an innocent, though unfortunate man, of his liberty, as is said to be the practice in some parts of Europe, in order to extort from him the discovery of his fraudulent transactions, after having failed of such a discovery, upon the most rigorous examination of his conduct and affairs!
But, how necessary soever, bankrupt laws may be in great commercial countries, the introduction of them into such as are supported chiefly by agriculture, seems to be an experiment which should be made with great caution. Among merchants and other traders, with whom credit is often a substitute for a capital, and whose only actual property is the gain, which they make by their credit, out of the property of others, a want of punctuality in their contracts, may well be admitted as a ground to suspect fraud, or insolvency. But the farmer has generally a visible capital,53 the whole of which he can never employ, at the same time, in a productive manner. His want of punctuality may arise from bad crops, unfavorable seasons, low markets, and other causes, which however they may embarrass, endanger not his solvency; his property is incapable of removal, or of that concealment, which fraudulent traders may practice with success; his transactions within the proper line of his occupation are few, and not liable to intricacy; whilst the merchant is perhaps engaged in a dozen different copartnerships, in which his name does not appear, and in speculations which it might require a life to unravel. To expose both to the same rigorous, and summary mode of procedure, would be utterly inconsistent with those maxims of policy, which limit laws to their proper objects, only. And accordingly, we find, that even in England, where the interests of commerce are consulted on all occasions, and where they are never sacrificed, (unless, perhaps, to ambition,) the bankrupt laws cannot affect a farmer, who confines himself to the proper sphere of his occupation; and the bankrupt law of the United States, 6 congress, 1 session, c. 19, is confined to merchants, or other persons, actually using the trade of merchandise, by buying and selling in gross, or by retail, or dealing in exchange as a banker, broker, factor, underwriter, or marine insurer. Whilst the bankrupt laws are confined to such characters, and are resorted to, merely as a necessary regulation of commerce, their effect, in preventing frauds, especially where the parties or their property may lie, or be removed into different states, will probably be so salutary, that the expediency of this branch of the powers of congress, will cease to be drawn in question.
5. Congress have power to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.
By the former articles of confederation it was agreed that the United States in congress assembled, should have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective states; and fixing the standard of weights and measures throughout the United States. By the present constitution the respective states are interdicted from coining money. All the powers mentioned in this clause are branches of the royal prerogative in England, but are with much greater propriety vested in the legislative department by the federal constitution. The history of England affords numberless instances, where this prerogative has been exercised to the great oppression of the subject. The power of debasing the value of the coin, at pleasure, has in fact been frequently used as an expedient for raising a revenue, and is accordingly reckoned as one of the indirect modes of taxation, by the author of the treatise on political economy: for if the government gives coin of an inferior standard, for purer coin of the same weight, as is generally done in these cases; or if it receives more for the coin, than the value of the bullion, and the expense of the coinage, as is likewise frequently practiced, the difference is an acquisition of revenue, paid by him who brings his bullion to the mint. According to the principles of our constitution, therefore, such a tax can not be imposed but by the representatives of the people.54
Mr. Barrington, in his readings upon the English statutes, doubts whether the regulation of weights and measures be practicable, by law. He remarks, that in England it has been attempted by at least six different statutes, all of which have been ineffectual. He quotes an observation of Montesquieu’s that it is the mark of a little mind in a legislature to attempt regulations of this kind. In England, perhaps, the attempt has not succeeded from some defect in the system. That proposed by Mr. Jefferson, when secretary of state, appears to be perfectly simple, and, I should apprehend, easily practicable: and the standard of measure, especially, may be obtained with a mathematical exactness sufficient for all the purposes of commerce, and even of arts and sciences.
It appears by the journals of the senate of the United States, March the 1st, 1791. “That a proposition had been made to the national assembly of France for obtaining a standard of measure, which shall at all times be invariable, and communicable to all nations, and at all times. That a similar proposition had been submitted to the British parliament: as the avowed object of these is to introduce an uniformity in the weights and measures of commercial nations; and as a coincidence of regulation by the government of the United States on so interesting a subject would be desirable, the senate resolved, that it would not be eligible at that time to introduce any alterations in the weights and measures of the United States.”
6. Congress have power to provide for the punishment of counterfeiting the securities, and current coin of the United States.
This power seems to be a natural incident to two others, of which we have before taken notice: the power of borrowing money on the credit of the United States, and that of coining money, and regulating the value thereof.
But congress appear to have extended the interpretation of this article much further than it might have been supposed it would bear: and possibly much further than the framers of the constitution intended. I allude to the act of 5 cong. c. 78, to punish frauds committed on the bank of the United States, which inflicts the penalty of fine and imprisonment, for forging or counterfeiting any bill or note, issued by order of the president, directors and company of the bank of the United States.
The right of congress to establish this company or corporation, with exclusive privileges, was warmly contested when the bill for establishing the bank was introduced into congress. 1 cong. 3 sess. c. 10. The same congress had at their first session agreed to an amendment of the constitution, declaring, that the powers not delegated to the United States, by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. The advocates for the bill were challenged to produce the clause in the constitution which gave congress power to erect a bank. It nevertheless passed both houses. The president of the United States hesitated; it is said that he consulted his constitutional advisers upon the subject. That two of them were of opinion the bill was unconstitutional. It nevertheless, received his assent on the last day, that the constitution allowed him to deliberate upon it. Had he turned to the journals of convention (as on another occasion,) it has been confidently said, he would there have seen, that the proposition to authorize congress to establish a bank, had been made in convention and rejected: of this, he can not be supposed to have been ignorant, as he presided in the convention, when it happened; the journals of that body were then a secret, and in his keeping. If it was proper to resort to those journals to give a proper interpretation to the constitution in one instance, it surely was equally proper in the other; and if the rejection of one proposition in that body, was a sufficient reason for rejecting the same, when made by either house of congress, it seems difficult to assign a reason why the other should not have been treated in the same manner.55
If it were, in fact, an unconstitutional exercise of power in congress to pass a law establishing the bank, nothing can manifest the impropriety of over-stepping the limits of the constitution, more than the act which we have just noticed. It shows that the most unauthorized acts of government may be drawn into precedents to justify other unwarrantable usurpations.
7. Congress have power to establish post-offices, and post-roads. And this is one of those cases, in which I have supposed that the states may possess a concurrent, but subordinate authority, to that of the federal government. Concurrent, inasmuch, as there seems to be nothing in the constitution, nor in the nature of the thing itself, which may not be exercised by both, at the same time, without prejudice, or interference; subordinate, because wherever any power is expressly granted to congress, it is to be taken, for granted, that it shall not be contravened by the authority of any particular state. If, therefore, any state should find it necessary to establish post-offices on any road, which is not an established post-road, under the laws of the United States, there seems to be no constitutional objection to its doing so, until congress should think proper to exert its constitutional right to establish a communication by post, between the same places. … I put this case merely to show how far the exercise of these concurrent powers may be reconciled: it is much to be desired that a question of such delicacy may never occur between any state, and the federal government.
The post-office, under proper regulations, is one of the most beneficial establishments which can be introduced by any government; by providing the means of intercourse between the citizens of remote parts of the confederation, on such a regular footing, as must contribute greatly to the convenience of commerce, and to the free, and frequent communication of facts, and sentiments between individuals. Hence the revenue arising from this source will always be more easily collected, and more cheerfully paid, than any other whatever. It appears, that notwithstanding the many unprofitable branches, into which the post-roads have been divided for the convenience of the people of the United States, there still remains a considerable sum that is annually brought into the federal treasury.
It seems reasonable that the product of this branch of the revenue should be, exclusively, applied to the extension of its benefits, until they shall completely pervade every part of the union.
8. Congress have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
This is another branch of federal authority, in which I presume the states may possess some degree of concurrent right within their respective territories; but as the security which the state could afford, would necessary fall short of that which an authority co-extensive with the union may give, it is scarcely probable that the protection of the laws of any particular state will hereafter be resorted to; more especially, as the act of 2 Cong. c. 55, declares, that “where any state before its adoption of the present form of government shall have granted an exclusive right to any invention, the party claiming that right, shall not be capable of obtaining an exclusive right under that act, but on relinquishing his right under such particular state, and of such relinquishment his obtaining an exclusive right under that act, shall be sufficient evidence.” But this act does not appear to extend to copy-rights: the exclusive right to which is secured by an act passed, 1 Cong. 2 Sess. c. 15, amended by the act of 7 Cong. c. 36, for fourteen years; and if at the expiration of that term, the author being living, the same exclusive right shall be continued to him and his heirs, for other fourteen years. But the exclusive rights of other persons to their inventions, is limited to fourteen years, only, by the act first mentioned. Aliens, who have resided two years in the United States, are moreover entitled to the benefit of a patent for any new invention, by virtue of the act of 6 Cong. c. 25.
Whether it was under this clause of the constitution, or not, that the first secretary of the treasury grounded his opinion of the right of congress to establish trading companies, for the purpose of encouraging arts and manufactures;56 or whether it was under this clause, that the establishment of a company for the discovery of mines, minerals, and metals, was contemplated by the authors of that scheme;57 or whether it was from a conviction of the unconstitutionality of the proposition, in both cases, that neither of them took effect, I cannot presume to determine: but, certainly, if this clause of the constitution was relied upon, as giving congress a power to establish such monopolies, nothing could be more fallacious than such a conclusion. For the constitution not only declares the object, but points out the express mode of giving the encouragement; viz. “by securing for a limited time to authors and inventors, the exclusive right to their respective writings, and discoveries.” Nothing could be more superfluous, or incompatible, with the object contended for, than these words, if it was, indeed, the intention of the constitution to authorize congress, to adopt any other mode which they might think proper.
9. Congress is moreover authorized to constitute tribunals inferior to the supreme court. (C.U.S. Art. 1. Sec. 8.) The third article of the constitution further declares, that the judicial powers of the United States shall be vested in one supreme court, and in such inferior courts, as congress may from time to time, ordain, and establish. … The establishment of courts, is in England, a branch of the royal prerogative, which has in that country been, from time to time, very much abused; as in the establishment of the famous courts of high-commission, and of the star-chamber; two of the most infamous engines of oppression and tyranny, that ever were erected in any country. “The judges of which (as the statute for suppressing the former declares) undertook to punish, where no law did warrant, and the proceedings, and censures of which were an intolerable burden upon the subject, and the means to introduce an arbitrary power and government.” In England there are also courts of special-commission of oyer and terminer, (I do not here speak of the ordinary commissions of oyer and terminer and general goal of delivery, under which, courts are held by the judges of the courts of West-minister-hall, at the assizes, in every county,) occasionally constituted for the special purpose of trying persons accused of treason, or rebellion, the judges of which, are frequently some of the great officers of state, associated with some of the judges of West-minister-hall, and others, whose commission determines as soon as the trial is over. Most of the state trials, have been had before courts thus constituted: and the number of convictions and condemnations in those courts is a sufficient proof how very exceptionable such tribunals are: or rather how dangerous to the lives and liberties of the people, a power to select particular persons, as judges for the trial of state offenses, must be, in any country, and under any possible form of government. In these cases, the offense is not only in theory, against the crown and government, but often, in fact, against the person, authority, and life of the ruling monarch. His great officers of state share with him in danger, and too probably in apprehension, and resentment. These are the judges, he selects, and from their hands expects security for himself and them. Whilst the frailties of human nature remain, can such a tribunal be deemed impartial? Wisely, then, did the constitution of the United States deny to the executive magistrate a power so truly formidable: wisely was the supreme federal legislature made the depositary of the power of establishing courts, inferior to the supreme court; and most wisely was it provided, that the judges of those courts, when once appointed by the president with the advice of the senate, should depend only on their good behavior for their continuance in office, and be placed at once beyond the reach of hope or fear, where they might hold the balance of justice steadily in their hands.
These considerations induce a conviction in my mind, that this clause of the constitution does not authorize the establishment of occasional, or temporary courts, but courts of a permanent constitution and duration. Courts that could neither be affected in their conduct nor in the existence by the ferments or changes, of parties; and which might remain a monument to all posterity of the wisdom of that policy, which separates the judiciary from the executive and legislative departments, and places it beyond the influence or control of either.
These remarks are offered in this place, only for the sake of method; it will be our duty to give the subjects a fuller consideration elsewhere.
10. Congress have power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.
The definition of piracies, says the author of the Federalist, might perhaps, without inconvenience, be left to the law of nations: though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite, being a term of loose signification, even in the common law of England. The true ground of granting these powers to congress seems to be, the immediate and near connection and relation which they have to the regulation of commerce with foreign nations, which must necessarily be transacted by the communication on the high seas; and the right of deciding upon questions of war and peace, where the law of nations, is the only guide. Under this head, of offenses against the law of nations, the violation of the rights of ambassadors, as also of passports, and safe conducts is included. The act of 1 cong. 2 sess. c. 9, embraces the whole.
And here we may remark by the way, the very guarded manner in which congress are vested with authority to legislate upon the subject of crimes, and misdemeanors. They are not entrusted with a general power over these subjects, but a few offenses are selected from the great mass of crimes with which society may be infested, upon which, only, congress are authorized to prescribe the punishment, or define the offense. All felonies and offenses committed upon land, in all cases not expressly enumerated, being reserved to the states respectively. From whence this corollary seems to follow. That all crimes cognizable by the federal courts (except such as are committed in places, the exclusive jurisdiction of which has been ceded to the federal government) must be previously defined, (except treason,) and the punishment thereof previously declared, by the federal legislature.58
11. The power of declaring war, with all its train of consequences, direct and indirect, forms the next branch of the powers confided to congress; and happy it is for the people of America that it is so vested. The term war, embraces the extremes of human misery and iniquity, and is alike the offspring of the one and the parent of the other. What else is the history of war from the earliest ages to the present moment but an afflicting detail of the sufferings and calamities of mankind, resulting from the ambition, usurpation, animosities, resentments, piques, intrigues, avarice, rapacity, oppressions, murders, assassinations, and other crimes, of the few possessing power! How rare are the instances of a just war! How few of those which are thus denominated have had their existence in a national injury! The personal claims of the sovereign are confounded with the interests of the nation over which he presides, and his private grievances or complaints are transferred to the people; who are thus made the victims of a quarrel in which they have no part, until they become principals in it, by their sufferings. War would be banished from the face of the earth, were nations instead of princes to decide upon their necessity. Injustice can never be the collective sentiment of a people emerged from barbarism. Happy the nation where the people are the arbiters of their own interest and their own conduct! Happy were it for the world, did the people of all nations possess this power.
In England the right of making war is in the king. In Sweden it was otherwise after the death of Charles XII. Until the revolution in 1772, when from a limited monarchy, Sweden became subject to a despot. With us the representatives of the people have the right to decide this important question, conjunctively with the supreme executive who may, on this occasion as on every other, (except a proposal to amend the constitution,) exercise a qualified negative on the joint resolutions of congress; but this negative is unavailing if two thirds of the congress should persist in an opposite determination; so that it may be in the power of the executive to prevent, but not to make, a declaration of war.59
The several states are not only prohibited from declaring war, but even from engaging in it, without consent of congress, unless actually invaded, or in such imminent danger as will not admit of delay. This is certainly a very wise prohibition . … in fact, every barrier which can be opposed to the hasty engaging in war, is so much gained in favor of the interests of humanity. Upon the same principle it seems to be, that the states are likewise prohibited from granting letters of marque and reprisal: a measure which not infrequently precedes a declaration of war where individuals of one nation are oppressed or injured by those of another, and justice is denied by the state to which the author of such oppression or injury belongs. Did the several states possess the power of declaring war, or of commencing hostility without the consent of the whole, the union could never be secure of peace, and since the whole confederacy is responsible for any such act, it is strictly consonant with justice and sound policy, that the whole should determine on the occasion which may justify involving the nation in a war. The keeping up troops or ships of war in time of peace, is also prohibited to the several states upon the same principle. For these kinds of preparations for hostility are such as frequently may provoke, and even justify hostility on the part of other nations. But whenever war is actually declared, this prohibition ceases, and any state may adopt such additional measures for its own peculiar defense as its resources will enable it to do. The prohibition to emit bills of credit, must, however, infallibly narrow the means of recurring to these resources; a consequence which probably was not adverted to by the state conventions, as I do not recollect any amendments proposed on that subject.
The power of declaring war, with all its immediate consequences, was granted to congress under the former confederation, and nearly the same restrictions against engaging in war, keeping up troops and vessels of war in time of peace, were laid upon the individual states by the same instrument.
Among the amendments proposed by the convention of this state, and some others, to the constitution, there was one, “that no declaration of war should be made, nor any standing army or regular troops be raised or kept up, in time of peace, without the consent of two-thirds of the members present in both houses. And that no soldier should be enlisted for a longer term than four years, except in time of war, and then for no longer term than the continuance of the war.” North-Carolina, as well as some other of the states, concurred in proposing similar amendments, but none has yet been made in this respect.
One of the most salutary provisions of the constitution, under this head, appears to be, that no appropriation of money to the use of an army, shall be for a longer term than two years.60 Perhaps it would have been better to have limited such an appropriation to a single year. But inasmuch as no appropriation can be made for a longer time than the period affixed for the duration of congress, it will be in the power of the people, should the reasons of such an appropriation be disapproved by them, to remove their representatives, on a new election, from a trust which they may appear willing to betray. It is, therefore, to be hoped, that such a consideration will afford a sufficient check to the proceedings of congress, in regard to the raising and supporting armies. With regard to a navy, the nature of such an establishment, to have any good effect, must be permanent. It would, therefore, have been extremely unwise to impose any prohibitions on that subject.
12. Congress has, moreover, power to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by congress . … C.U.S. Art. 1, Sec. 8.
The objects of this clause of the constitution, although founded upon the principal of our state bill of rights, Art. 8, declaring, “that a well regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state,” were thought to be dangerous to the state governments. The convention of Virginia, therefore, proposed the following amendment to the constitution; “that each state respectively should have the power to provide for organizing, arming, and disciplining its own militia, whenever congress should neglect to provide for the same.” … A further amendment proposed, was, “that the militia should not be subject to martial law, except when in actual service, in time of war, rebellion, or invasion: … A provision manifestly implied in the words of the constitution. As to the former of these amendments, all room for doubt, or uneasiness upon the subject, seems to be completely removed, by the fourth article of amendments to the constitution, since ratified, viz. “That a militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed.” … To which we may add, that the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government. In pursuance of these powers, an act passed, 2 Cong. 1 Sess. c. 33, to provide for the national defense, by establishing an uniform militia throughout the United States; and the system of organization thereby established, has been carried into effect in Virginia, and probably in all the other states of the union.
Uniformity in the system of organization, and discipline of the militia, the constitutional defense of a free government is certainly desirable, and must be attended with beneficial effects, whenever the occasion may again require the cooperation of militia of the states respectively. The want of power over these subjects, was one of the defects of the former system of government under the confederation; and the consequent want of uniformity of organization, and of discipline, among the several corps of militia drawn together from the several states, together with the uncertainty and variety of the periods of service, for which those corps were severally embodied, produced a very large portion of those disgraces, which attended the militia of almost every state, during the revolutionary war; and, thus contributed to swell the national debt, to an enormous size, by a fruitless expense. By authorizing the federal government to provide for all these cases, we may reasonable hope, that the future operations of the militia of the confederated states, will justify the opinion, that they are the most safe, as well as most natural defense of a free state. An opinion, however, which will never be justified, if the duty of arming, organizing, training, and disciplining them, be neglected: a neglect the more unpardonable, as it will pave the way for standing armies; the most formidable of all enemies to genuine liberty in a state.
We have seen that the appointment of the officers of the militia, and the authority of training them, are expressly reserved to the states, by this article: this was considered as a most important check to any possible abuse of power in the federal government, whenever the aid of the militia should be required by it.
Notwithstanding this wise precaution in the constitution, the fifth congress appear to have disregarded it, by authorizing the president of the United States, to enlist and organize volunteers, or special corps of militia, whose officers he was authorized to appoint, either by his own authority, or with the concurrence of the senate; they were likewise to be trained and disciplined in the manner which he should direct, and be liable to be called upon to do duty, at any time that he should judge proper, within two years after their acceptance, and be exempted, during the time of their engagement, from all militia duty, which might be required of them by the laws of the United States, or of any state, and from every fine, penalty, or disability, provided to enforce the performance of any duty or service in the militia. … The number of these corps was at first unlimited,61 and the president was authorized to sell or lend them artillery, small-arms, accoutrements, from the public arsenals. L.U.S. 5 Cong. c. 64, Sec. 3, and c. 74. … As these select corps were not called upon at the pleasure of the president, it seems impossible to view them in any other light, than as a part of the militia of the states, separated by an unconstitutional act of congress, from the rest, for the purpose of giving to the president powers, which the constitution expressly denied him, and an influence the most dangerous that can be conceived, to the peace, liberty, and happiness of the United States.
13. Congress have power to declare the punishment of treason, against the United States; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. C.U.S. Art. 3. Sec. 3. The act of 1 Cong. 2 Sess. c. 9. accordingly declares, that the punishment shall be death, by hanging; and that no conviction or judgment for treason, shall work any forfeiture of estate. The constitution itself declares, that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort: and that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The precise definition of treason, and the limitation of it to two cases, only, both of which are clearly and explicitly described, at once evince the prudence, caution, and wisdom, of the framers of the constitution, by shutting the door (as far as human prudence, and human foresight, could provide the means of doing so), against all possible cases of constructive treason. The many infamous acts of complying parliaments in England, during the reigns of the Tudors and other tyrannical princes, and the still more infamous and detestable decisions of servile and corrupt judges, from the days of Empson and Dudley, to those of the execrable Jefferies, must evince the necessity and propriety of such a limitation. From such corruption and servility, either in the legislature, or in the tribunals of justice, we may reasonably hope that this clause of the constitution will effectually guard and protect the United States. Nor should we forget, that the security of the citizen is still further ensured by that provision in the constitution, which declares that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. So that no extrajudicial confession, though proved by fifty witnesses, would, of itself, be evidence sufficient to convict a man upon a charge of treason. A provision which almost bids defiance of false witnesses. … The abolition of forfeiture, and of the corruption of blood, in cases of treason, is moreover a happy expedient for lessening the incentives, to prosecutions for treason, in corrupt governments. Rapacity is equally the cause and effect of tyranny. To curb every pretence for the exercise of it, should be the invariable object of a people forming a constitution. It is a monster that assumes a thousand shapes; of which the most odious, as well as the most terrible, is that, in which it attacks life, liberty and property, at the same time, and with the same weapons: its power is then irresistible.
14. Congress have power to exercise exclusive legislation, in all cases whatsoever, over such district, (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislature of the state; in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings, C.U.S. Art. 1. Sec. 8.
The exclusive right of legislation granted to congress by this clause of the constitution, is a power, probably, more extensive than it was in the contemplation of the framers of the constitution to grant: such, at least, was the construction which the convention of Virginia gave to it. They, therefore, proposed an article as an amendment to the constitution, declaring, “that the powers granted by this clause, should extend only to such regulations as respect the police, and good government thereof.” The states of New-York and North-Carolina proposed similar amendments; and one to the like effect was actually proposed in the senate of the United States, but shared the fate of many others, whose object was to limit the exercise of powers in the federal government.
I agree with the author of the Federalist,62 that a complete authority at the seat of government was necessary to secure the public authority from insult, and its proceedings from interruption. But the amendment proposed by Virginia, certainly, would not have abridged the federal government of such an authority. A system of laws incompatible with the nature and principles of a representative democracy, though not likely to be introduced at once, may be matured by degrees, and diffuse its influence through the states, and finally lay the foundation of the most important changes in the nature of the federal government. Let foreigners be enabled to hold lands, and transmit them by inheritance or devise; let the preference to males, and the rights of primogeniture, be revived, together with the doctrine of entails, and aristocracy will neither want a ladder to climb by, nor a base for its support. Many persons already possess an extent of territory in the United States, not inferior to many of the German principalities: if they can be retained for a few generations, without a division, our posterity may count upon the revival of feudal principles, with feudal tenures.
The permanent seat for the government of the United States, has been established under the authority of an act passed 1 Cong. 2 Sess. c. 28, and 3 Sess. c. 17, upon the river Potomac, including the towns of Alexandria in Virginia, and Georgetown in Maryland. And the laws of Virginia (with some exceptions) were declared in force in that part of the ten miles square, which was ceded by Virginia, and those of Maryland in the other part, ceded by Maryland; and several other regulations were likewise established by two several acts, 6 Cong. 2 Sess. c. 15 and 24. An amendatory act passed also at the first session of the seventh congress, but the system does not appear to be as yet completely organized. It has been said, that it was in contemplation to establish a subordinate legislature, with a governor to preside over the district. But it seems highly questionable whether such a substitution of legislative authority is compatible with the constitution; unless it be supposed that a power to exercise exclusive legislation in all cases whatsoever, comprehends an authority to delegate that power to another subordinate body. If the maxim be sound, that a delegated authority cannot be transferred to another to exercise, the project here spoken of will probably never take effect. At present that part of the union is neither represented in the congress, nor in any state legislature; a circumstance, of which there seems to be some disposition to complain. An amendment of the constitution seems to be the only means of remedying this oversight.
15. Congress may admit new states into the union; but no new state shall be formed, or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned, as well as of congress.
In the articles of confederation it was agreed, that Canada, acceding thereto, and joining in the measures of the United States, should be admitted into the union; but no other colony should be admitted, unless such admission be agreed to by nine states. The eventual establishment of new states, within the limits of the territory of the United States, seems to have been overlooked by the compilers of that instrument. The inconvenience of this omission had been felt, and congress were, perhaps, led into an assumption of power not strictly warranted by the confederation, in the establishment of a government north-west of the Ohio. With great propriety, therefore, has the constitution supplied the defect. The general precaution that no new states should be formed without the concurrence of the federal authority, and that of the states concerned, is consonant to the principles which ought to govern, such transactions. The particular precaution against the erection of new states by the partition of a state without its consent, quiets the jealousy of the larger states; as that of the smaller is quieted by a like precaution against a junction of states without their consent. Under the authority of this article, the states of Vermont, Kentucky, and Tennessee, have been admitted into the union. And the boundaries of a new state have been lately established within the territory north-west of the Ohio, which, as soon as formed, is to be admitted as a member of the union, upon the same footing with the original states.
Congress, under the former confederation, passed an ordinance, July 13, 1787, for the government of the territory of the United States, northwest of the Ohio, which contained, among other things, six articles, which were to be considered as articles of compact between the original states, and the people and states of the said territory, and to remain unalterable, unless by common consent. These articles appear to have been confirmed by the sixth article of the constitution, which declares, that, all debts contracted, and engagements entered into before the adoption of the constitution, shall be as valid against the United States under the constitution, as under the confederation. The first of these articles secures the absolute freedom of religion: The second secures the benefit of the writ of habeas corpus; the trial by jury; judicial proceedings according to the course of the common law; the right of bail; the moderation of fines and of punishments; the right of personal security, and the right of private property; the sacredness of private contracts; and a proportionate representation of the people in the legislature. The third engaged for the encouragement of schools, and the means of education; and for good faith with the Indians, and the security of their persons and property from injury. The fourth stipulates, that the states formed in that territory shall forever remain a part of the American confederacy, &c. that they shall pay a part of the federal debt, and a proportional part of the expenses of government; that the legislatures of the new states shall never interfere with the primary disposal of the soil, by the United States in congress assembled; that no tax shall be imposed on lands the property of the United States; and that non-resident proprietors shall in no case be taxed higher than residents. That the navigable waters and carrying places shall be common high-ways, and forever free to all the citizens of the American confederacy, without any tax, impost, or duty therefor. The sixth article declares, that there shall be formed in the said territory, not less than three, nor more than five states; that whenever any of the states shall have sixty thousand free inhabitants, it will be admitted into the confederacy on an equal footing with the original states in all respects whatever, and be at liberty to form a permanent constitution and state government; provided the same be republican, and in conformity to the principles contained in those articles: and so far as can be consistent with the general interest of the confederacy, such admission shall be sooner allowed. The last articles stipulates that there shall be neither slavery, nor involuntary servitude, otherwise than in punishment of crimes; with a proviso, that persons escaping into the same from any state, where they may have been lawfully held to service, may be lawfully reclaimed and delivered up.
The ordinance further provides, that the estates both of resident and non-resident proprietors, shall descend to their children, or other next of kin, of a person dying intestate, in equal degree; and that there shall be no distinction between kindred of the whole and half blood; that the widow shall be endowed of one third part of the real and personal estate of her intestate husband, for life; and that this law, relative to descents and dower, shall remain in full force until altered by the legislature. That estates may be devised by will, and conveyed by lease and release, or by bargain and sale, by persons of full age, until the governor and judges should adopt other laws, as therein authorised. That the governor and judges, or a majority of them, shall adopt and publish, in the district, such laws of the original states, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to congress from time to time; which laws shall be in force until the organization of the general assembly therein, unless disapproved of by congress; but afterwards, the legislature might alter them as they should think fit. That the general assembly shall consist of the governor, a legislative council, and a house of representatives; that the governor shall be appointed by congress, every three years; that he shall have a negative upon all legislative acts; that he shall have power to convene, prorogue, and dissolve the general assembly; that the legislative council shall consist of five members, to continue five years in office, and to be appointed by congress, out of ten persons, residents and freeholders in the district, to be nominated by the house of representatives; that the governor and members of the council be removable by congress; that a house of representatives shall be chosen as soon as there shall be five thousand free male inhabitants of full age in the district, and consist of one member for every five hundred free male inhabitants, until the number shall amount to twenty-five, after which the number shall be regulated by the legislature; that the representatives thus elected, shall serve for two years. That a court of common law jurisdiction shall be appointed, to consist of three judges, who shall hold their offices during good behaviour. Such are the principal outlines of the temporary provisions made upon this subject, which, I presume, still remain in force in those parts of the territory, not included within the bounds of the new state, lately admitted as a member of the federal union. By the act of 1 Cong. c. 8, the president of the United States is authorised to nominate, and by and with the advice and consent of the senate, to appoint all officers, which, by that ordinance were to have been appointed by congress, under the confederation. And by the act of 6 Cong. c. 41, the territory was divided into two separate governments, one of which was called the Indiana territory, and a government established therein, in all respects similar to that provided by the above mentioned ordinance, except that the legislature thereof might be organized, notwithstanding there may not be five thousand free male inhabitants of full age therein. The act further declares, that nothing therein contained, shall be construed in any manner, to affect the government already in force, on the northwest of the Ohio river, further than to prohibit the exercise thereof within the Indiana territory.
By the act of 5 Cong. c. 45, authorizing the establishment of a government in the Mississippi territory, the president of the United States is authorized to establish therein a government, in all respects similar to that in the northwest territory, excepting and excluding that article of the ordinance of July 13, 1787 which declares, that there shall be neither slavery, nor involuntary servitude therein. The importation of slaves from foreign parts, is, nevertheless, prohibited, under the penalty of three hundred dollars upon the importer, and the slave is moreover entitled to freedom. Considering that the southern climate is in general favorable to negroes, and the difficulties which the number of them may in time create in some of the states; their dispersion is an object rather to be favored, perhaps, than discountenanced. Yet it is difficult to suppress a sigh, whenever we discover any measure which seems to favor the continuance of slavery among us.
16. Congress have power to dispose of, and make all needful rules and regulations respecting the territory, or other property belonging to the United States; and nothing in the constitution shall be so construed as to prejudice any claims of the United States, or of any state. C.U.S. Art. 3, Sec. 3.
During the revolutionary war, congress recommended to the several states in the union, having claims to waste and unappropriated lands in the western country, a liberal cession to the United States of a portion of their respective claims, for the common benefit of the union. In consequence of which, the state of Virginia ceded to the United States, for the common benefit of the whole confederacy, all the right, title, and claim which the commonwealth had to the territory northwest of the river Ohio, subject to the terms and conditions contained in her several acts of cession, viz. January 2, 1781 … Acts of October session, 1783. c. 18, and of December 30, 1778. One of the conditions of the latter act, being, that the said territory should be divided into not more than five, nor less than three states, whose boundaries are therein prescribed, of which we have already had occasion to make mention. It appears by a late document,63 that the tract of country thus ceded, probably contains about 10,894,447, acres, within the line of the Indian boundary, of which 1,059,120, acres have been either located or set apart for military claims, 575,268, have been sold, or otherwise granted, and about 9,260,089, remained unsold on the first of November, 1801. The acts of 4 Cong. c. 29, and 6 Cong. c. 55, providing for the sale of these lands, contain many wise, and wholesome regulations, the principal of which, are, that they shall be laid out into townships six miles square, by north and south lines, according to the true meridian, and by others crossing them at right angles; that one half of those townships, taking them alternately, shall be subdivided into sections of six hundred and forty acres, which shall be numbered in order; that fair plats of these townships shall be made; that four sections at the center of every township, and every other section upon which a salt spring may be discovered shall be reserved for the use of the United States; that all navigable rivers shall be deemed, and remain public high-ways; and all lesser streams, and their beds shall become common to the proprietors of the lands on the opposite banks; and that no part of the lands shall be sold for less than two dollars per acre. A former secretary of the treasury estimated the value of these lands at twenty cents per acre, only.64 Those which have been already sold pursuant to the act of congress, have averaged two dollars and nine cents; or, more than ten times that valuation. The celebrated Doctor Price, in his observations on the importance of the American revolution, recommends the reserving the whole, or a considerable part of these lands, and appropriating a certain sum annually to the clearing unlocated lands, and other improvements thereon; and computes that 100,000£ thus expended, with fidelity, would produce a capital of one hundred millions sterling, in about eighty years. This hint is probably worthy of attention to a certain extent: but it might well be questioned, whether, if the measure were adopted as far as he seems to have thought advisable, it might not lay the foundation of so large a revenue, independent of the people, as to be formidable in the hands of any government. To amass immense riches to defray the expenses of ambition when occasion may prompt, without seeming to oppress the people, has uniformly been the policy of tyrants. Should such a policy creep into our government, and the sales of land, instead of being appropriated to the discharge of former debts, be converted to a treasure in a bank, those who can at any time command it, may be tempted to apply it to the most nefarious purposes. The improvident alienation of the crown lands in England, has been considered as a circumstance extremely favorable to the liberty of the nation, by rendering the government less independent of the people.65 The same reason will apply to other governments, whether monarchial or republican: whenever any government becomes independent of the nation all ideas of responsibility are immediately lost: and when responsibility ceases, slavery begins. It is the due restraint and not the moderation of rulers that constitutes a state of liberty; as the power to oppress, though never exercised, does a state of slavery.
The disposal of the whole of the western lands, at so low a rate even that now established by congress, as a minimum, is a measure of the policy of which, doubts may be entertained. … The western territory ought to be regarded as a national stock of wealth. It may be compared to bullion, or coin deposited in the vaults of a bank, which although it produces no present profit, secures the credit of the institution, and is ready to answer any emergency. This supposes the lands, like bullion, to remain always of the same value; but the lands must increase in value at the rate of compound interest, whenever population becomes considerable in those parts of the union. This we see is daily increasing with great rapidity; and the value of the lands can not fail to keep pace with it. The most fertile spots upon the globe are of no more value than those which are covered by the ocean, so long as they continue remote from population; as the most barren spots are rendered valuable by its progress, and approach. A reserve of one half, or some other considerable proportion of the lands remaining unsold, therefore, seems to be recommended by many prudential considerations.
Other considerable cessions have been made to the United States by other states in the union. The state of Connecticut, made a cession which appears to have been accepted by congress, September 14, 1786. The act of 6 Cong. c. 38, authorizes the president of the United States to release the soil of a tract lying west of the west line of Pennsylvania, and extending one hundred and twenty statue miles, westward, and from the completion of the forty-first, to the latitude of the forty-second degree and two minutes, north, which was excepted by the state of Connecticut out of their cession, provided that state shall cede to the United States certain other lands, and relinquish her right of jurisdiction over the territory, the soil of which shall be thus released to that state. South-Carolina likewise appears to have made a cession of lands to the United States. The territory ceded by North-Carolina now constitutes the state of Tennessee. The acts of 5 Cong. c. 45, and 6 Cong. c. 50, authorize the acceptance of a cession of lands, or of the jurisdiction thereof, from the state of Georgia, on such terms as may seem reasonable to the commissioners appointed on the part of that state, and of the United States respectively. In the mean time the establishment of the Mississippi government is not in any respect to impair the right of the state of Georgia to the jurisdiction, or of the said state, or any person, to the soil of the territory thereof.
17. To give efficacy to these powers, congress is authorized to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States, or in any department, or officer thereof. C.U.S. Art. 1. Sec. 8.
After the satisfactory exposition of this article given in the Federalist,66 that if the constitution had been silent on this head, there could be no doubt, that all the particular powers requisite, as the proper means of executing the general powers specified in the constitution, would have resulted to the federal government, by unavoidable implication; and that if there be any thing exceptionable in this particular clause, it must be sought for in the specific powers, upon which this general declaration is predicated: and after the explicit declaration contained in the twelfth article of the amendments to the constitution, that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people: we might have indulged a reasonable hope, that this clause would neither have continued to afford any ground of alarm, and apprehension, on the part of the people, or the individual states, nor any pretext for an assumption of any power not specified in the constitution, on the part of the federal government. But, notwithstanding this remarkable security against misconstruction, a design has been indicated to expound these phrases in the constitution, so as to destroy the effect of the particular enumeration of powers, by which it explains and limits them, which must have fallen under the observation of those who have attended to the course of public transactions.67
The plain import of this clause is, that congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. It neither enlarges any power specifically granted, nor is it a grant of new powers to congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those otherwise granted, are included in the grant. A single example may illustrate this matter. The executive has power to make treaties, and by the treaty with Algiers, a certain tribute is to be paid annually to that regency. But the executive have no power to levy a tax for the payment of this tribute; congress, therefore, are authorized by this clause, to pass a law for that purpose: without which the treaty, although it be a supreme law of the land, in its nature, and therefore binding upon congress, could not be executed with good faith. For the constitution expressly prohibits drawing any money from the treasury but in consequence of appropriations made by law.
Whenever, therefore, a question arises concerning the constitutionality of a particular power; the first question is, whether the power be expressed in the constitution? If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by congress. If it be not, congress cannot exercise it. … And this construction of the words “necessary and proper,” is not only consonant with that which prevailed during the discussions and ratification of the constitution, but is absolutely necessary to maintain their consistency with the peculiar character of the government, as possessed of particular and defined powers, only; not of the general and indefinite powers vested in ordinary governments.
Under this construction of the clause in question, it is calculated to operate as a powerful and immediate check upon the proceedings of the federal legislature, itself, so long as the sanction of an oath, and the obligations of conscience, are regarded, among men. For, as every member is bound by oath to support the constitution, if he were to bring every measure that is proposed to the test here mentioned, and reject whatsoever could not stand the scrutiny, we should probably cease to hear any questions respecting the constitutionality of the acts of the federal government. To which we may add, that this interpretation of the clause is indispensably necessary to support that principle of the constitution, which regards the judicial exposition of that instrument, as the bulwark provided against undue extension of the legislative power. If it be understood that the powers implied in the specified powers, have an immediate and appropriate relation to them, as means, necessary and proper for carrying them into execution, questions on the constitutionality of laws passed for this purpose, will be a nature sufficiently precise and determinate, for judicial cognizance and control. If on the one hand congress are not limited in the choice of the means, by any such appropriate relation of them to the specified powers, but may use all such as they may deem capable of answering the end, without regard to the necessity, or propriety of them, all questions relating to means of this sort must be questions of mere policy, and expediency, and from which the judicial interposition and control are completely excluded. … If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of these means. But if congress may use any means, which they choose to adopt, the provision in the constitution which secures to the people the right of bearing arms, is a mere nullity; and any man imprisoned for bearing arms under such an act, might be without relief; because in that case, no court could have any power to pronounce on the necessity or propriety of the means adopted by congress to carry any specified power into complete effect.
This finishes our view of the legislative powers granted to the federal government; great and extensive as they must appear, they are in general such as experience had evinced to be necessary, or as the principles of a federal government had recommended to experiment, at least. In many instances these powers have been guarded by wise provisions, and restraints; some of which have been already noticed; the remainder will soon pass under review. Experience has already evinced the benefit of these restraints; and had they been more numerous, and more effectual, there is little reason to doubt that it would have contributed largely to the peace and harmony of the union, both heretofore, and hereafter. All governments have a natural tendency towards an increase, and assumption of power; and the administration of the federal government, has too frequently demonstrated, that the people of America are not exempt from this vice in their constitution. We have seen that parchment chains are not sufficient to correct this unhappy propensity; they are, nevertheless, capable of producing the most salutary effects; for, when broken, they warn the people to change those perfidious agents, who dare to violate them.
The restraints imposed on the legislative powers of the federal government, are briefly comprised in the ninth section of the first article of the constitution, or in the amendments, proposed by the first congress, and since ratified in the mode prescribed by the constitution. Of these we shall take a brief survey, in the order in which they occur.
1. The migration, or importation of such persons, as any of the states now existing shall think proper to admit, shall not be prohibited by congress prior to the year 1808, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. C.U.S. Art. 1. Sec. 9.
This article, at the time the constitution was framed, was deemed necessary to prevent an opposition, on that ground, to its adoption in those states which still permitted the importation of slaves from Africa, and other foreign parts. A more liberal policy has since prevailed, so far as to render it probable that congress will never have occasion to exert the right of prohibiting the importation of slaves, such importation being now prohibited by the laws of all the states in the union. But should any of them show an inclination to rescind the present prohibitions, congress, after the year 1808, will be able to interpose its authority to prevent it, and impose some partial restraint upon the farther extension of the miseries of mankind. How to remove the calamities of slavery from among us, is left to the wisdom of the state government; the federal government can only prevent the further importation of slaves after the period limited.
2. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it. C.U.S. Art. 1. Sec. 9.
The writ of habeas corpus, is the great and efficacious remedy provided for all cases of illegal confinement; and is directed to the person detaining another, commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf. In England this is a high prerogative writ, and issues out of the court of king’s-bench, not only in term time, but during the vacation, by a fiat from the chief justice, or any other of the judges, and running into all parts of the king’s dominions. In Virginia it may issue out of the high court of chancery, the general court, or the court of the district in which the person is confined, and may be awarded by any judge of either of those courts in vacation: and if any judge in vacation, upon view of the copy of the warrant of commitment or detainer, or upon affidavit made, that such copy was denied, shall refuse any writ of habeas corpus, required to be granted by law, such judge shall be liable to the action of the party aggrieved. And by the laws of the United States, all the courts of the United States, and either of the justices of the supreme court, as well as judges of the district courts, have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. … Provided that writs of habeas corpus shall in no case extend to prisoners in gaol, unless they are in custody under, or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.
Here a question naturally occurs: if a person be illegally committed to prison in any state, under, or by color of the authority of the United States, can any judge, or color of the state in which he is confined, award a writ of habeas corpus, for the purpose of an inquiry into the cause of his commitment? To which, I answer, that if he be committed or detained for any crime, unless it be for treason or felony, plainly expressed in the warrant of commitment, and be neither convicted thereof, nor in execution by legal process, the writ (due requisites being observed) can not be refused him: for the act is imperative, as to awarding the writ. The court or judge, before whom the prisoner is brought, must judge from the return made to the writ, what course he ought to pursue: whether, to discharge him from his imprisonment, or bail him, or remand him again to the custody of the person from whom he may be brought.
In England the benefit of this important writ can only be suspended by authority of parliament. It has been done several times of late years, both in England and in Ireland, to the great oppression of the subject, as hath been said. In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion, or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ. The legislatures of the respective states are left, I presume, to judge of the causes which may induce a suspension within any particular state. This is the case, at least, in Virginia.
3. No bill of attainder, or ex post facto, shall be passed by congress, or by any state. C.U.S. Art. 1. Sec. 9. 10.
Bills of attainder are legislative acts passed for the special purpose of attainting particular individuals of treason, of felony, or to inflict pains and penalties beyond, or contrary to the common law. They are state-engines of oppression in the last resort, and of the most powerful and extensive operation, reaching to the absent and the dead, as well as to the present and the living. They supply the want of legal forms, legal evidence, and of every other barrier which the laws provide against tyranny and injustice in ordinary cases: being a legislative declaration of the guilt of the party, without trial, without a hearing, and often without the examination of witnesses, and subjecting his person to condign punishment, and his estate to confiscation and forfeiture. Instances of their application to these nefarious purposes occur in almost every page of the English history for every considerable period: and very few reigns have passed in which the power has not been exercised, though, to the honor of the nation, I believe, no instance of the kind has occurred for more than half a century.
In May, 1778, an act passed in Virginia, to attaint one Josiah Philips, unless he should render himself to justice, within a limited time: he was taken, after the time had expired, and was brought before the general court to receive sentence of execution pursuant to the directions of the act. But the court refused to pass the sentence, and he was put upon his trial, according to the ordinary course of law. … This is a decisive proof of the importance of the separation of the powers of government, and of the independence of the judiciary; a dependent judiciary might have executed the law, whilst they execrated the principles upon which it was founded.
If any thing yet more formidable, or more odious than a bill of attainder can be found in the catalogue of state-enginery, it is what the constitution prohibits in the same clause, by the name of ex post facto laws: whereby an action indifferent in itself, and not prohibited by any law at the time it is committed, is declared by the legislature to have been a crime, and punishment in consequence thereof, is inflicted on the person committing it. Happily, for the people of Virginia, I can not cite any case of an ex post facto law, (according to this definition, which I have borrowed from Judge Blackstone,) that has been made in this commonwealth, nor have I heard of any such, in any other of the United States, that I recollect.
4. To check any possible disposition in congress towards partiality in the imposition of burdens, it is further provided, that no capitation or other direct tax shall be laid, unless in proportion to the census, or enumeration, by the constitution directed to be taken. (C.U.S. Art. 1. Sec. 9.) And the fifth article of the constitution declares, that no amendment made prior to the year 1808, shall in any manner affect this, and the first clause of the ninth section, above noticed.
The acts of 3 Cong. c. 45, and 4 Cong. c. 37, laying duties upon carriages for the conveyance of persons, were thought to be infringements of this article, it being supposed, that such a tax was a direct tax, and ought to have been apportioned among the states. The question was tried in this state, in the case of the United States, against Hylton, and the court being divided in opinion, was carried to the supreme court of the United States, by consent. It was there argued by the proposer of it, (the first secretary of the treasury,) on behalf of the United States, and by the present chief justice of the United States, on behalf of the defendant. Each of those gentlemen was supposed to have defended his own private opinion. That of the secretary of the treasury prevailed, and the tax was afterwards submitted to, universally, in Virginia.
5. Upon similar principles of equity, and impartiality, the succeeding clause declares, that no tax or duty shall be laid on articles exported from any state. No preference shall be given by any regulation of commerce, or revenue, to the ports of one state, over those of another; nor shall vessels bound to, or from one state, be obliged to enter, clear, or pay duties, in another. … And the fourth article of the constitution, Sec. 3, further provides, that nothing in the constitution of the United States shall be so construed as to prejudice any claims of the United States, or of any particular state. The reasons of these several restrictions and explanations having been already noticed. I shall add nothing more to the subject here; they being mentioned in this place only for the sake of method.
6. No title of nobility shall be granted by the United States, or any state: and no person holding any office of profit or trust under the United States, shall, without consent of congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state. C.U.S. Art. 1. Sec. 9, 10.
The first of these prohibitions was indispensably necessary to preserve the several states in their democratic form, tone, and vigor. Distinctions between the citizens of the same state, are utterly incompatible with the principles of such governments. Their admission, therefore, can not be too cautiously guarded against: and their total exclusion seems to be the only mode by which this caution can operate effectually. We have already noticed, that the several acts passed for establishing an uniform rule of naturalization, require of every alien becoming a citizen, of the United States, an absolute renunciation, on oath, of any title of nobility, which he might have borne under any other prince or state. Without this wise provision, this clause of the constitution might have failed of some of those salutary effects which it was intended to produce. The second prohibition is not less important. Corruption is too subtle a poison to be approached, without injury. Nothing can be more dangerous to any state, than influence from without, because it must be invariably bottomed upon corruption within. Presents, pensions, titles and offices are alluring things. In the reign of Charles the second of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbally disgraceful to his memory. The economy which ought to prevail in republican governments, with respect to salaries and other emoluments of office, might encourage the offer of presents from abroad, if the constitution and laws did not reprobate their acceptance. Congress, with great propriety, refused their assent to one of their ministers to a foreign court, accepting, what was called the usual presents, upon taking his leave: a precedent which we may reasonably hope will be remembered by all future ministers, and ensure a proper respect to this clause of the constitution, which on a former occasion is said to have been overlooked.
Thus far the restrictions contained in the constitution extend: “The conventions of a number of the states having, at the time of adopting the constitution, expressed a desire, in order to prevent misconstruction, or abuse of its powers, that further declaratory and restrict clauses should be added; and as extending the ground of public confidence in the government, will best ensure the beneficent ends of its institution.”68 The following articles were proposed by congress, as amendments to the constitution, which having been duly ratified by the several states, now form a part thereof.
7. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceable to assemble, and to petition the government for a redress of grievances. … Amendments to C.U.S. Art. 3.
On the first of these subjects, our state bill of rights contains, what, if prejudice were not incapable of perceiving truth, might be deemed an axiom, concerning the human mind. That “religion, or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence.” In vain, therefore, may the civil magistrate interpose the authority of human laws, to prescribe that belief, or produce that conviction, which human reason rejects: in vain may the secular arm be extended, the rack stretched, and the flames kindled, to realize the tortures denounced against unbelievers by all the various sects of the various denominations of fanatics and enthusiasts throughout the globe. The martyr at the stake, glories in his tortures, and proves that human laws may punish, but cannot convince. The pretext of religion, and the pretenses of sanctity and humility, have been employed throughout the world, as the most direct means of gaining influence and power. Hence the numberless martyrdoms and massacres which have drenched the whole earth, with blood, from the first moment that civil and religious institutions were blended together. To separate them by mounds which can never be overleaped, is the only means by which our duty to God, the peace of mankind, and the genuine fruits of charity and fraternal love, can be preserved or properly discharged. This prohibition, therefore, may be regarded as the most powerful cement of the federal government, or rather, the violation of it will prove the most powerful engine of separation. Those who prize the union of the states will never think of touching this article with unhallowed hands. The ministry of the unsanctified sons of Aaron scarcely produced a flame more sudden, more violent, or more destructive, than such an attempt would inevitably excite. … I forbear to say more, in this place, upon this subject, having treated of it somewhat at large in a succeeding note.
The second part of this clause provides, against any law, abridging the freedom of speech, or of the press.
It being one of the great fundamental principles of the American governments, that the people are the sovereign, and those who administer the government their agents, and servants, not their kings and masters, it would have been a political solecism to have permitted the smallest restraint upon the right of the people to inquire into, censure, approve, punish or reward their agents according to their merit, or demerit. The constitution, therefore, secures to them the unlimited right to do this, either by speaking, writing, printing, or by any other mode of publishing, which they may think proper. This being the only mode by which the responsibility of the agents of the public can be secured, and practically enforced, the smallest infringement of the rights guaranteed by this article, must threaten the total subversion of the government. For a representative democracy ceases to exist the moment that the public functionaries are by any means absolved from their responsibility to their constituents; and this happens whenever the constituent can be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it.
Our state bill of rights declares, that the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments. The constitutions of most of the other states in the union contain articles to the same effect. When the constitution of the United States was adopted by the convention of Virginia, they inserted the following declaration in the instrument of ratification: “that among other essential rights, the liberty of conscience, and of the press, cannot be cancelled, abridged, restrained, or modified by any authority of the United States.”
An ingenious foreigner seems to have been a good deal puzzled to discover the law which establishes the freedom of the press in England: after many vain researches, he concludes, (very rightly, as it relates to that government,) that the liberty of the press there, is grounded on its not being prohibited.69 But with us, there is a visible solid foundation to be met with in the constitutional declarations which we have noticed. The English doctrine, therefore, that the liberty of the press consists only in this, that there shall be no previous restraint laid upon the publication of anything which any person may think proper, as was formerly the case in that country, is not applicable to the nature of our government, and still less to the express tenor of the constitution. That this necessary and invaluable liberty has been sometimes abused, and “carried to excess; that it has sometimes degenerated into licentiousness, is seen and lamented; but the remedy has not been discovered. Perhaps it is an evil inseparable from the good to which it is allied: perhaps it is a shoot which cannot be stripped from the stalk, without wounding vitally the plant from which it is torn. However desirable those measures might be which correct without enslaving the press, they have never yet been devised in America.”70
It may be asked, is there no protection for any man in America from the wanton, malicious, and unfounded attacks of envenomed calumny? Is there no security for his good name? Is there no value put upon reputation? No reparation for an injury done to it?
To this we may answer with confidence, that the judicial courts of the respective states are open to all persons alike, for the redress of injuries of this nature; there, no distinction is made between one individual and another; the farmer, and the man in authority, stand upon the same ground: both are equally entitled to redress for any false aspersion on their respective characters, nor is there any thing in our laws or constitution which abridges this right. But the genius of our government will not permit the federal legislature to interfere with the subject; and the federal courts are, I presume, equally restrained by the principles of the constitution, and the amendments which have since been adopted.
Such, I contend, is the true interpretation of the constitution of the United States: it has received a very different interpretation both in congress and in the federal courts. This will form a subject for a discussion on the freedom of the press, which the student will find more at large in another place.
The same article secures to the people the right of assembling peaceably; and of petitioning the government for the redress of grievances. The convention of Virginia proposed an article expressed in terms more consonant with the nature of our representative democracy, declaring, that the people have a right, peaceably to assemble together to consult for their common good, or to instruct their representatives: that every freeman has a right to petition, or apply to the legislature, for the redress of grievances. This is the language of a free people asserting their rights: the other savors of that style of condescension, in which favors are supposed to be granted. In England, no petition to the king, or either house of parliament for any alteration in church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace, or a major part of the grand-jury in the county; nor be presented by more than ten persons. In America, there is no such restraint.
8. A well regulated militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed. Amendments to C.U.S. Art. 4.
This may be considered as the true palladium of liberty. … The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.
9. No soldier shall in time of peace be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law. Amendments to C.U.S. Art. 5.
Our state bill of rights, conforming to the experience of all nations, declares, that standing armies in time of peace, should be avoided as dangerous to liberty; this article of the constitution, seems by a kind of side wind, to countenance, or at least, not to prohibit them. The billeting of soldiers upon the citizens of a state, has been generally found burdensome to the people, and so far as this article may prevent that evil it may be deemed valuable; but it certainly adds nothing to the national security.
10. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause supported by oath, or affirmation, and particularly describing the place to be searched, and the person or things to be seized. Amendments to C.U.S. Art. 6, and herewith agrees the tenth article of our state bill of rights.
The case of general warrants, under which term all warrants not comprehended within the description of the preceding article may be included, was warmly contested in England about thirty or thirty-five years ago, and after much alteration they were finally pronounced to be illegal by the common law. The constitutional sanction here given to the same doctrine, and the test which it affords for trying the legality of any warrant by which a man may be deprived of his liberty, or disturbed in the enjoyment of his property, cannot be too highly valued by a free people.
But, notwithstanding this constitutional sanction, and the security which it promises to all persons, an act passed during the second session of the fifth congress, entitled an act concerning aliens, which was supposed to violate this article of the constitution, in the most flagrant and unjustifiable degree: by authorizing the president of the United States to order all such aliens as he should judge dangerous to the peace and safety of the United States, or have reasonable grounds to suspect of any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States within a limited time; and in case of disobedience, every alien so ordered was liable on conviction to be imprisoned for any term not exceeding three years. And any alien so ordered to depart, and remaining in the United States without a license from the president might be arrested, and sent out of them, by his order: and, in case of his voluntary return, might be imprisoned so long, as in the opinion of the president, the public safety might require. Alien friends, only, were the objects of this act, another act being passed at the same session, respecting alien enemies. … The general assembly of Virginia at their session in 1798, “protested against the palpable, and alarming infractions of the constitution in this act; which exercises a power no where delegated to the federal government; and which, by uniting legislative and judicial powers to those of executive, subverts the general principles of a free government, as well as the particular organization, and positive provisions of the federal constitution.” Kentucky had before adopted a similar conduct.
Among the arguments used by the general assembly of Virginia in their strictures upon this act, the following seem to be more peculiarly apposite to the subject of this article.
In the administration of preventive justice, the following principles have been held sacred; that some probable ground of suspicion be exhibited before some judicial authority; that it be supported by oath or affirmation; that the party may avoid being thrown into confinement, by finding pledges or securities for his legal conduct, sufficient in the judgment of some judicial authority; that he may have the benefit of a writ of habeas corpus, and thus obtain his release, if wrongfully confined; and that he may at any time be discharged from his recognizance, or his confinement, and restored to his former liberty and rights, on the order of the proper judicial authority; if it shall see sufficient cause.
Let the student diligently compare these principles of the only preventive justice known to American jurisprudence, and he will probably find that they are all violated by the alien act. The ground of suspicion is to be judged of, not by any judicial authority, but by the executive magistrate, alone; no oath, or affirmation is required; if the suspicion be held reasonable by the president, (whatever be the grounds of it) he may order the suspected alien to depart, without the opportunity of avoiding the sentence by finding pledges for his future good conduct, as the president may limit the time of departure as he pleases, the benefit of the writ of habeas corpus may be suspended with respect to the party, although the constitution ordains, that it shall not be suspended, unless when the public safety may require it, in case of rebellion, or invasion, neither of which existed at the passage of that act: and the party being, under the sentence of the president, either removed from the United States, or punished by imprisonment, or disqualification ever to become a citizen on conviction of his not obeying the order of removal, or on returning without the leave of the president, he can not be discharged from the proceedings against him, and restored to the benefits of his former situation, although the highest judicial authority should see the most sufficient cause for it.
Among the reasons alleged by a committee of congress, in support of the constitutionality of the alien law, one was; “that the constitution was made for citizens, not for aliens, who of consequence have no rights under it, but remain in the country, and enjoy the benefit of the laws, not as matter of right, but merely as matter of favor and permission; which may be withdrawn whenever the government may judge their further continuance dangerous.”71
To this it was answered; that, “although aliens are not parties to the constitution, it does not follow that the constitution has vested in Congress an absolute right over them; or that whilst they actually conform to it, they have no right to its protection. That if they had no rights under it, they might not only be banished, but even capitally punished, without a jury, or other incidents to a fair trial.”72 A doctrine so far from being sound, that a jury, one half of which shall be aliens, is allowed, it is believed, by the laws of every state, except in cases of treason. To which we may add that the word “persons” in this, and the subsequent articles of the amendments to the constitution, most clearly designate, that aliens, as persons, must be entitled to the benefits therein secured to all persons alike. … As we shall have occasion to mention the subject of this interesting controversy, again, in another place, I shall only add here, that the act was permitted to expire at the end of two years, without any attempt, I believe, to continue it.
11. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment, or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia in the time of war, or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor be compelled in any criminal case, to be witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. Amendments to C.U.S. Art. 7, and,
12. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state, and district, wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Amendments to C.U.S. Art. 8.
13. Excessive bail shall not be required, nor excessive fines imposed, nor cruel, and unusual punishments inflicted. Amendments to C.U.S. Art. 10.
The subjects of these three articles are so immediately connected with each other, that I have chosen not to separate them. The first may be considered as a liberal exposition, and confirmation of the principles of that important chapter of Magna Carta, which declares, “Nullus liber Homo aliquo modo destruatur nisi per legale judicium parium suorum,” which words, aliquo modo destruatur, according to Sir Edward Coke, include a prohibition not only of killing and maiming, but also of torturing, and of every oppression by color of legal authority: and the words liber Homo, extend to every one of the king’s subjects, “be he ecclesiastical or temporal, free or bond, man or woman, old or young, or be he outlawed, excommunicated, or any other, without exception”. … for even a villein, as he tells us elsewhere, is comprehended under the term liber Homo, except against his lord.
The common law maxim, that no man is to be brought in jeopardy of his life more than once for the same offense, is here rendered a fundamental law of the government of the United States; as, is also, that other inestimable maxim of the common law, that no man shall be compelled in any criminal case to give evidence against himself; that he shall, moreover, be informed of the nature and cause of his accusation: that he shall be confronted with the witnesses against him; that he shall have compulsory process for obtaining witnesses in his favor; . … a benefit long denied by the courts in England: and that he shall have the assistance of counsel for his defense; . … not as a matter of grace, but of right; . … not for his partial defense, upon a point of law, but for his full defense, both on the law, and the evidence: and, that he shall, in no case, be deprived of life, liberty, or property, without due process of law. To all which, is added, the inestimable right of a trial by jury, of the state and district in which the crime shall have been committed. The importance of all which articles will more evidently appear, in the course of our examination of the various subjects to which they relate, in the first and fourth book of the Commentaries on the Laws of England. That part of the seventh article which declares that private property shall not be taken for public use, without just compensation, was probably intended to restrain the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practiced during the revolutionary war, without any compensation whatever. A law of the state of Virginia describes by whom, and in what cases, impresses may be made; and authorizes the commitment of the offender in case of any illegal impressment.
We have already noticed the act concerning aliens, as violating the sixth article of the amendments to the constitution. It was said, moreover, to violate the seventh and eighth. To this the congress answered, “that the provisions in the constitution relative to presentment and trial of offenses by juries, do not apply to the revocation of an asylum given to aliens. Those provisions solely respect crimes, and the alien may be removed without having committed any offense, merely from motives of policy, or security. The citizen, being a member of society, has a right to remain in the country, of which he cannot be disfranchised, except for offenses first ascertained, on presentment and trial by jury. … That the removal of aliens, though it may be inconvenient to them, cannot be considered as a punishment inflicted for an offense, but merely the removal, from motives of general safety, of an indulgence, which there is danger of their abusing, and which we are in no manner bound to grant or continue.”73
To these arguments the general assembly of Virginia replied; that it can never be admitted that the removal of aliens authorized by the act, is to be considered, not as a punishment for an offense, but as a measure of precaution and prevention. If the banishment of an alien from a country into which he has been invited, as the asylum most auspicious to his happiness; a country where he may have formed the most tender connections, where he may have vested his entire property, and acquired property of the real and permanent, as well as the moveable and temporary kind; where he enjoys under the laws, a greater share of the blessings of personal security, and personal liberty, than he can elsewhere hope for, and where he may have nearly completed his probationary title to citizenship; if, moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of sea, but to the peculiar casualties incident to a crisis of war, and of unusual licentiousness on that element, and possibly to vindictive purposes which his emigration itself may have provoked; if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom, to which the name can be applied. And, if it be a punishment, it will remain to be shown, whether, according to the express provisions of these articles, it can be constitutionally inflicted, on mere suspicion, by the single will of the executive magistrate, on persons convicted of no personal offense against the laws of the land, nor involved in any offense against the law of nations, charged on the foreign state of which they were members.”74
14. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law. C.U.S. Art. 9. Amendments.
This article provides for the trial by jury in civil cases, as well as criminal, and supplies some omission in the constitution.
15. The enumeration in the constitution, of certain rights, shall not be construed to deny, or disparage others retained by the people. Amendments to C.U.S. Art. 11. and,
16. The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. C.U.S. Art. 12. Amendments.
All the powers of the federal government being either expressly enumerated, or necessary and proper to the execution of some enumerated power; and it being one of the rules of construction which sound reason has adopted; that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it, in cases not enumerated; it follows, as a regular consequence, that every power which concerns the right of the citizen, must be construed strictly, where it may operate to infringe or impair his liberty; and liberally, and for his benefit, where it may operate to his security and happiness, the avowed object of the constitution: and, in like manner, every power which has been carved out of the states, who, at the time of entering into the confederacy, were in full possession of all the rights of sovereignty, is in like manner to be construed strictly, wherever a different construction might derogate from the rights and powers, which by the latter of these articles, are expressly acknowledged to be reserved to them respectively.
The want of a bill of rights was among the objections most strongly urged against the constitution in its original form. The author of the Federalist undertakes to show, that a bill of rights was not only unnecessary, but would be dangerous. A bill of rights may be considered, not only as intended to give law, and assign limits to a government about to be established, but as giving information to the people. By reducing speculative truths to fundamental laws, every man of the meanest capacity and understanding may learn his own rights, and know when they are violated; a circumstance, of itself, sufficient, I conceive, to counterbalance every argument against one.
To comprehend the full scope and effect of the twelfth article, by which certain rights are said to be reserved to the states respectively, or to the people, it is to be recollected, that there are powers, exercised by most other governments, which in the United States are withheld by the people, both from the federal government and from the state governments: for instance, a tax on exports can be laid by no constitutional authority whatever, whether of the United States, or of any state; no bill of attainder, or ex post facto law can be passed by either; no title of nobility can be granted by either. Many other powers of government are neither delegated to the federal government, nor prohibited to the states, either by the federal or state constitutions. These belong to that indefinite class of powers which are supposed necessarily to devolve upon every government, in consequence of the very act of its establishment, where no restrictions are imposed on the exercise of them; such as the power of regulating the course in which property may be transmitted by deed, will, or inheritance; the manner in which debts may be recovered, or injuries redressed; the right of defining and punishing offenses against the society, other than such as fall under the express jurisdiction of the federal government; all which, and all others of a similar nature are reserved to, and may be exercised by the state governments. From those powers, which are in express terms granted to the United States, and though not prohibited to the states respectively, are not susceptible of a concurrent exercise of authority by them, the states, notwithstanding this article, will continue to be excluded; such is the power to regulate commerce, and to define and punish piracies and felonies committed upon the high seas; from which the states, respectively, are by necessary and unavoidable construction excluded from any share or participation. On the other hand, such of the powers granted by the constitution to the federal government, as will admit of a concurrent exercise of authority, both in the federal and the state governments; such for example, as the right of imposing taxes, duties, and excises (except duties upon imports or exports, or upon tonnage, which the states cannot do without consent of congress) may be exercised by the states respectively, concurrently with the federal government. And here it may not be improper to take a short review of the powers which are expressly prohibited to the individual states by the constitution; or can be exercised by them only with the consent of congress; they have been enumerated elsewhere, but seem to require a more particular notice in this place.
1. First, then; no state shall enter into any treaty, alliance, or confederation. C.U.S. Art. 1. Sec. 10.
A similar provision was contained in the articles of confederation, the terms of which are in reality more strong and definite than those of the constitution. The federal government being the organ through which the individual states communicate with foreign nations, and the interest of the whole confederacy being paramount to that of any member thereof; the power of making treaties and alliances with foreign nations, is with propriety vested exclusively in the federal government. Moreover, as congress is vested with the power of admitting new states into the union, it was necessary to prohibit any alliance or confederacy with such state, antecedent to its admission into the union; for such an alliance might contravene the principles of the constitution, and prevent or retard the proposed admission. And lastly, to preserve the union entire, and unbroken, no partial confederacy between any two or more states, can be entered into: for that would in fact dissolve the government of the United States, as now established.
2. Secondly; no state shall, without the consent of congress, enter into any agreement or compact with another state, or with any foreign power. C.U.S. Art. 1. Sec. 10.
Here we find a distinction between treaties, alliances, and confederations; and agreements or compacts. The former relate ordinarily to subjects of great national magnitude and importance, and are often perpetual, or made for a considerable period of time; the power of making these is altogether prohibited to the individual states: but agreements, or compacts, concerning transitory or local affairs, or such as cannot possibly affect any other interest but that of the parties, may still be entered into by the respective states, with the consent of congress. The compact between this state and Maryland, entered into in the year 1786, may serve as an example of this last class of public agreements.
3. No state shall grant letters of marque or reprisal.
As these measures ordinarily precede a declaration of war, the reasons for the total prohibition of the exercise of this power, by the states respectively, have been already mentioned: for otherwise the petulance and precipitation of any one state, whose citizens may have been injured by the subjects of a foreign nation, might plunge the union into a war.
4. No state shall, without consent of congress, keep troops, or ships of war, in time of peace; or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
The prohibitions contained in this clause are not absolute, but are subject to the consent of congress, or imperious circumstances. The setting on foot an army or navy, in the time of profound peace, is often a just cause of jealousy between neighboring, and even remote nations. But there is not infrequently a period between the commencement of a quarrel between two nations, and a declaration of war, or commencement of actual hostility, when prudence makes it necessary to prepare for the issue of the dispute. During such a period, it might be necessary to call for the exertions of the several states, in aid of the federal strength. At this epoch, it might be the summit of indiscretion to check the ardor of the respective states, if disposed to raise an army or navy from its own resources. Congress therefore may permit it; and if the danger of an attack upon any particular state be so imminent, as not to admit of delay, or if it be actually invaded, it may adopt measures for its own defense, without waiting for the consent of congress. And when a war is actually begun, under the authority of the federal union, any state may, according to its resources and discretion, keep any number of troops or ships: for the prohibition ceases as soon as war begins.
5. No state shall coin money: emit bills of credit, make any thing but gold and silver coin a tender in payment of debts: or pass any law impairing the obligation of contracts.
The right of coining, and regulating the value of coin, being vested in the federal government, a participation in those rights could not be permitted to the respective states with any propriety. For the government must be responsible for the purity and weight of all coin issued under its authority: this could not be if the states were permitted to coin money according to the standard prescribed by the United States, as the officers of the mint would be under the directions of the state government. And if the several states were to issue coin of different standards, or denominations, the inconveniences to commerce would be infinite. They are therefore prohibited altogether from coining money. … The evils of paper money, the injury produced by it to public credit; the utter destruction of the fortunes of numberless individuals, by a rapid and unparalleled depreciation during the revolutionary war; the grievous hardships introduced, at the same period, by the tender laws, (an unhappy, but perhaps unavoidable expedient, to which both the federal, and state governments were constrained to have recourse, at the same time) by which a creditor was in some instances obliged to accept paper in a most depreciated state, for a just debt of an hundred times its real value, or incur the general odium of his fellow-citizens, probably gave rise to the prohibition against any state’s emitting paper money, or making any thing but gold or silver a tender in payment of debts, or passing any law impairing the obligation of contracts. … But why was not the prohibition extended to the federal, as well as to the state governments? The federal government, during the revolutionary war, was not more exempt from just cause of censure upon these grounds, than the states respectively. Many of the laws passed by the states to support the credit of the continental money, by making it a tender in payment of debts, were passed on the recommendation of congress. The forty for one scheme originated there; why not prohibit some future congress from renewing the same breach of faith?
6. No state shall pass any bill of attainder, or ex post facto law; or grant any title of nobility.
These prohibitions being extended equally to the federal government, as to the states, have been already sufficiently noticed.
7. No state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any state on imports, or exports, shall be for the use of the treasury of the United States: and all such laws shall be subject to the revision and control of congress. Nor shall any state, without the consent of congress lay any duty of tonnage.
On the subject of these prohibitions, respectively, sufficient hath already been said, under the article which authorizes congress to regulate commerce.
Having thus taken a survey of the powers delegated to the congress of the United States, and of those prohibited thereto, by the constitution; as also, of those, which are either altogether prohibited to the states, individually, or can be exercised by them only, with the consent, and under the control of congress; and in the course of that survey, having pointed out according to the best of my abilities, those powers which are exclusively vested in the federal government; secondly, those powers, in which the federal, and state governments, may be presumed to possess concurrent jurisdiction, and authority: thirdly, those powers which are equally prohibited to the states, respectively, or can be exercised by them only, with the approbation and consent of the federal government; it follows that all other powers of government compatible with the nature and principle of democratic governments, and not prohibited by the bill of rights, or constitution of the respective states, remain with them, and may be exercised by them, respectively, in such manner as their several constitutions, and laws, may permit, or direct. And this right, is expressly recognized, as before-mentioned, by the twelfth article of the amendments to the federal constitution; declaring, that the powers not delegated to the United States by the constitution, not prohibited by it to the states, are reserved to the states respectively, or to the people. This numerous class of powers relates altogether to the civil institutions, or laws of the states; and the subject of them forms their several municipal codes, according to the constitutions and laws of each state, respectively.
Here let us again pause, and reflect, how admirably this division, and distribution of legislative power is adapted to preserve the liberty, and to promote the happiness of the people of the United States; by assigning to the federal government, objects which relate only to the common interests of the states, as composing one general confederacy, or nation; and reserving to each member of that confederacy, a power over whatever may affect, or promote its domestic peace, happiness, or prosperity: at the same time limiting, and restraining both, from the exercises, or assumption of powers, which experience has demonstrated, either in this, or in other countries, to be too dangerous to be entrusted with any man or body of men whatsoever. … Restraints upon the power of the legislature, says De Lolme, are more necessary than upon the executive; the former does in a moment, what the latter accomplishes only by successive steps. In England, all legislative power, without limitation, and without control, is concentrated in the two houses of parliament, with the king at their head; and their united power according to the maxims of that government, is omnipotent. In the United States, the great and essential rights of the people are secured against legislative as well as executive ambition. … They are secured, not by laws, only, which the legislature who makes them may repeal, and annul at its pleasure; but by constitutions, paramount to all laws: defining and limiting the powers of the legislature itself, and opposing barriers against encroachments, which it can not pass, without warning the people of their danger. Secondly, by that division, and distribution of power between the federal, and the state governments, by which each is in some degree made a check upon the excesses of the other. For although the states possess no constitutional negative upon the proceedings of the congress of the United States, yet it seems to be a just inference and conclusion, that as the powers of the federal government result from the compact to which the states are parties; and are limited by the plain sense of the instrument constituting that compact; they are no further valid, than as they are authorized by the grants enumerated therein: and, that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by that compact, the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.75 Thirdly, by the constitution of the legislative department itself, and the separation and division of powers, between the different branches, both of the congress, and of the state legislatures: in all which, an immediate dependence, either from the people, or the states, is happily, in a very great degree preserved. Fourthly, by the qualified negative which the constitution of the United States, gives to the president, upon all the proceedings of congress, except a question of adjournment. Fifthly, and lastly; by the separation of the judiciary from the legislative department; and the independence of the former, of the control, or influence of the latter, in any case where any individual may be aggrieved or oppressed, under color of an unconstitutional act of the legislature, or executive. In England, on the contrary, the greatest political object may be attained, by laws, apparently of little importance, or amounting only to a slight domestic regulation: the game-laws, as was before observed, have been converted into the means of disarming the body of the people: the statute de donis conditionalibus has been the rock, on which the existence and influence of a most powerful aristocracy, has been founded, and erected: the acts directing the mode of petitioning parliament, &c. and those for prohibiting riots: and for suppressing assemblies of free-masons, &c. are so many ways for preventing public meetings of the people to deliberate upon their public, or national concerns. The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion.
II. The second article of the federal constitution provides, that the executive power shall be vested in a president of the United States of America; that he shall be a natural born citizen, unless he was a citizen at the time of the adoption of the constitution, and in that case, that he shall have been fourteen years a resident in the United States; that he shall have attained the age of thirty-five years; that he shall continue in office four years; that he shall receive a stated compensation for his services, which shall neither be increased nor diminished during the period for which he is elected, and shall not receive within that period, any other emolument from the United States, or any of them; and that before he enters upon the execution of his office, he shall take an oath, “faithfully to execute the same, and to the best of his ability, preserve, protect, and defend the constitution of the United States.”
The author of the Treatise on the English Constitution,76 considers the unity of the executive among the advantages peculiar to that, as a free government. The advantages ordinarily attributed to that circumstance, are supposed to be a necessary and unavoidable unanimity; promptitude and dispatch, as a consequence of it: and, immediate and obvious, responsibility. If such are the real advantages of a single executive magistrate, we may contend that they are found in a much greater degree in the federal government, than in the English. In the latter it exists, only theoretically, in an individual; the practical exercise of it, being devolved upon ministers, councils, and boards. The king, according to the acknowledged principles of the constitution, not being responsible for any of his acts, the minister upon whom all responsibility devolves, to secure his indemnity acts by the advice of the privy council to whom every measure of importance is submitted, before it is carried into effect. His plans are often digested and canvassed in a still more secret conclave, consisting of the principal officers of state, and styled the cabinet-council, before they are communicated to the privy council: matters are frequently referred to the different boards, for their advice thereon, previously to their discussion, and final decision, in the council. Thus, in fact, the unity of the executive is merely ideal, existing only in the theory of the government; whatever is said of the unanimity, or dispatch arising from the unity of the executive power, is therefore without foundation. And with respect to responsibility, we have already observed that the nominal executive, is absolved from it by the constitution: all the responsibility that the government admits, is shared between the different ministers, privy council, and boards. The unity of the nominal executive, therefore, so far from ensuring responsibility, destroys it. If then the constitution of England be relied on as proving the superior advantages of unity in the executive department, it does not support any part of the position.
In the United States the unity of the executive authority is practically established, in almost every instance. For, the senate are constituted a council, rather for special, than for general purposes. It may reasonably be doubted, whether they have a right to advise the president, in any case, without being first consulted; and whether, when consulted, he is obliged to carry into effect any measure which they may advise: the constitution is perhaps defective in both these cases. To illustrate them, let it be supposed, that the senate, without being consulted should advise the sending an ambassador to a foreign court: is the president bound to nominate one to them for that purpose? Or, suppose an ambassador to have concluded a treaty, which the president disapproves, but, which the senate advise him to ratify; is he bound to do so? The constitution says, “He shall have power, by, and with, the advice and consent of the senate shall appoint ambassadors.” These words appear rather to confer a discretionary authority, than to impose a mandate, or obligation. … But although the president may perhaps constitutionally decline the ratification of a treaty, or the appointment of an ambassador, notwithstanding the advice of the senate, yet he cannot adopt any measure, which they may advise him to reject, if the constitution requires their advice, or assent: so that, in general, whatever he does must have the sanction of the senate for its support: whatever he omits doing, is chargeable upon him, only, unless the measure shall have been submitted to the senate and rejected by them. The conduct of the first magistrate of a nation is as frequently liable to censure for his omissions, as for his acts. Whatever, therefore, is left undone, which the public safety may require to have been done, is chargeable upon the neglect of the president, exclusively: whatever may be done amiss is likewise chargeable upon him, in the first instance, as the author and propounder of the measure: although it should afterwards receive the approbation and consent of the senate. Responsibility, then, pursues him in every situation: whether active or passive; sleeping, or awake.
But although a king of England be not responsible, it is said that his ministers are; for they may be impeached: so may a president of the United States. … But I lay no stress upon this point, as a practical means of enforcing responsibility, for reasons that will be more fully explained hereafter. The true point of responsibility rests upon the shortness of the period for which a president of the United States is elected, and the power which the people possess, of rejecting him at a succeeding election: a power, the more formidable, and energetic, as it remains in their hands, is untrammelled by forms, and the exercise of it depends more upon opinion, than upon evidence. When brought before such a tribunal, in vain would a culpable president seek shelter under the flimsy veil, of advice of council; such a cobweb, like the net of Vulcan, would only expose him, more effectually.
On the ground of responsibility, then, an immense preference is due to the constitution of the United States: it is at least equal to that of Great-Britain on the ground of unanimity: for, as every executive measure must originate in the breast of the president, his plans will have all the benefit of uniformity, that can be expected to flow from the operations of any individual mind: let it be supposed that the senate reject one of his proposed measures; possessing a perfect acquaintance with the whole system of his own administration, he will naturally be led to adopt some other course, which shall neither retard, nor counteract any other part of his system. No British minister, whose measures are opposed in the cabinet, can do more; probably not so much: for a substitute may, perhaps, be obtruded upon him, by some other influential minister. But no such substitute can be obtruded upon a president of the United States; the power of the senate consisting rather in approving, or rejecting, than in advising or propounding, as already hinted.
The advantages of information, and dispatch, are probably equally in favor of the constitution of the American executive. The constitution of the United States has made ample provision for his aid in these respects, by assigning to him ministers to whom the conduct of each of the executive departments may be committed; from whom he may require all necessary information, as also their opinions in writing, upon any subject relating to the duties of their respective offices; and whom, he may, moreover, remove at pleasure. Here we find a single executive officer substituted for a numerous board, where responsibility is divided, until it is entirely lost, and where the chance of unanimity lessens in geometrical proportion to the number that compose it.
The perpetuity of the office, is another boasted advantage of the constitution of the supreme executive magistrate in Great Britain. “The king never dies.” … But Henry, Edward, or George may die, may be an infant in swaddling clothes, a superannuated dotard, or a raving maniac. Of what benefit is the immortality of the kingly office, in any of these instances? Can the puling infant, or the feeble hand of palsied age wield the scepter, or can it be entrusted to the raving Bedlamite? A president of the United States cannot be the first: it is highly improbable that he will ever be the second; the constitution has provided for the third case; and for all others, of a similar kind. For, in case of the removal of the president of the United States from office, or of his death, resignation, or inability to discharge the powers and duties of his office, the same shall devolve on the vice-president; and congress may by law provide for the case of removal, death, resignation, or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or a president shall be elected. Such provision has been accordingly made by law, and the executive authority in such a case, would immediately devolve upon the president of the senate pro tempore; or if there be no president of the senate, upon the speaker of the house of representatives, for the time being. Nothing is wanting to the perpetuity of the office, but a provision for its continuance in case no president shall be elected at the period prescribed by the constitution. Such a case will probably not happen, until the people of the United States shall be weary of the present constitution and government, and adopt that method of putting a period to both. And it is, perhaps, among the recommendations of the constitution, that it thus furnishes the means of a peaceable dissolution of the government, if ever the crisis should arrive that may render such a measure eligible, or necessary. A crisis to be deprecated by every friend to his country.
To pursue the parallel between a king of England, and the president of the United States, a little further. A king of England is the fountain of honor, of office, and of privilege. Honors, as distinct from offices, are unknown in the United States; so likewise are privileges. At least there are none, which a president of the United States can constitutionally create, or bestow. It is not so with respect of offices; these he can not constitutionally create; they must first be established by law. But when established, he has the exclusive right of nomination to all offices, whose appointments are not otherwise provided for by the constitution, or by some act of congress, to which his assent may be necessary, or may have been previously given. The influence which this power gives him, personally, is one of those parts of the constitution, which assimilates the government, in its administration, infinitely more nearly to that of Great-Britain, than seems to consist with those republican principles, which ought to pervade every part of the federal constitution: at least so long as the union is composed of democratic states. On this subject we shall offer some further remarks hereafter.
The heir of a king of England may be born with all the vices of a Richard; with the tyrannical disposition, and cruelty of the eighth Henry; with the empty pride and folly of a James; with the cowardice and imbecility of a John; or with the stupid obstinacy, bigotry or other depravity of temper, of any of his successors; he must nevertheless succeed to the throne of his fathers; his person is sacred and inviolable as if he were an Alfred; and unless his misdeeds are so rank as to bring him to the block, or force him to an abdication, he continues the lord’s anointed all his days. A president of the United States must have attained the middle age of life, before his is eligible to that office: if not a native, he must have been fourteen years a resident in the United States: his talents and character must consequently be known. The faculties of his mind must have attained their full vigor: the character must be formed, and formed of active, not of passive materials, to attract, and secure the attention, and approbation of a people dispersed through such a variety of element and situation, as the American people are. This activity of mind and of talent must have manifested itself on the side of virtue, before it can engage the favor of those who acknowledge no superiority of rights among individuals, and who are conscious that in promoting to office, they should choose a faithful agent, not a ruler, without responsibility. And should it happen, that they are after all deceived in their estimate of his character and worth, the lapse of four years enables them to correct their error, and dismiss him from their service. What nation governed by an hereditary monarch has an equal chance of happiness!
But, the tumult of popular elections, and the danger in elective monarchies, will be insisted on, as counterbalancing the advantage which we claim in behalf of the constitution of the executive magistrate in the United States. With regard to the latter, something will be said hereafter, when we examine the mode of electing a president of the United States. As to the former: if the sovereignty of the people of the United States, like that of the Roman and Grecian republics, resided in the inhabitants of a single city, or a small territory, the influence of men of popular talents would doubtless produce in certain conjunctures, similar events to those recorded in the annals of those republics. But nature herself seems to be enlisted on the side of the liberty and independence of the citizens of United America. Our cities are few; the population inconsiderable, compared with many of the capitals of ancient, or modern Europe: that population (from the unfavorable influence of climate for some years past) seems not likely to be extended very far beyond its present bounds, and probably will never bear any great proportion to the population of the country at large. This circumstance alone, would probably defeat any attempt to establish an undue influence in any part of the union. Agriculture is, and probably will for ages continue to be, the principal object of pursuit in the United States; and the period seems to be yet very far removed, when their population will be equal to the extent, and fertility of the soil. Europe has so far got the start of us in manufactures, that it is also probable, our population will not depend upon, nor derive any great increase from, them. Until it does, our towns will be principally confined to the sea coast, and, the interior of the United States will continue, as at present, the nurse of a hardy, independent yeomanry. A strong barrier between the United States and the countries which abound in the precious metals is devoutly to be wished by all, who can appreciate, properly, the blessings of liberty and peace. Whilst the ambition of America is limited to the cultivation of the arts of peace, and the science of free government; to the improvement, instead of the extension of her territory, and to the fortifying herself against enemies from within, as well as from without, by fostering, and encouraging the principles of genuine liberty; local influence can never be so formidable as to endanger the peace or happiness of the union, on any occasion. But, whenever our evil genius shall prompt us to aspire to the character of a military republic, and invite us to the field of glory: when rapacity, under the less odious name of ambition, shall lead us on to conquest; when a bold, though raw, militia shall be exchanged for a well trained, well disciplined and well appointed army; ready to take the field at the nod of an ambitious president, and to believe that the finger of heaven points to that course which his directs; then, may we regard the day of our happiness as past, or as hastening rapidly to its decline.
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign powers, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. It was by means of foreign connections that the stadtholder of Holland, whose powers at first were probably not equal to those of a president of the United States, became a sovereign hereditary prince before the late revolution in that country. Nor is it with levity that I remark, that the very title of our first magistrate, in some measure exempts us from the danger of those calamities by which European nations are almost perpetually visited. The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.
The personal independence of the president is secured by that clause, which provides that he shall receive a compensation at stated periods, which shall not be diminished during his continuance in office. To guard against avarice, corruption, and venality, it is also provided, that it shall not be increased during the same period, nor shall be received within that period any other emolument from the United States, or either of them. His salary, as now fixed by law, seems to be fully adequate, though far below the income of many private persons in England, and even in America.
The political independence of the president of the United States, so far as it is necessary to the preservation, protection, and defense of the constitution, is secured, not only by the limitations and restrictions which the constitution impose upon the legislative powers of congress, but by a qualified negative on all their proceedings, as has been already mentioned elsewhere. This share in the proceedings of the federal legislature, which the constitution assigns to him, consists, like that of a king of England, in the power of rejecting, rather than resolving; a circumstance on which both judge Blackstone, and deLolme, lay considerable stress; and is one of the grounds upon which the latter founds his preference of that constitution to the republican system. In republics, he tells us, the laws usually originate with the executive; it is otherwise in all the American states. In England, the laws do, in fact, originate with the executive: a revenue bill is always proposed by the chancellor of the exchequer, or some member of that department; and it is understood to be the practice, that every other measure of considerable magnitude and importance is first discussed in the privy council, before it is brought into parliament; where it is generally introduced, and the bill prepared by some of the officers of the crown. The preference which de Lolme gives to the English constitution, therefore, is not altogether well founded. The negative of the president of the United States is not final, like that of the king of England, but suspensive. Neither is the expression of his assent absolutely necessary to the establishment of a law, for if he withholds his decision beyond the period of ten days (exclusive of Sundays) his assent shall be presumed. He may retard for a few days, but cannot prevent any beneficial measure, provided two-thirds of both houses concur in the opinion of its expediency. Thus, the part assigned to him by the constitution is strictly preventative, and not creative; yet this preventive is so modified as never to operate conclusively, but in those cases where it may be presumed the congress have acted unadvisedly through haste or oversight: and we may safely conclude, that where the deliberate sense of two-thirds of both houses of congress shall induce them to persist in any measure to which the president shall have given his negative, it will neither militate with the constitution, nor with the interest of their constituents. There is one instance (besides a question of adjournment) in which his assent appears not to be required; this is, when two-thirds of both houses have concurred in proposing to the states any amendment of the constitution: in this case, the concurrence of two-thirds of both houses being required in the first instance, his assent is dispensed with, as his dissent would be unavailing.
Let us now take a short view of the manner in which a president of the United States is appointed.
Each state shall, within thirty-four days prior to the first Wednesday in December, in every fourth year succeeding the last election, appoint a number of electors equal to the whole number of representatives and senators, to which such state may be entitled in congress, who shall meet and give their votes on that day, at such place in each state as the legislature thereof may direct, for two persons, of whom one at least shall not be an inhabitant of such state; three lists of the votes shall be made, one of which shall be sent by an express, and another by post, to the president of the senate; or, if there be no such officer at the seat of government, to the secretary of state; and the third, to the judge of the district. The president of the senate shall, in the presence of both house of congress, open the certificates on the second Wednesday in February next succeeding, and the votes shall then be counted and the choice ascertained; the person having the greatest number of votes, if they be a majority of the whole number of electors appointed, shall be president, and the person having the next greatest number of votes shall be vice-president. If the votes be equal for two persons having such majority, the house of representatives shall immediately choose by ballot one of them for president; but in such cases they shall vote by states, each state having one vote; a quorum for this purpose shall consist of a member, or members from two-thirds of the states, and a majority of all the states be necessary to the choice. If no person have a majority of the electors, the house shall in like manner choose the president from the five highest on the list. The periods for which the president and vice-president are elected, shall always commence on the fourth day of March next succeeding such election. No senator or representative, or person holding an office of trust or profit under the United States, shall be an elector.
Such are the precautions which the constitution has provided for securing the tranquility of elections, the independence and integrity of the electors, and the wisdom of their choice; and such are the auxiliary regulations established by congress for the same purposes. Electors have been differently appointed in the different states. In some they have been appointed immediately by the legislature; in others they have been chosen by a general ticket throughout the state; in others, the state has been divided into districts, one elector being chosen by the freeholders of each district. This method was adopted in Virginia at first; but on a late occasion a general ticket was preferred. The reasons for this change seem to have been, that the whole strength of the state may be combined and united, instead of being divided, as on a former occasion.
The electors, we perceive, are to assemble on one and the same day, in all the different states, at as many different places, at a very considerable distance from each other, and on that day are simply to give their votes; no embarrassment can arise among them from the circumstance of an equality of votes, for different persons: they are to vote only; not to decide upon the result of their votes: they then disperse, and return to their respective habitations, and occupations, immediately. No pretext can be had for delay; no opportunity is furnished for intrigue, and cabal. The certificates of their votes are to be forwarded to different persons, and by different conveyances: they are to be publicly opened, and counted in the presence of the whole national legislature: there is no obligation of secrecy on the electors to conceal their votes; they are consequently known immediately, throughout the state, long before the opening the certificates at the seat of government: should any fraud be attempted, it must immediately be detected: whilst the constitution expressly incapacitates any man who may be presumed to labor under any undue bias, from serving as an elector, in the first instance, the salutary provisions which it contains, in other respects, seem to afford a sufficient guarantee against the arts of ambition, and the venality of corrupt minds. There is no room for the turbulence of a Campus Martius, or a Polish Diet, on the one hand, nor for the intrigues of the sacred college, or a Venetian senate, on the other; unless, when it unfortunately happens that two persons, having a majority of the whole number of electors, in their favor, have likewise an equal number of votes; or, where by any other means, the election may devolve upon the house of representatives. Then, indeed, intrigue and cabal may have their full scope: then, may the existence of the union be put in extreme hazard: then might a bold and desperate party, having the command of an armed force, and of all the resources of government, attempt to establish themselves permanently in power, without the future aid of forms, or the control of elections. Upon what principle, we may ask, is it that state influence is in this case permitted to operate in an inverse proportion to the ratio of population, and thus predominate over it. Upon what principle is it, that that ratio which gives to all the citizens of the United States an equal voice in the election of a president, in the first instance, shall give to the representative of the citizens of Delaware, in the second, a weight equal to nineteen representatives of the citizens of Virginia? Why then should the house of representatives vote by states on this great occasion? It is, perhaps, susceptible of proof, that if the arts of corruption should ever be practiced with success, in the election of a president, it will arise from this circumstance; the votes of a few individuals, in this instance, more than counterbalancing four times their number.77 Had the senate been associated with the other house in the election, and each vote been separately counted, the mode of election might, at first view, appear less exceptionable: but their exclusion from any participation in the election of a president, is certainly founded upon the wisest policy: being associated with him in the exercise of his most important powers, and being chosen for a much longer period than the representatives, the presumption of undue influence, where the contest might be between a president in office, and any other person, would be altogether unavoidable.
Nothing in the constitution prohibits the re-election of a president as often as the approbation of his country may confer that distinction upon him. If his re-election were to depend entirely upon a majority of votes in the first instance, I should think the argument would be in favor of the principle. But what if a president of the United States should so far have lost the confidence of the people of the respective states, as not to have a majority of the votes of the state electors, in his favor? What, if he should so far have forfeited their esteem, as to be the lowest of five candidates, on the list, neither of whom should have such a majority, as to decide the election? Should we not, in such a case, with indignation behold him continued in office, by the votes of one fourth part of the house of representatives, against the other three? This might be sufficiently guarded against, by an amendment, providing that no president, for the time being, should ever be re-elected, unless he had not only the greatest number of votes in his favor, but a majority of the votes of all the electors appointed. As corruption can only be dreaded on the part of bad men, and is always to be dreaded from them, a president who may have lost the confidence of the citizens of the United States at large, would be the first person with whom the practice of corruption may be expected to commence.
The period of which a president is elected, as has been already noticed, is four years. By many it is thought too long: it seems long enough to give him an opportunity of bringing to a mature conclusion any measures which he may have undertaken for the good of the nation; and it has been thought short enough, for the people to displace him in sufficient time, where his conduct may not have merited approbation, on the one hand, or impeachment, on the other. Much evil, however, may be generated, and even matured, in the compass of four years. … Of removal from office by impeachment, no president will ever be in danger. But of this hereafter. I can see no inconvenience that would result from more frequent elections; there may be danger, if the constitution be not so amended as to provide for them. … The convention of this state proposed as an amendment to the constitution, That no person should be capable of being president of the United States for more than eight years, in any term of sixteen years. It might have been better to have selected the half of these periods, respectively.
The powers, or more properly, the duties, of the president of the United States, are various and extensive; though happily abridged of many others, which are considered as inseparable from the executive authority in monarchies: of these last, we have had frequent occasion to notice such as are transferred by the constitution to the congress of the United States; and of those which are assigned to the president,
1. The first is, That he shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the service of the United States. A power similar to that of the king of England, and of the stadtholder of Holland, before the late revolution; yet qualified, by some important restrictions, which I believe were not to be found in either of those governments. As, first; he cannot make rules for the regulation and government of the army and navy, himself, but they must be governed according to regulations established by congress. But notwithstanding this provision in the constitution, the act of 5 Cong. c. 74, authorized the president to make and establish such rules for training and disciplining the corps of volunteers, authorized to be raised by that act, as should be thought necessary to prepare them for actual service. … Secondly; the president of the United States hath not an unqualified right to appoint what officers he pleases; but such appointment (if there be no provision to the contrary made by law) must be made with the advice and consent of the senate: a restriction, perhaps of little importance, whilst the right of nomination, in all cases, and the right of filling up vacancies during the recess of the senate, remain uncontrollably in his power; to which may be added, the authority given him by the act for raising a provisional army, (and perhaps some others) to appoint such officers as he may think proper in the recess of the senate; “the appointment of field officers to be submitted to the advice and consent of the senate, at their next subsequent meeting”; leaving the appointment of all officers of inferior rank to the discretion of the president.78 The stadtholder of Holland derived his power and influence in great measure from a similar authority. … A third and infinitely more important check, than either of the former, so long as elections continue as frequent, as at present, is, that no appropriation for the support of an army can be made for a longer term than two years, the period for which congress is chosen. This puts it in the power of the people, by changing the representatives, to give an effectual check to the power of the executive at the end of that period. … In England, the power of raising armies, ad libitum, is vested in the king, though he is said to be dependent upon the parliament for their support; a supply bill, which is always limited to one year, passes accordingly, every session. Should it be refused, (a case which I believe has not happened for more than a century), a dissolution would pave the way, immediately, for a more complying parliament. Fourthly; the militia of the several states, though subject to his command when called into actual service, can only be called into service by the authority of congress, and must be governed according to law: the states, moreover, have the right appointing the officers, and training the militia, according to the discipline prescribed by congress, reserved to them by the constitution. But we have seen in what manner this very important clause has been evaded, by the acts of 5 Cong. c. 64, and 74, authorizing the president to accept companies of volunteers, and to appoint their officers, &c. A precedent, which if it be drawn into authority and practice in future, may be regarded as superceding every part of the constitution, which reserves to the states any effectual authority over their militia.
2. The president has power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. C.U.S. Art. 2. Sec. 2.
The power of granting pardons, says judge Blackstone, is the most amiable prerogative of a king of England; and is one of the great advantages of monarchy, above any other form of government: in democracies, he adds, this power of pardon can never subsist. It is happy for the people of America that many speculative notions concerning the disadvantages and imperfections of democratic forms of government, have been found to be practically false. In all the democratic states of North America, the power of pardoning is regularly vested (as in the federal government of the United States) in the supreme executive magistrate; and this flower of monarchical prerogative has been found to flourish in a perfect republican soil, not less than in its native climate. The president of the United States is not, like a governor of Virginia, constrained to act by advice of a council, but the power of pardoning is left entirely to the dictates of his own bosom. The cases in which it has been exercised, manifest the propriety of the existence of such a power in every state, whatever be the form of its government. In cases of impeachment, as the prosecution is carried on by the representatives of the people, and the judgment can only extend to removal from, and disqualification to hold or enjoy any office under the United States, in future, the constitution has wisely provided, that the same person in whom the right of nomination to office is vested, shall not have the power to remove that disqualification, which the guilt of the offender has brought upon himself. In England, no pardon can be pleaded in bar of an impeachment; but the king may pardon after conviction upon an impeachment. He can not by an exercise of his prerogative avert the disgrace of a conviction; but he can avert its effects, and restore the offender to his credit.
3. The president hath power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur; and the treaties so made, constitute a part of the supreme law of the land. C.U.S. Art. 2. Sec. 2. and Art. 6.
Treaties, as defined by Puffendorf, are certain agreements made by sovereigns, between one another, of great use both in war, and peace; of these, there are two kinds; the one such as reinforce the observance of what by the law of nature we were before obliged to; as the mutual exercise of civility, and humanity, or the prevention of injuries on either side; the second, such as add some new engagement to the duties of natural law; or at least determine what was before too general and indefinite in the same, to some thing particular, and precise.79 Of those which add some new engagement to those duties which natural law imposes upon all nations, the most usual relate to, or in their operation may affect, the sovereignty of the state; the unity of its parts, its territory, or other property; its commerce with foreign nations, and vice versa; the mutual privileges and immunities of the citizens, or subjects of the contracting powers, or the mutual aid of the contracting nations, in case of an attack, or hostility, from any other quarter. To all these objects, if there be nothing in the fundamental laws of the state which contradicts it, the power of making treaties extends, and is vested in the conductors of states, according to the opinion of Vattel.
In our constitution, there is not restriction as to the subjects of treaties, unless perhaps the guarantee of a republican form of government, and of protection from invasion, contained in the fourth article, may be construed to impose such a restriction, in behalf of the several states, against the dismemberment of the federal republic. But whether this restriction may extend to prevent the alienation, by cession, of the western territory, not being a part of any state, may be somewhat more doubtful. The act of cession from Virginia militates, expressly, against such an alienation of that part of the western territory which was ceded by this state. Nevertheless, it is said to have been in contemplation soon after the establishment of the federal government, to cede the right of pre-emption to the lands in that territory to the Indians, who were then supposed to be in treaty for the same with the crown of Great Britain. The president, who had not authorized any such article, and who is said to have disapproved of it, in submitting the treaty to the consideration of the senate, called their attention particularly to that part of it; in consequence of which it was rejected, though warmly supported in the senate, as has been said. If the power of making such a dismemberment be questionable at any rate, it is much more so, when it is recollected, that the constitution seems to have vested congress, collectively, and not any one or two branches of it only, with the power to dispose of that territory. The effect of this extraordinary treaty, if it had been ratified by the senate and the president, may easily be conceived. Great Britain, at that time not a little disposed to enmity towards the United States, would no doubt have insisted upon such an acquisition of territory, made under the faith of a treaty between the United States and the Indians; and thus the United States might either have been deprived of their territory by an unconstitutional treaty, or involved in a war for its preservation, by the proceedings of a body, whose authority does not extend to a final decision upon a question, whether war be necessary and expedient. This shows the collision which may possibly arise between the several branches of the congress, in consequence of this modification of the treaty-making power. For, being entrusted to a branch of the congress only, without the possibility of control or check by the other branch, so far as respects the conclusion and ratification of any treaty whatsoever, it may well happen, at some time or other, that the president and senate may overstep the limits of their just authority, and the house of representatives be so tenacious of their own constitutional rights, as not to yield to the obligations imposed upon them by a treaty, the terms of which they do not approve.
On the 24th of March, 1796, the house of representatives came to the following resolution: “That the president of the United States be requested to lay before the house a copy of the instructions to the minister of the United States, who negotiated the treaty with the king of Great Britain, communicated by his message of the first of March, together with his correspondence and other documents relative to the said treaty; excepting such of said papers as any existing negotiation may render improper to be disclosed.”
The president answered, “That the power of making treaties is exclusively vested in the president, by and with the advice and consent of the senate, provided two-thirds of the senators present concur; and that every treaty so made, and promulgated, henceforward becomes the law of the land.” “That the necessity of caution and secrecy in foreign negotiations, was one cogent reason for vesting the power in that manner.” “That to admit a right in the house of representatives to demand, and to have, as a matter of course, all the papers respecting a negotiation with a foreign power, would be to establish a dangerous precedent.” “That it being perfectly clear to his understanding, that the assent of the house of representatives is not necessary to the validity of a treaty; as the treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of the government, that the boundaries fixed by the constitution between the different departments should be preserved. A just regard to the constitution, and to the duty of his office, under all the circumstances of the case, forbad a compliance with their request.”
On the 6th of April following, the house of representatives came to the following resolution:
“Resolved, that it being declared by the second section of the second article of the constitution, that the president shall have power, by, and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur, the house of representatives do not claim any agency in making treaties; but, that when a treaty stipulates regulations on any of the subjects submitted by the constitution to the power of congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by congress; and it is the constitutional right and duty of the house of representatives in all such cases, to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon, as in their judgment may be most conductive to the public good.”
“Resolved, that it is not necessary to the propriety of any application from this house to the executive for information desired by them, and which may relate to any constitutional functions of the house, that the purposes for which such information may be wanted, or to which the same may be applied, should be stated in the application.”
But the senate, in matters of treaty, are not only without control, they may be said also to be without even the least shadow of responsibility in the individuals who compose that body. In England, says judge Blackstone, lest this plenitude of authority should be abused to the detriment of the public, the constitution hath interposed a check by means of parliamentary impeachment, for the punishment of such members as from criminal motives advise or conclude any treaty, which shall afterwards be judged to derogate from the honor and interest of the nation. But where shall we find this responsibility in our constitution? Does it arise from the power of impeachment vested in the house of representatives by the constitution? It has been solemnly decided, that a senator is not a civil officer of the United States, and therefore not liable to impeachment.80 Even were it otherwise, the power of impeachment would, in the case we are now speaking of, be nugatory, as will presently appear. … Does it consist then in the power of impeaching the ambassador, by whom it was concluded, or the president, by whom it has been ratified, both of whom are unquestionably impeachable, I presume? The ambassador is appointed by the president, with the advice and consent of the senate: it may be presumed that his instructions have been submitted to and approved by them, though a different practice is said to have been established. If the treaty be ratified, and the minister be impeached for concluding it, because it is derogatory to the honour, the interest, or perhaps to the sovereignty and independence of the nation, who are to be his judges? The senate by whom it has been approved and ratified. If the president be impeached for giving improper instructions to the ambassador, and for ratifying the treaty concluded by him pursuant to his instructions, who are to be his judges? The senate, to whom the treaty has been submitted, by whom it has been approved, and by whose advice it has been ratified. The constitution requires, that a majority of two-thirds of the senate, at least, must advise the conclusion of a treaty, before it can be ratified by the president; it likewise requires that a majority of two-thirds at least must concur in the judgment in case of conviction. A quorum for the trial upon an impeachment, consequently cannot possibly be formed, without calling in some of those senators to be judges, who had either actually advised or dissented from the ratification of the treaty. Can such judges be deemed impartial? If they can, from which class shall they be chosen; from those who proposed the rejection of the treaty, or from those who advised its final ratification? Sophistry itself might be puzzled by the dilemma.
The Federalist attempts to vindicate this part of the constitution of the United States, with that zeal and ingenuity which runs through the work. “What other body, besides the senate,” he asks, “would be likely to feel confidence enough in its own situation to preserve unawed, and uninfluenced the necessary impartiality between an individual, accused, and the representatives of the people, his accusers? Could the supreme court have been relied on, as answering this description? It is much to be doubted whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might on certain occasions be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought forward by their immediate representatives.” The author seems to have forgot, that senators may be discontinued from their seats, merely from the effect of popular disapprobation, but that the judges of the supreme court can not. He seems also to have forgot, that whenever the president of the United States is impeached, the constitution expressly requires that the chief justice of the supreme court shall preside, at the trial. Are all the confidence, all the firmness, and all the impartiality of that court supposed to be concentrated in the chief justice, and to reside in his breast, only? If that court could not be relied on for the trial of impeachments, much less would it seem worthy of reliance for the determination of any question between the United States, and any particular state: much less to decide upon the life and death of a person whose crimes might subject him to an impeachment, but whose influence might avert a conviction. Yet the courts of the United States are by the constitution regarded as the only proper tribunals, where a party convicted upon an impeachment, may receive that condign punishment, which the nature of his crimes may require: for it must not be forgotten, that a person convicted upon an impeachment, shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.81 And all this is those very courts, which the Federalist deems not sufficiently confident in their own situation to preserve unawed, and uninfluenced the necessary impartiality, to try him upon an impeachment. The question then might be retorted: can it be supposed that the senate, a part of whom must have been either particeps criminis, with the person impeached, by advising the measure for which he is to be tried, or must have joined the opposition to that measure, when proposed and debated in the senate, would be a more independent, or more unprejudiced tribunal, than a court composed of judges holding their offices during good behavior; and who could neither be presumed to have participated in the crime, nor to have prejudged the criminal? Wisely, then, was it proposed by the convention of this state, and some others, that some tribunal other than the senate should be provided for trying impeachments. In the state of Virginia, the trial of impeachments is to be in the general court of the commonwealth, except when a judge of that court may happen to be impeached, in which case the trial is to be in the court of appeals: the fact, as in other cases, is to be tried by a jury; to be summoned from the different counties of that senatorial district, in which the accused shall reside: and to prevent any undue influence from the sitting of the house of delegates, in whom the power of impeachment is vested, it is wisely provided, that no impeachment shall be tried during a session of the general assembly. A tribunal constituted upon similar principles for the trial of impeachments in the federal government, would probably produce some degree of responsibility, where there now seems to be none.
I have chosen to consider the power of trying impeachments, which the constitution vests in the senate, here, in order to place that of making treaties, which are to become a part of the supreme law of the land, and in which that body has a principle agency, in a stronger point of view. The union of these powers, in that body; and the total exemption of senators from an impeachment, seems to render this part of the federal constitution, the most defective and unsound, of any part of the fabric.
But, to return to the treaty-making power; it appears to be somewhat extraordinary, that that branch of the federal government, who are by the constitution required to concur, in a declaration of war, before any such declaration can be made, should be wholly precluded from voting at all, upon a question of peace. … They are judges of the causes of war; of the existence of those causes; of the resources, and ability of the states to prosecute and support a war; of the expediency of applying those resources to the obtaining redress, or satisfaction for the injury received; in short, of every possible circumstance that can induce the nation to incur the hazard, or expense of a war: and yet, if through timidity, venality, or corruption, the president, and two thirds of a majority of the senate can be prevailed upon to relinquish the prosecution of the war, and conclude a treaty, the house of representatives have not power to prevent, or retard the measure; although it should appear to them, that the object for which the war hath been undertaken, hath not been attained, and that it was neither relinquished from necessity, or inability to prosecute it, with effect.
These objections are not intended, to extend to the agency which the president and senate may have, in the formation of a treaty; nor to the principle that treaties with foreign nations should be regarded as a part of the supreme law of the land. … The honour and peace of the nation certainly require that its compacts should be duly observed, and carried into effect with perfect good faith. And though it may be the result of sound discretion to confide the formation of a treaty, in the first instance, to the president and senate, only; yet the safety of the nation seems to require that the final ratification of any compact, which is to form a part of the supreme law of the land, should, as well as other laws of the federal government, depend upon the concurrent approbation of every branch of the congress, before they acquire such a sanction as to become irrevocable, without the consent of a foreign nation; or without hazarding an imputation against the honor and faith of the nation, in the performance of its contracts.
It may not be improper here to add something on the subject of that part of the constitution, which declares that treaties made by the president and senate shall be a part of the supreme law of the land: acts of congress made pursuant to the powers delegated by the constitution are to be regarded in the same light. What then is the effect of a treaty made by the president and senate, some of the articles of which may contain stipulations on legislative objects, or such as are expressly vested in congress by the constitution, until congress shall make a law carrying them into effect? Is congress bound to carry such stipulations into effect, whether they approve or disapprove of them? Have they no negative, no discretion upon the subject? The answer seems to be, that it is in some respects, an inchoate act. It is the law of the land, and binding upon the nation in all its parts, except so far as relates to those stipulations. Its final fate, in case of refusal on the part of congress, to carry those stipulations into effect, would depend on the will of the other nation. If they were satisfied that the treaty should subsist, although some of the original conditions should not be fulfilled on our part, the whole, except those stipulations embracing legislative objects, might remain a treaty. But if the other nation chose not to be bound, they would be at liberty to say so, and the treaty would be defeated. And this construction seems to be consonant with that resolution, of the house of representatives,82 wherein they declare, “That when a treaty stipulates regulations on any of the subjects submitted by the constitution to the power of congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by congress; and it is the constitutional right and duty of the house of representatives, in all such cases, to deliberate on the expediency, or inexpediency, of carrying such treaty into effect, and to determine and act thereon, as in their judgment, may be most conducive to the public good.” … A contrary construction would render the power of the president and senate paramount to that of the whole congress, even upon those subjects upon which every branch of congress is, by the constitution, required to deliberate.83 Let it be supposed, for example, that the president and senate should stipulate by treaty with any foreign nation, that in case of war between that nation and any other, the United States should immediately declare war against that nation: Can it be supposed that such a treaty would be so far the law of the land, as to take from the house of representatives their constitutional right to deliberate on the expediency or inexpediency of such a declaration of war, and to determine and act thereon, according to their own judgment?
4, and 5. The president shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers, and consuls: and he shall receive ambassadors, and other public ministers. C.U.S. Art. 2. Sec. 2., 3.
The intercourse with foreign nations requiring that ambassadors should be sent from one to another, the appointment of such ministers, is by our constitution vested in the same departments of government as the treaty making power; the exclusive right of nomination being vested in the president; the senate in this case, as in other cases of appointment in which they have any concurrence, having simply the right of approving, or of rejecting, if they think proper; but they cannot propose any other person in the room of him whom they may reject; they may prevent the appointment of an agent in whom they have not a proper degree of confidence, but they cannot substitute a more fit one in his stead.
The president, alone, has authority to receive foreign ministers; a power of some importance, as it may sometimes involve in the exercise of it, questions of delicacy; especially in the recognition of authorities of a doubtful nature. A scruple is said to have been entertained by the president of the United States, as to the reception of the first ambassador from the French republic. But it did not prevent, or retard his reception, in that character. … These powers are respectively branches of the royal prerogative in England.
6. The president shall, moreover, nominate, and by and with the advice and consent of the senate, shall appoint judges of the supreme court, and all other officers of the United States, whose appointments are not otherwise provided for by the constitution, and which shall be established by law. But congress may, by law, vest the appointment of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments. C.U.S. Art. 2. Sec. 2. And the president shall commission all the officers of the United States. … Ibid. Sec. 3.
Although the authority of the president of the United States does not extend, as has been already remarked, to the creation of offices, by his own authority, it is nevertheless astonishing to view the number to which he has been authorized in his discretion, to give existence. In the army, navy, and volunteer corps, only, this discretionary power, with which congress have from time to time most liberally vested him, must have amounted to the appointment of several thousand officers. If to these we add the civil officers whose appointments depend either upon the president, alone; or upon his nomination or influence in the senate; we shall find that the influence and patronage of that department are already as great, and probably greater than any friend to his country could wish to see them.84 It is however, still more increased by the next clause.
7. The president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions, which expire at the end of their next session.
The act of 5 Cong. c. 153, authorized the president to make appointments to fill any vacancies in the army and navy which may have happened during that session of the senate. And this without any reservation of the right of the senate to approve, or reject, at a succeeding session. This was among the manifold acts of that period for increasing the power of the president, far beyond the limits assigned by the constitution; limits already sufficiently large for every beneficial purpose. The right of nomination to office in all cases where the senate are to be consulted upon the appointment, being the undoubted privilege of the president under the constitution, should he persist in the nomination of a person to office after the senate have rejected him, there is no constitutional control over him, by which he may be compelled to nominate any other person. The office then may be kept vacant through this disagreement between them. But if it should have happened that the office became vacant during the recess of the senate, and the vacancy were filled by a commission which should expire, not at the meeting of the senate, but at the end of their session, then, in case such a disagreement between the president and the senate, if the president should persist in his opinion, and make no other nomination, the person appointed by him during the recess of the senate would continue to hold his commission, until the end of their session: so that the vacancy would happen a second time during the recess of the senate, and the president consequently, would have the sole right of appointing a second time; and the person whom the senate have rejected, may be instantly replaced by a new commission. And thus it is evidently in the power of the president to continue any person in office, whom he shall once have appointed in the recess of the senate, as long as he may think proper.85 A circumstance which renders the power of nomination, and of filling up vacancies during the recess of the senate, too great, to require any further extension. Even the control of elections loses its force, in great measure, in such cases: the influence of a president, and the activity and zeal of his partisans increasing in proportion to the number of offices which he has power to fill, and to the measure of obligation which the persons preferred by his favor, may suppose they owe to him, for the distinction.
Perhaps these inconveniences might have been avoided, if the constitution had required more than one person to have been put in nomination by the president for those offices, where the concurrence of the senate is required to complete the appointment, or, that in case of disagreement between the president and senate, two thirds of the latter might appoint, without a previous nomination by the president, in case he should decline any further nomination, after the first had been rejected.
8. The president shall, from time to time, give to congress information of the state of the union, and recommend to their consideration such measures, as he may judge necessary and expedient. He may also on extraordinary occasions convene both houses, or either of them; and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. C.U.S. Art. 2. Sec. 3.
As from the nature of the executive office it possesses more immediately the sources, and means of information than the other departments of government; and as it is indispensably necessary to wise deliberations and mature decisions, that they should be founded upon the correct knowledge of facts, and not upon presumptions, which are often false, and always unsatisfactory; the constitution has made it the duty of the supreme executive functionary, to lay before the federal legislature, a state of such facts as may be necessary to assist their deliberations on the several subjects confided to them by the constitution. And as any inconveniences resulting from new laws, or for the want of adequate laws upon any subject, more immediately occur to those who are entrusted with the administration of the government, than to others, less immediately concerned therein; it is likewise provided, that the first magistrate of the union should recommend to the consideration of congress such measures as he shall judge necessary, and proper. But this power of recommending any subject to the consideration of congress, carries no obligation with it. It stands precisely on the same footing, as a message from the king of England to parliament; proposing a subject for deliberation, not pointing out the mode of doing the thing which it recommends. This is considered by De Lolme, as one of the favourable peculiarities of the English constitution, uniting the advantages of originating laws in select assemblies, with the freedom of the legislature, as vested in the representatives of the people. In France, under the present constitution, all laws originate with the executive department: than which, there cannot exist a stronger characteristic of a despotic government.
The power of the president to convene either or both houses of congress, was a provision indispensably necessary in a government organized as the federal government is by the constitution. Occasions may occur during the recess of congress, for taking the most vigorous and decisive measures to repel injury, or provide for the defense: congress, only, is competent to these objects: the president may therefore convene them for that purpose. Or it may happen that an important treaty hath been negotiated during the recess of the senate, and their advice thereupon be required, without delay, either, that the ratification may be exchanged in due time, or for some other important reason. On such extraordinary occasions as these, if there were not a power lodged in the president to convene the senate, or the congress, as the case might require, the affairs of the nation might be thrown into confusion and perplexity, or worse. The power of adjourning congress, in case of a disagreement between the two houses, as to the time of adjournment, was likewise necessary to prevent any inconvenience from that source, as, is too obvious to require any further remarks upon it.
9. Ninthly; the president, as was observed, elsewhere is sub modo a branch of the legislative department; since every bill, order, resolution, or vote, to which the concurrence of both houses of congress is necessary, must be presented to him for his approbation, before it can take effect. If he approve it, the measure is immediately final: if he disapprove, it must be sent back to congress for further consideration, as has been already shown. The importance which the executive department derives from this share in the legislative, hath been sufficiently discussed in its proper place, being here brought into view again, merely for the sake of method.
10. Lastly; it is the duty of the president to take care that the laws be faithfully executed; and, in the words of his oath, “to preserve, protect, and defend the constitution of the United States.”
The obligation of oaths upon the consciences of ambitious men has always been very slight, as the general history of mankind but too clearly evinces. Among the Romans, indeed, they were held in great sanctity during the purer ages of the republic, but began to be disregarded as the nation approached to a state of debasement, that fitted them for slavery.86 Among christian princes, they seem only to have been calculated for the worst, instead of the best purposes:87 monarchs having long exercised, and seeming to claim, not less than the successors of St. Peter, a kind of dispensing power on this subject, in all cases affecting themselves. A due sense of religion must not only be wanting in such cases, but the moral character of the man must be wholly debased, and corrupted. Whilst these remain unsullied, in the United States, oaths may operate in support of the constitution they have adopted, but no longer. After that period an oath of office will serve merely to designate its duties, and not to secure the faithful performance of them; or, to restrain those who are disposed to violate them.
The right of issuing proclamations is one of the prerogatives of the crown of England. No such power being expressly given by the federal constitution, it was doubted, upon a particular occasion, whether the president possessed any such authority under it: Both houses of congress appear to have recognized the power as one that may be constitutionally exercised by him.88 Independent of such authority, we might perhaps be justified, in concluding that the obligation upon the president to take care that the laws be faithfully executed, drew after it this power, as a necessary incident thereto. The commencement or determination of laws is frequently made to depend upon events, of which the executive may be presumed to receive and communicate the first authentic information: the notification of such facts seems therefore to be the peculiar province and duty of that department. If the nation be in a state of war with another nation, acts of hostility are justifiable, on the part of our citizens towards theirs; if a truce be concluded; such acts are no longer to be permitted. The fact that such a truce has been made, must be announced by the competent authority; and the law arising from the promulgation of this fact, according to the rules of war and peace, among civilized nations, is such, as to give to the proclamation the apparent effect of a new law to the people. But this is not really the case; it is the established law of nations which operates upon the fact disclosed by the proclamation, viz. That a truce has been concluded between the two nations, who were before at war. But if a proclamation should enjoin any thing to be done, which neither the law of nations, nor any previous act of the legislature, nor any treaty or compact should have made a duty, such injunction would not only be merely void, but an infringement of the constitution.89 Proclamations are then only binding, when they reinforce the observance of a duty, enjoined by law, but connected with some particular fact, which it may be the duty of the executive to make known.
The president of the United States may be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors: and the chief justice of the United States shall preside at his trial. C.U.S. Art. 2., Sec. 4. Art. 1., Sec. 3.
The exclusion of the vice-president in such cases, from his ordinary constitutional seat, as president of the senate, seems to have been both necessary and proper, not only in order to remove all suspicion of undue bias upon the mind of any member of the court; (since in case of conviction, the duties of the office of the president would devolve immediately upon the vice-president); but because it is presumable, that whenever a president may be actually impeached, he would be instantly incapacitated thereby from discharging the duties of his office, until a decision should take place; in which case also, the duties of the office of president, must devolve upon the vice-president. Machiavel ascribes the ruin of the republic of Florence, to the want of this mode of proceeding by impeachment against those who offend against the state. If the want of a proper tribunal for the trial of impeachments can endanger the liberties of the United States, some future Machiavel may, perhaps, trace their destruction to the same source.
In England, as we have more than once had occasion to remark, the law will not suppose the king capable of doing wrong. His person is sacred; he is above the reach of the laws, none having power to accuse, or to judge him. The people must be driven to a total violation, and subversion of the constitution, before he can be made responsible for the most flagrant act of tyranny, or abuse of authority. Our constitution, on the contrary, considers the president a man, and fallible; it contemplates the possibility of his being not only corrupt, but, in the highest degree criminal; even to the commission of treason, against the government which he is appointed to administer. How such a case may happen, will be the subject of future inquiry. Suffice it to say, the constitution supposes it, and has provided, however inadequately, for his punishment.
The administration of the federal government, from its first institution, has repeatedly given rise to doubts in my own breast, whether some important amendments are not necessary for the preservation of the liberty of the people of the United States, the necessary and proper independence of the several states, and the union of the confederacy. The limitations which the constitution has provided to the powers of the president, seem not to be sufficient to restrain this department within its proper bounds, or to preserve it from acquiring and exerting more than a due share of influence. To this cause it may be attributed, that in addition to the very extensive powers, influence, and patronage which the constitution gives to the president of the United States, congress have, from time to time, with a liberal hand, conferred others still more extensive; many of them altogether discretionary, and not infrequently questionable, as to their constitutionality. These circumstances but too well justify the remark, that if a single executive do not exhibit all the features of monarchy at first, like the infant Hercules, it requires only time to mature its strength, to evince the extent of its powers. Crescit occulto velut arbor avo.
Under the former confederation, the United States in congress assembled, had authority to appoint a committee to sit in the recess of congress, to be denominated “a committee of the states,” and to consist of one delegate from each state: and to appoint one of their number to preside, provided that no person should be allowed to serve in the office of president more than one year, in any term of three years. This committee, or any nine of them, were authorized to execute, in the recess of congress, such of the powers of congress, as the United States in congress assembled, by the consent of nine states, might from time to time think expedient to vest them with; provided that no power be delegated to the said committee, for the exercise of which, by the articles of confederation, the voice of nine states, in the congress of the United States assembled, was requisite. An executive constituted somewhat upon this plan, composed of a member from each state, would, I conceive, have been more consistent with the principles of a federal union: it might have been so modified, as that a smaller number (consisting of one member from each quarter of the union,) might execute all the powers which are now vested in the president alone, whilst the whole should be consulted upon all points to which the advice and consent of the senate is now required by the constitution. The senate might then have been divested entirely of its executive powers, and confined to such as might properly be vested in a second branch of the legislature. Such an arrangement would have removed many of those objections which now apply to the union of legislative, executive, and judiciary powers, in that body. I well know that there are many objections to a numerous executive: but I conceive them to be fewer in a federal, than in a national government. One of the principal objections to the former congress, as an executive body, seems to have arisen from the plurality of members from the states, whose united voice was often necessary to give the state a vote. If the delegates from the same state were equally divided upon any question, the state had no vote. And as this not infrequently happened in the delegations from several states, upon the same question, the result was, that no determination could be had thereupon, for want of a sufficient number of states, voting either in the affirmative or negative. But where the representation from a state is confined to an individual, the former of these inconveniences could never happen, and the latter very rarely. How far experience, under the former articles of confederation, might have prompted or justified the preference given by the convention to a single executive, I cannot pretend to judge.
III. The constitution and powers of the judiciary department of the federal government have been equally the subject of applause and censure; of confidence and jealousy.90 The unexceptionable mode of appointing the judges, and their constitutional independence of every other branch of the government merit an eulogium, which all would have concurred in bestowing on this part of the constitution of the United States, had not the powers of that department been extended to objects which might hazard the tranquility of the union in attempting to secure it. No one doubted the necessity and propriety of a federal judiciary, where an ultimate decision might be had upon such questions as might arise under the law of nations, and eventually embroil the American nation with other sovereign powers: nor was it doubted that such a tribunal was necessary to decide such differences as might possibly arise between the several members of the confederacy, or between parties claiming lands under grants from different states. But the objects of the federal jurisdiction were originally far more numerous; extending to “all cases in law and equity arising under the constitution, the laws of the United States, and treaties made, or to be made, under the authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; and between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens or subjects.” “These objects,” a writer on the subject remarks, are so numerous, and the shades of distinction between civil causes are oftentimes so slight, that it is more than probable the state judicatories will be wholly superceded; for in contests about jurisdiction, the federal court, as the most powerful, will ever prevail.”91 This conclusion will not appear to be ill-founded, if we advert to the ingenious fictions which have been from time to time adopted in the courts of Great Britain, in order to countenance the claim of jurisdiction. But more solid objections seemed to arise from the want of a sufficient security from the liberty of the citizen in criminal prosecutions: the defect of an adequate provision for the trial by jury in civil cases; and the burdens and mischiefs which might arise from the re-examination of facts, upon an appeal. These objections, however, seem to be completely removed by the amendments proposed by the first congress, and since ratified, and made a part of the constitution. Another important objection has been likewise in some degree obviated, by the act of 1 Cong. 1 Sess. c. 20. Sec. 11, which declares, that no district or circuit court shall have cognizance of any suit upon a promissory note, or other chose in action in favour of an assignee, except in cases of foreign bills of exchange, unless a suit might have been prosecuted in such court if no assignment had been made: it is, however, to be wished, that this provision had formed a part of the amendments to the constitution, which were proposed to the same session, since the objection, upon constitutional grounds, still remains: more especially, as a very serious attempt was made during the last session of the sixth congress to repeal this legislative provision. But the grand objection, that the states were made subject to the action of an individual, still remained for several years, notwithstanding the concurring dissent of several states at the time of accepting the constitution.92 Nor was it till after several of the states had actually been sued in the federal courts, that the third congress proposed an amendment, which declares, “that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, by the citizens of another state, or by the citizens or subjects of a foreign state.” This amendment having been duly ratified now forms a part of the federal constitution. It is well calculated to secure the peace of the confederacy from the dangers which the former power might have produced, had any compulsory method been adopted for carrying into effect the judgment of a federal court against a state, at the suit of an individual. But whilst the propriety of the amendment is acknowledged, candor requires a further acknowledgment, that in order to render the judicial power completely efficacious, both in the federal and in the state governments, some mode ought to be provided, by which a pecuniary right, established by the judicial sentence of a court against a state, or against the government of the United States, may be enforced. It is believed, that instances might be adduced, where, although such rights have been judicially established, the claimants have not received any benefit from the judgment in their favour, because the legislature have neglected (perhaps wilfully) to provide a fund, or make the necessary appropriation required by the constitution, for the discharge of the debt. In this instance, the constitutions both of the federal and state governments seem to stand in need of reform.93 For what avails it, that an impartial tribunal have decided, that a debt is due from the public to an individual, if those who hold the purse-strings of the government, may nevertheless refuse the payment of a just debt?
But whatever objection may be made to the extent of the judicial power of the federal government; in other respects, as it is now organized, and limited by the constitution itself, by the amendments before mentioned, and by the act referred to, it seems worthy of every encomium, that has ever been pronounced upon the judiciary of Great Britain, to which its constitution is in no respect inferior; being, indeed, in all respects assimilated to it, with the addition of a constitutional, instead of a legal independence, only. Whatever then has been said by Baron Montesquieu, De Lolme, or Judge Blackstone, or any other writer, on the security derived to the subject from the independence of the judiciary of Great Britain, will apply at least as forcibly to that of the United States. We may go still further. In England the judiciary may be overwhelmed by a combination between the executive and the legislature. In America (according to the true theory of our constitution,) it is rendered absolutely independent of, and superior to the attempts of both, to control, or crush it: First, by the tenure of office, which is during good behavior; these words (by a long train of decisions in England, even as far back as the reign of Edward the third) in all commissions and grants, public or private, importing an office, or estate, for the life of the grantee, determinable only by his death, or breach of good behaviour. Secondly, by the independence of the judges, in respect to their salaries, which cannot be diminished. Thirdly, by the letter of the constitution which defines and limits the powers of the several coordinate branches of the government; and the spirit of it, which forbids any attempt on the part of either to subvert the constitutional independence of the others. Lastly, by that uncontrollable authority in all cases of litigation, criminal or civil, which, from the very nature of things is exclusively vested in this department, and extends to every supposable case which can affect the life, liberty, or property of the citizens of America under the authority of the federal constitution, and laws, except in the case of an impeachment.
The American constitutions appear to be the first in which this absolute independence of the judiciary has formed one of the fundamental principles of the government. Doctor Rutherforth considers the judiciary as a branch only, of the executive authority; and such, in strictness, perhaps, it is in other countries, its province being to advise the executive, rather than to act independently of it: thus when Titius demands a debt, or a parcel of land of Sempronius, the judgment of the court is, its advice to the executive, to whom the execution of the laws appertains, to levy the debt for the plaintiff, or put him in possession of the lands which he claims, or to dismiss his demand as unjust and ill founded. So also if Titius be accused of treason, murder, or other crime, and be thereof convicted, the judgment of the court, is its advice in what manner he shall be punished according to law; which advice is to be carried into effect by the executive officer. Or if he be acquitted, the judgment of the court is its advice that he be discharged from his confinement, and from further prosecution. In this sense it is, that the judges of the courts of law in England are reckoned among the number of the king’s councils, they being his advisers in all cases where the subject matter is of a legal nature. But in the United States of America, the judicial power is a distinct, separate, independent, and co-ordinate branch of the government; expressly recognized as such in our state bill of rights, and constitution, and demonstrably so, likewise, by the federal constitution, from which the courts of the United States derive all their powers, in like manner as the legislative and executive departments derive theirs. The obligation which the constitution imposes upon the judiciary department to support the constitution of the United States, would be nugatory, if it were dependent upon either of the other branches of the government, or in any manner subject to their control, since such control might operate to the destruction, instead of the support, of the constitution. Nor can it escape observation, that to require such an oath on the part of the judges, on the one hand, and yet suppose them bound by acts of the legislature, which may violate the constitution which they have sworn to support, carries with it such a degree of impiety, as well as absurdity, as no man who pays any regard to the obligations of an oath can be supposed either to contend for, or to defend.
This absolute independence of the judiciary, both of the executive and the legislative departments, which I contend is to be found, both in the letter, and spirit of our constitutions, is not less necessary to the liberty and security of the citizen, and his property, in a republican government, than in a monarchy: if in the latter, the will of the prince may be considered as likely to influence the conduct of judges created occasionally, and holding their offices only during his pleasure, more especially in cases where a criminal prosecution may be carried on by his orders, and supported by his influence; in a republic, on the other hand, the violence and malignity of party spirit, as well in the legislature, as in the executive, requires not less the intervention of a calm, temperate, upright, and independent judiciary, to prevent that violence and malignity from exerting itself “to crush in dust and ashes” all opponents to its tyrannical administration, or ambitious projects. Such an independence can never be perfectly attained, but by a constitutional tenure of office, equally independent of the frowns and smiles of the other branches of the government. Judges ought not only to be incapable of holding any other office at the same time, but even of appointment to any but a judicial office. For the hope of favor is always more alluring, and generally more dangerous, than the fear of offending. In England, according to the principles of the common law, a judge cannot hold any other office; and according to the practice there for more than a century, no instance can, I believe, be shown, where a judge has been appointed to any other than a judicial office, unless it be the honorary post of privy counsellor, to which no emolument is attached. And even this honourary distinction is seldom conferred but upon the chief justice of the king’s bench, if I have been rightly informed.94 To this cause, not less than to the tenure of their offices during good behaviour, may we ascribe that preeminent integrity, which amidst surrounding corruption, beams with genuine lustre from the English courts of judicature, as from the sun through surrounding clouds, and mists. To emulate both their wisdom and integrity is an ambition worthy of the greatest characters in any country.
If we consider the nature of the judicial authority, and the manner in which it operates, we shall discover that it cannot, of itself, oppress any individual; for the executive authority must lend its aid in every instance where oppression can ensue from its decisions: whilst on the contrary, its decisions in favour of the citizen are carried into instantaneous effect, by delivering him from the custody and restraint of the executive officer, the moment that an acquittal is pronounced. And herein consists one of the great excellencies of our constitution: that no individual can be oppressed whilst this branch of the government remains independent, and uncorrupted; it being a necessary check upon the encroachments, or usurpations of power, by either of the other. Thus, if the legislature should pass a law dangerous to the liberties of the people, the judiciary are bound to pronounce, not only whether the party accused hath been guilty of any violation of it, but whether such a law be permitted by the constitution. If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man’s own conscience; or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act. If an individual be persecuted by the executive authority, (as in any alien, the subject of a nation with whom the United States were at that time at peace, had been imprisoned by order of the president under the authority of the alien act, 5 Cong. c. 75) it is then the province of the judiciary to decide whether there be any law that authorizes the proceedings against him, and if there be none, to acquit him, not only of the present, but of all future prosecutions for the same cause: or if there be, then to examine its validity under the constitution, as before-mentioned. The power of pardon, which is vested in the executive, in its turn, constitutes a proper check upon the too great rigor, or abuse of power in the judiciary department. On this circumstance, however, no great stress ought to be laid; since in criminal prosecutions, the executive is in the eye of the law, always plaintiff; and where the prosecution is carried on by its direction, the purity of the judiciary is the only security for the rights of the citizen. The judiciary, therefore, is that department of the government to whom the protection of the rights of the individual is by the constitution especially confided, interposing its shield between him and the sword of usurped authority, the darts of oppression, and the shafts of faction and violence. Let us see in what manner this protection, is thus confided to the judiciary department by the constitution.
1. First, then; the judicial power of the United States extends to all cases in law and equity, arising under the constitution, the laws of the United States, and treaties made by their authority. 2. No person shall be deprived of life, liberty, or property, (and these are the objects of all rights) without due process of law; which is the peculiar province of the judiciary to furnish him with. 3. No person shall be held to answer for any crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger. … 4. In Criminal cases the accused shall have a speedy and public trial, by an impartial jury of the state and district, where the crime shall be committed. 5. He shall be informed of the nature and cause of his accusation. 6. He shall be confronted by the witnesses against him; and 7, Shall have compulsory process for obtaining witnesses in his favour.95 8. He shall not be compelled to be a witness against himself. 9. He shall not be subject, for the same offense, to be twice put in jeopardy of life or limb. 10. He shall have the aid of counsel for his defense. 11. His person, house, papers, and effects, shall be free from search or seizure, except upon warrants issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person, or things to be seized. 12. Excessive bail shall not be required of him. 13. The benefit of the writ of habeas corpus shall not be denied him, unless in case of actual invasion, or rebellion, the public safety (of which congress are to judge, and suspend the benefit accordingly) may require the suspension of that privilege generally, and not in his particular case, only. 14. Excessive fines shall not be imposed, nor unusual punishments inflicted on him. 15. His private property shall not be taken for the public use without just compensation. 16. He shall not be convicted upon any charge of treason, unless on the testimony of two witnesses, at least, to the same overt act, or on confession in open court. In all these respects, the constitution, by a positive injunction, prescribes the duty of the judiciary department; extending its powers, on the one hand, so far as to arrest the hand of oppression from any other quarter; and on the other prescribing limits to its authority, which if violated would be good cause of impeachment, and of removal from office. Thus if the privilege of the writ of habeas corpus should be suspended by congress, when there was neither an invasion, nor rebellion in the United States, it would be the duty of the judiciary, nevertheless, to grant the writ, because the act of suspension in that case, being contrary to the express terms of the constitution, would be void. On the other hand, if the benefit of the writ of habeas corpus, should be granted to any person, contrary to the provisions of an act for suspending it, during the time of an invasion or rebellion, this would be a good ground for impeaching a judge who should conduct himself in that manner. So, if a judge were to instruct a jury upon the trial of a person for treason, that he might be convicted upon the testimony of a single witness, if such instruction were advisedly, and corruptly given, (and not the mere effect of mistake and misapprehension) it would furnish a good ground for impeachment, and removal of such judge from his office. And any other gross misconduct of a judge in the execution of his office may be punished in like manner.
That absolute independence of the judiciary, for which we contend is not, then, incompatible with the strictest responsibility; (for a judge is no more exempt from it than any other servant of the people, according to the true principles of the constitution;) but such an independence of the other co-ordinate branches of the government as seems absolutely necessary to secure to them the free exercise of their constitutional functions, without the hope of pleasing, or the fear of offending. And, as from the natural feebleness of the judiciary it is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches, who have the custody of the purse and sword of the confederacy; and as nothing can contribute so much to its firmness and independence as permanency in office, this quality therefore may be justly regarded as an indispensable ingredient in its constitution; and in great measure as the citadel of the public justice and the public security.96 Nor was it imagined that there was more than one opinion, upon this subject, in the United States, until a recent event proved the contrary.97 It was supposed that there could not be a doubt that those tribunals in which justice is to be dispensed according to the constitution and laws of the confederacy; in which life, liberty and property are to be decided upon; in which questions might arise as to the constitutional powers of the executive, or the constitutional obligation of an act of the legislature; and in the decision of which the judges might find themselves constrained by duty, and by their oaths, to pronounce against the authority of either, should be stable and permanent; and not dependent upon the will of the executive or legislature, or both, for their existence. That without this degree of permanence, the tenure of office during good behavior, could not secure to that department the necessary firmness to meet unshaken every question, and to decide as justice and the constitution should dictate without regard to consequences. These considerations induced an opinion which it was presumed was general, if not universal, that the power vested in congress to erect from time to time, tribunals inferior to the supreme court, did not authorize them, at pleasure, to demolish them. Being built upon the rock of the constitution, their foundations were supposed to partake of its permanency, and to be equally incapable of being shaken by the other branches of the government. But a different construction of the constitution has lately prevailed; it has been determined that a power to ordain and establish from time to time, carries with it a discretionary power to discontinue, or demolish. That although the tenure of office be, during good behaviour, this does not prevent the separation of the office from the officer, by putting down the office; but only secures to the officer his station, upon the terms of good behaviour, so long as the office itself remains. … Painful indeed is the remark that, this interpretation seems calculated to subvert one of the fundamental pillars of the free governments, and to have laid the foundation of one of the most dangerous political schisms that has ever happened in the United States of America.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court of the United States shall have original jurisdiction. This, I presume, was intended to give the greater solemnity as well as dispatch to the decision of such important cases, by taking away all unnecessary delays, by appeal. But congress appears to have considered, that it was not necessary that the supreme court should have original jurisdiction, but that it might, in the discretion of congress, be invested with it in those cases. By the constitution, originally, the supreme court might have had appellate jurisdiction, both as to law and fact, in all cases. But the ninth article of amendments provides that no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. A provision which has removed one of the most powerful objections made to this department.
The organization of the federal courts will form the subject of a future note; in which also will be attempted to give the students a view of the state courts.
It now only remains to examine some miscellaneous articles, which have either not yet been noticed, or have been but slightly mentioned.
1. No money shall be drawn from the treasury, but in consequence of appropriations made by law.
All the expenses of government being paid by the people, it is the right of the people, not only, not to be taxed without their own consent, or that of their representatives freely chosen, but also to be actually consulted upon the disposal of the money which they have brought into the treasury; it is therefore stipulated that no money shall be drawn from the treasury, but in consequence of appropriations, previously made by law: and, that the people may have an opportunity of judging not only of the propriety of such appropriations, but of seeing whether their money has been actually expended only, in pursuance of the same; it is further provided, that a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. These provisions form a salutary check, not only upon the extravagance, and profusion, in which the executive department might otherwise indulge itself, and its adherents and dependents; but also against any misappropriation, which a rapacious, ambitious, or otherwise unfaithful executive might be disposed to make. In those governments where the people are taxed by the executive, no such check can be interposed. The prince levies whatever sums he thinks proper; disposes of them as he thinks proper; and would deem it sedition against him and his government, if any account were required of him, in what manner he had disposed of any part of them. Such is the difference between governments, where there is responsibility, and where there is none.
Yet even this excellent regulation has an inconvenience attending it, which was formerly hinted at. According to the theory of the American constitutions, the judiciary ought to be enabled to afford complete redress in all cases, where a man may have a just claim for compensation for any injury done him, or for any service which he may have rendered another, in expectation of a just recompence. According to the laws of Virginia, if a claim against the commonwealth be disallowed or abated by the auditor of public accounts, any person who may think himself aggrieved thereby may petition the high court of chancery, or the district court held at Richmond, according to the nature of his case, for redress; and such court shall proceed to do right thereon; and a like petition shall be allowed in all other cases to any person who is entitled to demand against the commonwealth any right in law or equity. But although redress is thus intended to be afforded in such cases, yet it seems to be held, that the treasurer cannot pay the money for which the claimant may have obtained a judgment, or decree, until the general assembly have passed a law making an appropriation, for that purpose, if no law authorizing such payment be previously passed. But whatever doubt there may be upon the subject, under the laws of the state, it seems to be altogether without a question, that no claim against the United States (by whatever authority it may be established,) can be paid, but in consequence of a previous appropriation made by law; unless, perhaps, it might be considered as falling properly under the head of contingent charges against the government. An interpretation which may be somewhat strained, and which the executive department of the government, to which the management of the fund appropriated for contingent charges is committed, might be as little disposed to admit, as congress might be to pass a law making a specific appropriation.
Both the constitution and laws of the United States appear, then, to be defective upon this subject; inasmuch, as they neither provide in what manner a just claim against the United States, which may happen to be disallowed by the auditor and comptroller of the treasury, shall be judicially examined;98 nor for the payment of any just claim which might be judicially established, without submitting it to the discretion of congress, whether they will make an appropriation for that purpose. As the congress are supposed, in all pecuniary cases, to have the same common interest with their constituents, they can hardly be considered in any other light than as parties, whenever a demand is made against the public. They cannot then be presumed to be altogether as impartial judges in such cases, as those who are sworn to do equal right to all persons, without distinction: and although the practice has been to petition them for any disputed claim against the United States, cases may arise where such a petition might be highly improper, and yet the nature of the case be such, as to entitle the party to obtain redress according to the dictates of moral obligation. A judicial court is, according to the true spirit of the constitution, the proper place in which such a right should be inquired into, and from which redress might be finally obtained: and that, without impediment from any other department of the government. This might be effected by an amendment, declaring, that no money shall be drawn from the treasury but in consequence of appropriations made by law; or, of a judicial sentence of a court of United States.
2. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And congress may by general laws, prescribe the manner in which the same shall be proved, and the effect thereof. The act of 1 Cong. 2 Sess. c. 11, accordingly declares, that the acts of the legislature of the several states shall be authenticated by having the seal of their respective states affixed thereto; that the records and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the United States, by attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that such attestation is in due form. And records and judicial proceedings so authenticated, shall have such faith in every court within the United States, as they have by law or usage in the courts of the state, from whence they may be taken. The propriety and necessity of such a provision to be made between members of an extensive confederacy, are too obvious to escape observation. A similar provision was accordingly made by the former articles of confederation and perpetual union, Art. 4.
3. The citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states.
This article, with some variation, formed a part of the confederation: we have in another place supposed, that the states retain the power of admitting aliens to become citizens of the states respectively, notwithstanding the several acts of congress establishing an uniform rule of naturalization. But such denizens, not being properly citizens, would not, I apprehend, be entitled to the benefit of this article in any other state. They would still be regarded as aliens in every state, but in that of which they may be denizens. Consequently, an alien before he is completely naturalized, may be capable of holding lands in one state, but not of holding them in any other.
4. A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.
This article likewise formed a part of the former confederation, and was necessary to cement and secure the harmony of the union. The act of 1784, c. 35. (V.L. Edi. 1794, c. 118.) provided for the mode of carrying it into execution; but a different provision is made by the act of 2 Cong. 51. … Either mode may be adopted, I apprehend, according to the nature of the case. If the party accused be already in custody of the law, by virtue of process from the state courts, he may, on demand of the executive authority of the state from whence he fled, be sent thither in custody by order of the general court, or warrant of any two judges thereof in vacation: if he be not already in custody, the act of congress makes it the duty of the executive authority of the state to which he flies, upon a copy of an indictment found, or affidavit made before a magistrate of any state, charging him with any crime, to cause him to be arrested and secured, and notice to be given to the executive authority making the demand, or his agent, and the fugitive to be delivered up. But if no agent appear, within six months from the time of the arrest, the prisoner may be discharged.
5. No person held to service in one state, under the laws thereof, and escaping into another state, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service is due.
This necessary provision had not a place in the former articles of confederation; in consequence of which numberless inconveniences were felt by the citizens of those states, where slavery prevails, from the escaping of their slaves into other states, where slavery was not tolerated by law, and where it was supposed no aid ought to be given to any other person claiming another as his slave. The act of 2 Cong. c. 51, prescribes the mode of proceeding in such cases; authorizing the master to seize his slave, and making it the duty of the district judge of the United States, and of the magistrates of the state to aid him therein; and imposing a penalty of five hundred dollars upon any person obstructing him.
6. The United States shall guarantee to every state in the union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence. C.U.S. Art. 4. Sec. 4.
It is an observation of the enlightened Montesquieu, that mankind would have been at length obliged to submit to the government of a single person, if they had not contrived a kind of constitution, by which the internal advantages of a republic might be united with the external force of a monarchy; and this constitution is that of a confederacy of smaller states, to form one large one for their common defense. But these associations ought only to be formed, he tells us, between states whose form of government is not only similar, but also republican. The spirit of monarchy is war, and the enlargement of dominion; peace and moderation is the spirit of a republic. These two kinds of government cannot naturally subsist together in a confederate republic. Greece, he adds, was undone, as soon as the kings of Macedon obtained a seat among the Amphictions. If the United States wish to preserve themselves from a similar fate, they will consider the guarantee contained in this clause as a corner stone of their liberties.
The possibility of an undue partiality in the federal government in affording its protection to one part of the union in preference to another, which may be invaded at the same time, seems to be provided against, by that part of this clause which guarantees such protection to each of them. So that every state which may be invaded must be protected by the united force of the confederacy. It may not be amiss further to observe, that every pretext for intermeddling with the domestic concerns of any state, under color of protecting it against domestic violence is taken away, by that part of the provision which renders an application from the legislative, or executive authority of the state endangered, necessary to be made to the federal government, before its interference can be at all proper. On the other hand, this article secures an immense acquisition of strength; and additional force to the aid of any of the state governments, in case of an internal rebellion or insurrection against its authority. … The southern states being more peculiarly open to danger from this quarter, ought to be particularly tenacious of a constitution from which they may derive such assistance in the most critical periods.
7. All debts contracted, and engagements entered into, before the adoption of the constitution, are declared to be as valid against the United States under the same, as under the confederation. This declaration was probably inserted for the satisfaction, as well as the security of the public creditors, both foreign and domestic. The articles of confederation contained a similar stipulation in respect to the bills of credit emitted, monies borrowed, and debts contracted, by or under the authority of congress, before the ratification of the confederation. These declarations are merely acknowledgments of that which moral obligation imposed upon the United States as a duty. It might seem as if this act prohibited the making of any act of limitation in bar of such debts; but a different interpretation has been given to it by congress. L.U.S. 2 Cong. 2 Sess. c. 6.
8. The ratification of the conventions of nine states was declared to be sufficient for establishing the constitution between the states ratifying the same.
This article may now be regarded of little importance, the constitution having been ratified by all the members of the former confederacy. … Had it been otherwise, after nine states had ratified the constitution, it might have been a question of some delicacy, in what relation those which failed to ratify, stood to the others which had. The adoption of the constitution and the establishing a new form of government by nine states only, would have been an undoubted breach of the articles of confederation, on their parts:99 the remaining states might, at their election, have considered the confederacy as dissolved, or not. If they considered it as dissolved, they would have stood in the relation of other foreign states. If as still existing, they would have had a right to insist upon the performance of all mutual stipulations on the part of the other states, so long as they continued to perform their own, with good faith. The Federalist advances a different opinion: Happily for the United States it is now unnecessary to discuss the question any further.
9. The constitution, and the laws of the United States, made in pursuance of it; and all treaties made, and to 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.
It may seem very extraordinary, that a people jealous of their liberty, and not insensible of the allurements of power, should have entrusted the federal government with such extensive authority as this article conveys: controlling not only the acts of their ordinary legislatures, but their very constitutions, also.
The most satisfactory answer seems to be, that the powers entrusted to the federal government being all positive, enumerated, defined, and limited to particular objects; and those objects such as relate more immediately to the intercourse with foreign nations, or the relation in respect to war or peace, in which we may stand with them; there can, in these respects, be little room for collision, or interference between the states, whose jurisdiction may be regarded as confided to their own domestic concerns, and the United States, who have no right to interfere, or exercise a power in any case not delegated to them, or absolutely necessary to the execution of some delegated power. That, as this control cannot possibly extend beyond those objects to which the federal government is competent, under the constitution, and under the declaration contained in the twelfth article, so neither ought the laws, or even the constitution of any state to impede the operation of the federal government in any case within the limits of its constitutional powers. That a law limited to such objects as may be authorized by the constitution, would, under the true construction of this clause, be the supreme law of the land; but a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void. A further answer seems also to be, that without this provision the constitution could not have taken effect in those states where the articles of confederation were sanctioned by the constitution; nor could it be supposed that the constitution of the United States would possess any stability so long as it was liable to be affected by any future change in the constitution of any of the states. Other reasons are assigned by the Federalist, for which I shall refer the student to that work.100
10. The senators and representatives in congress, and the members of the several state legislatures, and all executive and judicial officers of the United States, and of the several states, shall be bound by oath or affirmation to support the constitution.
That all those who are entrusted with the execution of the powers vested in the federal goverment, should, under the most solemn sanction, be bound to the due execution of the trusts reposed in them, could not be doubted. But the propriety of requiring a similar engagement from the members of the state legislatures, and the other public functionaries in the several states, was doubted. But it should be remembered, that the members and officers of the state governments will have an essential agency in giving effect to the federal government. The election of the senate depends upon the immediate agency of the state legislatures. In some of the states the electors for president and vice-president are chosen in the same manner. In all, the legislature must direct the mode in which they shall be appointed. The election of representatives must probably depend upon them also for aid; at least until congress shall pass a general law upon the subject. The judges of the state courts will not infrequently have to decide according to the constitution and laws of the United States. Decisions ought to be uniform, whether had in the federal courts, or the state courts. This uniformity can only be obtained by uniformity of obligation. The executive authority of the states will also have an immediate agency in the appointment of senators, in case of vacancy during the recess of the legislature: in issuing writs of election to fill up vacancies in the house of representatives; in giving effect to the laws for calling the militia into the service of the United States; in officering the militia, and a variety of other occasions, all of which required that no adverse spirit, nor doubts of authority, or obligation, should be permitted to counteract, or retard the necessary operations of the federal government.
11. Lastly; the fifth article provides the mode by which future amendments to the constitution may be proposed, discussed, and carried into effect, without hazarding a dissolution of the confederacy, or suspending the operations of the existing government. And this may be effected in two different modes: the first on recommendation from congress, whenever two thirds of both houses shall concur in the expediency of any amendment. The second, which secures to the states an influence in case congress should neglect to recommend such amendments, provides, that congress shall, on application from the legislatures of two thirds of the states, call a convention for proposing amendments; which in either case shall be valid to all intents and purposes as part of the constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode, of the ratification may be proposed by the congress. Both of these provisions appear excellent. Of the utility and practicability of the former, we have already had most satisfactory experience. The latter will probably never be resorted to, unless the federal government should betray symptoms of corruption, which may render it expedient for the states to exert themselves in order to the application of some radical and effectual remedy. Nor can we too much applaud a constitution, which thus provides a safe, and peaceable remedy for its own defects, as they may from time to time be discovered. A change of government in other countries is almost always attended with convulsions which threaten its entire dissolution; and with scenes of horror, which deter mankind from any attempt to correct abuses, or remove oppressions until they have become altogether intolerable. In America we may reasonably hope, that neither of these evils need be apprehended; nor is there any reason to fear that this provision in the constitution will produce any degree of instability in the government; the mode both of originating and of ratifying amendments, in either mode which the constitution directs, must necessarily be attended with such obstacles, and delays, as must prove a sufficient bar against light, or frequent innovations. And as a further security against them, the same article further provides, that no amendment which may be made, prior to the year one thousand eight hundred and eight, shall, in any manner, affect those clauses of the ninth section of the first article, which relate to the migration or importation of such persons as the states may think proper to allow; and to the manner in which direct taxes shall be laid: and that no state, without its consent shall be deprived of its equal suffrage in the senate.
Among the amendments proposed by the several state conventions, some appear to have been proposed only for greater precaution, and security against misconstruction, or an undue extension of the powers vested in the federal government; whilst others seem to have been calculated to remedy some radical defects in the system.101 The most important of those which have not yet received the approbation of both houses of congress may not improperly be brought into view in this place, although we have occasionally offered some remarks upon several of them in other parts of this essay.
1. That some tribunal other than the senate be provided for trying impeachments of senators. … This amendment seems to be the more necessary in consequence of the decision in William Blount’s case, that a senator is not a civil officer, and therefore not impeachable. On this subject we have already spoken somewhat at large.
2. That some reform be made, in the mode of choosing a president of the United States in those cases where the election may now devolve upon the house of representatives.
The necessity of such a reform, and the danger to which the federal union, may be exposed if it be not effected, have been brought into full view by the struggle between two parties almost equally balanced, at the election of a president of the United States in the year 1801. On this subject also, we have offered some remarks elsewhere. I shall only add, that sound policy would dictate that no president should be capable of being re-elected, that had not a majority of the whole number of votes of the state electors, in his favor; and that no preponderance ought to be given to the vote of one member of the house of representatives over that of another.
3. That all commercial treaties, and such whereby any cession of territory or of jurisdiction, or the right of fishing upon the coasts of the United States, or of the adjacent continent and islands, be made subject to the final ratification of congress, before they shall be deemed conclusive, on the part of the United States.
4. That the judiciary power of the United States be not construed to extend to any civil suit, where the cause of action was not originally cognizable in the federal courts; nor to any crime or misdemeanour whatsoever, which is not defined, and the punishment thereof prescribed, either in the constitution of the United States, or in some act of congress, made pursuant thereto; except the same be committed out of the jurisdiction of any particular state, and within the exclusive jurisdiction of the federal government.
The reasons for some further limitation of the judicial power of the United States have been repeatedly touched upon, already; some further reasons will be offered hereafter in the tract, upon the authority and obligation of the common law of England, in the United States. At the conclusion of the latter the student will find the sentiments of the general assembly of Virginia, upon that important subject, as connected with the extent of the judicial power of the United States; expressed in the most nervous language, that a just apprehension of the fatal consequences to be expected from the doctrine, that the common law of England has been adopted as the law of the federal government, could dictate.
5. That the articles which relate to direct taxes, and excises, might if possible be so modified as to remove the objections which have been made to them, by the several states.
6. That the exclusive power of legislation over the seat of government, &c. be limited to such regulations as respect the police and good government thereof.
7. That congress shall not alter, modify, or interfere in, the time, place, or manner, of holding elections for senators or representatives, except when the legislature of any state may neglect, or refuse, or be disabled by invasion or rebellion, to prescribe the same.
8. That no standing army, or regular forces, be kept up in time of peace, except for the necessary protection and defense of forts, dock yards, and arsenals, without consent of two thirds of both house of congress.
9. That congress shall not have power to grant monopolies, or to erect any companies with exclusive advantages of commerce.
10. That the president shall not command an army in person, without the consent, or desire of congress.
11. That congress shall not declare war, without the consent of two thirds of both houses.
12. That no law for the regulation of commerce, or navigation act, shall be made, unless with the consent of two-thirds of the members of both houses.
13. That the state legislatures may have power to recall, when they think it expedient, their senators, and to send others in their stead.
14. That the senators and representatives in congress shall be ineligible to any post or place under the United States during the term for which they were elected. … To which I will take the liberty of suggesting … “or for one year thereafter.”
The practical exercise of the federal government has evinced the indispensable necessity of an amendment upon this subject. It cannot be made too strict, or too rigorous. … The man who seeks a seat in congress, with the hopes by that means to retire upon a lucrative office, will be a venal sycophant towards those who have the power of fulfilling his wishes. We have seen that the most ready road to preferment in the federal government has been found to pass through the two house of congress; that offices have (almost invariably) been conferred on those, who have been the most distinguished supporters and promoters of the extension of the power and influence of the executive: that employments (lucrative in their nature) have been occasionally carved out for them, even during the time for which they have been elected.102 He that can doubt that political corruption unavoidably springs from such a source, may, if he pleases, doubt that animal putrefaction is produced by the combined action of air, heat, and moisture. But neither the real philosopher, nor the enlightened politician, will feed a doubt upon either of these questions.
I have now finished the survey of the constitution of the United States, which I proposed making in this essay. Attached, from principle, and confirmed in that attachment from past experience, to a federal union of the American States, and to the principles of a democratic government, I have probably regarded with a jealous eye those parts of the constitution which seem to savor of monarchy, or aristocracy, or tend to a consolidated, instead of a federal, union of the states. I have been equally zealous in my endeavours to point out the excellencies of the constitution, as to expose its defects: a sincere attachment to the former will always lead an ingenuous mind to a candid investigation, and correction of the latter. Happily for us, and for our country, this correction has been found to be practicable without hazard, without tumult, and without the smallest interruption to the ordinary course of administering the government.
To shut our eyes against this inestimable advantage which we possess, beyond any other nation in the universe, would be an unpardonable act of ingratitude to that divine being, under whose providence we have accomplished the great work of our independence, and the establishment of free government, in every state, and an union of the whole upon such a solid foundation, as nothing but our own folly, or wickedness, can undermine. The man who first espies any defect, or decay in the fabric, should, therefore, be the first to point it out; that it may be amended, before the injury which it may have occasioned is too great to be repaired. Those who, perceiving the defect, deny that it exists, or wilfully obstruct the amendment, are the real enemies of the constitution: its real friends ought to pursue a different conduct. Governments of force may be preserved for a time by an obstinate perseverance in the same course, however pernicious: but a government of the people hath no foundation but the confidence of the people: if that be withdrawn, the government inevitably falls.
The very elaborate and masterly discussion of the constitution, in the Federalist, to which I have repeatedly referred the student in the course of this essay, would probably have saved me the labour of this attempt, if the defects of the constitution had been treated with equal candour, as the authors have manifested abilities in the developement of its eminent advantages. But, notwithstanding, those letters are not altogether free from objectionable parts, yet the far greater proportion of them contain so just a commentary upon the principles of republican government, and of a federal union of the states, that I cannot too warmly recommend the perusal of them to those who wish to make themselves perfectly acquainted with a subject so truly interesting to every American citizen, as the federal government of the United States.
works used by tucker
[2.]Federalist, No. 9.
[3.]Editor’s note: Here, and throughout, Tucker, somewhat disconcertingly, refers to the Tenth Amendment as “the twelfth article of the amendments.” At the time he wrote his lectures, there were twelve proposed amendments current, two of which, however, were never ratified.
[4.]Editor’s note: Here Tucker quotes from the preamble of the congressional resolution proposing the amendments which became known as the “Bill of Rights.”
[6.]Editor’s note: From this point to the end of section 3, Tucker quotes directly from The Federalist, No. 39.
[9.]Had General Washington no other claim to the gratitude of his country, his conduct on that occasion, alone, would have entailed an unextinguishable debt of gratitude upon it, to all posterity.
[10.]To this ratification was annexed a copy of the new constitution.
[11.]Editor’s note: Here Tucker prints a twenty-item declaration of rights and twenty proposed amendments that Virginia attached to its ratification.
[12.]Editor’s note: Tucker does not identify the writer here any further, possibly because it was his brother, Thomas Tudor Tucker, whom he had quoted in earlier essays.
[13.]Virginia Bill of Rights.
[15.]Federalist, No. 32.
[17.]Speech of the late Patrick Henry, Esq., in the Virginia convention.
[19.]But now by the thirteenth article of the amendments [i.e., the Eleventh Amendment] to the C.U.S. the states have exclusive jurisdiction in these causes.
[20.]“The powers delegated by the proposed constitution of the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation and foreign commerce; with which last, the power of taxation will for the most part be connected. The powers reserved to the several states, will extend to all the objects, which in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state.” Federalist, No. 45.
[21.]See Federalist, No. 62.
[23.]Editor’s note: Here again, the unidentified writer is probably Thomas Tudor Tucker.
[24.]In the first session of the second Congress, the house of representatives passed a bill apportioning the number of representatives in the ratio of one for every thirty thousand. The Senate were equally divided upon this bill. Some of the members, though momently expected, being absent, the question was put, and carried by the decision of the vice president against the bill. If ever a case could be named under the constitution which seemed to belong solely to the representatives to determine, it was this. Editor’s note: For Tucker, as for all good Virginia Republicans, John Adams was guilty of monarchical aspirations.
[25.]On the advancement of learning.
[26.]Editor’s note: Tucker is here referring to Blackstone.
[27.]Mackintosh’s defence of the French revolution.
[28.]George Nevil, duke of Bedford, was degraded by act of parliament, because of his poverty.
[29.]Mackintosh on the French revolution.
[30.]The greatest characters the world has known, have risen on the democratic floor. Aristocracy has not been able to keep a proportionate place with democracy. The artificial noble shrinks into a dwarf before the noble of nature. Paine’s Rights of Man.
[31.]An alien applying to be admitted to citizenship in the United States, who shall have borne any hereditary title, or been of any of the orders of nobility, in any other kingdome or state, must make an express renunciation thereof, in court, at the time of his admission. Laws of the U.S., 3rd Congress.
[32.]The right of primogeniture to the inheritance of virtue and talents, has always appeared to be questionable, if we may draw our conclusion from the authority of the sacred scriptures. The first born son of the first man, was a murderer. The first born son of Abraham, (by a concubine it must be confessed,) was an outcast from society; his hand was against every man, and every man’s hand against him. … The first born son of Isaac was, by the dispensations of the divine providence, postponed to his younger brother: the first born of Jacob went up into his father’s bed, and defiled it: and the sceptre was transmitted to the race of Judah; the first born of Jesse, appeared worthy in the sight of the prophet, but he, with six of his brethren, was rejected in favour of David the youngest: and the first born of that same David, was by the same providence set aside in favour of Solomon his youngest son.
[34.]The temporal peers of Great-Britain are said to amount to two hundred and twenty at this time.
[36.]The bill for apportioning representatives among the states, was negatived by the president, as contrary to constitutional principles. A new bill was afterwards introduced and passed, there not being a majority of two thirds of either house, in favour of the former.
[38.]Editor’s note: Actually, in 1801 Jefferson had discontinued the “monarchical” practice of the president visiting the Congress in person, but had simply sent a written message. Jefferson’s example was followed by every president until Woodrow Wilson.
[39.]See De Lolme.
[41.]Stuart’s Political Economy.
[42.]The preceding investigation of this subject, was made about two years before congress passed the act imposing duties upon carriages for the conveyance of persons. The tax was opposed in Virginia as unconstitutional, because the sum to be raised was not first apportioned among the states. A suit was brought in the federal court in Virginia; the judges were divided in opinion, and the case, by consent, was carried to the supreme federal court; it was there decided that the tax was not correct; and consequently that no apportionment was necessary. United States vs. Hylton. The editor’s reasoning upon this subject, must therefore be regarded by the student as merely hypothetical, and speculative.
[43.]Direct taxes have been more than once proposed in congress: but the strenuous opposition to them leaves reason to believe that a maritime war, alone, will overcome the repugnance to them. Happy for America, if this repugnance should always operate so strongly, as to make her avoid such an occasion for them.
[44.]See Federalist, No. 44.
[45.]See Federalist, No. 36.
[46.]Editor’s note: Tucker here anticipates the Southern complaints against the protective tariff, which came to a head in the early 1830s.
[47.]“Though the law for laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controled, yet a law for abrogating or preventing the collection of a tax laid by the authority of a state, unless upon exports or imports, would not be the supreme law of the land, but an usurpation of power not granted by the constitution. … The inference upon the whole is, that under the proposed constitution the individual states would retain an independent and uncontrolable authority to raise revenue to any extent, of which they may stand in need, by every kind of taxation, except duties on exports and imports.” Federalist, No. 33.
[48.]“As to the suggestion of double taxation, the answer is plain. The wants of the union are to be supplied in one way or another: if it be done by the authority of the federal government, it will not be done by that of the state governments. The quantity of taxes to be paid by the community must be the same in either case.” Ibid.
[49.]The constitution of the United States does not authorise congress to regulate, or in any manner to interfere with, the domestic commerce of any state. Consequently, a vessel wholly employed in that domestic commerce, seems not to be subject to the control of the laws of the United States. Those laws may certainly provide for the punishment of such persons, and confiscation of such vessels, as may be detected in giving aid and assistance to any fraudulent commerce, either with foreign parts, or between the states; they may also prescribe, or limit the terms and conditions, upon which vessels may be permitted to trade with foreign parts, or with other states: but they seem to have no constitutional right to control the intercourse between any two or more parts of the same state.
[50.]Message from the President of the U.S. to the House of Representatives, March 30, 1796.
[51.]Federalist, No. 42.
[52.]See a letter of George Nicholas, Esq. on the Alien and Sedition laws.
[53.]In Virginia, farmers generally cultivate their own lands. It may be otherwise in the northern states.
[54.]Consequently every bill for this purpose, or for any other by which a revenue may be raised, should originate in the house of representatives. Yet I am very much mistaken if a recurrence to the early journals of the senate of the United States, would not prove, that the several acts for establishing the post-office; for regulating the value of foreign coins, and for establishing a mint, all originated in the senate. The reason of the acquiescence of the house of representatives on these occasions, probably was, that no revenue was intended to be drawn to the government by these laws: whereas strictly speaking, a revenue is raised by the act establishing the mint; equal to one half per centum, as an indemnification to the mint for the coinage: and in the case of the bill for establishing the post-office, there can be no room to doubt that it operates as a revenue law, and that, to a very considerable amount.
[55.]On the 24th of March, 1796, the house of representatives requested the president to lay before the house his instructions to Mr. Jay, together with the correspondence and other documents relative to the treaty with Great Britain, which he refused to do, upon the ground, that the house had no constitutional participation in the business of making treaties; to which he adds the following: “If other proofs than these, and the plain letter of the constitution itself be necessary to ascertain the point under consideration, they may be found in the journals of the general convention, which I have deposited in the office of the department of state. In those Journals, it will appear, that a proposition was made, that no treaty was binding on the United States which was not ratified by a law, and that the proposition was explicitly rejected.”
[56.]See the report of Mr. Secretary Hamilton on this subject.
[57.]See the resolution of congress respecting the copper-mines on the south side of Lake Superior. April 16, 1800. … A bill for establishing a mine, mineral, and metal company, was brought into congress the next session, (as I have understood) but miscarried.
[58.]See the opinion delivered by Judge Chase, in the federal circuit court of Pennsylvania, in the case of the United States vs. Worrel.
[59.]This is certainly the spirit of the constitution; but in the practical exercise of the functions of the president of the United States, it may be found to be in the power of that magistrate to provoke, though not to declare war. Editor’s note: Here as elsewhere, Tucker seems remarkably prophetic.
[60.]This restriction has proved illusory in practice; though congress are restricted from making any appropriation for the support of an army for more than two years, they have supposed themselves authorised to enlist an army for any period they may think proper, even in times of peace.
[61.]They were afterwards limited to 75,000 men.
[62.]Federalist, No. 43.
[63.]Report of the Secretary of the Treasury, Dec. 18, 1801.
[64.]Report of Mr. Secretary Hamilton, to congress, January 19, 1795.
[65.]See Price’s Observations on the American Revolution.
[66.]See the Federalist, No. 33, and 44.
[67.]Witness, the act for establishing a bank; the act authorising the president to appoint officers to volunteer corps of militia; the act declaring that a paper not stamped agreeably thereto, shall not be admitted as evidence in a state court; the alien and sedition laws, &c. “not to multiply proofs on this subject, it may be sufficient to refer to the debates of the federal legislature, for several years, in which arguments have, on different occasions, been drawn with apparent effect from these phrases, in their indefinite meaning.” See report of the committee of the general assembly of Virginia, on the alien and sedition laws, January 20, 1800.
[68.]Preamble to the amendments proposed by the 1 Cong. 1 Sess.
[69.]De Lolme on the English constitution.
[70.]Letter from the American envoys to the French minister of foreign affairs. This nervous passage bespeaks its author; a gentleman who now fills the highest judicial office under the federal government.
[71.]Report of the committee of congress, on the petitions for repeal of the alien and sedition laws; February 25, 1799.
[72.]Report of the committee of the general assembly of Virginia, January 20, 1800.
[73.]Report of the committee of congress, February 25, 1799.
[74.]Report of the committee of the general assembly of Virginia, on the alien and sedition laws, January 20, 1800.
[75.]Resolutions of the general assembly of Virginia, December 21, 1798. Also the resolution of the general convention of Virginia, ratifying the constitution of the U. States.
[77.]It may be demonstrated, that twenty representatives, at the last election of a president and vice-president, might have carried the election against eighty-six: this supposes all the small states to have voted together.
[78.]L.U.S. 5 Cong. c. 64. The establishment of a large corps of officers, to be provisionally employed, might be compared to the establishment of the Legion of Honour, in France. The corps of volunteers, the officers of which were likewise to be appointed by the president, alone, may be regarded in the same light. Can it be doubted that such distinguished marks of presidential favour, must produce correspondent effects? Men ambitious of distinctions, are rarely ungrateful to their patrons in power.
[80.]See the trial of William Blount, upon an impeachment, in which it was decided that a senator is not a civil officer within the meaning of the constitution of the United States, and therefore not liable to be impeached. January 7, and 10, 1799.
[81.]And as a conviction upon an impeachment, is no bar to a prosecution upon an indictment, so perhaps an acquittal may not be a bar.
[82.]Resolution of the house of representatives, April 6, 1796.
[83.]Such a doctrine appears to have been strenuously advocated in congress, some years ago. See debates on the treaty making power: March and April 1796.
[84.]See the speech of Mr. Gallatin on the foreign intercourse bill; by which it appears that the patronage of the executive amounted in March, 1798, to the enormous sum of two millions of dollars, annually. It is probably not less at this day, notwithstanding the immense changes that have been made.
[85.]Editor’s note: Tucker here anticipates what Andrew Jackson was to make a regular practice.
[86.]Montesquieu’s Spirit of Laws. Grotius.
[88.]The occasion here alluded to, was the president’s proclamation of neutrality in June, 1793. This was merely an admonition, to the people of the U. States, of the duty imposed on them by the law of nations, and an annunciation of the fact that we were at peace with all nations. Both houses of congress in the addresses to the president approved of the proclamation. 3 Cong. 1 Session.
[89.]The proclamation of the two former presidents recommending fasting and prayer, were of this nature; they were an assumption of power not warranted by the constitution, or rather prohibited, by the true spirit of the third article of the amendments. Some persons excused the act as amounting only to the advice of the president as an individual. Why then was it clothed with all the forms of authority, the seal of the United States, and the attestation of the secretary of state?
[90.]The papers in the Federalist, on the subject of the judiciary of the United States, are, in general, equal to any that will be found in that publication.
[92.]The several conventions of Massachusetts, New Hampshire, Rhode-Island, New York, Virginia, and North Carolina, proposed amendments in this respect.
[93.]By the constitution of the United States, “no money can be drawn from the treasury, but in consequence of appropriations made by law.” How shall an individual having a judgment against the United States, in his favour, recover his money, if the legislature chuse to keep him out of it? The case seems to be equally as bad in the state governments.
[94.]Much is it to be regretted that a similar conduct towards the judges of the courts of the United States, has not prevailed in the federal government. Already have we seen two chief justices of the United States, whose duties cannot, certainly, be performed in foreign parts, appointed envoys to distant nations, and still holding their offices in the supreme court of the federal government; offices altogether incompatible, yet held at the same time in manifest violation of every constitutional principle. For surely nothing is more incompatible with the nature of the federal government, than to suppose an office of such high trust and responsibility to have been intended as a sine cure; much less that it could have been intended as the means of extending executive influence, or of shielding the president against the effect of an impeachment. For what could more effectually strengthen the hands of an usurping president, than the power of sending into an honourable exile, the very officer whom the constitution expressly requires to preside at his trial, in case of his impeachment? To preserve the lustre of judicial purity, perfectly unsullied, it seems necessary, by an express amendment of the constitution, to disqualify the federal judges from appointment to any other than a judicial office; since such appointments have a natural tendency to excite hopes, and secure compliance, from the prospect or expectation of additional emolument, accumulated honours, or greater pre-eminence of station.
[95.]On the trial of Mr. Thomas Cooper, in the federal circuit court in Pennsylvania, for a libel against the president of the United States, under the sedition law, it is said, that Mr. Cooper applied to the court for a subpoena to summon the president as a witness in his behalf, and that the court refused to grant one. Upon what principle the application was refused, (notwithstanding this article) I have never been able to obtain satisfactory information. The case was certainly delicate, and might have been perplexing.
[96.]Federalist, No. 78.
[97.]See the act of 7 Cong. repealing the act of the preceding congress for the more convenient organization of the courts of the United States, and the debates thereon.
[98.]It hath been said on the floor of the house of representatives of the United States, “that it had been repeatedly decided, that the United States would not permit themselves to be brought into their own courts.” The editor had supposed that that clause of the constitution, which declares that “the judicial power shall extend to all cases, in law and equity, arising under the constitution,” &c. had prescribed a different rule of decision. Nor can he, even now, form a different opinion upon the subject; believing that there is as much reason that a legal or equitable claim against the United States, should receive a judicial discussion, and decision, as any similar claim which might be made on their behalf. And though he doubts, as to the mode in which a judicial enquiry into the justice of a pecuniary claim against them may be instituted, yet he cannot doubt that the constitution meant to afford the right to every citizen of the United States.
[99.]“The articles of this confederation shall be invioably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the United States, and be afterwards confirmed by the legislatures of every state.” Art. 13.
[100.]Federalist, No. 33, No. 44.
[101.]The following amendments were proposed by one or more of the following states; viz. Virginia, New-York, North-Carolina, Massachusetts, New Hampshire, Rhode-Island, or South-Carolina, in convention; or may be found in an address to the people of Maryland, or the proceedings at Harrisburg in Pennsylvania. The whole being collected in Carey’s Museum, Vol. 3, 4, 7, and 8, to which I must refer the student.
[102.]The mission of a senator, during a recess of congress, to visit the western posts, with a salary of eight dollars a day, and his expences paid, may serve as an instance of this practice.