UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 


 
 COURSE OF LECTURES 
 
 CONSTITUTIONAL JURISPRUDENCE 
 
 UNITED STATES 
 
 DELIVERED ANNUALLY IN COLUMBIA COLLEGE, NEW YORK, 
 
 WILLIAM ALEXANDER DUER, LL.D., 
 
 M 
 
 LATE PRESIDENT OF THAT INSTITUTION. 
 
 THE SECOND EDITION, 
 
 REVISED, ENLARGED, AND ADAPTED TO PROFESSIONAL AS WELL 
 AS GENERAL USE. 
 
 Eat omnibus necessarium nosse Bempublicam. Cic. 
 
 BOSTON: 
 LITTLE, BROWN AND COMPANY. 
 
 1856.
 
 Entered according to Act of Congress, in the year 1856, by 
 
 WILLIAM ALEXANDER DUER, 
 In the Clerk's Office of the District Court of the District of New Jersey. 
 
 RIVERSIDE, CAMBRIDGE: 
 PRINTED BY H. O. HOUGHTON AND COMPANY.
 
 
 ADVERTISEMENT 
 
 THE favorable reception given to the former edition of the 
 following work, has encouraged the author to devote to its 
 revision the health and leisure vouchsafed to his declining 
 years. By a more frequent and extensive citation of authori- 
 ties, he has endeavored to impart to it a more professional 
 aspect and authentic character. He has added the most im- 
 portant subsequent decisions upon constitutional questions, both 
 of the Federal and State Courts, down, as nearly as possible? 
 to the present time, and included many earlier cases not noticed 
 on the former occasion as not falling within a plan adapted 
 merely to a particular and limited purpose. Thus has he at- 
 tempted to render the production more acceptable to the 
 judicial, as well as more useful to the general scholar, and to 
 afford indeed to all, and especially to those foreigners who may 
 desire information in regard to our political institutions, the 
 means of acquiring it in a compendious and convenient form. 
 
 If in this he has succeeded, he trusts he may in some meas- 
 ure have discharged the debt which, according to Lord Coke, 
 every man owes to his profession, in this case, the double 
 duty of the Lawyer and the Teacher. 
 
 INGLEWOOD, near Morristown, N. J., 
 August 1, 1856.
 
 DEDICATION OP THE " OUTLINES," PUBLISHED PREVIOUSLY TO 
 THE LECTURES AT LARGE. 
 
 TO JAMES MADISON. 
 
 To you, Sir, as the sole surviving member of the august assembly 
 that framed the Constitution, and of that illustrious triumvirate, who, 
 in vindicating it from the objections of its first assailants, succeeded 
 in recommending it to the adoption of their country ; to you, "who, 
 in discharging the highest duties of its administration, proved 
 the stability and excellence of the Federal Constitution, in war, as 
 well as in peace, and determined the experiment in favor of repub- 
 lican institutions, and the right of self-government ; to you, who in 
 your retirement, raised a warning voice against those heresies in the 
 construction of the Constitution which, for the moment, threatened to 
 impair it ; to you, Sir, as alone among the earliest and the latest of 
 its defenders, this brief exposition of the organization and principles 
 of the National Government, intended especially for the instruction 
 of our American youth, is most respectfully, and, in reference to 
 your public services, most properly, inscribed. 
 
 W. A. DUER. 
 
 Columbia College, N. Y., August 1, 1833.
 
 DEDICATION OF THE FIRST EDITION OF THE LECTURES. 
 
 TO JAMES KENT, LL.D. 
 
 MY DEAR SIR, 
 
 Relying for forgiveness upon "an uninterrupted possession" of 
 your friendship " of more than twenty years, under color" at least 
 "of title," I venture, without your knowledge or consent, to inscribe 
 to you a Treatise on the Constitutional Jurisprudence of the United 
 States. In this act, I do but make restitution of your own property, 
 or, perhaps, to express myself more properly, tender payment for 
 the use of it ; for you will soon discover that, next to the contempo- 
 raneous expositions of the authors of " The Federalist," I have drawn 
 my materials more largely and freely from your " Commentaries," 
 and the lucid and deep investigations of the late Chief Justice Mar- 
 shall, than from any other sources. And although the responses of 
 that great oracle of the Constitution have ceased, yet, may we hope 
 that the inspiration will not be withdrawn, whilst your correspond- 
 ing adjudications and opinions shall be quoted as authority in the 
 Court wherein he so long and auspiciously presided. 
 
 That you may continue, my dear Sir, to enjoy to the last the same 
 vigor and activity of mind and body which distinguishes you at an 
 age approaching the utmost limit assigned to man's earthly pilgrimage, 
 is the fervent prayer of 
 
 Tour faithful, constant, and hereditary * friend, 
 
 W. A. DUER. 
 
 Morristown, N. J., May 1, 1843. 
 
 P. S. Since the publication of the former edition of these Lectures, 
 the venerable and profound Jurist to whom they were dedicated, has 
 
 1 See Appendix D.
 
 vill DEDICATION. 
 
 departed this life, and joined, as we may humbly hope, his great 
 contemporary in the Courts above. His declining years were spent in 
 dignified retirement, in the consciousness of a well-spent life, and the 
 exercise of those Christian virtues, and the performance of those 
 Christian duties which promised him an immortality far more glorious 
 than that which will attend his works. 
 
 It will not, it is trusted, be deemed incompatible with the character 
 of this work to subjoin what was intended, by an anonymous author, 
 as an Epitaph for the late Chief Justice of the United States, fol- 
 lowed by some other verses from the same hand, the concluding 
 triplet of which might serve the same purpose for the former Chan- 
 cellor of the State of New York. 
 
 " Beneath this stone, within this narrow grave, 
 
 In hope that God's free grace his soul will save, t t 
 
 Lies what was mortal of as pure a mind, 
 
 As e'er illumed an age, or blest mankind: 
 
 Wise, and accomplished in all human lore, 
 
 Yet ever prompt his frailty to deplore ; 
 
 Born to instruct, to rear, uphold a State, 
 
 And teach that Justice stamps a People great, 
 
 MARSHALL'S ambition was his Country's weal, 
 
 And on her legal code to fix his seal : 
 
 As self-unconscious he obtained renown, 
 
 Disclaiming worth or merit of his own, 
 
 So, for acceptance in the Courts above, 
 
 He vouched his Maker's word, his Saviour's love. 
 
 Another still survives, worthy alone 
 
 To bear the mantle of the one that's gone; 
 
 Though now retired in dignity and ease, 
 
 And full of years, his body no disease, 
 
 His mind no torpor knows, nor amorphy ; 
 
 Both active still, and active still to be. 
 
 Free from the crowd, the bustle, and the strife, 
 
 He hails the passing hour, awaits a better life : 
 
 Ah ! who would wish a nobler monument, 
 
 Than that which rises from a life well spent, 
 
 And bears for Epitaph the name of KENT? "
 
 TO JOHN DUER, LL.D. 
 
 IN dedicating this edition of a Treatise on Constitutional Law to 
 you, my brother, I am determined not less by what is due to your 
 Judicial character, than by the friendship and affection that, for more 
 than threescore years and ten, has existed unbroken between us. 
 
 W. A. DUER. 
 
 Inglewood, August 1, 1856.
 
 PREFACE 
 
 TO THE FIRST EDITION. 
 
 IN submitting the following work to the public, there 
 seems a necessity, as well as a propriety, in offering a 
 preliminary* explanation of its character and design; 
 especially as he whose name it bears claims neither the 
 merit of originality for his production, nor the title of 
 author for himself. The present publication consists 
 substantially of the Course of Lectures on the Consti- 
 tutional Jurisprudence of the United States, delivered 
 annually to the Senior Class in Columbia College, 
 while he had the honor of presiding in that venerable 
 and noble institution. The " OUTLINES " of those Lec- 
 tures were published some years ago, at the request of 
 " THE AMERICAN LYCEUM," an association consisting 
 principally of persons engaged in the practical duties of 
 instruction, who conceived that the study of our na- 
 tional Constitution might be introduced with advantage 
 into the general system of public education. That little 
 treatise, accordingly, appeared in a form adapted to the 
 views of those who had suggested its Reparation ; 
 which were, fitness as a text-book for lecturers, a class- 
 book for academies and common schools, and a manual 
 for popular use. Except, therefore, " as to method and 
 arrangement," as was observed in issuing it from the 
 press, " there could be little scope for originality in a 
 work of which the essential value must depend on the 
 fidelity with which the provisions of the Constitution,
 
 Xll PREFACE. 
 
 the Legislative enactments for giving it effect, and the 
 Judicial construction which both have received, are 
 stated and explained." The same remark may be re- 
 peated in reference to the present publication, and a 
 similar disclaimer made as to its pretensions to origi- 
 nality. On the present occasion the author has again 
 " implicitly followed those guides, whose decisions are 
 obligatory and conclusive, upon such points as have 
 been definitively settled" by judgments of the Supreme 
 Courts of the United States ; while " upon questions 
 which have arisen in public discussion, but have neither 
 been presented for Judicial determination nor received 
 an approved practical construction from the other 
 branches of the Government, be has had recourse to 
 those elementary writers whose opinions are acknowl- 
 edged to possess the greatest weight, either from their 
 intrinsic value, or their conformity with .the general 
 doctrines of the authoritative expounders of the Con- 
 stitution; and in the absence of both authority and 
 disquisition, he has ventured to rely on his own reason- 
 ings, and has advanced his own opinions so far only as 
 he conceives them to be confirmed by undeniable prin- 
 ciples, or established by analogous cases." 
 
 The remaining sources drawn from on that occasion, 
 have been resorted to again ; and he now repeats the 
 acknowledgment of his obligations, not only to the 
 illustrious triumvirate whose combined labors were 
 embodied in " THE FEDERALIST," to Chief Justice Mar- 
 shall, and to Chancellor Kent, but also to Mr. Rawle's 
 " View of the Constitution," and to the elaborate and 
 voluminous " Commentaries " of the learned, ingenious, 
 and indefatigable Mr. Justice Story. 1 The same obser- 
 vation maji b, e repeated as to the different views taken 
 in this work, as well as in its precursor, from those 
 exhibited in the elementary treatises of the two former ; 
 with regard, in the one case, to the supremacy, and, in 
 the other, to the perpetual obligation of the Federal 
 
 1 The author has also to acknowledge his obligation to Joseph 
 Blunt, Esq., for this historical sketch of the Constitution in his Annual 
 Register.
 
 PREFACE. xiii 
 
 Constitution. On both these important points the 
 author still adheres to principles more favorable, as he 
 believes, to the powers and stability of the National 
 Government. He did not, however, at that time, nor 
 does he now, venture to differ from such eminent jurists, 
 without being supported by the opinions of some of 
 the most distinguished statesmen of the day, of different 
 parties by the author of the celebrated Proclamation 
 of President Jackson against the anti-federal proceed- 
 ings in South Carolina, and the speeches of Mr. Web- 
 ster in vindication of its doctrines ; nor without being 
 sanctioned by the judicial authority of the late Chief 
 Justice expressly upon one of the points in question r 
 and virtually upon the other, by his affirmance of prin- 
 ciples which it involves, and by which its decision must 
 eventually be governed. 
 
 In again referring to the venerated name of Chief 
 Justice MARSHALL, the author can but reiterate his 
 former wish to be " understood, on this and all other 
 occasions, as adopting his individual opinions, not less 
 from deference to their official authority, than from the 
 conviction wrought by the luminous and profound rea- 
 sonings by which they are elucidated and supported. 
 As this eminent and revered judge has himself declared 
 it auspicious to the Constitution and to the country 
 that the new government found such able advocates 
 and interpreters as the authors of ' THE FEDERALIST,' 1 
 so it may be regarded as one of the most signal advan- 
 tages attending its career, that its principles should have 
 been developed and reduced to practice under a judicial 
 administration so admirably qualified, in every respect,, 
 to expound them truly, and firmly to sustain them." 
 Since this feeble tribute to his wisdom and virtues, this 
 great judicial magistrate has been summoned to the bar 
 of a higher than any earthly tribunal, there to receive, 
 we may be certain, that justice, tempered with mercy, 
 
 1 To the American reader it cannot be necessary to name them. 
 But for the benefit of others, their names are added. Alexander 
 Hamilton, James Madison, and John Jay. 
 
 b
 
 XIV PREFACE. 
 
 which was the exemplar of his own administration ; 
 and to obtain, as we may hope, from the favor of his 
 God, the reward due to his public services and private 
 worth. There needs no monument to perpetuate the 
 memory of his virtues but the record of his services. 
 These, too, may serve as the fairest monument of the 
 great political party of which he was the ornament and 
 the boast. But if to designate the spot of earth conse- 
 crated to his remains, a tablet be required, let it be as 
 simple and massive as was his mind, and let it be in- 
 scribed, " HERE LIES THE LAST OF THE FEDERALISTS." 
 
 Since the period referred to, the statesman to whom 
 the work was dedicated the last surviving member 
 of that august assembly that formed the Constitution, 
 and sole remaining luminary of that bright constellation 
 of genius and talent, which, in vindicating that instru- 
 ment from the objections of its first assailants, suc- 
 ceeded in recommending it to the adoption of the 
 people ; he who, in discharging the highest duties of its 
 administration, proved the stability and excellence of 
 the Constitution in war as well as in peace, and deter- 
 mined the experiment in favor of Republican institu- 
 tions and the right of self-government ; and, in his 
 retirement, raised a warning voice against heresies in 
 the construction of the national compact, which, for a 
 moment, threatened to overthrow it has also disap- 
 peared from among us, full of years and honors. The 
 enumeration of such services recalls the name of Madi- 
 son ; and great as were those services, honored as was 
 that name, the brightest glory that attends them both 
 springs from the association of his genius, his learning, 
 and his labors, with those of his once kindred spirits, 
 HAMILTON and JAY. " Vita enim mortuorum, vi unita 
 fortior, in memoria vivorum est posita" 
 
 Morristown, N. J., May 1, 1843.
 
 ANALYSIS. 
 
 Introduction. 
 
 I. Definition and origin of political Constitutions, as derived, 
 
 1. From tradition, or the act of the Government itself. 
 
 2. From written fundamental compacts. 
 Either of which may be formed, 
 
 1. On a simple principle of 
 
 1. Monarchy. 
 
 2. Aristocracy. 
 
 3. Democracy. 
 
 2. Or combine these three forms in due proportions, by 
 means of the principle of representation, applied, 
 
 1. To the powers of Government ; which are, 
 
 1. The Legislative. 
 
 2. The Executive. 
 
 3. The Judicial. 
 
 2. To the persons represented in the Government. 
 
 II. Foundations of representative Governments were laid, 
 
 1. Partially, in the British Colonies, in which were established, 
 
 1. Royal Governments. 
 
 2. Proprietary Governments. 
 
 2. Universally, in the American States, upon the establishment 
 of independent Governments, which secured the enjoyment of, 
 
 1. The inalienable natural rights of individuals. 
 
 2. The political and civil privileges of the citizens, designed 
 for maintaining, or substituted as equivalents for, natural 
 rights.
 
 XVI ANALYSIS. 
 
 III. The same fundamental principles were recognized and adopted 
 upon the establishment of a Federal Government by the people of 
 the several States. 
 
 1. In regard to the principle of representation, as applied, 
 
 1. To the three great departments of Government. 
 
 2. To the individual citizens of the United States, and to 
 the several States of the Union. 
 
 2. In regard to the distribution of the powers of Government, as 
 the Constitution of the United States contains, 
 
 1. A general delegation of the Legislative, Executive, and 
 Judicial powers to distinct departments ; and, 
 
 2. Defines the powers and duties of each department re- 
 spectively. 
 
 OUTLINES of that branch of Jurisprudence which treats of the 
 principles, powers, and construction of the Constitution, are there- 
 fore to be traced, 
 
 FIRST. With regard to the particular structure and organization 
 
 of the Government. 
 SECOND. In relation to the powers vested in it, and the restraints 
 
 imposed on the States. 
 
 I. Of the structure and organization of the Government, and 
 the distribution of its powers among its several depart- 
 ments. 
 
 1. Of the Legislative power, or Congress of the United 
 
 States. 
 
 1. Of the constituent parts of the Legislature, and the 
 modes of their appointment. 
 
 1. Of the House of Representatives. 
 
 2. Of the Senate. 
 
 2. Their joint and several powers and privileges. 
 
 3. Their method of enacting laws, with the times and 
 modes of their assembling and adjourning. 
 
 2. Of the Executive power, as vested in the President, 
 
 1. His qualifications; the mode and duration of his 
 appointment, and the provision for his support 
 
 2. His powers and duties. 
 
 3. Of the Judicial power. 
 
 1. The mode in which it is constituted. 
 
 2. The objects and extent of its jurisdiction.
 
 ANALYSIS. XV11 
 
 3. The manner in which its jurisdiction is distributed. 
 
 1. Of the Court for the trial of Impeachments. 
 
 2. Of the Supreme Court. 
 
 3. Of the Circuit Courts. 
 
 4. Of the District Courts. 
 
 5. Of the Territorial Courts. 
 
 6. Of powers vested in State Courts and Magistrates 
 by laws of the United States. 
 
 II. Of the nature, extent, and limitation of the powers vested 
 in the National Government, and the restraints imposed 
 on the States, reduced to different classes, as they relate, 
 
 1. To security from foreign danger ; which class compre- 
 
 hends the powers, 
 
 1. Of declaring war, and granting letters of marque and 
 reprisal. 
 
 2. Of making rules concerning captures by land and 
 water. 
 
 3. Of providing armies and fleets, and regulating and 
 calling forth the militia. 
 
 4. Of levying taxes and borrowing money. 
 
 2. To intercourse with foreign nations ; comprising the 
 
 powers, 
 
 1. To make treaties, and to send and receive ambassa- 
 dors and other public ministers and consuls. 
 
 2. To regulate foreign commerce, including the power 
 to prohibit the importation of slaves. 
 
 3. To define and punish piracies and felonies committed 
 on the high seas, and offences against the laws of 
 nations. 
 
 3. To the maintenance of harmony and proper intercourse 
 
 among the States, including the powers, 
 
 1. To regulate commerce among the several States, and 
 with the Indian tribes. 
 
 2. To establish post-offices and post-roads. 
 
 3. To coin money, regulate its value, and to fix the 
 standard of weights and measures. 
 
 4. To provide for the punishment of counterfeiting the 
 securities and public coin of the United States. 
 
 5. To establish a uniform rule of naturalization. 
 
 b*
 
 XVI 11 ANALYSIS. 
 
 6. To establish uniform laws on the subject of bank- 
 ruptcies. 
 
 7. To prescribe, by penal laws, the manner in which 
 the public acts, records, and judicial proceedings of 
 each State shall be proved, and the effect they shall 
 have in other States. 
 
 4. To certain miscellaneous objects of general utility ; com- 
 
 prehending the powers, 
 
 1 . To promote the progress of science and the useful 
 arts. 
 
 2. To exercise exclusive legislation over the district 
 within which the seat of Government should be per- 
 manently established ; and over all places purchased 
 by consent of the State Legislatures for the erection 
 of forts, magazines, arsenals, dockyards, and other 
 needful buildings. 
 
 3. To declare the punishment of treason against the 
 United States. 
 
 4. To admit new States into the Union. 
 
 5. To dispose of, and make all needful rules and regula- 
 tions respecting the territory and other property of 
 the United States. 
 
 6. To guarantee to every State in the Union a repub- 
 lican form of government, and to protect each of 
 them from invasion and domestic violence. 
 
 7. To propose amendments to the Constitution, and to 
 call conventions for amending it, upon the application 
 of two thirds of the States. 
 
 5. To the Constitutional restrictions on the powers of the 
 
 several States ; which are, 
 1. Absolute restrictions, prohibiting the States from, 
 
 1. Entering into any treaty of alliance or confed- 
 eration. 
 
 2. Granting letters of marque and reprisal. 
 
 3. Coining money, emitting bills of credit, or mak- 
 ing any thing but gold or silver coin a lawful 
 tender in payment of debts. 
 
 4. Passing any bill of attainder, ex post facto law, 
 or law impairing the obligation of contracts.
 
 ANALYSIS. XIX 
 
 5. Granting any title of nobility. 
 
 2. Qualified limitations ; prohibiting the States, without 
 the consent of Congress, from, 
 
 1. Laying imposts on imports or exports, or duties 
 on tonnage. 
 
 2. Keeping troops or ships of war in time of peace. 
 
 3. Entering into any agreement or compact with 
 another State, or with a foreign power. 
 
 4. Engaging in war, unless actually invaded, or in 
 such imminent danger as will not admit delay. 
 
 6. To the provisions for giving efficacy to the powers vested 
 in the Government of the United States ; consist- 
 ing of, 
 
 1. The power of making all laws necessary and proper 
 for carrying into execution the other enumerated 
 powers. 
 
 2. The declaration that the Constitution and laws of the 
 United States, and all treaties under their authority, 
 shall be the Supreme Law of the land. 
 
 3. The powers specially vested in the Executive and 
 Judicial departments, and particularly the provision 
 extending the jurisdiction of the latter to all cases 
 arising under the Constitution. 
 
 4. The requisition upon the Senators and Representa- 
 tives in Congress; the members of the State Legis- 
 latures ; and all Executive and Judicial officers of 
 the United States and of the several States, to be 
 bound by oath or affirmation to support the Constitu- 
 tion of the United States. 
 
 5. The provision that the ratifications of the Conven- 
 tions of nine States should be sufficient for the es- 
 tablishment of the Constitution between the States 
 ratifying the same. 
 
 Conclusion.
 
 CONTENTS. 
 
 DEDICATIONS ......... v 
 
 PREFACE xi 
 
 ANALYSIS xv 
 
 LECTURE I. 
 
 Introductory 1 
 
 LECTURE II. 
 
 Fundamental Principles of the Constitution . . . .26 
 LECTURE III. 
 
 On the Legislative Power 47 
 
 LECTURE IV. 
 On the Executive Power . . . . . . . .76 
 
 LECTURE V. 
 
 On the Judicial Power Ill 
 
 LECTURE VI. 
 On the Distribution of the Judicial Power among the several 
 
 Courts 132 
 
 LECTURE VII. 
 
 On the Powers vested in the Federal Government relative to 
 Security from Foreign Danger 191
 
 XX11 CONTENTS. 
 
 LECTURE VIII. 
 On the Powers vested in the Federal Government for regulating 
 
 Intercourse with Foreign Nations 227 
 
 LECTURE IX. 
 
 On the Powers vested in the Federal Government for mainte- 
 nance of Harmony and proper Intercourse among the States . 275 
 
 LECTURE X. 
 
 On the Powers vested in the Federal Government relative to 
 certain Miscellaneous Objects of general Utility . . . 314 
 
 LECTURE XI. 
 
 On the Constitutional Restrictions on the Powers of the several 
 States 347 
 
 LECTURE XII. 
 
 On the Provisions for giving Efficacy to the Powers vested in 
 the Federal Government 389 
 
 Appendix A. Declaration of Independence . . . .437 
 
 " B. Articles of Confederation 443 
 
 " C. Constitution of the United States . . .454 
 " D. Correspondence with James Madison . . .472 
 " E. Proclamation of the President of the United States 
 
 of the 10th of December, 1833 . . . 480 
 
 " F. Opinion as to the Constitutional Validity of the 
 Laws of New York, granting exclusive Privileges 
 
 of Steam Navigation 505 
 
 " G. Ordinance for the Government of the Territory 
 
 of the United States Northwest of the River Ohio 512 
 " H. Virginia Resolutions of 1798. Kentucky Resolu- 
 tions of 1798 and 1799 . 521
 
 LECTURES 
 
 ON 
 
 CONSTITUTIONAL JURISPRUDENCE.
 
 LECTURES. 
 
 LECTURE I. 
 
 INTRODUCTORY. 
 
 A KNOWLEDGE of the history, organization, and prin- 
 ciples of the government under which he lives, must be 
 beneficial to every man, wheresoever he may dwell, and 
 under whatsoever form of government his lot may have 
 been cast. It may, indeed, be regarded as peculiarly 
 advantageous in free states, where every citizen must 
 possess an interest, if not an influence in the adminis- 
 tration of public affairs, and it is obviously indispens- 
 able where the political rights of all are equal, and the 
 obscurest individual has a voice in the election of his 
 rulers, and is himself eligible to the highest office in the 
 state. 
 
 It was, therefore, with reason, considered a defect in 
 the prevailing systems of education, that the study of 
 our Constitutional Jurisprudence should have been either 
 altogether omitted, or deferred to that period of life 
 when our youth are called on to participate in the active 
 duties of society ; or that it should have been regarded 
 I
 
 2 LECTURES ON 
 
 as necessary only to lawyers and politicians. For, essen- 
 tial as is a profound knowledge of the Constitution to 
 statesmen and jurists, some acquaintance with its princi- 
 ples and details must, in the opinion of all wh& entertain 
 liberal views of public education, and correctly estimate 
 their privileges as citizens, be requisite, even, for those 
 whose ambition rises no higher than the mere exercise 
 of those privileges at elections of their representatives 
 in the government, without desiring political influence 
 or public station for themselves. 
 
 It is gratifying, however, to find that of late years a 
 greater interest has been manifested among the more 
 intelligent portion of the community, with regard to 
 the origin, structure, and principles of our political in- 
 stitutions. This certainly evinces that one class, at 
 least, of our citizens appreciates their value, and that 
 so far, therefore, they are better understood. But both 
 reason and common sense suggest that such informa- 
 tion cannot be too soon acquired, while experience 
 teaches us that it cannot be too widely diffused. The 
 public interest and welfare, if not the stability of the 
 system itself, not less than the safety and happiness of 
 individuals, and the security it affords to their persons 
 and property, require that, in common with other im- 
 portant branches of education, the knowledge in question 
 should be extended to every portion, and, if possible, to 
 every member of the body politic. 
 
 Until lately, it was a reproach to this College, that 
 it sent forth its graduates more familiar with the Con- 
 stitution of the Roman Republic, and the principles of 
 the Grecian confederacies, than with the fundamental 
 laws of their own country. To remedy the evil, it was 
 proposed to ingraft this new branch of study upon the
 
 CONSTITUTIONAL JURISPRUDENCE. 3 
 
 general course pursued in the Institution ; but in pre- 
 paring the Lectures we are now commencing, I have not 
 lost sight of their possible usefulness to others than 
 yourselves, and especially to foreigners, in their publica- 
 tion, at some future day, subsequent to their completion 
 and delivery in this place. For it will hardly be denied 
 that more accurate information in regard to the organi- 
 zation and powers both of Federal and State govern- 
 ments, is desirable in European statesmen, ministers, 
 and lawyers, while their want of it is not only mortifying 
 to our national pride, but prejudicial to our national 
 interests. Much vexatious difficulty, groundless misun- 
 derstanding, and fruitless negotiation would, doubtless, 
 have been prevented, and much needless embarrassment 
 and delay avoided, had the public men of Great Britain 
 and France been better informed with respect to them. 
 
 A rapid sketch of the origin and progress of the 
 American Confederation, until it reached a result so 
 auspicious as the establishment of the present Consti- 
 tution, seems proper as an introduction to the study 
 upon which we are now to enter ; and this historical 
 review will prove, it is trusted, the more useful, as it 
 will not only serve to exhibit the genius and practical 
 excellence of the Government, but also to facilitate the 
 proposed investigation of its organization and powers. 
 
 While the American people were subjects of the 
 British crown, and the elder of these States were as yet 
 British colonies, it was perceived that their union was 
 essential to their safety and prosperity. Both general 
 and partial associations were accordingly formed among 
 them for temporary purposes, and on sudden emergen- 
 cies, long before their permanent union, to resist the 
 claims and aggressions of the mother-country, a meas-
 
 4 LECTURES ON 
 
 ure which produced the Revolution, and ended in the 
 acknowledgment of the Colonies as free and independent 
 States. The common origin and interests of the New 
 England provinces, the similarity of their manners, laws, 
 religious tenets, and civil institutions, naturally led to a 
 more intimate connection among themselves, and in- 
 duced, at a very early period, the habit of confederating 
 together for their common defence. These colonies, as 
 far back as the year 1643, apprehending danger from the 
 warlike and formidable tribes of Indians by which they 
 were surrounded, entered into an offensive and defensive 
 league, which they declared should be firm and per- 
 petual, as well as that its members should thenceforth 
 be distinguished as " The United Colonies of New 
 England." In this transaction, the provincial govern- 
 ments, who were parties to it, acted, in fact, as inde- 
 pendent sovereignties ; and circumstances enabled and 
 encouraged them to assume an exemption from the 
 control of any superior power. 
 
 By the charters from the crown, under which they 
 had been founded, and which prescribed their respective 
 forms of government, and settled their fundamental 
 principles, the people of those colonies were authorized, 
 by the suffrages of the freemen of the several towns, to 
 elect, not only their immediate representatives in the 
 popular branch of their legislatures, but also the chief 
 executive magistrate, or governor, and his assistants, or 
 councillors, who formed a second and coordinate branch 
 of those provincial assemblies. The supremacy, there- 
 fore, of the British crown or Parliament over the colonies 
 in question had, at all times, been little more than nom- 
 inal, in comparison with the authority exercised over 
 those provinces, where the governors and councillors
 
 CONSTITUTIONAL JURISPRUDENCE. 5 
 
 were appointed by the Crown, and held their offices at 
 its pleasure, and which in other respects, also, were 
 kept in closer and more immediate subjection. The 
 civil war in which Great Britain was at that time 
 plunged, occupied, moreover, her whole attention ; and 
 this measure of her colonies, tending so directly to 
 future independence, was suffered to pass without much 
 notice, or any animadversion. 
 
 From the terms of this association, it may justly be 
 regarded as the first step towards the establishment of 
 independent government in America ; with some occa- 
 sional alterations, it subsisted for nearly half a century, 
 and for a part of that time with the countenance of the 
 British government ; nor was it dissolved until the 
 charters of the New England provinces were, in effect, 
 annuUed by James the Second. Subsequently, how- 
 ever, to that arbitrary procedure, congresses of govern- 
 ors and commissioners from the other colonies, as well 
 as from New England, were held from time to time, to 
 consult on matters relative to their common welfare, 
 and to adopt measures for the protection of the frontiers. 
 An assembly of this description took place at Albany 
 in 1722. But a more general and memorable conven- 
 tion was held at the same place in 1754, consisting of 
 commissioners from all the New England colonies, and 
 from the provinces of New York, Pennsylvania, and 
 Maryland. 
 
 This Congress was called at the instance of the gov- 
 ernment in England ; and although the object of the 
 ministry in proposing it was merely to promote and 
 facilitate the negotiation of treaties with the Indians, 
 the colonial legislatures, who promptly acceded to the 
 proposal, evidently entertained more extensive views.
 
 6 LECTURES ON 
 
 Two of the provinces expressly instructed their dele- 
 gates to enter into articles of confederation with the 
 other colonies for their general security in time of peace, 
 as well as in war ; and one of the first acts of the com- 
 missioners, when they assembled, was a unanimous 
 resolution that a union of the colonies was absolutely 
 necessary for their preservation. After rejecting several 
 proposals for the division of the colonies into separate 
 confederacies, they agreed to a plan of federal govern- 
 ment for the whole, consisting of a President- General, 
 to be appointed by the Crown, and a General Legisla- 
 tive Council, to meet once in every year, and to be 
 composed of delegates chosen triennially, by the pro- 
 vincial assemblies. 
 
 This celebrated plan of union was drawn up by 
 Doctor Franklin, who attended as a delegate from 
 Pennsylvania, and is to be found in the more recent 
 editions of his works, with an exposition of the reasons 
 and motives which guided him in forming it. The 
 confederacy was to embrace all the then existing col- 
 onies ; and the rights of war and peace, in respect to 
 the Indian nations, were to be vested in the General 
 Council of the confederates, subject to the immediate 
 negative of the President- General, and the ultimate 
 approval of the Crown. It was to possess the further 
 power " to raise troops and build forts for the defence 
 of the colonies, and to equip vessels pf war to guard 
 the coasts and protect commerce ; " and for these pur- 
 poses the General Council was to have power to levy 
 such general imposts and taxes as should seem most 
 just and equal. 
 
 Besides the venerable name of Franklin, there were 
 enrolled among the delegates to this Congress some
 
 CONSTITUTIONAL JURISPRUDENCE. 7 
 
 others of the greatest distinction in our colonial history. 
 In the course of their proceedings, these enlightened 
 men asserted and promulgated those principles, the 
 reception of which, in the minds of the people of this 
 country, prepared them for future independence, and 
 laid the foundations of our present national govern- 
 ment. But the times were not yet propitious the 
 season had not yet arrived, nor were public sentiment 
 and intelligence sufficiently matured for so comprehen- 
 sive and liberal a proposition. The master-minds who 
 governed that assembly had gone before their age ; and 
 their bold project of continental union had the singular 
 fate of being rejected, not only in England, but by 
 every provincial legislature. By the mother-country, it 
 was probably supposed that union would soon reveal to 
 her colonies the secret of their strength, and afford them 
 the opportunity and the means of giving it effect ; while 
 on the part of the colonies, a dread of the preponderat- 
 ing influence of the royal prerogative, in the operation 
 of the proposed system, condemned them to remain 
 for some years longer, separate and insignificant com- 
 munities, emulous in their obedience to the parent state, 
 and in devotion to her interests, but jealous of each 
 other's prosperity ; gradually estranged by conflicting 
 pretensions and narrow views of local policy ; and, in 
 some instances, kept apart by mutual prejudices, or 
 dissimilarity in their institutions and manners. The 
 necessity of union had, nevertheless, been felt; its ad- 
 vantages perceived ; its principles explained, and the 
 way to it clearly pointed out ; and at length, the sense 
 of common danger and oppression brought the colonies 
 once more together, and led them to adopt the same 
 measures of defence and security, not, indeed, against
 
 8 LECTURES ON 
 
 the vexatious and irregular warfare of the savage tribes, 
 but in resistance to the formidable claims, and still more 
 formidable power, of the mother-country. 
 
 When the first attack was made by Parliament upon 
 the chartered privileges of the colonists, and their in- 
 herent rights as subjects of the English law, by the 
 celebrated Stamp Act of 1763, a congress of deputies 
 from all the colonial assemblies was recommended by 
 the popular branch of the Massachusetts Legislature ; 
 and in the month of October, in that year, delegates 
 from most of the provinces assembled at New York. 
 Without delay or hesitation, they published a declara- 
 tion of the rights and grievances of the colonists, in 
 which they asserted their title to the enjoyment of all 
 the rights and privileges of British subjects, and espec- 
 ially the exclusive power of taxing themselves. They 
 complained more particularly of the act of Parliament 
 imposing stamp duties, and other direct taxes in the 
 colonies ; and their remonstrances were so far successful 
 that this obnoxious measure was rescinded, although its 
 repeal was accompanied by a declaratory assertion of 
 the power of Parliament to tax the colonies in all cases 
 whatever. 
 
 This reservation, however, of the abstract right gave 
 little umbrage to the colonists, who regarded it merely 
 as a salvo for the offended pride of Great Britain, and 
 verily believed that no new attempt would be made to 
 reduce the principle to practice. But it was soon dis- 
 covered that they had reposed too much faith in the 
 intelligence, prudence, and moderation of the British 
 statesmen of that day. Before two years had elapsed, 
 the very men who had consented to the repeal of the 
 Stamp Act brought into Parliament a bill equally objec-
 
 CONSTITUTIONAL JURISPRUDENCE. 9 
 
 tionable in principle, though less odious in its features 
 and oppressive in its operation ; and this bill, levying 
 taxes on the colonists without their consent, by a legis- 
 lature in which they were not represented, became a 
 law, almost without opposition. After a long course of 
 patient remonstrance and constitutional resistance to 
 the execution of this new act, a general congress was 
 proposed at town meetings in New York and Boston, 
 and more formally recommended by a majority of the 
 members of the Virginia Assembly, upon the dissolu- 
 tion of that body in consequence of its opposition to 
 the claims of Parliament. The committees of corre- 
 spondence established in the several colonies, selected 
 the city of Philadelphia as the place, and appointed the 
 tenth of September, 1774, as the time of meeting of 
 the first Continental Congress. 
 
 The members of that illustrious body were in general 
 elected by the colonial legislatures ; but in some in- 
 stances a different method was pursued, which, for the 
 most part, was adopted from necessity. In New Jersey 
 and Maryland, the elections were made by committees 
 chosen in the several counties for that purpose ; and in 
 New York, where the royal party being the stronger, it 
 was improbable that a legislative act authorizing the 
 election of representatives in Congress could be ob- 
 tained, the people themselves assembled in those places 
 where the spirit of opposition prevailed, and elected 
 delegates, who were readily received as members of the 
 Congress. The powers with which the deputies of the 
 several colonies were invested were of various extent. 
 Some were limited to special objects, notwithstanding 
 the recommendations for their appointment had been 
 expressed in the most general and comprehensive terms,
 
 10 LECTURES ON 
 
 and requested that they should be clothed with " au- 
 thority and discretion to meet and consult together 
 for the common welfare" Most generally, they were 
 empowered to consult and advise on the means most 
 proper to secure the liberties of the colonies, and restore 
 the harmony formerly subsisting between them and the 
 parent state. In some instances, the powers conferred 
 seemed to contemplate only such measures as would 
 operate on the commercial connection between the two 
 countries ; in others, the discretion of the delegates was 
 unlimited. 
 
 Deputies from eleven of the provinces appeared at 
 Philadelphia on the day appointed, and took into im- 
 mediate consideration the calamitous aspect of public 
 affairs ; and especially the sufferings of those colonies 
 which had been foremost and most active in resistance 
 to the oppressive measures of the mother-country. By 
 a series of declaratory resolutions, they asserted what 
 they deemed to be the absolute and inalienable rights 
 of the colonists, as men, and as free subjects of Great 
 Britain ; pointed out to their constituents the systematic 
 aggression which had been pursued, and the impending 
 violence premeditated against them ; and enjoined them, 
 by their regard to honor, and their love of country, to 
 renounce commerce with Great Britain, as the most 
 effectual means of averting the dangers with which 
 they were threatened, and of securing those liberties 
 which they derived from the bounty of their Creator, 
 or claimed as an inheritance from their fathers. 
 
 This requisition received prompt and universal obe- 
 dience ; and the Union thus formed, and confirmed by 
 these resolutions, was continued by successive elections 
 of delegates to the General Congress, and maintained
 
 CONSTITUTIONAL JURISPRUDENCE. 11 
 
 through every period of the Revolution which imme- 
 diately ensued, and every change in our Federal and 
 State governments, and is revered and cherished by 
 every true American as the source of our national pros- 
 perity, and the only solid foundation of our national 
 independence. 
 
 In the month of May, 1775, a new Congress, consist- 
 ing of delegates from twelve provinces, clothed with 
 ample discretionary powers, met at Philadelphia ; and 
 soon after it assembled, the accession of Georgia com- 
 pleted the confederation of the Thirteen Colonies of 
 North America. These delegates were instructed to 
 " concert and prosecute such measures as they should 
 deem most fit and proper to obtain a redress of griev- 
 ances ; " and, in more general terms, corresponding with 
 the formula of classic antiquity, to "take care of the 
 liberties of the country." Charged thus solemnly with 
 the protection of the common rights and interests, the 
 representatives of the American people prepared for 
 resistance, sustained by the confidence, and animated 
 by the zeal, of their constituents. They published a 
 declaration of the causes and necessity of resorting to 
 arms, and proceeded to levy and organize forces by land 
 and sea ; to contract debts and emit a paper currency, 
 pledging the faith of the Union for its redemption ; and, 
 gradually assuming all the powers of national sover- 
 eignty, this Congress at length declared the United 
 Colonies free and independent States. 1 
 
 Preparatory to this momentous and uncompromising 
 measure, by which our Revolution may be said to have 
 been consummated, an important preliminary step had 
 
 1 Vide Appendix A.
 
 12 LECTURES ON 
 
 been taken by Congress, which in itself was considered 
 decisive of the question of independence. It had pre- 
 viously recommended to particular colonies to establish 
 temporary institutions for conducting their affairs dur- 
 ing the contest with the mother-country ; but when 
 independence was perceived to be the inevitable result, 
 it was proposed by Congress, to the respective assem- 
 blies and conventions of the provinces where no gov- 
 ernment adapted to the exigencies of the crisis had 
 already been formed, to adopt such Constitutions as 
 should be most conducive to the happiness and safety 
 of their immediate constituents, as well as of the nation 
 at large. The provincial assemblies acted on this recom- 
 mendation ; and the several colonies, already contem- 
 plating themselves as independent States, adopted the 
 principle, then considered visionary in Europe, of limit- 
 ing the constituted authorities by a written fundamental 
 instrument ; and thus the doctrine of the " Social Con- 
 tract," hitherto advanced merely as an ingenious theory, 
 or regarded as a bold and fanciful speculation, was 
 first actually exemplified, and successfully reduced to 
 practice. 
 
 To secure and perpetuate these State institutions, it 
 was deemed expedient, while these measures were ma- 
 turing, to explain more fully, and by a formal instru- 
 ment, the nature of the federative compact, and to 
 define both the powers vested in the General Govern- 
 ment, and the residuary sovereignty of the States. But 
 the measure was attended with so much embarrassment 
 and delay, that, notwithstanding they were surrounded 
 by the same common danger, and were together con- 
 tending for the same inestimable principles and objects, 
 it was not until late in the following autumn that the
 
 CONSTITUTIONAL JUKISPRUDENCE. 13 
 
 discordant interests and prejudices of these thirteen 
 distinct commonwealths could be so far blended and 
 compromised as to induce their agreement to the terms 
 of the proposed Federal Union ; and when submitted 
 to the State legislatures for ratification, the system was 
 declared by Congress to have been the result of im- 
 pending necessity, consented to, not for its intrinsic 
 excellence, but as the best that could be adapted to 
 the circumstances of the States respectively, and, at 
 the same time, afford any reasonable hope of general 
 assent. 
 
 These " Articles of Confederation " met with still 
 greater obstacles in their progress through the States. 
 Most of the State legislatures, indeed, ratified them with 
 a promptitude which evinced a due sense on their part 
 of the necessity of preserving the Confederacy, and of 
 the duty, to that end, of exercising a liberal spirit of 
 accommodation. But some of the States withheld their 
 assent for several years after the Declaration of Inde- 
 pendence ; and one, in particular, persisted so long in its 
 refusal, as to injure the common cause, afford encour- 
 agement to the enemies, and depress the hopes of every 
 friend of America. The perception of these conse- 
 quences at length induced the State in question to 
 abandon its objections ; and on the first of March, 1781, 
 these articles of Union received, upon the accession of 
 Maryland, the unanimous approbation of the States. 1 
 
 By the terms of this compact, cognizance and juris- 
 diction of foreign affairs, the power of declaring war 
 and concluding peace, and authority to make unlimited 
 requisitions of men and money, were exclusively vested 
 
 1 Vide Appendix B. 
 2
 
 14 LECTURES ON 
 
 in Congress ; and a compliance with these powers, when 
 exercised by that body, was rendered obligatory upon 
 the several States. But these rights of political suprem- 
 acy, extensive as they were, had been conferred in an 
 insufficient manner, and under a most imperfect organi- 
 zation. The articles, indeed, were but a written digest, 
 and even a limitation of the discretionary powers which 
 had been delegated to Congress in 1775, and which had 
 always been freely exercised, and implicitly obeyed. 
 The powers themselves, now formally enumerated and 
 defined, might, nevertheless, have proved competent for 
 all the essential purposes of union, had they been duly 
 distributed among the several departments of a well- 
 balanced government, and brought to bear upon the 
 individual citizens of the United States by means of a 
 federal Executive and Judicial, as well as Legislative 
 authority. Congress, as then constituted, was, in fact, 
 an improper and unsafe depository of political power, 
 since the whole national authority, in one consolidated 
 mass of complicated jurisdiction, was vested in a single 
 body of men ; while, in imitation of all former confed- 
 eracies of independent sovereignties, the decrees of the 
 federal council affected the States only in their corporate 
 capacity, as contradistinguished from the individuals of 
 whom they are composed. This was considered by the 
 ablest statesmen of that day as the radical defect of the 
 first Confederation ; " and although this vicious principle 
 did not," as one of them has justly remarked, " run 
 through all the powers delegated to the Union, yet it 
 pervaded and governed those on which the efficacy of 
 the rest depended." 1 Except as to the rule of appor- 
 
 1 By Mr. Hamilton, in the 15th Number of "The Federalist." 
 See also " The Federalist," No. 9, by Mr. Madison, for further exam-
 
 CONSTITUTIONAL JURISPRUDENCE. 15 
 
 tionment, Congress had an indefinite discretion to make 
 requisitions for men and money ; but they had no au- 
 thority to raise either the one or the other by regulations 
 extending to the individual citizens of the States. Like 
 the warrior magician of the great dramatic poet, they 
 could " call up spirits from the vasty deep," but none 
 would " come when they did call." The consequence 
 was, that though in theory the resolutions of Congress 
 were equivalent to laws, yet in practice they were found 
 to be mere recommendations, which the States, like 
 other irresponsible sovereigns, observed or disregarded, 
 according to their own good-will and gracious pleasure. 
 The next most palpable defect, therefore, in the sys- 
 tem, was the absence of all power in Congress to compel 
 obedience to their decrees ; or, in legal parlance, the 
 total want of a sanction to their laws. There was no 
 express delegation of authority to use force against de- 
 linquent members of the Confederacy, and no such right 
 could be ascribed to the federal head, as resulting from 
 construction, or derived by inference from the nature of 
 the compact, inasmuch as Congress was actually re- 
 stricted from any assumption of implied powers, how- 
 ever essential to the complete exercise of those which 
 were expressly given. Fortunately for the country, there 
 was then too much public virtue in that body to assume a 
 power not warranted by the Constitution. Had its mem- 
 bers possessed less wisdom and integrity, and stretched 
 their authority under the plea of an imperious necessity, 
 which might often have been alleged on stronger and 
 more plausible grounds than at any subsequent period, 
 
 pies; and an observation on the subject by Mr. Jefferson, in his 
 "Notes of Virginia," p. 105. Pennington & Gould's Ed., N. Y., 
 1801.
 
 16 LECTURES ON 
 
 it would have been usurpation ; and had they been 
 clothed with the power of enforcing their constitutional 
 requisitions, it might, from the accumulated jurisdiction 
 vested in them, have proved fatal to public liberty. The 
 only remedy, therefore, for a violation of the compact, 
 was war upon the refractory party, by such others of 
 the Confederacy as might think proper to resort to it. 
 But the application of this remedy would probably have 
 produced dismemberment, and thus have proved worse 
 even than the disease itself. 
 
 The want of a mutual guarantee of the State gov- 
 ernments to protect them from internal violence and 
 rebellion ; the principle by which the contributions of 
 the States were made to the common treasury ; the 
 want of a power in Congress to regulate commerce ; 
 the right of equal suffrage possessed by the States in 
 Congress, as well as the omission of distinct and inde- 
 pendent Executive and Judicial departments, were also 
 regarded as fundamental errors in the Confederation. 
 In these leading particulars, and in some others of infe- 
 rior importance, it had proved totally incompetent to 
 fulfil the ends for which it had been devised. Almost 
 as soon as it was finally ratified, the States began to 
 fail in prompt and faithful observance of its provisions. 
 As the dangers incident to revolution and war receded, 
 instances of neglect and disobedience became more 
 gross and frequent ; and, " by the time peace was con- 
 cluded," as was observed by one of our constitutional 
 jurists, 1 " the disease of the government had displayed 
 itself with alarming rapidity." The inequality in the 
 application of the principle of contributions produced 
 
 1 Chancellor Kent.
 
 CONSTITUTIONAL JURISPRUDENCE. 17 
 
 delinquencies in many of the States; and the delin- 
 quencies of one State became the pretext or apology 
 for those of another, until the project of supplying 
 the pecuniary exigencies of the nation by requisitions 
 upon the individual States, was discovered to be alto- 
 gether delusive in its conception, and hopeless in its 
 execution. 
 
 The Continental government being destitute, as we 
 have seen, of power to adopt regulations of commerce 
 binding on the States, each State established its sepa- 
 rate system on such narrow and selfish principles, and 
 executed it in so partial and unequal a manner, that the 
 confidence of foreign nations in our commercial integrity 
 and stability, and the mutual harmony and freedom of 
 intercourse among the States themselves, were impaired, 
 if not destroyed. The national engagements, indeed, 
 seem, in most cases, to have been abandoned ; and, in 
 the indignant language of " The Federalist," 1 " each 
 State, yielding to the voice of immediate interest or 
 convenience, successively withdrew its support from the 
 Confederation, until the frail and tottering edifice was 
 ready to fall on the heads of the people, and crush them 
 beneath its ruins." 
 
 In the most persuasive and manly remonstrances, 
 Congress had endeavored to obtain from the States the 
 right of levying, for a limited time, a general impost on 
 goods imported from abroad, for the exclusive purpose 
 of providing for the discharge of the national debt. 
 But it was impracticable to unite so many independent 
 sovereignties in this or any other measure demanded 
 for the safety and honor of the Confederacy. Disas- 
 
 1 No. 15, by Mr. Hamilton. 
 2*
 
 18 LECTURES ON 
 
 trous, however, as their refusal appeared at the time, 
 and deeply regretted as it was by every intelligent friend 
 of the Union, it may now be deemed providential that 
 the State legislatures withheld from Congress the power 
 solicited ; for, had it then been granted, it is the opinion 
 of the constitutional jurist to whom I have already re- 
 ferred, that " the subsequent effort to amend the system 
 of federal government would never, probably, have been 
 made, and the people of this country might have con- 
 tinued to this day the victims of a feeble and incompe- 
 tent Confederacy." The necessary tendency of affairs 
 at that period, was either to an entire annihilation of 
 the national authority or to a civil war in order to main- 
 tain it. Universal poverty and distress were spreading 
 dismay throughout the land. Agriculture, as well as 
 commerce, was crippled ; private confidence, as well as 
 public credit, was destroyed ; and every expedient was 
 resorted to by men of desperate fortunes to inflame the 
 minds of the people, and cast odium upon those who 
 labored to preserve the national faith, and establish an 
 efficient government. Notwithstanding the sufferings 
 of the people and the imbecility of the government, 
 there were many citizens, of high respectability and 
 undoubted patriotism, who still adhered to the old Con- 
 federation ; and, from their preference or their possession 
 of State authority, and their jealousy of federal power, 
 could see nothing in the proposed renovation of the 
 Union but oppression and tyranny. They apprehended, 
 indeed, nothing less than the entire destruction of the 
 State governments by the overwhelming influence of 
 the national institutions, and determined to resist the 
 contemplated change. But a large majority of those 
 who had conducted the country in safety through the
 
 CONSTITUTIONAL JURISPRUDENCE. 19 
 
 Revolution, united their influence to put an end to the 
 public calamities, by establishing a political system 
 which should be adequate to the exigencies of national 
 union, and act as an efficient and permanent govern- 
 ment on the several States. The foremost among these 
 patriots was Washington. At the close of the revolu- 
 tionary war, he had addressed a circular letter to the 
 governors of the several States, urging an indissoluble 
 union as essential to the well-being, and even to the 
 existence, of the nation ; and now, from his retirement, 
 he strove, in all his intercourse and correspondence with 
 his fellow-citizens, to impress upon the public mind the 
 necessity of such a measure. At his seat at Mount 
 Vernon, in the year 1785, it was agreed by certain com- 
 missioners from Virginia and Maryland, whose visit had 
 reference to far inferior objects, to propose to their re- 
 spective governments the appointment of new commis- 
 sioners, with more extensive powers in regard to the 
 commercial arrangements between these States. This 
 proposal was not only adopted by the Virginia Legis- 
 lature, but so enlarged as to recommend to all the 
 other States to unite in the appointment of commis- 
 sioners from each, to meet and consult on the general 
 subject of the commercial interests and relations of the 
 Confederacy. And this measure, thus casual and lim- 
 ited in its commencement, terminated in a formal prop- 
 osition for a General Convention to revise the state of 
 the Union. 
 
 When the period arrived for the meeting of this 
 body, the objects of its assembling had been carried 
 much further than was at first expressed by those who 
 perceived and deplored the complicated and increas- 
 ing evils flowing from the inefficiency of the existing
 
 20 LECTURES ON 
 
 Confederation. Representatives from New York, New 
 Jersey, Pennsylvania, and Delaware were all that assem- 
 bled on this occasion, in addition to those from Virginia 
 and Maryland ; and upon proceeding to discuss the 
 subjects for which they had convened, it was soon per- 
 ceived that a more general representation of the States, 
 and powers more extensive than had been confided to 
 the delegates actually attending, would be requisite to 
 effect the great purposes in contemplation. This first 
 Convention, therefore, broke up without coming to any 
 specific resolution on the particular matters referred to 
 them ; but, previously to adjourning, they agreed to a 
 report to be made to their respective States, and trans- 
 mitted to Congress, representing the necessity of ex- 
 tending the revision of the federal system to all its 
 defects, and recommending to the several Legislatures 
 to appoint deputies to meet for that purpose, in Con- 
 vention, at Philadelphia, on the second of the ensuing 
 May. 
 
 On receiving this report, the Legislature of Virginia 
 immediately appointed delegates for the object specified 
 in the recommendation ; and within the year, every 
 State except Rhode Island had acceded to the proposal, 
 and elected delegates with power to carry that object 
 into full effect. The General Convention, thus consti- 
 tuted and empowered, met at Philadelphia on the day 
 appointed ; and having chosen General Washington 
 (whose name was first on the list of the deputies from 
 his native State) for their President, proceeded, with 
 closed doors, to deliberate on the momentous and ex- 
 tensive subjects submitted to their consideration. The 
 crisis was most important in respect to the welfare and 
 prosperity of America, if not of the whole civilized
 
 CONSTITUTIONAL JURISPRUDENCE. 21 
 
 world. The fruits of our glorious Revolution, and, 
 perhaps, the final destiny of Republicanism itself, were 
 involved in the issue of this experiment to reform the 
 system of our National Government ; and, happily for 
 the people of America auspiciously for the liberties 
 of mankind the Federal Convention comprised a rare 
 assemblage of the best experience, talents, character, 
 and information which this country afforded, and it 
 commanded that universal public confidence at home 
 and abroad which such qualifications were calculated 
 to inspire. With regard to the great principles which 
 should constitute the basis of their system, not much 
 contrariety of opinion is understood to have prevailed ; 
 but on the application of those principles, in their vari- 
 ous forms and intricate modifications, an equal degree 
 of harmony was not to have been expected. Eventu- 
 ally, however, the high importance attached to the 
 preservation of the Union triumphed over local interests 
 and personal feelings ; and after several months of ardu- 
 ous deliberation, the Convention finally agreed, with 
 unexpected and unexampled unanimity, on that plan of 
 government which is contained in the CONSTITUTION OF 
 THE UNITED STATES. 1 
 
 The new system was directed by the Convention to 
 be laid before Congress, to be by them transmitted to 
 Conventions to be chosen by the people in each State, 
 for their assent and ratification. It was, moreover, pro- 
 vided in the Constitution itself, that, as soon as it should 
 be ratified by nine States, it should be carried into 
 operation among them, in a mode prescribed by a sepa- 
 rate act of the Federal Convention ; and in their letter, 
 
 1 Vide Appendix C.
 
 22 LECTURES ON 
 
 transmitting it to Congress, they declared the Constitu- 
 tion to be " the result of a spirit of amity, and of that 
 mutual deference and concession which the peculiarity 
 of their political system rendered indispensable." 
 
 The course pointed out by the Convention was pur- 
 sued by Congress, and the request formally commu- 
 nicated to the State legislatures. The People were, 
 accordingly, invited to choose delegates to meet in each 
 State, for the purpose of deliberating and deciding on 
 the National Constitution. Besides the solemn and 
 authoritative examination of the subject in these assem- 
 blies, the new scheme of government was subjected to 
 severe scrutiny and animated discussion, both in private 
 circles and in the public prints. But neither the intrinsic 
 merits of the Constitution itself, nor the preponderating 
 weight of argument and character by which it was 
 supported, gave assurance to its advocates that it would 
 be eventually accepted. It contained provisions for the 
 preservation of the public faith and the support of pri- 
 vate credit which interfered with the views, and coun- 
 teracted the interests and designs, of those by whom 
 public and private credit were equally disregarded ; and 
 against the jealous opposition of such objectors the 
 powers of reason were exerted in vain, because their 
 real motives could not be avowed. There were, how- 
 ever, among the opponents of the new Constitution, 
 individuals of a different character, upon whom the 
 force of argument, it was hoped, might make its due 
 impression. Men of influence and authority were to 
 be found in every State, who, from an honest conviction 
 of its justice and policy, were desirous of retaining, 
 unimpaired, the sovereignty of the States, and reducing 
 the Union to a mere alliance between kindred nations.
 
 CONSTITUTIONAL JURISPRUDENCE. 23 
 
 Others supposed that an irreconcilable opposition of 
 interests existed between different parts of the Conti- 
 nent, and that the claims of that portion to which they 
 themselves belonged had been surrendered without an 
 equivalent ; while a more numerous class, who felt 
 themselves identified with the State institutions, and 
 thought their ambition restrained to State objects, con- 
 sidered the government now proposed for the United 
 States, in some respects, a foreign one ; and were, 
 consequently, disposed to measure out power to the 
 National Legislature with the same sparing hand with 
 which they would confer authority on agents neither 
 chosen by themselves nor accountable to them for its 
 exercise. 
 
 The friends and opponents of the Federal Constitution 
 were therefore stimulated in their exertions by motives 
 equally powerful ; and during the interval between its 
 publication and adoption, every faculty of the superior 
 minds of both the parties was strained to secure the 
 acceptance or rejection of the new system. The result 
 was for some time extremely doubtful. The amend- 
 ments proposed by several of the States as conditions of 
 their accession show with what reluctance their assent 
 was given, and clearly evince that the dread of dismem- 
 berment, rather than sincere approbation of the Con- 
 stitution, had in many instances induced its adoption. 
 Nevertheless, the cause of political wisdom and justice 
 at length prevailed. Within one year from its promulga- 
 tion, the new Government was assented to by eleven of 
 the States, and ratified by Congress. Delaware was the 
 first to accede to it ; and the assent of New Hampshire, 
 as the ninth State, rendered it certain that the Constitu- 
 tion would be carried into effect by the States which
 
 24 LECTURES ON 
 
 had already adopted it. The important States of Vir- 
 ginia and New York, in each of which its fate remained 
 uncertain, were probably determined in its favor by the 
 previous ratification of New Hampshire; 1 so that, by 
 the spring of 1789, the Federal Government was duly 
 organized under the new Constitution, and went imme- 
 diately into full and successful operation, without the 
 concurrence of Rhode Island or North Carolina, who 
 were afterward admitted, in succession, into the Union. 
 The final establishment of this admirable system of 
 government, so well adapted to the genius, character, 
 and circumstances of the people, and to the situation 
 and extent of the country ; so skilfully ingrafted upon 
 the preexisting institutions, amid all the difficulties and 
 impediments which have been exhibited, affords a signal 
 example of the benignant influence of peaceful delib- 
 eration and calm decision, combined with a spirit of 
 moderation and mutual conciliation, not only beyond 
 all precedent, but, when we reflect on the fate of similar 
 attempts in other countries, almost beyond the hope of 
 imitation. And while the felicitous issue of this experi- 
 ment, and the universal acknowledgment of its hitherto 
 successful results, constitute lasting proofs of the wisdom 
 and patriotism of the founders of our Government, we 
 must ever venerate their names, adhere to their princi- 
 ples, and cherish the remembrances of services, which 
 are entitled equally to the gratitude and admiration of 
 their posterity. We shall never, it is devoutly to be 
 hoped, disregard or undervalue the blessings which, 
 under Providence, they secured to us, nor forget the 
 dangers and evils which were averted by their persever- 
 
 1 Vide Appendix D.
 
 CONSTITUTIONAL JURISPRUDENCE. 25 
 
 ing and devoted efforts dangers and evils to which the 
 people of these States would again be exposed, in every 
 degree and form of aggravation, should the wisdom 
 and energy of the fathers of our country be rendered 
 abortive by the madness and folly of their sons. If 
 threatened with such a reverse, may we ever be ready 
 to respond to the sentiments called forth in a happy 
 hour from one of our late chief magistrates, that at 
 every sacrifice, except of the inalienable rights and lib- 
 erties which the Constitution was intended to perpetuate, 
 " THE UNION MUST BE PRESERVED." 1 
 
 1 Vide Appendix E.
 
 26 LECTURES OX 
 
 LECTURE II. 
 
 FUNDAMENTAL PRINCIPLES OF THE CONSTITUTION. 
 
 HAVING, in the former Lecture, presented a rapid 
 sketch of the origin and progress of the American 
 Confederation, down to the establishment of the pres- 
 ent Constitution, I now propose to treat more particu- 
 larly of the fundamental principles on which the Federal 
 Government was formed, and exhibit a general view of 
 its organization and powers. This statement of the 
 subjects of discussion comprises a definition of the 
 terms by which they are designated ; for by a constitu- 
 tion is meant, not only the form in which a government 
 is organized, but the principles upon which it is founded; 
 and that branch of jurisprudence which treats of those 
 principles, of the practical exercise of the powers of 
 government in conformity with them, and the construc- 
 tion to be given to them in such their application has 
 been denominated by jurists " CONSTITUTIONAL LAW." 
 
 It has been justly observed by a writer on this sub- 
 ject, 1 that " the origin of political constitutions is as 
 various as their forms. In a pure and unmixed mon- 
 archy, we seldom hear," he remarks, " of a constitution ; 
 in a despotism, never. The subjects or the slaves of 
 
 1 Mr. Rawle.
 
 CONSTITUTIONAL JURISPRUDENCE. 27 
 
 such governments may nevertheless be roused or driven 
 to the vindication of their natural rights ; and the abso- 
 lute king or the obdurate tyrant may be compelled to 
 adopt fixed, if not liberal principles of administration, 
 or they may voluntarily concede them in favor of their 
 subjects. So, too, a successful conqueror may, from 
 motives of policy, establish certain forms and principles 
 for the government of a people whom he may have 
 subdued. In any of these cases, if the government 
 obtained be the result of general consent, whether 
 actually expressed or fairly to be implied, such nation 
 or people may be said to possess a constitution. The 
 same may be affirmed of an aristocracy, if the people 
 at large agree to deposit aU the powers of government 
 in a select few; as it may also be said of a democracy, 
 in which the people retain, under such modifications as 
 they conceive most conducive to their own safety and 
 liberty, all sovereignty within their own control. The 
 great difficulty, however, in every such case, is to regulate 
 the subdivisions of authority granted, so that the portion 
 of it vested in one department or body of men, shall 
 bear a due proportion to that vested in another. Each 
 branch of the government should be sufficient for its 
 own support in the exercise of its appropriate functions, 
 yet all should be made to harmonize and cooperate. 
 
 To alter and amend an existing system, by adding 
 new parts to the old machinery, and particularly to 
 attempt to infuse a new spirit into the existing gov- 
 ernment, contrary to its original genius, produces an 
 irregular and jarring combination, discordant in its 
 elements, and confused in its operation. An exempli- 
 fication of this idea is afforded by the late reform of 
 the Parliament in England, where, although the elective
 
 28 LECTURES ON 
 
 branch has been rendered a more perfect representative 
 of the Commons, the members of the upper house con- 
 tinue to sit in their individual right, and still constitute 
 an hereditary and permanent body. We Americans 
 may be pardoned for considering that the best mode of 
 forming a political community is the voluntary associa- 
 tion of a sufficient number of individuals, on the ground 
 of an original contract, specifying the terms on which 
 they are to be united, and thus to establish a new 
 constitution or plan of government adapted to their 
 situation, character, exigencies, and prospects. Indeed, 
 this may be asserted to be the only true origin and firm 
 basis of a republic. 
 
 The constitution of a government on a single princi- 
 ple, whether of monarchy, aristocracy, or democracy, is 
 undoubtedly the most practical and easy, from its greater 
 simplicity. But a constitution may embrace any two 
 of those principles, as that of ancient Rome and those 
 of some of the Grecian States, and, in more modern 
 times, those of Geneva and some of the smaller com- 
 munities of Italy ; or a constitution may, like that of 
 England, unite the three simple forms ; a government 
 of which description, although antiquity afforded no 
 example of it, was pronounced by Cicero to be, if rightly 
 organized and justly balanced, the most perfect. Modern 
 times and our own country have shown that all the 
 power conceded to an hereditary monarch may be safely 
 vested in the elective head of a Democratic Republic, 
 and that all the advantages arising from the unity of 
 the executive power may be secured, without necessarily 
 incurring the evils of an hereditary succession. These 
 ends are effected by the application of that great dis- 
 covery of modern politics the principle of representation.
 
 CONSTITUTIONAL JURISPRUDENCE. 29 
 
 By the proper distribution of the powers of government 
 among several distinct branches, according to this fun- 
 damental principle, each of them becomes, in its respec- 
 tive sphere, the immediate and equal representative of 
 the people, as the direct source of its authority, and 
 sole ultimate depository of the sovereign power. 
 
 By the " Powers of Government," I mean those dis- 
 tinguished from each other, as appertaining to the Leg- 
 islative, Executive, and Judicial departments ; which 
 division, founded as it is on moral order, cannot be too 
 carefully preserved. In the wise distribution of these 
 powers, and the application of proper aids and checks 
 to each, consists the optima constitutor Respublica, con- 
 templated by the Roman orator as an object of desire 
 and admiration, rather than of hope. 
 
 Should these three powers be injudiciously blended 
 for instance, should the Legislative and Executive, or 
 the Legislative and Judicial branches be united in the 
 same hands, the combination would be dangerous to 
 public liberty, and the evils to be apprehended would 
 be the same, whether the powers in question were de- 
 volved on a single magistrate, or vested in a numerous 
 body. If, moreover, the principle of representation be 
 applied only to a part of the government, where other 
 parts exist independently of that principle, with an equal 
 or superior weight to that constituted in conformity to 
 it, the benefits of the one must obviously be partial, and 
 the danger to be apprehended from the others, in propor- 
 tion to their predominance. 
 
 As representation may thus be partial in respect to 
 the powers of the government, so it may be confined 
 to a portion only of the governed ; and in this case, the 
 restriction is objectionable in exact proportion to the
 
 30 LECTURES ON 
 
 number of those excluded from representation, or from 
 the exercise of a free and intelligent voice in the choice 
 of their rulers. In some countries possessing a constitu- 
 tion, the right or power of election is variously limited. 
 In Venice, it was formerly, and in some of the aristo- 
 cratical republics of Switzerland, it still is, the exclusive 
 privilege of a few families. In the limited or mixed 
 monarchies of England, Holland, and Belgium, it is 
 confined to persons possessing property of a certain 
 description or amount. With us, the rights of repre- 
 sentation and suffrage are, according to the theory of 
 the Constitution, universal ; but in practice they both 
 are qualified without, however, impairing the general 
 principle. 
 
 It is in defining the limits of the three great depart- 
 ments of government, and, by proper checks and securi- 
 ties, preserving the principle of representation in regard 
 both to the exercise of the power and the enjoyment 
 of the right, that a written constitution possesses great 
 and manifest advantages over those which rest on tra- 
 ditionary information, or which are to be collected from 
 the acts of the government itself. If the people can 
 refer only to the ordinances and decrees of their rulers 
 to ascertain their rights, it is obvious that, as every such 
 act may introduce a new principle, there can be no 
 stability in the Constitution. The powers of the repre- 
 sentative and of the constituent are inverted ; and the 
 Legislature is, from its omnipotence, enabled to alter 
 the Constitution at its pleasure. Nor can such laws be 
 questioned by individuals, or declared void by the Courts 
 of Justice, as they may with us, where the power of the 
 legislature itself is controlled by the Constitution. 
 
 A written constitution, therefore, which may thus be
 
 CONSTITUTIONAL JURISPRUDENCE. 31 
 
 appealed to by the people, and construed and enforced 
 by the judicial power, is most conducive to the happi- 
 ness of the citizen, and the safety of the Commonwealth ; 
 and it was reserved for the present age, and the citizens 
 of this country, fully to appreciate and soundly to 
 apply the great principle of popular representation, 
 and to afford the first practical example of a " SOCIAL 
 CONTRACT." In England, one only of the coordinate 
 branches of Government is supposed by the Constitu- 
 tion to represent the people ; and the Provincial Con- 
 stitutions of the American Colonies (with but few 
 exceptions) had, at the period of our Revolution, been 
 modelled in conformity with the same theory. Their 
 charters were originally framed, or subsequently modi- 
 fied, so as to exclude the principle of representation 
 from the Executive department, of which, as in Eng- 
 land, the Judicial was considered as a subordinate 
 branch. The solid foundations of popular government 
 had, nevertheless, been laid; and the institutions re- 
 ceived from the mother-country were admirably adapted 
 to prepare the way for a temperate and rational Demo- 
 cratical Republic. 
 
 As the discoveries which had been made in America 
 by European navigators, were deemed to confer the 
 exclusive right of occupancy upon their respective sov- 
 ereigns, those parts of the Continent which had been 
 claimed as the reward of English enterprise, were ap- 
 propriated as British colonies, either by extensive grants 
 of territory and jurisdiction to favored individuals, or 
 by encouraging settlers at large by limited territorial 
 grants, reserving the eminent domain of the Province to 
 the Crown, and providing for the exercise of the whole 
 jurisdiction, under its authority. Hence two sorts of
 
 32 LECTURES ON 
 
 Provincial Governments had arisen ; first, those denom- 
 inated Royal Governments, in which the general dornain 
 continued in the Crown ; and, secondly, Proprietary 
 Governments, in which both the territory and jurisdic- 
 tion were granted by the King to one or more of his 
 subjects. In the former case, the Chief Executive Mag- 
 istrate was appointed by the Crown ; in the latter, by 
 the Proprietaries ; in both, the Legislative Power was 
 vested, wholly or partially, in the People ; subject, in 
 the one case, to the control of the King in Council ; in 
 the other, to that of the Proprietary. In some few of 
 the colonies, indeed, the power of legislation was un- 
 controlled, as we have seen, by the parent state ; so 
 that, previously to the Revolution, the colonists had long 
 been accustomed to elect representatives to compose 
 the more numerous branch of their Legislature, and, in 
 some instances, the second, or less numerous branch, 
 and even their chief Executive magistrate. No heredi- 
 tary powers had ever existed in the colonial govern- 
 ments, and all political power exercised in them was 
 derived either from the People or from the King. 
 
 The powers of the Crown being abrogated by the 
 successful assertion of our Independence, the People 
 remained the only source of legitimate authority ; and 
 when the citizens of the several States proceeded to 
 form their respective Constitutions, the materials in 
 their possession, as well as their former habits, and 
 modes of thinking and acting on political subjects, were 
 peculiarly favorable to governments representative in 
 all three departments ; and, accordingly, such govern- 
 ments were almost universally adopted. Under various 
 modifications and forms, produced in a great degree by 
 ancient habits, the same general principles were estab-
 
 CONSTITUTIONAL JURISPRUDENCE. 33 
 
 lished in every State. In general, the Legislative, Ex- 
 ecutive, and Judicial powers were kept distinct, with 
 the manifest intention of rendering them essentially 
 independent of each other. The Legislature was, for 
 the most part, divided into two branches ; and all per- 
 sons holding offices of trust or profit were excluded 
 from it. The Supreme Executive Magistrate was also 
 made elective ; and a strong jealousy of his power was 
 everywhere apparent. The Superior Judges received 
 their appointments from the Legislature or Executive, 
 and, in most instances, the tenure of their offices was 
 " during good behavior." 
 
 These principles formed the common and original 
 basis of the American republics, and were adhered to 
 in the Federal Constitution, which, while it unites them 
 as one Nation, guarantees their separate, subordinate, 
 and residuary sovereignty. The same fundamental 
 principles have also been recognized and adopted in the 
 new States since erected from the territory ceded by 
 individual States for the common benefit, or acquired 
 by negotiation or purchase, and subsequently admitted 
 into the Union. There were, however, several depar- 
 tures from this general outline, which, in most instances, 
 have been superseded by subsequent amendments, but 
 in some retained in the original Constitution, and im- 
 itated in some of those which have been more recently 
 established. In some cases, the Legislature consisted 
 of a single body ; but this peculiarity has since been 
 abandoned. In some of the States, the tenure of Judi- 
 cial office is for a term of years. In others, the Judges 
 are elected by the People ; as in Connecticut, until the 
 adoption of a new Constitution in 1818, where they 
 also formed one branch of the Legislature. Such, also,
 
 34 LECTURES ON 
 
 was the case in Rhode Island, whose Colonial Charter 
 has even been copied, in the first of these particulars, 
 by some of the younger members of the National Union, 
 although, in Rhode Island itself, this provision, and the 
 Charter containing it, have since been abrogated, and a 
 Legislature, consisting of two branches, established by 
 a new Constitution. The qualifications requisite to 
 confer the privileges of an elector, and to constitute 
 eligibility to office, are also various; and the second 
 branch of the Legislature is, in many instances, differ- 
 ently constituted in different States. In some, a greater, 
 in others, a less effort is discernible to render that body 
 an effectual check upon the more numerous or popular 
 branch, either by prolonging the term for which its 
 members are elected, or requiring higher qualifications 
 in them or their constituents. 
 
 In constituting the Executive Power, there appears at 
 first to have been equal variety. It is now, however, 
 uniformly vested, either in whole or in part, in a single 
 person. In some States, he is elected for longer, in 
 others, for shorter periods. In some, he is not eligible 
 for two successive terms ; in others, there is no such 
 restriction. By the Constitutions of some of the States, 
 he is invested with a qualified negative upon the Acts 
 of the Legislature, which in others is withheld from him. 
 In some few instances, he is intrusted with power to 
 make appointments to certain offices either absolutely, 
 or, more generally, subject to the confirmation of a 
 Council, or of the second branch of the Legislature ; 
 whilst, in most of the States, that power is exercised 
 exclusively by the two branches of the Legislature in 
 conjunction. In some States, the Chief Executive Mag- 
 istrate is enabled to pursue the dictates of his own
 
 CONSTITUTIONAL JURISPRUDENCE. 35 
 
 unbiased judgment ; and in others, he is divested of all 
 actual responsibility either directly, by being placed 
 under the control of a Council, or indirectly, from his 
 being chosen by the Legislative body, or its more nu- 
 merous branch. In general, however, the ancient insti- 
 tutions which the Provinces had derived by Charter 
 from the Crown of Great Britain, were, at the change 
 of government, so far preserved as was compatible with 
 the abolition of royal or metropolitan authority and 
 colonial dependence. 
 
 Among the most valuable of the institutions retained 
 by the States on the change of Government, was that 
 system of jurisprudence by which the absolute and 
 inalienable rights of the People were recognized and 
 secured, the relative rights of individuals, and their 
 civil privileges regulated and maintained ; and offences 
 against public justice investigated and punished. It 
 was held as a fundamental maxim, that the colonists, 
 as English subjects, were entitled to the benefits and 
 protection of the Common Law of England, and of 
 such parts of the Statute Law of Great Britain as 
 were applicable to their situation. This system of juris- 
 prudence prevailed in all the colonies. It was brought 
 from England by the original settlers, in those planted 
 under her authority, and had been gradually and silently 
 extended to those Provinces which had been conquered 
 by her arms ; so that, before the Revolution, it had been 
 universally established as their municipal code, so far 
 as it was adapted to their circumstances ; and it was 
 claimed by the Congress of 1774, as a branch of those 
 " indubitable rights and liberties to which the respective 
 colonies were entitled." 
 
 The most essential of these privileges were those
 
 36 LECTURES ON 
 
 natural rights which are, indeed, common to all man- 
 kind, but which, in virtue of Magna Charter, and other 
 fundamental laws of the mother-country, were deemed 
 to be the peculiar birthright and inheritance of British 
 subjects. These, according to Sir William Blackstone, 
 comprise that residuum of natural liberty which is not 
 required by the laws of society to be sacrificed to public 
 convenience, as well as those civil privileges which 
 society engages to provide in lieu of those natural lib- 
 erties so given up by individuals for the public good. 
 In the first class, the learned commentator comprehends, 
 
 1. The right of personal security ; 2. The right of 
 personal liberty ; and 3. The right of private property. 1 
 The other privileges of the same character, but subor- 
 dinate in degree, to which, as English subjects, the 
 colonists were entitled, were, 1. The constitution, pow- 
 ers, and privileges of their Provincial Legislatures ; 
 
 2. The limitation of the King's prerogative by certain 
 and notorious bounds ; 3. The right of applying to 
 the Courts of Justice for the redress of injuries, the 
 most valuable incidents to which privilege, were the 
 right of Trial by Jury? and the benefit of the writ of 
 
 1 A statute vesting a certain freehold in A. without judgment in 
 law, has frequently been held in the Federal, as well as State Courts, 
 to be void as against common right, and Magna Charia. 2 Peters, 268 ; 
 2 Dallas, 310; 1 Bay, 252 ; Harper, 200; Cooke, 214; 1 Dev. 1 ; 
 5 He.ym. 106 ; 1 Yeates, 260; 5 Cowen, 346. 
 
 2 The phrase " Common Law," in the 7th Amendment of the Con- 
 stitution of the United States, providing for the trial by jury, is used 
 in contradistinction to Equity, and Admiralty, and Maritime jurisdic- 
 tion. It means not only suits which the old Common Law recognized 
 among its settled proceedings, but all suits in which legal rights are to 
 be determined in contradistinction to equitable rights, and cases of 
 Admiralty, &c., jurisdiction. 3 Peters, 433. A Territorial law, direct-
 
 CONSTITUTIONAL JURISPRUDENCE. 37 
 
 Habeas Corpus; the right of petitioning the King, or 
 either branch of the imperial or provincial Legislature, 
 for the redress of grievances ; and 5. That of keeping 
 arms for defence ; which was, indeed, a public allow- 
 ance, under certain restrictions, of the natural right of 
 resistance and self-preservation. 1 
 
 In these several articles are contained what are em- 
 phatically termed " the Liberties of Englishmen." To 
 their enjoyment, the colonists were entitled by birth- 
 right as British subjects ; and to vindicate that right 
 they first took up arms against the parent state, and ulti- 
 mately withdrew from her dominion. Upon that separa- 
 tion, and the subsequent establishment of Governments 
 of then: own choice, they were careful to provide for 
 the secure and permanent enjoyment of these their natu- 
 ral rights, and of the civil privileges designed for their 
 maintenance, or substituted as their equivalents. As 
 additional safeguards for their protection, they estab- 
 lished, moreover, those great engines of modern opinions, 
 freedom of speech, and of the press, uncontrolled by any 
 but proper moral restraints. But while some of the 
 States expressly recognized, and others tacitly accepted, 
 as part of their municipal code, those portions of the 
 Common Law which had previously been in force in 
 
 ing a Court of Common Law to decide matters of fact, is inconsistent 
 with this provision of the Constitution. 11 Howard, 437. 
 
 1 As the Constitution of Kentucky declares that " the right of the 
 citizens to bear arms, in defence of themselves and the State shall not 
 be questioned," a statute " to prevent persons from wearing concealed 
 arms," was held to be void. 3 Marshall, 73. Also a statute of the 
 same State, subjecting free persons of color to corporal punishment 
 " for lifting hands in opposition " to a white person. Ibid. But see 
 2 Blackford, 229. 
 
 4
 
 38 LECTURES ON 
 
 the Colonies, and were now further modified by the 
 change of government, they universally abolished, either 
 by their Constitutions, or by statutes deemed funda- 
 mental, that feature of the English system of real 
 property, which, in its character of a mere civil regula- 
 tion, is, nevertheless, like most others of the same feudal 
 origin, powerfully and essentially political in its effects, 
 I mean the right of primogeniture. This harsh and 
 inequitable rule of descent, which, indeed, is not pecu- 
 liar to England, but prevails in most of the feudal 
 monarchies of Europe, was rejected in all the American 
 States, and each enacted its own law of descents, dif- 
 fering, indeed, in detail, but agreeing in the general 
 principle of equal distribution. 
 
 The frequent violation of the natural and political 
 rights of the colonists by both King and Parliament, 
 and their repeated denials of redress, were set forth in 
 the DECLARATION OF INDEPENDENCE as the cause and 
 justification of dissolving the mutual ties of sovereignty 
 and allegiance, which bound them to each other ; and 
 upon forming the State Constitutions, those rights 
 were, in some form or other, and with a greater or 
 less degree of particularity and precision, enumerated, 
 declared inalienable, and reserved inviolably to every 
 citizen. 
 
 Such were the institutions of the several States, and 
 such the rights of their individual citizens, when the 
 States and their respective citizens, became, conjointly, 
 parties to the National Compact. The same great 
 principle of representation which had been embodied 
 in the State Constitutions, was adopted as the founda- 
 tion of the Government established for the Union ; and 
 the same national, political, and civil rights and privi-
 
 CONSTITUTIONAL JURISPRUDENCE. 39 
 
 leges which had been declared to be the inalienable 
 inheritance of the people, as citizens of the several 
 States, were asserted to belong to them as citizens of the 
 United States. Among these, as we have seen, are com- 
 prehended such provisions of the Common Law as were 
 applicable to then: situation and circumstances. By 
 the AMENDMENTS insisted upon by some of the States, 
 as conditions of their ratification of the Federal Con- 
 stitution, and eventually adopted by all, it is declared 
 that " the right of the people to be secure in their per- 
 sons, houses, papers, and effects shall not be violated ; " 
 that " no warrant shall issue but upon probable cause, 
 supported by oath or affirmation, and particularly de- 
 scribing the place to be searched, and the persons or 
 things to be seized ; " that " no person shall be held to 
 answer for a capital, or otherwise infamous crime, unless 
 on presentment or indictment of a grand-jury, except 
 in cases arising in the land or naval forces, and in the 
 militia when in actual service in time of war, or public 
 danger;" that "no person shall be subject, for the same 
 offence, to be twice put in jeopardy of life and limb, 1 
 nor be compelled, in any criminal case, to be a witness 
 
 1 This provision means, that no person shall be tried a second time 
 for the same offence, after a trial by a competent and regular jury, 
 upon a good indictment, whether there be a verdict of acquittal or 
 conviction. 2 Sunmer, 19 ; 18 Johnson's Rep. 187; 5 Lett. 139. And 
 it was held by STORY, J., in 2 Sumn. 19, that the Circuit Courts of 
 the United States could not grant a new trial, in a capital case, even 
 after a verdict of conviction rendered on a sufficient indictment. 
 DAVIS, Dis. Judge, dissenting. In Mississippi, this Amendment has 
 been held to bind the State Courts, as well as those of the United 
 States. Walker, 134. But see 2 Sumn. 19; 19 Cowen, 820; Ibid. 
 701; 8 Wendell, 100; 12 Co wen, 243, and many other decisions of 
 the State Courts to the same effect.
 
 40 LECTURES ON 
 
 against himself; nor be deprived of life, liberty, or prop- 
 erty, without due process of law ; " that " private property 
 shall not be taken for public use, without just compen- 
 sation ; " that " in all criminal prosecutions, the accused 
 shall enjoy the right to a speedy and public trial by an 
 impartial jury in the State or district wherein the crime 
 shall have been committed, which district shall have 
 been previously ascertained by law, to be informed of 
 the nature and cause of the accusation, to be con- 
 fronted with the witnesses against him, and to have 
 compulsory process for obtaining witnesses in his favor, 
 and the assistance of counsel for his defence;" that, 
 " in suits at Common Law, where the value in contro- 
 versy shall exceed a certain small amount, the right of 
 trial by jury shall be preserved ; " 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;" and that "excessive bail shall not 
 be required, nor cruel and unusual punishments in- 
 flicted." 
 
 But these Amendments apply only to the United 
 States, and not to the States severally ; and the rights 
 secured by them are subject, in their assertion, to some 
 modifications and restrictions. Thus, private property 
 cannot be taken by the public for merely ornamental pur~ 
 poses. The purpose must be " necessary and useful" 2 
 It may be taken by a military commander to prevent it 
 from falling into the hands of an enemy, or for the pur- 
 pose of converting it to the use of the public ; but the 
 danger must be immediate and impending, and the 
 
 1 Amendts. to Const. U. S. 4, 5, 6, 7, 8. 
 
 2 7 Peters, 243 ; 8 Wend. 85 ; 12 Pickering, 48.
 
 CONSTITUTIONAL JURISPRUDENCE. 41 
 
 necessity urgent such as will not admit delay, and 
 where the action of the civil authority would be too late 
 in providing the means which the occasion calls for. 
 Nor can such officer take possession of private property 
 for the purpose of securing the success of an expedition 
 upon which he is about to march ; nor justify the tres- 
 pass by showing the order of his superior officer. If it 
 were committed without the limits of the United States, 
 an action for it may be maintained in the Circuit Court 
 of any district in which the offender may be found, where 
 the citizenship of the respective parties gives jurisdiction 
 to the Court. 1 Again: where the Legislature authorize 
 the taking of such private property, the compensation 
 must be previously settled, either by stipulation between 
 the Legislature and the proprietor, or by Commissioners 
 mutually agreed on by the parties ; or by the interven- 
 tion of a jury ; 2 and until just indemnity be afforded, 
 the power of taking the property cannot be exercised. 3 
 It is, however, sufficient if the indemnity be secured. 
 The principle upon which this doctrine is founded, is 
 that the owner of the land takes it subject to the right 
 of eminent domain in the State, for public purposes. 4 
 The power in question is incident to the sovereignty of 
 every Government, which, moreover, must judge of the 
 necessity or expediency of its exercise. 
 
 With respect to the right of trial by Jury, the Amend- 
 ment on that subject has been held to be restricted to 
 suits not of Equity or Admiralty jurisdiction ; although 
 
 1 2 Dall. 313. 
 
 2 2 Johns. Ch. Rep. 162; 1 Baldwin, 205 ; 4 Washington, C. C. 601. 
 
 3 13 Howard, 115. 
 
 4 3 Yerg. 41 ; 2 N. and M. 387 ; 2 Bay, 38. 
 
 4*
 
 42 LECTURES ON 
 
 admitted to embrace all others, whatever peculiar form 
 they may assume, to settle legal rights. 1 
 
 It has been a subject of much discussion whether the 
 United States, in their national capacity, have actually 
 adopted the Common Law ; and to what extent, if at 
 all, it may be considered as forming a part of the Na- 
 tional Jurisprudence. But however doubtful it may be 
 whether, in its broadest sense, and to the same extent, 
 mutatis mutandis, that it prevails in England, and in 
 some of the States, that code is recognized as the 
 Common Law of the Union, it cannot be denied that 
 it forms the substratum of the laws of all its original 
 members, and, consequently, of the new States formed 
 from their subdivision ; nor, that the Constitution of the 
 United States, as well as the Constitutions and laws of 
 the several States, was made in reference to the pre- 
 existing validity of the Common Law in the Colonial 
 and State Governments. In many instances, the lan- 
 guage of these public acts would be inexplicable with- 
 out recourse to the Common Law of England ; and, 
 not only is the existence of that system supposed by 
 the Constitution of the United States, but it is con- 
 stantly appealed to for the construction of powers 
 granted to the Federal Government. The general ques- 
 tion, however, as to the application and influence of 
 the system in reference to our National institutions, 
 has not been settled upon clear and definite principles, 
 and may still be regarded, especially in civil cases, as 
 open for further judicial investigation. The prevailing 
 opinion, at present, seems to be, that under the Federal 
 
 1 1 Baldw, 221 ; 1 Ham. 247, 249 ; 4 Ibid. 253 ; 2 Greenleaf, 5, 255 ; 
 3 Ibid. 97 ; 7 Ibid. 273 ; 3 Watts, 294 ; 7 Mass. Rep. 395 ; 2 Bailey, 
 321 ; Afiner, 75 ; 3 Steward, 42.
 
 CONSTITUTIONAL JURISPRUDENCE. 43 
 
 Government, the Common Law, considered as a source 
 of jurisdiction, was never in force ; but considered 
 merely as a means or instrument of exercising the juris- 
 diction conferred by the Constitution, it does exist in 
 full validity, and forms a safe and beneficial portion 
 of our National Code. 
 
 The Constitution erected on this basis, and from these 
 materials, is declared by its preamble, to be " ordained 
 and established by the People of the United States, in 
 order to form a more perfect union, establish justice, 
 insure domestic tranquillity, provide for the common 
 defence, promote the general welfare, and secure the 
 blessings of liberty to themselves and their posterity." 
 By the terms, therefore, of this compact, the States are 
 no longer known to each other merely in their sovereign 
 and corporate capacities ; but, without destroying their 
 previous separate organization, the People of the respec- 
 tive States united with each other in founding a new 
 Government operating directly on themselves as indi- 
 viduals, for the attainment of objects for which neither 
 the States separately, nor the former Confederation had 
 been found competent. The principle of representa- 
 tion is applied in it, not only to the individual citizens 
 of the respective States as citizens of the United States, 
 but also to the individual States themselves ; and it 
 pervades the three great departments of which the 
 Government consists. 
 
 Besides a general delegation of the Legislative, Ex- 
 ecutive, and Judicial powers to distinct departments, 
 so far as was necessary to effect the purposes of Na- 
 tional Union, the Constitution specially defines the 
 powers and duties of each of those branches of the 
 Government. This was essential to peace and safety
 
 44 LECTURES ON 
 
 in a Government, invested with specific powers for 
 national objects, and formed from the union of several 
 independent States, as well as of the individuals com- 
 posing them ; each of the former yielding, for that 
 purpose, the requisite portion of its sovereignty, while 
 it retained the exclusive control of its local concerns. 
 
 In analyzing the Federal Constitution, it may, there- 
 fore, be considered, as has been already indicated, under 
 two principal points of view, viz : 
 
 First. With regard to the particular structure and 
 organization of the Government, and the distribution 
 of its powers among the several branches ; in reference 
 to which, the necessary provisions for their organization 
 into separate departments, for making, executing, and 
 expounding the laws, for rendering efficient those 
 powers, and for confining them to their respective 
 spheres, as well as for ascertaining the limits between 
 the National and State jurisdictions, are all contained 
 in that instrument. 
 
 Secondly. With regard to the nature, extent, and 
 limitation of the powers conferred on the Government 
 of the Union, and the restraints imposed on the State 
 governments. 
 
 As different views and interests have at different 
 times prevailed, different theories for the construction of 
 the Constitution have been advanced. It has some- 
 times been regarded as a mere confederacy or alliance 
 between the States, implying no surrender of their 
 sovereign power or character ; but this opinion is mani- 
 festly inconsistent with the nature of the Federal com- 
 pact, as explained by judicial interpretation of conclusive 
 authority, as will be seen hereafter. Some jurists and 
 politicians, however, who, although they admit that it
 
 CONSTITUTIONAL JURISPRUDENCE. 45 
 
 constitutes a Government, contend that, inasmuch as it 
 establishes a Government of limited powers, it should 
 be construed strictly ; whilst others have asserted that, 
 from the extensive and high objects to be accomplished 
 by the exercise of those powers, the most liberal inter- 
 pretation should be allowed. As, on the one hand, a 
 strict adherence to the letter, without regarding the 
 spirit, or pursuing the manifest sense of the instrument, 
 can only proceed from groundless jealousy, or concealed 
 hostility to the system, so, 'on the other, a liberal con- 
 struction may, from the possession or desire of power 
 under it, be carried to a pernicious extreme. Limita- 
 tions and restrictions may be conceived to exist by 
 some, which would render nugatory the National au- 
 thority, and were, therefore, never meant to be imposed ; 
 while concessions of power may be imagined or assumed 
 by others, incompatible with the sovereignty retained 
 by the States, if not unnecessary to give effect to the 
 Federal supremacy. The true rule of interpretation 
 seems to be no other than that which is applied in all 
 cases of correct and impartial exposition, viz : to de- 
 duce the meaning of the contract from its known design 
 and entire language, to reconcile, and, if possible, to 
 give effect to every part of the instrument, and at the 
 same time, to preserve the unity and harmony of the 
 whole, in due regard to the expressions, as well as to 
 the intentions, of the parties. 
 
 As was observed by Mr. Justice Story, in delivering 
 the opinion of the Court in a leading and important 
 case, 1 " it will be probably found, when we look to the 
 character of the Constitution itself, that the objects 
 
 , 1 In Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 539.
 
 46 LECTURES ON 
 
 which it seeks to attain, the powers which it confers, 
 the duties which it enjoins, and the rights which it 
 secures, as well as to the known historical fact that 
 many of its provisions were matters of compromise of 
 opposing interests and opinions, that no uniform rule 
 of interpretation can be applied which may not allow, 
 even if it does not positively demand, many modifica- 
 tions in its actual application to particular clauses. 
 Perhaps," said he, " the safest rule of interpretation, 
 after all, will be found to be to look to the nature and 
 objects of the particular powers, duties, and rights, with 
 all the lights and aids of contemporary history, and to 
 give to the words of each, such operation and force, 
 consistent with their legitimate meaning, as to fairly 
 secure and attain the ends proposed." 
 
 On many questions which have already arisen, we 
 have the benefit of equally learned elucidations of the 
 judicial departments of the General Government, and 
 of many of the State Governments ; and wherever the 
 Supreme federal tribunal has pronounced its solemn 
 decision, its authority must be deemed conclusive ; be- 
 cause that Court, and that Court alone, possesses ulti- 
 mate and final jurisdiction upon all points of controversy 
 arising under the Constitution of the United States. 
 But where a guide so certain and authoritative cannot 
 be found, we must endeavor, with the aid of inferior 
 lights, to discover the true, but latent meaning of a 
 Constitution, which, in the language of that venerable 
 and accomplished jurist, the late Chancellor of New 
 York, " must always be more admired, as it is more 
 considered, and better understood."
 
 CONSTITUTIONAL JURISPRUDENCE. 47 
 
 LECTURE III. 
 
 OF THE LEGISLATIVE POWER. 
 
 THE first general point of view in which it was pro- 
 posed to consider the Federal Constitution, was " with 
 regard to the particular structure and organization of the 
 Government, and the distribution of its powers among its 
 several branches" 
 
 I have already had occasion to advert to the rule 
 inculcating the separation of the Legislative, Executive, 
 and Judicial departments, and to remark that it had 
 been .substantially adhered to in framing our National 
 Government. These different branches, however, have 
 not, in all cases, been kept entirely distinct ; and it 
 therefore becomes necessary to ascertain, in limine, the 
 meaning of a political apothegm, of which none is of 
 more intrinsic value, or stamped with the approbation 
 of a more enlightened authority. 
 
 From the sense in which the maxim in question was 
 first applied by Montesquieu to the English Constitu- 
 tion, as well as from the mode in which it has been 
 practically acknowledged in our State Constitutions, it 
 is evident that it was never understood to require that 
 the three departments should be wholly unconnected 
 with each other. On the contrary, it has been satisfac- 
 torily shown by the authors of " The Federalist," l that 
 
 1 In No. 47, by Mr. Madison.
 
 48 LECTURES ON 
 
 unless they be so far connected and blended as to give 
 to each a constitutional control over the others, the 
 degree of separation which the rule requires, cannot be 
 maintained. It is, indeed, obvious, that the powers 
 properly belonging to one of the departments ought 
 not to be directly and completely administered by either 
 of the others. It is equally clear that, in reference to 
 the others, neither branch should possess, directly or 
 indirectly, an overruling influence in the exercise of 
 their peculiar powers ; and although, in our Govern- 
 ments, each department derives its authority from the 
 same source, and equally represents the People, yet the 
 Legislative branch, as its constitutional powers are at 
 once more extensive, and less susceptible of precise 
 limitation than either of the others, must necessarily 
 possess a greater preponderance in the political system, 
 and act with greater force upon the public mind. In 
 order, therefore, to maintain in practice the requisite 
 partition of power, the internal structure of the Govern- 
 ment should be so contrived as to render its constituent 
 parts, by their mutual relations, the means of keeping 
 each other within their proper spheres of action. 1 
 
 1 There is nothing, however, in the Constitution of the United 
 States which forbids the Legislature of a State to exercise Judicial 
 functions ; and, accordingly, in some of the States, where no such 
 restraint exists, it has been the practice for the Legislature to grant 
 appeals and new trials in civil suits. But a State Legislature cannot 
 annul the jurisdiction of the Federal Courts ; nor, as it seems, authori- 
 tatively declare what the law is, or has been, but only what it shall be. 
 2 Peters, 413 ; 2 Root, 350; 2 Dall. 419, note; 3 Ibid. 309 ; 3 Greenl. 
 834; 2 Cranch, 272; 5 Ibid. 115; 4 Pick. 23. But this must be 
 understood to be meant when exercising Judicial powers. See 2 
 Peters, 660 ; 19 Mass. Rep. 328 ; 1 N. H. 199 ; 4 Ibid. 572 ; 4 Serg. 
 Rawle, 435 ; Walker, 258 ; 4 Munro, 91-381 ; 6 Ibid. 594 ; 10
 
 CONSTITUTIONAL JURISPRUDENCE. 49 
 
 The great security against a gradual concentration 
 of the several powers of government in the same hands, 
 consists in giving to the persons who administer them 
 in one department, the necessary constitutional means 
 and personal motives to resist encroachments from the 
 others. A dependence on the people is, no doubt, the 
 primary control over the Government ; but experience 
 had shown to the framers of our Constitution, the 
 necessity of auxiliary precautions ; and the remedy they 
 adopted for the natural predominance of the Legislative 
 authority, was the division of the Legislative body into 
 two branches, and rendering them, by different modes of 
 election, and principles of action, as little connected with 
 each other as the nature of their common functions, and 
 their dependence on the people, would admit. The com- 
 parative weakness of the Executive branch, on the other 
 hand, was fortified by investing it with a qualified 
 negative upon the Acts of the Legislature, and con- 
 necting it with the weaker branch of that stronger 
 power, by allowing the latter to participate in certain 
 Executive duties ; while the Judicial department was 
 deemed to be equally secure, from the nature of its 
 constitutional powers, the permanency of its character, 
 and the independent tenure by which its functionaries 
 hold their offices. Thus the mutual participation, to a 
 limited extent, of the several branches of the Govern- 
 ment in each other's powers, is rendered subservient to 
 their mutual independence, and the apparent violation 
 of a fundamental principle of the Constitution, con- 
 verted into a security for its preservation. 
 
 I now proceed to examine and explain the organiza- 
 
 Yerg. 59; 3 Greenl. 326; 4 Ibid. 140; 2 Chipm. 77; 1 Ack. 314 ; 
 Hardin, 856. 
 
 5
 
 50 LECTURES ON 
 
 tion of these separate departments in their order, and 
 commence with a review of the Legislative Power; 
 under which title I shall consider : 
 
 First. The constituent parts of the Legislature, with 
 the mode of their election, or appointment. 
 
 Secondly. Their joint and several powers and priv- 
 ileges. 
 
 And, Thirdly, Their method of enacting laws, with 
 the times and modes of their assembling and adjourning. 
 
 I. All Legislative powers granted by the Constitution, 
 are vested in a CONGRESS OF THE UNITED STATES, 
 consisting of a SENATE, and a HOUSE OF REPRESENTA- 
 TIVES. 1 The terms conferring the Legislative authority 
 import its limitation to the objects specified in the 
 Constitution. And besides the end already stated to 
 have been proposed by the division of the Legislature 
 into two branches, another important object is accom- 
 plished by it, and that is the preventing of the evil 
 effects of excitement and precipitation, which had been 
 found, by sad experience, to exert a powerful and dan- 
 gerous sway in single assemblies. No portion of the 
 political history of mankind, according to the elder 
 President Adams, in his celebrated Defence of our 
 American Constitutions, is more full of instructive 
 lessons on this subject, or contains more striking proofs 
 of the factious instability and turbulent misery of States 
 under the dominion of a single unchecked Legisla- 
 ture, than the annals of the Italian Republics of the 
 middle ages. They arose in great numbers, and with 
 dazzling, but transient splendor, in the interval between 
 the falls of the Western and Eastern Empires, and were 
 
 1 Const U. S., Art. I. Sect i.
 
 CONSTITUTIONAL JURISPRUDENCE. 51 
 
 all constituted with a single unbalanced Legislative 
 Assembly. They were alike wretched in existence, and 
 all ended in similar disgrace. At the commencement 
 of the first French Revolution, many of their specula- 
 tive politicians seem to have been struck with the sim- 
 plicity of a Legislature, consisting of a single Chamber, 
 and concluded that more was useless and expensive. 
 This led that veteran statesman to write and publish, 
 during his diplomatic residence in Europe, his great 
 work entitled " A Defence of the Constitutions of Gov- 
 ernment of the United States" in which he vindicates, 
 with great learning and ability, the advantage and 
 necessity of dividing the Legislature into two branches, 
 and of distributing the powers of government among 
 distinct departments. He reviewed the history, and ex- 
 amined the Constitutions, of all the mixed and free 
 governments which had existed from the earliest records 
 of time, in order to deduce, with more certainty and 
 force, his great practical truth, that single Legislatures 
 without check or balance, or a Government with all 
 authority collected in one centre or department, were 
 violent, intriguing, corrupt, and tyrannical dominations 
 of majorities over minorities, uniformly and rapidly 
 terminating their career in profligate despotism; and 
 the correctness of his deduction was amply confirmed 
 by the subsequent example of France. 
 
 The visionary notion of a single Assembly was em- 
 bodied in the Constitution adopted in that country in 
 1791 ; and the same false and vicious principle con- 
 tinued for some time, to prevail with the sublimated 
 theorists of that period. A single chamber was again 
 established in the plan of government published by the 
 Convention of 1793. But their own sufferings, at
 
 52 LECTURES ON 
 
 length, taught the French people to listen to that oracle 
 of wisdom, the experience of other nations and other 
 ages, which, amid the tumult and violence of the pas- 
 sions that influenced them, they had utterly disregarded, 
 and which, under any circumstances, their national 
 vanity would probably have led them to despise. " No 
 people," said Bolssy cFAnglas, one of their greatest 
 orators, " can testify to the world, with more truth and 
 sincerity than the French, the dangers inherent in a 
 single Legislative body, and the point to which the 
 faction may mislead an assembly without check or 
 counterpoise." We find, accordingly, that in the next 
 of their ephemeral Constitutions, which was brought 
 forth in 1797, there was a division of the Legislature 
 into two branches, and the idea of two chambers has 
 never been abandoned, either under the military des- 
 potism of the first Empire, in the Charters obtained 
 upon the restoration of the Monarchy in the subse- 
 quent revolution and change of dynasty or upon the 
 revival of a second despotic Empire. 
 
 Our country had, indeed, afforded more than one 
 instance in point, in which, fortunately, however, the 
 evil consequences were by no means so great as those 
 experienced in France. The Legislatures of Pennsyl- 
 vania and Georgia consisted originally of a single 
 House, but the instability and passion which marked 
 their proceedings, far short as these were of the least 
 of the atrocities of the French National Convention, 
 were the subject of much public animadversion at the 
 time ; and in the subsequent reforms of their Constitu- 
 tions, the people of those States were so sensible of 
 this defect, and of the evils they had suffered from it, 
 that a Senate was introduced into the amended Con- 
 stitution of each.
 
 CONSTITUTIONAL JURISPRUDENCE. 5fr 
 
 There was a further reason for a division of the 
 Legislative powers in the Government of the United 
 States, arising from its federative character, and which, 
 from its peculiar importance, deserves a fuller explana- 
 tion. On those just principles of public polity on which 
 our Constitution is founded, it is essential that in com- 
 munities thoroughly incorporated into one nation, the 
 inhabitants of every geographical district, or territorial 
 subdivision, should have their proportional share in the 
 National Government ; whilst, among independent sov- 
 ereign States, bound together by a simple league, the 
 several parties, however unequal in respect to territory 
 and population, should have an equal share in the 
 Federal Councils. It was, therefore, reasonable and 
 proper, that in a Republic partaking of both the Na- 
 tional and Federal characters, the Government should 
 be founded on a union of both those principles of 
 representation. Hence, in the constitution of the Leg- 
 islative Power, the House of Representatives was con- 
 structed on the principle of proportional, and the Senate 
 on that of equal representation ; and although this 
 equality in the latter was evidently the result of a 
 compromise between the larger and smaller States, 
 yet, as it afforded a convenient and effectual mode of 
 applying the rule of combined representation to that 
 coordinate branch of the Legislature, and necessarily 
 induced a separation of the two bodies of which Con- 
 gress is composed, its adoption was the more strongly 
 recommended. 
 
 1. THE HOUSE OF REPRESENTATIVES was accordingly 
 founded on the principle of proportional representation 
 yet not purely and abstractedly so ; but with as much 
 conformity to that principle as was practicable. It is
 
 54 LECTURES ON 
 
 composed of representatives of the people of the several 
 States, not of the people of the United States collec- 
 tively and at large ; and, in this respect, it partakes of 
 the federative quality. Neither are the qualifications of 
 its electors uniform, inasmuch as great variety of opin- 
 ion and practice exists concerning them in the several 
 States. The Representatives in Congress are chosen 
 every second year by the people of the several States, 
 who are qualified to vote for the most numerous branch 
 of their State Legislature. No person can be a repre- 
 sentative until he has attained the age of twenty-five 
 years, and has been seven years a citizen of the United 
 States ; nor unless he is an inhabitant of the State for 
 which he is chosen. When vacancies happen from 
 death or resignation in the representation of any State, 
 its Executive authority is directed to issue writs of elec- 
 tion to fill them, either at a general or special election. 1 
 The general qualifications of the electors of the most 
 numerous branch of the State Legislatures are, that 
 they be past the age of twenty-one years, free resident 
 citizens of the State in which they vote, and have paid 
 taxes thereto. In some of the States, they are required 
 to possess property of a certain description or amount, 
 and in others, to be white as well as free citizens. These 
 different qualifications are, in some instances, differently 
 combined, or restricted, and modified ; and, in most 
 others, are so large as to include all persons who are of 
 competent discretion, and interested in the welfare of 
 the Government; liable to perform any of its duties, or 
 bear any of its burdens ; so that, upon the whole, the 
 House of Representatives may be said very fairly to 
 represent the aggregate body of the American People. 
 
 1 Const U. S., Art. I. Sect n. 4.
 
 CONSTITUTIONAL JURISPRUDENCE. 55 
 
 Several of the State Constitutions have prescribed 
 the same, if not higher, qualifications in the elected 
 than in the electors, and some of them require a re- 
 ligious test ; but the Constitution of the United States 
 requires no evidence of property in the Representative, 
 nor any declaration of his religious belief. He is merely 
 required to be a citizen of competent age, and free from 
 undue bias or dependence, by not holding any office of 
 trust or profit under the United States. The term for 
 which he is elected to serve is not so short as to prevent 
 his obtaining a comprehensive acquaintance with his 
 duties, nor so long as to tempt him to forget his de- 
 pendence on the approbation of his constituents. For, 
 as on the one hand, frequent elections tend to diminish 
 the importance of the office, and to render the electors 
 indifferent to the exercise of their right ; so, on the 
 other, long intervals between the elections are apt to 
 produce too much excitement, and, consequently, to 
 render the periods of their return, a season of more 
 severe competition and conflict, and of more serious 
 disturbance of the public tranquillity. The Constitu- 
 tion has not, certainly, deviated to the latter extreme in 
 the establishment of biennial elections. Considering 
 not only the present extent and situation of the country, 
 but also the probability of its future enlargement, the 
 medium adopted seems to combine as many advan- 
 tages, and avoid as many difficulties, as any other term 
 which might have been chosen. 
 
 The Representatives are directed to be apportioned 
 among the States according to numbers ; which are 
 determined in each State by adding to the whole num- 
 ber of free persons, exclusive of Indians, not taxed, 
 three fifths of all other persons. This rule of appor-
 
 56 LECTURES ON 
 
 tionment is obnoxious to the objection that three fifths of 
 the slaves in those States where slavery exists are com- 
 puted in settling the representation. But this provision, 
 which thus enables those States to swell their represen- 
 tative population, and thereby increase their political 
 weight and influence, was the result of a compromise, 
 without which, the Federal Union, if formed at all, 
 would not have comprehended the States in question ; 
 and the same rule that apportions the Representatives 
 in Congress, extends to the apportionment of direct 
 taxes ; so that while their slaves give to those States an 
 increased representation, they contribute also to increase 
 the amount of their taxes, when the direct mode of 
 levying them is resorted to. The mischief, however, is, 
 that the undue preponderance thus obtained in the pub- 
 lic councils has hitherto prevented, and may in future 
 always prevent, a recourse to that species of taxation, 
 except during a part of those brief periods in which the 
 country has since been, or may hereafter be, engaged in 
 foreign war. 
 
 The Constitution directed an actual enumeration 
 of the people to be made within three years after the 
 first meeting of Congress, and provides that one be 
 taken, in virtue of Acts passed for that purpose, within 
 every subsequent period of ten years. 1 The number of 
 Representatives cannot exceed one for every thirty 
 thousand ; but each State is entitled to at least one 
 Representative. Upon the return of the first Census, 
 it was conceived by Congress that, without invading 
 the Constitution, the principle of apportionment might, 
 with advantage, be so modified as to prevent the loss in 
 
 i Const. U. S., Art. I. Sect. n. 3.
 
 CONSTITUTIONAL JURISPRUDENCE. 57 
 
 the number of Representatives arising from the frac- 
 tional parts produced by the application of the ratio of 
 representation to the representative population of the 
 respective States. The aggregate number of the repre- 
 sentative population of the United States, as ascertained 
 by that census, was accordingly divided by the ratio 
 adopted in the bill, which was thirty thousand, and the 
 operation was found to produce the quotient of one 
 hundred and twenty ; whereupon that number of Rep- 
 resentatives was apportioned among the several States, 
 until as many Representatives as it would give were 
 assigned to each State, and then the residuary or sur- 
 plus number was distributed among the States having 
 the highest fractional numbers, until the whole number 
 of one hundred and twenty was exhausted. After 
 much debate, and strong opposition, this bill passed 
 both Houses of Congress ; but the correct and in- 
 dependent mind of President Washington could not 
 reconcile its provisions with the Constitution, and he 
 returned the bill to the House of Representatives, in 
 which it had originated, with this objection, " that the 
 Constitution had provided that the number of Rep- 
 resentatives should not exceed one for every thirty 
 thousand, which ratio was to be applied to the respec- 
 tive numbers of the States ; l whereas the bill allotted 
 to several of the States more than one Representative 
 for every thirty thousand of its population." As there 
 was not a Constitutional majority to pass the bill, 
 notwithstanding the objections of the President, it 
 was consequently rejected. A new one was imme- 
 diately brought in and passed, adopting the ratio of 
 thirty-three thousand, applying it to the numbers of the 
 
 1 Const. U. S., Art. L Sect. n. 3.
 
 State* respectively, and without providing tor the rep- 
 resentations of the fractional remainders. This course 
 was pursued on every subsequent occasion, until the last ; 
 although, on the return of the fifth census, a proposal 
 for the representation of the fractional parts, similar in 
 principle to the former one, was adopted in the Senate, 
 but rejected by the House. In this case, although the 
 ratio adopted exceeded thirty thousand, and was fixed 
 by an amendment in the Senate at forty-seven thou- 
 sand, yet this ratio was applied, as before, to the aggre- 
 gate number of the representative population of the 
 United States in order to obtain the number of Repre- 
 sentatives, who weie then, in like manner, apportioned 
 among the several States, and the residuary members 
 distributed among those having the highest fractions 
 exceeding twenty-five thousand t.i ftttl IM) respect 
 therefore, the amendment in question was liable to the 
 objection of assigning a Representative to a less number 
 than thirty thousand. 
 
 Toe principle upon which this objection was founded 
 seems, however, to have been disregarded in the last 
 Ac* of Congress on the subject ; the provisions of which, 
 to a certain extent, assume a permanent character. It 
 provides that the House of Representatives shall here- 
 after consist of two hundred and thirty-three members, 
 to be apportioned among the several States by the 
 fJMpiMj of the Interior, who is directed upon the 
 return of the census, to ascertain the number of the 
 representative population of the United States, and 
 divide it by two hundred and thirty-three, the products 
 of which division* rejecting fractions* is declared to be 
 4ft wtfws or rule of ap^xjrtioomeat of Representatives 
 *moag -K' several 3taftn. H: ii tfcea fco ascertain che
 
 JUBISPRUPEVCE. ",'.* 
 
 representative population of each State, and divide it 
 by the ratio already determined by him ; the product of 
 which last division gives the number of Representatives 
 apportioned to such State, The loss in the number 
 of members caused by the fractions remaining in the 
 several States is compensated by assigning an additional 
 member to so many of the States having the largest 
 fractions as may be necessary to make the whole num- 
 ber of Representatives two hundred and thirty-three. 
 If, after the apportionment, a new State be admitted 
 into the Union, the Representative assigned to it is to 
 be added to the above number; but this excess i* to 
 continue only until the next succeeding apportionment, 1 
 
 It will be observed that this elaborate plan is open to 
 the objection interposed by President Washington to 
 the first apportionment bill, in which he was sustained 
 by Congress, inasmuch as, in assigning the deficient 
 members to the States having the highest fractions, it 
 does not* provide that each fraction shall exceed thirty 
 thousand the number required by the Constitution to 
 entitle a State to more than 000 Representative. 
 
 To priiard aj/;iJn-t u refractory di -portion, hhouM it 
 ever appear in any of the States, in the neglect or 
 refusal to exercise the right vested in them by the Con- 
 stitution, of prescribing the time, places, and manner of 
 holding elections of Representatives, Congress is em- 
 powered, at any time to make or alter such regulations. 2 
 
 1 The subsequent admission of California into the Union, with two 
 Representative*, make* die whole number of the present House of 
 Representative*, two hundred and thirty-five. The ratio of represen- 
 tation for the next House, is one Representative for every 93,420 of 
 representative population. 
 
 * Const U. 8,. Art. I. Sect iv. I.
 
 60 LECTURES ON 
 
 This power was, for the first time, exercised by the 
 twenty-fifth Congress, by an Act directing the State 
 Legislatures to divide their respective States into as 
 many districts for the election of their Representatives 
 in Congress, as there are Representatives to be elected 
 in each; and that each district shall consist of con- 
 tiguous territory, and contain an equal number of per- 
 sons, as nearly as may be, without dividing counties, or 
 other similar subdivisions. Several of those States in 
 which the principles of anti-federalism and nullification 
 prevail, demurred in carrying this regulation into effect, 
 and at last yielded only a reluctant consent. 
 
 2. THE SENATE of the United States consists of two 
 Senators from each State, chosen by its Legislature, for 
 six years, and each Senator has one vote. 1 If a vacancy 
 happen during a recess of the Legislature, the Executive 
 power of the State may make temporary appointments 
 until the next meeting of the Legislature, when the 
 vacancy must be filled in the ordinary manner. Each 
 State, therefore, has its equal voice and weight in the 
 Senate of the Union, without regard to disparity of 
 population, wealth, or territory. The number of two 
 Senators would, however, have been found inconvenient 
 if the votes in the Senate had been taken, as in the 
 Congress of the Confederation, by States. There, if the 
 delegates of a State were equally divided, its vote was 
 lost ; and this, of course, rendered an uneven number 
 preferable. But from the numerical vote taken per 
 capita upon all questions in the Senate, a division of 
 opinion between the Senators of a particular State has 
 no such influence on the general result. 
 
 1 Const. U. S., Art I. Sect. m. 1.
 
 CONSTITUTIONAL JURISPRUDENCE. 61 
 
 The election of Senators in Congress by the State 
 Legislatures has the double advantage of favoring a 
 select appointment, and of giving to the State Govern- 
 ments such an essential agency in the organization of 
 the General Government as recognizes and preserves 
 them, in their sovereign character, living and active 
 members of the federal body. Whether the choice of 
 Senators should be made by the joint or concurrent 
 vote of the two branches of the State Legislatures, the 
 Constitution does not direct. Hence, difficulties have 
 arisen as to its meaning. The difference between the 
 two modes of election is, that, on a joint vote, the 
 members of both branches of the Legislature assemble 
 together for the purpose, and vote numerically ; while a 
 concurrent vote is taken by each House separately, and 
 the decision of one is subject to the approval of the 
 other. The difficulties alluded to, have arisen in cases 
 of their disagreement ; but as the Legislatures may pre- 
 scribe the manner, as well as the times and places, of 
 choosing Senators, it has been considered in several of 
 the States, that the Legislature may direct them to be 
 chosen by the joint vote or ballot by both Houses 
 assembled together for the purpose, in cases of non- 
 concurrence; and then, of course, the weight of the 
 least numerous branch is dissipated and overcome by 
 the heavier vote of the other. This construction has 
 been found the most convenient, and has been too long 
 settled by the repeated recognitions of Senators so 
 elected to be now disturbed ; but were the question an 
 open one, I think it might be maintained that where 
 the Constitution directed the Federal Senators to be 
 chosen in each State " by the Legislature thereof," it 
 meant the Legislature in the true technical sense of the 
 6
 
 62 LECTURES ON 
 
 term consisting of two branches, acting in their sep- 
 arate organized capacities, with the ordinary constitu- 
 tional negative on each other's proceedings, and not the 
 members of the two Houses per capita. 
 
 The smaller number and longer duration of the Senate 
 were intended to render it a safeguard against those 
 paroxysms of heat and passion which occasionally pre- 
 vail in more popular assemblies. The characteristic 
 qualities of the Senate, in the intendment of the 
 Constitution, are wisdom and experience. The legal 
 presumption, therefore, is that it will entertain more 
 enlarged views of public policy, feel a higher and juster 
 sense of national character, and a greater regard for 
 permanence and stability in the administration of the 
 government, than a more numerous and changeable 
 body. These qualities, indeed, may be found in the 
 other branch of the Legislature, but its constitutional 
 structure is not so well calculated to produce them; 
 for, as the House of Representatives comes more 
 immediately from the people, and its members hold 
 their seats for a much shorter term, they are presumed 
 to partake, with a quicker sensibility, of the prevailing 
 temper and irritable disposition of the times, and to be 
 in much more danger of adopting measures with pre- 
 cipitancy and changing them with levity, than the more 
 sage and experienced members of the more select and 
 less numerous body. In order, therefore, to counteract 
 these propensities, to maintain a greater confidence in 
 the Government, and to insure its safety at home and 
 its character abroad, it was necessary that another body 
 of men, coming likewise, though mediately, from the 
 people, and equally responsible to them for their con- 
 duct, but resting on a more permanent basis, and
 
 CONSTITUTIONAL JURISPRUDENCE. 63 
 
 constituted with stronger tendency to moderation in 
 debate, and tenacity of purpose, should be placed as a 
 check upon the natural intemperance of the younger 
 and more popular branch. 
 
 The Senate, at its first organization, was divided, in 
 the mode pointed out in the Constitution, into three 
 classes. The rotation intended to be produced by that 
 division was originally determined by lot, and the seats 
 of one of the classes become vacant at the expiration 
 of every second year ; so that one third of the Senate 
 is regularly chosen every two years. 1 This provision 
 was borrowed from some of the State Constitutions, of 
 which that of Virginia gave the first example ; and it 
 is admirably well calculated, on the one hand, to infuse / 
 into ihe Senate renewed confidence and vigor, and on 
 the other, to retain a large portion of experienced 
 members, duly initiated into the general principles of 
 national policy, and the forms and course of legislative 
 business. 
 
 II. The House of Representatives possesses the sole 
 power of impeachment, or of presenting accusations 
 against public officers of the United States for malver- 
 sation in their offices. 2 It has also the exclusive right of 
 originating all bills for raising' revenue ; 3 and this is the 
 . only privilege which that House possesses, that is not 
 equally shared with the other ; and even these revenue 
 bills are amendable by the Senate at its discretion ; so 
 that in all business pertaining to legislation, each House 
 is an entire and perfect check upon the other. The pro- 
 
 1 Const. U. S., Art. I. Sect. in. 2. 
 
 2 Ibid., Art. I. Sect. n. 5. 
 
 3 Ibid., Art. I. Sect. vn. 1.
 
 64 LECTURES ON 
 
 ceedings of the House of Representatives are conducted 
 with open doors, except on very special occasions. 
 This publicity affords the people early and authentic 
 information of the progress, reason, and policy of 
 measures pending before Congress, and is, moreover, a 
 powerful stimulus to industry and research, and to the 
 cultivation of talent and eloquence in debate. These 
 advantages, indeed, are doubtless acquired at the ex- 
 pense of much useless discussion, and much valuable 
 time ; yet the balance of utility is greatly in favor of 
 open deliberation, and it is very certain, from the oppo- 
 sition made to the experiment of the first Senate to sit 
 with closed doors, that such a practice, by any legisla- 
 tive body in this country, would not be endured. 
 
 The Senate has the sole power of trying impeach- 
 ments. 1 The first recognition in the Federal Constitu- 
 tion, of a court for that purpose, is in the Article we 
 are now examining, which declares that " the House of 
 Representatives shall have the sole power of impeach- 
 ment," and that " the Senate shall have the sole power 
 to try all impeachments." The term is thus introduced 
 into the Constitution, as of a known and definite signi- 
 fication ; and a well-constituted court for the trial of 
 impeachments was considered by the authors of " The 
 Federalist " 2 as an object not more to be desired than 
 difficult to be obtained, in a government wholly elective. 
 The delicacy and magnitude of a trust which so deeply 
 concerns the political reputation and existence of every 
 one engaged in the administration of public affairs, 
 may be readily perceived ; as will, also, the difficulty of 
 
 1 Const. U. S., Art. I. Sect. in. 6. 
 
 2 No. 65, by Mr. Hamilton.
 
 CONSTITUTIONAL JURISPRUDENCE. 65 
 
 placing it rightly in a government in which the most 
 conspicuous persons are the leaders, and too often the 
 instruments of party, and can, therefore, hardly be ex- 
 pected to possess the neutrality requisite in regard to 
 those whose conduct may be submitted to their scrutiny. 
 It would be improper, too, to commit the cognizance of 
 those offences which are the objects of impeachments 
 to the ordinary courts of justice, as the complexities 
 and variety of political delinquencies are too numerous 
 and artful to be anticipated by positive enactment, and 
 sometimes too subtle and mysterious to be fully de- 
 tected and exposed in the limited period of ordinary 
 investigation. A peculiar tribunal seems, therefore, 
 useful and necessary, an institution of a liberal and 
 comprehensive character ; confined as little as possible 
 to strict forms ; enabled to continue its sessions as long 
 as the nature of the case before it may require ; quali- 
 fied to view the charge in all its bearings and depend- 
 ences, and to appreciate, on sound principles of public 
 policy, the defence of the accused. 
 
 To compose this Court of persons wholly distinct 
 from the other branches of the Government, and forming 
 a permanent body for the single purpose of exercising 
 this jurisdiction, would have been as inconvenient as 
 to appoint and collect temporary judges whenever an 
 impeachment may be determined upon. The Conven- 
 tion that formed the Constitution thought it most fit 
 and safe to make the Senate the depository of this 
 important trust ; and upon a review of all the depart- 
 ments of the Government, no other could have been 
 found so suitable for such a jurisdiction. The model 
 from which the institution was borrowed, was the British 
 House of Peers, which had been previously followed in 
 6*
 
 66 LECTURES ON 
 
 some of the State Constitutions. Besides the reasons 
 already suggested against intrusting its exercise to the 
 ordinary courts, there remains this further consideration, 
 that the punishment consequent upon conviction, is not 
 the only one to which the offence is liable. The judg- 
 ment in cases of impeachment, extends no further than 
 removal from office, and disqualification to hold in 
 future any office of trust or profit under the United 
 States. But the party convicted is, nevertheless, sub- 
 ject to prosecution, according to the usual course of 
 administering the law ; and it would obviously be im- 
 proper, if not in a high degree dangerous, that the 
 same tribunal that had already disposed of the fame 
 and character of the accused, and of his most valuable 
 political rights as a citizen, should, in another trial for 
 the same offence, be also the arbiter of his life, liberty, 
 or property. 
 
 The only persons liable to impeachment with us, are 
 those, as we have seen, who are, or have been, in public 
 office. But a construction has been given to the Con- 
 stitution, by which a member of the Senate was held 
 not to be liable to impeachment. The deliberations of 
 the Court being had in secret, we can only infer from 
 the arguments urged at the bar, that the term " officers " 
 used in the Constitution was held not to include Sen- 
 ators ; and on the same principle members of the House 
 of Representatives would also be exempt from liability 
 to this jurisdiction. The grounds of the distinction may 
 probably have been that the power of impeachment 
 was intended merely as a check given to the Legislative 
 upon the other two departments ; and that, as each 
 House of Congress was the judge of its own members, 
 all the ends of justice might be attained by the expul- 
 sion of a delinquent member.
 
 CONSTITUTIONAL JURISPRUDENCE. 67 
 
 When sitting as a Court for the trial of impeach- 
 ments, the Senators are put under oath or affirmation, 
 faithfully and impartially to discharge their judicial 
 functions. No person, can be convicted but with the 
 concurrence of two thirds of the members of the Court ; 
 the Vice- President of the United States, as President 
 of the Senate, being a " member of the Court," with a 
 constant, instead of a contingent vote, presides in it, 
 except when the President of the United States is tried, 
 on which occasion the Chief-Justice presides. 
 
 The Senate, moreover, in its exclusive connection with 
 the Executive department, has a negative upon the nomi- 
 nation by the President of all officers whose appointment 
 is not otherwise provided for in the Constitution ; and 
 the advice and consent of two thirds of the Senators 
 present are requisite to all treaties, which are submitted 
 to the consideration of the Senate alone. The Senate, 
 however, is not consulted in the first instance ; but 
 when a treaty is agreed upon by the agents employed 
 in its negotiation, the President, unless he disapprove 
 it, submits it to the Senate, and renders to them, from 
 time to time, such information relative to it as they 
 may desire, unless the public good requires it to be 
 withheld. The Senate may wholly reject a treaty, or 
 they may ratify it in part, or recommend additional or 
 explanatory articles which, if the President approve, 
 become the subject of further negotiation with the 
 foreign power. "When the whole receives the sanction 
 of the Senate, the ratifications are exchanged, and the 
 treaty becomes obligatory upon both nations. Although 
 not required by the Constitution, yet, from the fitness 
 and exigency of the case, the proceedings of the Senate 
 on these occasions are always with closed doors ; and
 
 68 LECTURES ON 
 
 the contents of the treaty, and the information con- 
 nected with it are, from motives of delicacy and good 
 policy, kept secret until the publication or other termi- 
 nation of the negotiations in regard to it, render such 
 reserve no longer necessary. 
 
 From the superior weight and delicacy of the trusts 
 thus confided to the Senate, the Constitution requires 
 that a Senator be thirty years of age, nine years a citi- 
 zen, and, at the time of his election, an inhabitant of 
 the State for which he is chosen. 
 
 Although no express power is given by the Constitu- 
 tion to either House of Congress to provide for con- 
 tempt, except when committed by one of its own 
 members, yet such power is necessarily implied with 
 respect to others who commit contempts in its presence ; 
 and extends to the imprisonment of the guilty party. 
 Without this power, either House would be exposed to 
 any indignity and interruption that rudeness or caprice, 
 or even conspiracy, might perpetrate or meditate against 
 it. But the imprisonment must, at all events, terminate 
 with the adjournment of Congress, or the periodical 
 dissolution of the House of Representatives inflicting 
 it. 
 
 III. Each House is the judge of the elections, re- 
 turns, and qualifications of its own members; and a 
 majority of each constitutes a quorum for the transac- 
 tion of business ; but a smaller number may adjourn 
 from day to day, and may compel the attendance of 
 absent members, in such manner, and under such pen- 
 alties, as it may provide. Each determines the rules 
 of its proceedings, punishes its members for disorderly 
 behaviour, and, with the concurrence of two thirds, may 
 expel a member. It is obligatory upon each to keep a
 
 CONSTITUTIONAL JURISPRUDENCE. 69 
 
 journal of its proceedings, and, from time to time, to 
 publish the same, excepting such parts as may in its 
 judgment require secrecy; and the yeas and nays of its 
 members must, at the desire of one fifth of the mem- 
 bers present, be taken and entered on its journal. 1 The 
 members of each House receive a compensation for 
 their services, provided by law, and paid out of the 
 treasury of the United States. 2 In all cases, except 
 treason, felony, and breach of the peace, they are privi- 
 leged from arrest during their attendance, and going 
 to and returning from the sessions of their respective 
 Houses ; nor can they be questioned in any other place, 
 for any speech or debate in either. 3 
 
 The rules of proceeding in each House are substan- 
 tially the same ; and are such as are es'sential to the 
 transaction of business with order and safety. The 
 House of Representatives chooses its Speaker? or pre- 
 siding officer, from among its own members ; and it 
 also chooses its other officers. But the Vice-President 
 of the United States is, ex officio, President of the 
 Senate, having, however, no vote therein, unless the 
 Senators be equally divided. The Senate chooses its 
 other officers ; and a President pro tempore, from its 
 own body, in the absence of the Vice-President, or 
 
 1 Const. U. S., Art. I. Sect. v. 1, 3. 
 
 2 Ibid., Art! Sect. vi. 1. 
 
 3 IUd., Art. I. Sect. vi. 1. 
 
 4 The title is taken from that of the presiding member of the 
 British House of Commons, and derived from his addressing or 
 speaking to the Crown on behalf of its " faithful Commons," when 
 soliciting its confirmation in their privileges, its assent to bills, its 
 acceptance of grants, or upon presenting addresses upon any other 
 subject or occasion.
 
 70 LECTURES ON 
 
 when he executes the office of President of the United 
 States. 
 
 Bills, or the original drafts or projects of laws, are 
 introduced into both Houses respectively, either upon 
 the order of the House on the Report of a standing or 
 of a select committee, or upon leave granted to an 
 individual member on motion, after due notice of his 
 intention to move the House to grant it. Standing 
 Committees are appointed for the session upon all the 
 usual subjects of ordinary legislation, and upon the 
 general matters incident to the proceedings of each 
 House respectively. Select Committees are appointed 
 from time to time upon special subjects as they arise ; 
 and their powers cease upon the performance of the 
 temporary duties assigned to them, or upon their dis- ' 
 charge from the consideration of the subject referred to 
 them. Both standing and select committees are ap- 
 pointed, in the House of Representatives, on the nomi- 
 nation of the Speaker, and in the Senate, generally by 
 ballot, but sometimes, and in some special cases, on the 
 nomination of the President of the Senate. 
 
 Bills are introduced by standing committees, upon 
 the order of the House, upon subjects embraced by the 
 general objects of their appointment, either accompanied 
 by a report upon those general objects, or upon a par- 
 ticular object relative thereto, or specially referred to 
 them ; or upon the mere motion of the Chairman, or 
 any other member of the Committee under its direc- 
 tion, without previous notice. Bills are, in like manner, 
 introduced by Select Committees, upon the order of the 
 House on a report relative to the special matter re- 
 ferred to them, or upon motion, without previous notice, 
 for leave to report by bill.
 
 CONSTITUTIONAL JURISPRUDENCE. 71 
 
 Every bill must receive three readings before it can 
 be passed by either House ; and these several readings 
 must be on different days, unless upon a special order 
 made by the unanimous consent of the House, to the 
 contrary ; which is usually given or tacitly assumed so 
 far as to permit the first and second reading on the 
 same day. No bill can be committed or amended, until 
 it has been read twice ; and upon its second reading, it 
 is declared to be ready for commitment or engrossment. 
 If committed, it is either to a standing or select com- 
 mittee, or to a committee of the whole House; or if 
 the bill, instead of being committed, be ordered to be 
 engrossed, the House appoints the day on which it shall 
 be read a third time. If a bill be committed to a Com- 
 mittee of the whole, the House determines on what 
 day the committee shall consider it; and when the 
 House resolves itself into such committee, the Speaker 
 leaves the chair, after appointing another member to 
 preside as Chairman of the Committee ; when the 
 Speaker may take part in the debates of the committee 
 as an ordinary member. In the Senate, the Committee 
 of the whole is called a quasi committee, because the 
 President of the Senate, in virtue of one of its rules, 
 acts as Chairman of the Committee. 
 
 Important bills are usually referred to a Committee 
 of the whole House ; and every motion or proposition 
 for a tax or charge upon the people, or for a variation 
 in the sum or quantum of a tax or duty, and for an 
 appropriation of money, is required first to be discussed 
 there. The object of referring these, or any other mat- 
 ters to this Committee, is to allow greater latitude and 
 freedom in discussing its merits, and settling the details,
 
 72 LECTURES ON 
 
 than is generally allowed by the rules of either House, 
 when the proceeding is in the House itself. 
 
 After commitment and report to the House, and at 
 any time before its passage, a bill may be recommitted 
 at the pleasure of the House ; and when a bill, either 
 upon a report of a Committee, or after full discussion 
 and amendment in the House, stands for the next stage 
 of its progress, the question is, whether it shall be 
 engrossed for its third reading ? and this is the proper 
 time for those who are opposed to the principle of the 
 bill to take their stand against it, as it is now supposed 
 to be as perfect, or as little exceptionable, as it can be 
 made. When a bill has been engrossed for a third 
 reading, and upon being read a third time, has passed 
 one House, it is transmitted for concurrence to the 
 other, where it is subjected to similar forms of exami- 
 nation and discussion. If it be altered or amended, or 
 agreed to without amendment, or totally rejected in the 
 House to which it has been so transmitted, it is, in 
 either of these cases, returned to the House in which it 
 originated, with a message communicating the result. 
 If amendments made in one House are not agreed to 
 in the other, a message to that effect is sent to the 
 former, which may either recede from, or insist on its 
 amendments ; and if the two Houses cannot agree, they 
 appoint committees of conference, and upon receiving 
 their report, either House may recede from its amend- 
 ment, or from its vote of concurrence, or accept a 
 compromise suggested by the Committee ; or it may 
 adkere to its former vote of disagreement, in which case 
 the bill falls to the ground. 
 
 These checks and formalities, which are intended to
 
 CONSTITUTIONAL JURISPRUDENCE. 73 
 
 guard against surprise or imposition, were originally 
 borrowed, although much contracted and simplified, 
 from the proceedings of the British Parliament. They 
 prevailed substantially in the Colonial Assemblies, from 
 which they were immediately adopted by the State 
 Legislatures, and from them, by Congress ; and in then- 
 application and interpretation, recourse is frequently 
 had to the precedents afforded by the practice and de- 
 cisions of the body whence they are derived. 
 
 When a bill, or any vote or resolution, to which the 
 concurrence of both Houses is necessary, (except the 
 adjournment of Congress,) is passed by both branches 
 of that National Legislature, it is required by the Con- 
 stitution ] to be presented to the President of the United 
 States for his approval. If he approve, he signs it ; 
 but if not, he must return it with his objections to the 
 House in which it originated, which must enter the 
 objections at large on its journal, and proceed to re- 
 consider it. If, after such consideration, two thirds of 
 that House agree to pass the bill or resolution, it must 
 be sent, together with the objections, to the other 
 House, by which it must likewise be reconsidered ; and 
 if approved by two thirds of that House also, it be- 
 comes a law, notwithstanding the objections of the 
 President. In all such cases, the votes of both Houses 
 must be determined by yeas and nays, or openly ascer- 
 tained ; and the names of the persons voting for, or 
 against the bill or resolution entered on the journal. 
 But if it be not returned by the President within ten 
 days (Sundays excepted) after it is presented to him, 
 it becomes a law, in like manner as if he had signed 
 
 1 Const. U. S., Art. I. Sect vn. 3. 
 
 7
 
 74 LECTURES ON 
 
 it unless Congress, by adjournment, prevents its re- 
 turn. 
 
 The Constitution directs that Congress shall assemble 
 at least once in every year, and that such meeting shall 
 be held on the first Monday in December, unless another 
 day be appointed by law. 1 So that until the time fixed 
 either by the Constitution or the law, the action of 
 Congress cannot commence, unless the President, in the 
 exercise of his constitutional power, shall, on extraor- 
 dinary occasions, convene it sooner. Congress, also, by 
 concurrent resolution, to which, in this case, the assent 
 of the President is not, as we have seen, necessary, 
 fixes the time of its own adjournments. But, during a 
 session, neither House, without the consent of the other, 
 can adjourn for more than three days, nor to any other 
 place than that in which it is sitting. 2 
 
 Although Congress may be convened by the Presi- 
 dent, and in cases of disagreement may be adjourned 
 by him to such time as he may think proper, 3 yet our 
 National Legislature possesses this advantage over 
 others, that may be adjourned or dissolved at the 
 pleasure of the Executive authority; that, if in the 
 opinion of Congress itself, the public good may require 
 it, it may continue uninterruptedly in session until the 
 expiration of the term for which the House of Repre- 
 sentatives is chosen ; and it may appoint as early a day 
 as it thinks proper for the meeting of the next Con- 
 gress ; and as the term for which the House, and one 
 third of the Senate are elected expires at the end of 
 
 1 Const. U. S., Art. I. Sect. iv. 2. 
 
 2 Ibid., Art. I. Sect. v. 4. 
 
 3 Ibid., Art II. Sect. in.
 
 CONSTITUTIONAL JURISPRUDENCE. 75 
 
 every second year, Congress must of necessity adjourn 
 at the expiration of that period, as it is, in fact, dissolved 
 by the joint operation of the Constitution and the law, 
 as it stands at present, on the third day of March in 
 every alternate year. And among the benefits of our 
 written Constitution, it may be accounted as one of 
 the most valuable, that no Act of Congress can pro- 
 long its own existence, beyond the time fixed by the 
 fundamental law.
 
 76 LECTURES ON 
 
 LECTURE IV. 
 
 OF THE EXECUTIVE POWEB. 
 
 IN the construction of a Republican Government, 
 there is no point more difficult of adjustment than the 
 proper constitution of the Executive Power. The ob- 
 ject of this department being the execution of the laws, 
 good policy requires that it should be organized in the 
 mode best calculated to effect that end with precision 
 and fidelity. In the proceedings of the other branches 
 of the Government, deliberation is necessary. Both in 
 making and expounding the laws, caution and consul- 
 tation are implied as indispensable duties. ' But when 
 laws are duly made and promulgated, they only remain 
 to be executed. No discretion is vested in the Execu- 
 'tive officer in regard to their wisdom or expediency. 
 What has been declared under the forms of delibera- 
 tion prescribed by the Constitution to be the meaning 
 and intention of the Legislature should be carried into 
 prompt execution, and due effect given to it by the 
 Executive department, until repealed by the Legislative 
 power, or pronounced unconstitutional by the Judiciary ; 
 in which latter case, the act of the Legislature is 
 ascertained to be void, and neither public officers 
 nor private citizens are responsible for its neglect or 
 violation. 
 
 But every individual is bound to obey a constitu-
 
 CONSTITUTIONAL JURISPRUDENCE. 77 
 
 tional law, however objectionable, in other respects, it 
 may appear to him ; and whosoever refuses or withholds 
 obedience to a law, on the ground even of its unconsti- 
 tutionality, does so at his peril. For if the question be 
 judicially decided by a competent tribunal, in favor of 
 its validity, he is liable to all the legal consequences of 
 disobedience. The presumption, moreover, is always in 
 favor of a law passed in accordance with the forms of 
 the Constitution ; and where the Chief Executive Magis- 
 trate has a negative upon the Acts of the Legislature, 
 that presumption is, of course, the stronger against him, 
 especially as to Acts passed under his own administra- 
 tion, and which must, therefore, have ^received his official 
 approval. For in such case, the existence alone of the 
 law is evidence of his admission of its constitution- 
 ality, if the negative he possesses be absolute, and if 
 qualified, it shows that his objections, if made, were 
 overruled. If the law to which he objects were passed 
 under a former administration, his official, if not his 
 personal obligation, is not less absolute and peremptory. 
 For the negative vested in him is a legislative and not 
 a judicial power ; and to allow a contrary doctrine 
 would be to admit in the Executive department a right 
 to repeal laws without the intervention of the Legisla- 
 ture. As, therefore, the Executive power is bound, not 
 only to obey, but to carry into effect the law, the essen- 
 tial qualities requisite in that department are promptness, 
 vigor, and responsibility. 
 
 A prompt submission to the law, and immediate 
 preparation to enforce it, are absolutely necessary in 
 respect to the authority whence it emanates. In regard 
 also to its effect, whenever the time for acting on a 
 law has arrived, its operation should be immediate and 
 7*
 
 78 LECTURES ON 
 
 decisive ; otherwise the sense of its protection and con- 
 trol will be weakened, and its power unfelt or forgotten. 
 On general principles, therefore, as delay is reprehensi- 
 ble, promptness is a duty, the non-performance of which, 
 in certain cases, enables the transgressor to escape pun- 
 ishment. For this reason, it is both wise and humane 
 that the execution of the law should be speedy, and 
 that no unnecessary interval should be allowed between 
 its violation and the adoption of measures for enforc- 
 ing it. 
 
 For this purpose, the Executive Magistrate should be 
 endowed with sufficient energy. A feeble Executive 
 department implies a feeble execution of the law, which 
 is but another name for a bad execution ; and a gov- 
 ernment in which the laws are not faithfully executed, 
 whatever it may be in theory, must, in practice, be a 
 bad government. A vigor of action, duly proportioned 
 to the exigencies which arise, must be imparted to the 
 Executive power. But for this purpose, the proportion 
 of power vested to the occasions that may be expected 
 to require its exercise, should be as exact as possible ; 
 for if the power fall short of the end proposed, the evils 
 already adverted to will ensue ; and if it exceed the 
 due proportion, the liberties of the people would be 
 endangered. It is difficult, however, in a written Con- 
 stitution, to adopt general expressions precisely descrip- 
 tive of the proper extent and limitation of this power. 
 To guard, therefore, against its abuse, as well as to 
 insure a faithful execution of the general trust reposed 
 in this department, it is requisite that it should be held 
 responsible to the people for official delinquencies. 
 
 Now these three qualities of promptness, vigor, and 
 responsibility, are certainly more likely to exist where the
 
 CONSTITUTIONAL JURISPRUDENCE. 79 
 
 Executive authority is limited to a single person, moving 
 at the discretion of a single will. But in some republics, 
 the fear of danger from such a head, has led to the intro- 
 duction of councils, and other subdivisions of the Execu- 
 tive power ; and the consequent imbecility and distrac- 
 tions of these governments have probably contributed to 
 the preference given in Europe to monarchies. It was 
 falsely conceived that to vest the Executive power in a 
 single person was inconsistent with the nature and genius 
 of a Republic ; or that a Republic thus constituted could 
 long maintain its freedom. But during the American 
 Revolution, neither the fervor of republican principles, 
 nor resentment towards the monarchy then arrayed 
 against us, overpowered the deliberate judgments of our 
 statesmen ; and upon the establishment of independent 
 governments, almost all the States adopted the principle 
 of UNITY in the Executive power. The experience of 
 more than half a century has evinced that, under proper 
 limitations, no abuse of the power is to be apprehended 
 merely from its unity ; while every government, ancient 
 or modern, constituted upon the scheme of compound 
 Executive authority, has suffered from the evils of 
 division, indecision, and delay, and the public interests 
 have been sacrificed or have languished under a feeble 
 and irregular management. In those States of our 
 Union where Executive Councils have been tried, this 
 weakness and inefficiency have been strikingly exem- 
 plified. In most instances where they were at first 
 adopted, they were speedily abandoned, and a single 
 person substituted in accordance with the lights afforded 
 to the States in question by their own experience, or 
 the institutions of their neighbors. 1 
 
 1 Pennsylvania and Georgia.
 
 80 LECTURES ON 
 
 Unity not only increases that efficiency which is 
 necessary to preserve tranquillity at home, and com- 
 mand respect abroad, but it is requisite to secure the 
 responsibility of the Executive power. Where there is 
 but one agent, every act can be traced and brought 
 home to him ; nor can there be any concealment of the 
 real author, and, generally, none of the true motives of 
 public measures, where there are no associates to divide 
 or mask responsibility. The eyes of the people will be 
 constantly directed to a single conspicuous object, and, 
 for these reasons, De Lolme considers it a sound maxim 
 of policy, that the Executive power is more easily con- 
 fined where it is one and indivisible. " If," he observes, 
 " the execution of the laws be intrusted to a number of 
 Viands, the true cause of public costs is hidden. Tyranny, 
 in such States, does not always beat down the fences 
 that are set around them, but it leaps over them. It 
 mocks the efforts of the people, not because it is invin- 
 cible, but because it is unknown." l 
 
 In accordance with these principles, the Federal Con- 
 stitution vests the Executive power in a single person, 
 who is styled " THE PRESIDENT OF THE UNITED STATES." 
 The qualifications and election, the powers and duties 
 of this high officer, will now be the subject of consider- 
 ation. 
 
 I. His qualifications, and the mode of his election. 
 
 1. The Constitution requires that the President should 
 be a natural-born citizen, or a citizen of the United 
 States at the time of its adoption ; that he should have 
 attained the age of thirty-five years, and have been 
 fourteen years resident within them. 2 Considering the 
 magnitude of the trust, and that the Executive depart- 
 
 1 On the Const of England, p. 111. 
 
 2 Const. U. S.. Art II. Sect. i. 5.
 
 CONSTITUTIONAL JURISPRUDENCE. 81 
 
 ment is the ultimate efficient power in the Government, 
 these restrictions will not appear useless or unimpor- 
 tantt The qualification required of citizenship, was 
 intended to prevent ambitious foreigners from intriguing 
 for the office, and to cut off all those inducements from 
 abroad, to corruption, intervention, and war, which have 
 frequently and fatally harassed the elective monarchies 
 of Europe. The age required in the President is suf- 
 ficient to have formed his public and private character ; 
 and the previous term of domestic residence is intended 
 to afford his fellow-citizens the opportunity of gaining 
 a correct knowledge of his principles and capacity, and 
 to enable him to acquire habits of attachment and obe- 
 dience to the laws, and practical devotion to the public 
 welfare. 
 
 2. The mode of his appointment presented one of the 
 most difficult problems solved by the Convention ; and 
 if ever the tranquillity of this nation is to be disturbed, 
 and its peace jeoparded by a struggle for power among 
 ourselves, it is the opinion of some of our wisest, both 
 of our departed and of our living statesmen, that it 
 will be on this very subject of the choice of the Presi- 
 dent. It is therefore the more remarkable, that this was 
 almost the only part of the federal system, of any im- 
 portance, which escaped the severest censure, or received 
 the slightest mark of approbation from its opponents. 
 By the authors of " The Federalist," 1 the manner of 
 choosing the President was affirmed to be " if not per- 
 fect, at least excellent," and " to unite, in an eminent 
 degree, all the advantages of which the selection and 
 association were to be desired." It was, nevertheless, 
 
 1 No. 68, by Mr. Hamilton.
 
 82 LECTURES ON 
 
 considered by Mr. Chancellor Kent as "the question 
 which is to try the strength of the Constitution," and 
 that " if we are able for half a century hereafter to con- 
 tinue to elect the Chief Magistrate of the Union, with 
 discretion, moderation, and integrity, we shall undoubt- 
 edly stamp the highest value on our national character, 
 and recommend our republican institutions, if not to 
 the imitation, yet certainly to the esteem and admiration 
 of mankind." 1 
 
 The experience, both of ancient and modern Europe, 
 as this eminent jurist observes, has certainly been unfa- 
 vorable to the practicability of the fair and peaceable 
 election of the Executive of a great nation. It was 
 found impossible to guard such elections from the mis- 
 chiefs of foreign intrigue and domestic turbulence 
 from violence or corruption ; and men have generally 
 sought refuge from the dangers of popular elections, in 
 hereditary Chief Magistrates, as the lesser evil of the 
 two. Archdeacon Paley 2 condemns all elective mon- 
 archies, and thinks nothing gained by a popular choice, 
 with the dissensions, tumults, and interruptions of regu- 
 lar industry with which it is inseparably connected. 
 But these consequences rarely attend our elections ; and 
 no such evils as he describes have ever been expe- 
 rienced in our elections of a President by the Electors ; 
 although, on one memorable occasion, of which I shall 
 speak hereafter, much riotous and violent conduct was 
 exhibited in the House of Representatives, when, upon 
 an equality of electoral votes between two of the per- 
 sons voted for, the choice devolved upon that body. 
 Nor can any danger be apprehended in future from a 
 
 1 1 Comm. 256. 1st Ed. 
 
 2 Moral and Political Philosophy, p. 345.
 
 CONSTITUTIONAL JURISPRUDENCE. 83 
 
 similar occurrence, from the nature of the precautions 
 so happily concerted to prevent them, in addition to 
 the nature, extent, and duration of his power, by a 
 change in the manner of electing the President. The 
 question, too, was different with us, from the wisdom 
 or policy of preferring an hereditary to an elective 
 monarchy, as the same restraints do not exist in Europe 
 on the Executive authority to diminish its value in the 
 estimation of competitors, where different orders and 
 ranks are established in their communities, and large 
 masses of property are accumulated in the hands of 
 individuals, where ignorance and poverty are widely 
 diffused, and standing armies are maintained to pre- 
 serve the stability of the government. The state of 
 society and property in this country, and the moral and 
 political training and habits of the people have enabled 
 us to adopt the republican principle in relation to the 
 Chief Executive Magistrate, and to maintain it hitherto 
 with signal success. From the peculiar character of 
 our Federative Union, in which the concerns only of 
 the NATION, as such, are confided to the General Gov- 
 ernment, and those of a local description, to the States, 
 from the nature of the civil and municipal institutions 
 of the States, which favor the exertions of industry by 
 the certainty of adequate rewards and secure enjoy- 
 ment, but discourage and prevent the accumulation of 
 overgrown estates, from the spread of knowledge and 
 the prevalence of moral and religious habits, we may 
 reasonably hope that the checks which the Constitution 
 has provided against the dangerous propensities of our 
 system, although sometimes contemned by ambitious 
 popular leaders, will prove continually and ultimately 
 successful. The election, however, of a Supreme Magis-
 
 84 LECTURES ON 
 
 trate for a whole nation, affects so many interests, 
 addresses itself so strongly to popular passions, and 
 holds forth such powerful temptations to ambition, that 
 even under the most favorable circumstances and wisest 
 regulations, it necessarily becomes a formidable trial to 
 public virtue, and sometimes hazardous to the public 
 tranquillity. The framers of our Constitution, from an 
 enlightened view of all the difficulties of the case, did 
 not think it safe or prudent to refer the election of the 
 President immediately to the people, but confided it to 
 a small body of ELECTORS appointed in each State, 
 under the direction of its Legislature ; and in order to 
 close the door as effectually as possible against negotia- 
 tion, intrigue, and corruption, they declared that Con- 
 gress might determine the day on which the election 
 should be held, and that the day of election should be 
 the same in every State. 
 
 It was essential that the sense of the people should 
 operate in the choice of a person to whom so important 
 a trust was to be confided ; and this end is answered 
 by committing the right of election, not to any pre- 
 established body, but to men chosen by the people for 
 the special purpose, and under such circumstances as 
 would best insure the freedom and purity of the election. 
 It was also desirable that the immediate election should 
 be made by men capable of analyzing the qualities 
 adapted to the station, and who should act under cir- 
 cumstances favorable to deliberation, and to a judicious 
 combination and comparison of all the reasons and 
 inducements proper to govern their choice ; and it was 
 fairly and reasonably supposed that a small number of 
 persons, selected by their fellow-citizens from the general 
 mass, would be most likely to possess the information
 
 CONSTITUTIONAL JURISPRUDENCE. 85 
 
 and discernment requisite to such an investigation. It 
 was, moreover, peculiarly desirable to afford as little 
 opportunity as possible to tumult and disorder, and it 
 was, therefore, considered that the choice of several 
 to form an intermediate body of electors, would be 
 much less apt to convulse the community with any 
 extraordinary and violent emotions, than the choice of 
 one, who would himself be the first object of the public 
 wishes ; and, by requiring the Electors chosen in each 
 State to assemble and vote in the State in which they 
 are appointed, it was intended that they should be less 
 exposed to heats and ferments communicated to them 
 from the people, than if they were all to be assembled 
 at the same place. 
 
 Nothing was more to be desired, and nothing was 
 more anxiously attempted, than that every practical ob- 
 stacle should be opposed to cabal, intrigue, and corrup- 
 tion. These deadly foes to republicanism were naturally 
 expected to make their approaches from more than one 
 quarter ; but chiefly from abroad, from the desire of 
 foreign powers to gain an improper ascendency in our 
 public councils ; and it was apprehended that they 
 might effect this, by raising a creature of their own to 
 the Chief Magistracy of the Union. The Convention, 
 therefore, guarded against all danger of this sort, with 
 the most provident and judicious attention. Another, 
 and not less important object, was that the President 
 should be independent for his continuance in office on 
 all but the people themselves. This object, also, was 
 designed to be secured by making, as we have seen, his 
 reelection depend upon a special body of representa- 
 tives, deputed by the nation for the single purpose of 
 his election, instead of permitting his continuance in 
 8
 
 86 LECTURES ON 
 
 office to depend on the will of Congress, to whose 
 favor he might, in that case, be tempted to sacrifice his 
 duty and official dignity. 
 
 Such were the advantages intended to be combined 
 and secured by the plan as devised by the Convention. 
 Whether they have been altogether realized, we shall 
 hereafter have occasion to inquire ; for the present, it 
 may be as well to suggest that the contest alluded to, 
 which arose in 1801, has not been imitated, at least by 
 none of equal violence, since the adoption of an amend- 
 ment of the Constitution intended to prevent its recur- 
 rence. 1 It has, nevertheless, been deemed advisable by 
 some of our ablest and most experienced statesmen, to 
 propose a further amendment, disqualifying the Presi- 
 dent from reelection. 
 
 The Constitution ordains that each State shall ap- 
 point, in such manner as its Legislature may direct, a 
 number of Electors equal to the whole number of 
 Senators and Representatives which the State is entitled 
 to send to Congress; 2 and to prevent the President in 
 office at the time of the election from having an im- 
 proper influence on his reelection by his ordinary agency 
 in the government, it is declared that no Senator or 
 Representative, nor any person holding an office of 
 trust or profit under the United States, shall be ap- 
 pointed an Elector. In no other respect has the Con- 
 stitution defined the qualifications of the Electors. In 
 several of the States, the Electors were formerly chosen 
 by the Legislature, in a mode prescribed by law ; and 
 this method still prevails in Delaware and South Caro- 
 lina. But it is to be presumed that there will be less 
 
 1 Amendments to Const. U. S. xu. 
 
 2 Const. U. S., Art. II. Sect. i. 2.
 
 CONSTITUTIONAL JURISPRUDENCE. 87 
 
 opportunity for dangerous coalitions, for ambitious, 
 selfish, or party purposes, were the choice of the Electors 
 referred, as, according to the clear sense of public 
 opinion, it now almost universally is, to the people. 
 
 The Electors are directed by the Constitution to meet 
 in their respective States on the same day, as we have 
 seen, throughout the Union, which, in pursuance of the 
 discretionary power vested in Congress, has been fixed by 
 law on the first Wednesday in December, in every fourth 
 year succeeding the last election. The place of meet- 
 ing resting in the discretion of the State Legislatures, 
 is usually at the seat of the State Government. When 
 thus assembled, and fully organized by filling up vacan- 
 cies occurring from the death or absence of any of their 
 number, the Electors proceed to vote by ballot for two 
 persons, one of whom, at least, must not be an inhabi- 
 tant of the same State with themselves. According to 
 the original Constitution, they were not to designate 
 which of the two they voted for as President, and which 
 for Vice-President ; the latter of whom was, never- 
 theless, to be elected at the same time, in the same 
 manner, with the same qualifications, and for the same 
 term as the President. It was merely provided that the 
 person having the greatest number of votes should be 
 the PresideHt, if such number were a majority of the 
 whole number of Electors chosen ; and if there were 
 more than one having such majority, and an equal 
 number of votes, the House of Representatives were 
 immediately to choose by ballot, one of them for Presi- 
 dent ; and if no person had a majority, then, from the 
 five highest on the list, the House were, in like manner, 
 to choose the President. After the choice of the Presi- 
 dent, the person having the next greatest number of
 
 88 LECTURES ON 
 
 votes of the Electors, should be the Vice- President ; 
 but if there should remain two or more having equal 
 votes, the Senate was to choose from them by ballot, 
 the Vice-President. But in thus choosing the President, 
 the votes were to be taken by States ; the Representa- 
 tion from each State having one vote, and a quorum 
 for the purpose was to consist of a member, or members 
 from two thirds of the States ; and a majority of all 
 the States was necessary to a choice. 
 
 After the difficulty already alluded to in procuring a 
 constitutional choice, in consequence of an equality in 
 the Electoral votes, between Mr. Jefferson and Colonel 
 Burr, the two highest on the list of persons voted for by 
 the Electors, the Constitution was so amended as to 
 require the Electors to name in distinct ballots the per- 
 sons voted for respectively as President and Vice- 
 President. They are then directed to make distinct lists 
 of all voted for as President, and as Vice-President, and 
 the number of votes given to each respectively. These 
 lists they are to sign, certify, and transmit sealed, to the 
 seat of Government of the United States, directed to 
 the President of the Senate, before the first Wednesday, 
 in January next ensuing the election. 1 An Act of 
 Congress passed in March, 1792, requires that body to 
 be in session on the second Wednesday in February, 
 next ensuing the election, when the President of the 
 Senate, in the presence of both Houses of Congress, 
 opens the certificates received, and the votes are counted. 
 It is not explicitly declared by whom the votes are to be 
 counted, and the result proclaimed ; but the practice has 
 been for the President of the Senate to appoint a joint 
 
 1 Amendment to Const. U. S., xn.
 
 CONSTITUTIONAL JURISPRUDENCE. 89 
 
 committee of the two houses to perform the first of 
 those duties, and himself to perform the last, the two 
 Houses being present as spectators, to witness the fair- 
 ness and accuracy of the proceeding. 
 
 The person having the greatest number of votes for 
 President, if a majority of the whole number of Electors 
 appointed, is declared to be elected to that office ; and 
 if no person have such majority, then from those having 
 the highest numbers not exceeding three instead of 
 five, as was required by the Constitution on the list 
 of those voted for as President, are immediately to 
 choose the President in the manner directed in the 
 Constitution, the same number of States being requisite 
 to form a quorum, and the same majority of them 
 necessary to a choice. The amendment then declares 
 that the person having the greatest number of votes for 
 Vice- President if a majority of the whole number of 
 Electors appointed shall be the Vice-President ; and 
 if no person have such majority, then from the two 
 highest numbers on the list, the Senate shall choose the 
 Vice-President ; a quorum for the purpose to consist of 
 two thirds of the whole number of Senators. But no 
 person constitutionally ineligible to the office of Presi- 
 dent shall be eligible to that of Vice-President. 
 
 Although the Constitution directs that when no per- 
 son is found to have a majority of the Electoral votes, 
 the choice shall be immediately made by the House of 
 Representatives, yet it is not. held obligatory upon that 
 House to proceed to the election directly upon the sepa- 
 ration of the two Houses ; but that it may proceed 
 either at that time and place, or omit it until afterwards. 
 This construction was adopted before the amendment 
 in question, and there can now be no doubt of its 
 8*
 
 90 LECTURES ON 
 
 correctness, as * the amendment expressly declares the 
 choice of the House to be valid, if made before the 
 fourth of March following the day on which the Elec- 
 toral votes are counted. Accordingly, in 1825, when 
 there was again no choice by the Electors, the House 
 of Representatives retired to their own chamber, and 
 on this, as well as upon the occasion already mentioned, 
 the Senators were allowed to be present as spectators 
 only of the proceeding, and witnesses of the result. In 
 case no choice of President be made by the House of 
 Representatives before the time limited for their action, 
 it is declared that the Vice- President shall act as Presi- 
 dent, as in the case of the death or constitutional 
 inability of the President. 
 
 The Constitution, as thus amended, does not prescribe 
 specifically when or where the Senate is to choose the 
 Vice-President, in case no choice be made by the Electors, 
 and no case has occurred to form a precedent ; but from 
 analogy to the provision and practice in regard to the 
 President, it is presumed that the Senate may elect one 
 at any time before the ensuing fourth of March. With 
 respect to the day to which the secondary election is in 
 both cases limited, it is to be remarked that it was 
 adopted in reference to the law existing previously to 
 this amendment of the Constitution, which had declared, 
 as we have seen, that the term of four years for which 
 the President and Vice-President are elected, should 
 commence on the fourth day of March next succeeding 
 the day on which the votes of the Electors are given. 
 The effect of this amendment, therefore, is to render 
 the provisions of the Act of Congress, relative to the 
 specific times appointed for the performance of the sev- 
 eral duties enjoined by the Constitution, thus amended,
 
 CONSTITUTIONAL JURISPRUDENCE. 91 
 
 in regard to the election of President and Vice-Presi- 
 dent, as permanent as the Constitution itself. 
 
 Although the wisdom and policy of this amendment 
 has been doubted by some of our ablest statesmen and 
 jurists, there are others who consider it an improvement, 
 not only with respect to voting separately for President 
 and Vice- President, but in reducing the number of 
 candidates from which the Congressional selection of a 
 President is to be made from five to three, while the 
 Senate, in their choice of a Vice-President, is confined 
 to the two highest numbers of those voted for by the 
 Electors. In another particular, also, the amendment 
 may be considered beneficial. By the former mode of 
 proceeding, the Senate was restrained from acting until 
 the House had made its selection of a President, which, 
 if parties ran high, might be indefinitely delayed. By 
 the amendment, the Senate may proceed to choose a 
 Vice-President, in case one be not chosen by the Elec- 
 tors, immediately upon the declaration of that result. 
 Under the original mode, if the House of Representatives, 
 in the event of no choice by the Electors, did not choose 
 a President by the fourth of March, and the provision 
 that Congress is authorized to make by law for supply- 
 ing the vacancy of the office, should fail, it must have 
 remained vacant, unless, as it has been contended, the 
 Vice-President then in office was to act as President for 
 the next official term ; so that, notwithstanding the public 
 confidence may have been wholly withdrawn from him, 
 he would actually become President for the ensuing four 
 years, when he had been chosen by the Electors, in ref- 
 erence, not in form, but in fact, to the Vice-Presidency, 
 and that, too, for the preceding term ; whereas, on the 
 plan now in force, if no President be chosen, either by
 
 92 LECTURES ON 
 
 the Electors, or the House of Representatives, the Vice- 
 President then to fill the office of President, will have 
 recently received the suffrages of the Electors, as well 
 as of the Senators. After all, however, it may be 
 doubted whether a greater evil has not been introduced 
 by the amendment in the greater facility it affords to 
 party organization, and the selection of mere party 
 leaders, which was the very evil intended to be guarded 
 against by the former regulation, besides insuring the 
 election of two persons, either of whom would be com- 
 petent for the higher office. 
 
 From a review of these various provisions, the mode 
 of electing the Supreme Magistrate of the Union ap- 
 pears to be well calculated to secure a discreet choice, 
 and to avoid those evils which the partizans of monarchy 
 have ascribed, and the experience of past ages have 
 shown to belong to popular election. It must, neverthe- 
 less, be acknowledged, that the large and elevated views 
 of the men who planned the Constitution, and the 
 expectations of those who defended this portion of it, 
 upon the refined theoretical reasoning I have adverted 
 to, have not been realized in its practical operation and 
 effects. It was supposed that the election of the Presi- 
 dent would be committed to men not likely to be 
 swayed by party or personal bias ; who would act 
 unfettered by previous commitment, uncontrolled by 
 combinations or discipline, and be subject neither to 
 intimidation nor corruption ; and it was thought that 
 the choice of an intermediate body of Electors, con- 
 sisting of several members, would be much less apt to 
 agitate and convulse the community than the election 
 of a single person, who was himself the first object of 
 their wishes. Perhaps those views and expectations
 
 CONSTITUTIONAL JURISPRUDENCE. 93 
 
 were founded on too exalted an estimate of human 
 nature ; and that, making due allowance for human 
 frailty and imperfection, they have not been altogether 
 frustrated. Experience, however, has proved that the 
 Electors do not, in fact, assemble for a strictly free 
 exercise of their own judgments, but for the purpose 
 of giving a constitutional sanction to the choice of a 
 particular candidate, previously designated by their 
 party leaders. In some instances, the principles on 
 which they are constituted have been so far forgotten, 
 that the individual opinion of the Elector has submitted 
 to the dictation of those by whom he was chosen ; and 
 in others, the Electors have even pledged themselves 
 beforehand to vote for a candidate prescribed to them 
 by the managers of their party ; and thus, the whole 
 foundation of the elaborate theory on which this part 
 of the Constitution was built, has been subverted in 
 practice. The essential ends of the Constitution have, 
 nevertheless, in a measure been attained ; and in a 
 government in which parties must ever exist, that sys- 
 tem may be deemed salutary in its operation, which 
 results in the election of the most eminent, or, even the 
 most popular statesman of the most numerous party. 
 
 Had any other mode of election been adopted, it 
 would have been impossible, in a Republican Govern- 
 ment, to have excluded party considerations, interests, 
 and feelings. The great objects were to preserve purity 
 as well as harmony in the election, and to secure in- 
 tegrity as well as independence in the Executive Power. 
 Had the choice of President been referred in the first 
 instance to Congress, it would, without excluding party 
 views and motives, have rendered him too dependent 
 on the immediate authors of his elevation to comport
 
 94 LECTURES ON 
 
 with the requisite energy of his department, and have 
 tempted him to indulge in intrigues and manoeuvres 
 utterly subversive of the fairness of the election, and 
 the purity of his own character. He would then no 
 longer consider himself responsible to the People, but 
 would be prone to obey, and fearful to offend a power 
 which, in that case, would have shown itself greater 
 than the People themselves. 
 
 Whether greater ferments and commotions would 
 accompany a general election of the President by the 
 whole body of the People, than have hitherto attended 
 the elections by Electors, and, certainly, these have, 
 as yet, excited no real alarm, or whether that mode 
 of election would, with regard to the prescribed ratio 
 of representation, be conveniently practised, remains, 
 indeed, to be ascertained. It has been objected that 
 such a measure would " lead to an entire consolidation 
 of the Government, and the annihilation of the State 
 sovereignties, so far as concerns the organization of the 
 Executive Department." But if the difference should 
 consist merely in the form, and not the objects of the 
 election, nor in the authority that orders and controls 
 it, if, for instance, the People in their several States, 
 instead of voting ; for Electors, should, in the same 
 manner, at the same time and places, and under the 
 same regulations, vote directly for the President and 
 Vice-President, and the number of votes to which the 
 State is entitled under the existing provisions of the 
 Constitution, should be computed as given to the per- 
 sons receiving the highest vote from the people for these 
 offices respectively, I must confess my inability to dis- 
 cover any greater danger to the sovereignty of the 
 States than exists under the present system. Nor, as
 
 CONSTITUTIONAL JURISPRUDENCE. 95 
 
 the Electors are now avowedly chosen in direct refer- 
 ence to the persons for whom they are expected, if not 
 pledged to vote, can I conceive any sound objection to 
 such an amendment. On the contrary, I think there is 
 much to recommend it, especially if accompanied by a 
 provision superseding the ultimate reference to Con- 
 gress, in case of no choice by the Electors, by a second- 
 ary resort to the latter body. Such an alteration has, 
 indeed, been actually proposed and urged in Congress 
 with great force of argument, particularly the substitu- 
 tion of a final election by Electors, instead of the 
 House of Representatives, in cases where no choice of 
 a President is made by the People. 
 
 From the example of the illustrious individual who 
 first held the office, a practice has arisen, and seems 
 now to be permanently established, for the President to 
 decline a second reelection. As this precedent has 
 never been, as yet, and probably never will be, departed 
 from, it has in effect limited the period of service to 
 eight years, subject to an intermediate election. But 
 to render the President more independent, the adminis- 
 tration and its policy more stable, and the People more 
 secure, it would be better that this practice should be 
 sanctioned and legalized by being incorporated in the 
 system ; and such an amendment of the Constitution, 
 in connection with that already suggested, has been 
 actually brought forward, and appeared to have been 
 favored by some of the most intelligent and upright of 
 our public men. 
 
 Having fully explained the manner in which the 
 Supreme Executive office is constituted, and the mode 
 of electing the President and Vice- President, I proceed 
 to consider
 
 96 LECTURES ON 
 
 II. The powers with which the President is in- 
 vested. 
 
 1. The first of these which offers itself to observation, 
 has already been adverted to in reviewing the Legisla- 
 tive departments, and its connection with the Executive 
 power, for the preservation of their mutual independ- 
 ence, I mean the qualified negative of the President 
 upon the concurrent acts of Congress, or his right of 
 returning Bills and Resolutions, with his objections to 
 them, to the House in which they originated, for recon- 
 sideration ; whereby they are prevented from taking 
 effect as laws, unless again passed by two thirds of the 
 members present in each House respectively. 
 
 The propensity of the Legislative department to in- 
 trude upon the rights and absorb the powers of the other 
 weaker branches of the government, and the consequent 
 necessity of furnishing the latter with constitutional 
 arms for their defence, have already been the subject of 
 remark. From clear and indubitable principles it has 
 been shown that, without this control over the proceed- 
 ings of Congress, the Executive department would be 
 unable to sustain itself against the encroachments of 
 the Legislature. The President might gradually be 
 stripped of his authority by concurrent Resolutions of 
 Congress, or so weakened as ultimately to be annihi- 
 lated by a single vote of the more popular branch of the 
 Legislature; and by the one mode or the other, the 
 Legislative and Executive powers might speedily be 
 united in the same hands. Indeed, if no tendency had 
 ever been manifested in Legislative bodies to invade 
 the rights of the Executive power, just reasoning and 
 theoretic propriety would of themselves teach us, that 
 the one ought not to be left at the mercy of the other,
 
 CONSTITUTIONAL JURISPRUDENCE. 97 
 
 but should be endowed with a constitutional and effec- 
 tual power of self-defence. 
 
 But the power in question has a further use. It not 
 only serves as a shield to the Executive authority, but 
 affords an additional security against the enactment of 
 improper laws. It establishes a salutary guard upon 
 the Legislative power, well calculated to defend the 
 community against the effects of faction, precipitancy, 
 or any impulse hostile to the public good, which may 
 happen for the moment to influence a majority of 
 Congress. 1 The propriety of vesting such a power in 
 the Chief Magistrate has been sometimes combated on 
 the ground of its presuming that a single individual 
 was possessed of more wisdom and virtue than a 
 numerous assembly. The question, however, does not 
 depend upon the supposition of superior wisdom and 
 virtue in the President, but upon the presumption that 
 the Legislature, though possessed of those qualities in 
 the highest degree, would still be fallible ; that the love 
 of power would sometimes dispose them to acts injuri- 
 ous to the rights of the other members of the Govern- 
 ment ; that a spirit of faction might sometimes pervert 
 their deliberations, and that momentary impressions 
 sometimes impel them to measures which, upon mature 
 
 1 A prerogative has, of late years, been claimed in favor of majori- 
 ties, similar to that vested by the English Constitution in the Crown, 
 viz : that they " can do no wrong." But this was not the doctrine of 
 Mr. Madison, and the other founders of our Constitution. That 
 great republican statesman defined " any number of citizens, whetJier 
 amounting to a majority or a minority of the whole, united and actu- 
 ated by some common impulse of purpose or interest adverse to the 
 rights of other citizens, or to the permanent and aggregate interests 
 of the community," to be " a faction" See " The Federalist," No. 10. 
 
 9
 
 98 LECTURES ON 
 
 reflection, they would themselves condemn. Thus the 
 primary inducement of conferring this power on the 
 President is to enable him to defend himself; the sec- 
 ondary, to increase the chances in favor of the com- 
 munity against the passage of bad laws by Congress, 
 through haste, inadvertence, or design. 
 
 2. The President is constituted Commander-in-chief 
 of the army and navy of the United States, and of the 
 militia of the several States, when called in the service 
 of the Union. 1 
 
 The command and direction of the public force, to 
 execute the laws, maintain peace and tranquillity at 
 home, and resist invasion from abroad, are powers so 
 obviously of an executive nature, and so peculiarly 
 demand the exercise of the qualities characteristic of 
 that department, these duties have been so uniformly 
 appropriated to it in every well-organized government, 
 and are so consonant to the precedents of the State 
 Constitutions, that little is necessary to explain or 
 enforce them. Of all the cares or concerns of govern- 
 ment, the management of war, which implies the direc- 
 tion of the public force, demands most peculiarly the 
 exercise of power by a single hand ; and even those of 
 our States which have, in other matters, coupled their 
 Chief Magistrate with a Council, have, for the most 
 part, concentrated the military authority in him alone. 
 
 3. The President has the sole power of granting 
 reprieves and pardons for offences against the United 
 States, except in cases of impeachment. 2 
 
 The necessity of such an authority in every govern- 
 ment, arises from the infirmities incident to the admin- 
 
 Const. U. 8., Art. II. Sect n. 1. 2 /j#. 3.
 
 CONSTITUTIONAL JURISPRUDENCE. 99 
 
 istration of human justice. And were it possible, in 
 every case, to maintain a just proportion between the 
 crime and the penalty ; were the rules of evidence, and 
 the mode of trial, so perfect as to preclude every possi- 
 bility of mistake or injustice, still, policy would some- 
 times require the remission of a punishment strictly due 
 for a crime clearly ascertained. Both humanity and 
 policy dictate that this benign prerogative of mercy 
 should be as little as possible fettered and embarrassed, 
 and suggests as plainly the expediency of vesting it 
 exclusively in the President. 
 
 As the sense of responsibility is always stronger in 
 proportion as it is undivided, it may justly be inferred 
 that one man will be more ready to recognize the force 
 of motives and reasons for mitigating the rigor of the 
 law, and least apt to yield to inducements calculated to 
 shelter a fit object from its exemplary visitation ; while, 
 On the other hand, as men generally derive confidence 
 from their numbers, it may, with equal justice be appre- 
 hended, that they might often encourage each other in 
 acts of obduracy, and be less sensible to the dread of 
 censure for an injudicious or affected clemency. The 
 power of pardon vested in the President is not, however, 
 without limitation. He is precluded, as we have seen, 
 in cases of impeachment, from screening public officers, 
 with whom he may have formed a dangerous or corrupt 
 coalition, or who may frequently be his favorites and 
 dependents. 
 
 4. The President has power, by and with the advice 
 and consent of the Senate, to make treaties , provided 
 two thirds of the Senators present concur. 1 
 
 i Const. U. S., Art. II. Sect. n. 4.
 
 100 LECTUBES ON 
 
 Much difference of opinion seems to prevail among 
 writers on Government upon the question whether, in 
 the natural distribution of power, the authority to 
 negotiate and conclude compacts and arrangements 
 with foreign nations, is properly of Legislative or of 
 Executive cognizance. As treaties are declared, by the 
 Constitution of the United States to be a part of the 
 supreme law of the land, as by means of these national 
 engagements, new relations are formed, and new obliga- 
 tions contracted, it seems more consonant to the princi- 
 ples of our Government to consider the right of entering 
 into them as falling within the jurisdiction of the Legis- 
 lature. On the other hand, the preliminary negotiations 
 which may be required, and the secrecy and dispatch 
 proper to take advantage of a sudden and favorable 
 turn in public affairs, render it expedient to place this 
 power in the hands of the Executive. The framers of 
 the Constitution were influenced more by the latter, 
 than the former consideration. But although the power 
 in question, if we carefully attend to its operation, will 
 be found to partake more of the Legislative than of the 
 Executive character, yet it does not seem to fall strictly 
 within either department. The essence of the Legisla- 
 tive power is to prescribe laws for the regulation of the 
 Commonwealth ; while the execution of those laws, and 
 the employment of the public force, either for that pur- 
 pose, or for the common defence, comprise all the 
 proper functions of the Executive magistrate. The 
 power of making treaties relates neither to the execu- 
 tion of subsisting laws, nor to the making of new ones. 
 Its objects are contracts, which have, indeed, the force 
 of laws, but derive that force, not from legislation, but 
 from the obligations of good faith. They are not rules
 
 CONSTITUTIONAL JURISPRUDENCE. 101 
 
 prescribed by the supreme legislative power to the 
 citizens of the State, but agreements between sovereign 
 and independent States. This power, then, forms a 
 distinct department, and the Constitution has wisely 
 confided it, in its preliminary stages, to the President. 
 
 The qualities indispensable to the management of 
 international intercourse and negotiation, point to the 
 President as the most fit organ of communication 
 with foreign powers, and the efficient agent in the 
 conclusion of treaties ; while the vast importance of 
 the trust, and the operation of treaties as laws, strongly 
 recommend the "participation of a portion, at least, of 
 the Legislative power in the office of making them. 
 The Senate was most judiciously selected for that pur- 
 pose, not only as the deposit of the power in that body 
 imparts additional strength and security to it, as the 
 weaker branch of the Legislature, but because, from its 
 smaller number and greater permanence, it may be 
 more readily convened, and is moreover governed by 
 steadier and more systematic views of public policy, 
 and enabled to act with due promptitude and firmness. 
 
 5. The President is invested with the power to nomi- 
 nate, and, with the advice and consent of the Senate, to 
 appoint Ambassadors, and other public Ministers, and 
 Consuls, Judges of the Supreme Court, and all other 
 officers of the United States whose appointments are 
 not otherwise provided for, and which shall be estab- 
 lished by law. But Congress may vest the appointment 
 of such inferior officers as they may think proper, in the 
 President alone, in the Courts of Law, or in the Heads 
 of Departments. 1 
 
 1 Const. U. S., Art. II. Sect. n. 5. 
 9*
 
 102 LECTURES ON 
 
 The exercise, by the people at large, of this power 
 of appointing the subordinate officers of the govern- 
 ment would be impracticable ; and a concurrent right 
 of nomination by the Legislature, or any other select 
 body, would afford great temptation and opportunity to 
 intrigue, favoritism, and corrupt cabals, besides releas- 
 ing the appointing power from all responsibility. No 
 plan, probably, could have been devised better calcu- 
 lated, upon the whole, to promote a judicious choice of 
 men to fill the public offices, than that which was 
 adopted. The power of selecting the Heads of Depart- 
 ments, who, by the way, are not otherwise recognized in 
 the Constitution, but are established by law to aid the 
 President in the discharge of his Executive duties ; of 
 nominating agents to whom the immediate conduct of 
 international affairs, and the negotiation of foreign 
 treaties are confided ; and of selecting the proper men 
 for the highest judicial stations, is with peculiar pro- 
 priety vested in the President, as he is held responsible 
 for those acts of his immediate assistants and confi- 
 dential advisers which receive his sanction, is charged 
 with the management of foreign affairs, and bound to 
 see both the treaties and the laws faithfully executed. 
 
 The association of the Senate with the President in 
 the exercise of this power, is an exception to the general 
 delegation of the Executive authority, which, were it 
 not accompanied by the provision vesting in him the 
 exclusive right of nomination, would be attended by 
 the evils already adverted to. But this power of nomi- 
 nation is, for all useful purposes of restraint, equivalent 
 to a power of absolute appointment ; and imposes upon 
 the President the same vivid sense of responsibility, 
 and the same necessity of meeting the public approba-
 
 CONSTITUTIONAL JURISPRUDENCE. 103 
 
 tion or censure ; while the advice and consent of the 
 Senate, which are necessary to render the nomination 
 effectual, can never be attended with mischievous con- 
 sequences, and must, at all times, prove a check upon 
 the misinformation or errors of the President. To 
 prevent the inconvenience which would arise from oc- 
 casional vacancies in office when the Senate is not in 
 session, the President has power to fill up those which 
 happen during a recess, by granting commissions which 
 expire at the end of the next session of Congress. 1 
 
 6. The remaining duties of the President consist in 
 giving information to Congress of the state of the 
 Union ; and recommending to their consideration such 
 measures as he shall judge necessary or expedient. He 
 may, on extraordinary occasions, convene both Houses 
 of Congress, or either of them, and, in case of disagree- 
 ment between them, may, as we have seen, adjourn 
 them to such time as he may think proper. It is his 
 duty to receive ambassadors, and other public ministers 
 from abroad, to commission all officers of the United 
 States, and generally and comprehensively to take care 
 that the laws be faithfully executed. 2 
 
 Such are the powers vested by the Constitution in 
 the President ; and so far as they are derived from that 
 instrument, he is beyond the control of any other branch 
 of the government, except in the mode it prescribes, 
 by impeachment. But it by no means follows that 
 every officer in every subdivision of the Executive de- 
 partments, is under the exclusive control of the Presi- 
 dent. Congress has created certain subordinate officers 
 to assist the President in the discharge of his duties, 
 
 1 Const. U. S., Art. II. Sect. n. 5. 
 
 2 Ibid., Art. II. Sect. m.
 
 104 LECTURES ON 
 
 and has organized the several " Departments," of which 
 it has constituted those officers the " Heads." ' Through 
 these, the President speaks and acts in relation to the 
 subjects appertaining to their respective duties. For 
 certain duties are imposed upon each of them by law, 
 to be discharged under the direction of the President. 
 It would, nevertheless, be an alarming doctrine that 
 Congress cannot impose upon any Executive officer 
 any duty it may think proper, not repugnant to any 
 right secured by the Constitution, and render such duty, 
 and his responsibility for its discharge, subject to the 
 control of the law, and not the direction of the Presi- 
 dent, especially when the duty enjoined is of a merely 
 ministerial character. Such a doctrine would invest the 
 President with a dispensing power, which has no coun- 
 tenance for its support in any part of the Constitution, 
 and enable him to control the legislation of Congress, 
 and paralyze the administration of justice. 
 
 In general, however, the official duties of these Heads 
 of Departments are not mere ministerial duties. In the 
 administration of the various and important business 
 of their offices, they are continually required to exercise 
 judgment and discretion. They must use their judg- 
 
 1 There are, at present, 1. " The Secretary of State," to whom is 
 committed the charge of foreign affairs. 2. " The Secretary of the 
 Interior," having charge of domestic concerns, and Indian affairs. 
 3. " The Secretary of the Treasury," superintending the revenue and 
 financial affairs of the government. 4. " The Secretary at War," 
 charged with the management of military affairs. 5. " The Secretary 
 of the Navy," having charge of the naval affairs of the Union. 
 6. The Postmaster-General, as superintending the management of 
 postal concerns, both in regard to finance and the transportation of 
 the mails. 7. The Attorney-General, as " Head " of the recently 
 created " Law Department."
 
 CONSTITUTIONAL JURISPRUDENCE. 105 
 
 ment in expounding the laws and resolutions of Con- 
 gress, under which they are, from time to time, required 
 to act. In cases of doubt, the Secretaries have a right 
 to call upon the Attorney- General to assist them with 
 his counsel ; and it would be difficult to imagine why a 
 legal adviser should have been provided by law for the 
 other Heads of Departments, as well as for the Presi- 
 dent himself, unless their duties were regarded, in some 
 instances, as such in which judgment and discretion 
 were to be exercised. 
 
 If a suit should come before the courts of the United 
 States, which involved the construction of any law 
 imposing duties on the Head of a Department, the 
 judges certainly would not be bound by the construc- 
 tion he may have given to it. If they held his decision 
 to be wrong, they would, of course, pronounce judg- 
 ment accordingly. But the judgment of the court upon 
 its construction of the law, must be given in a case in 
 which it has jurisdiction ; and in which it is its duty to 
 interpret the Act of Congress in order to ascertain the 
 rights of the parties. The Supreme Court cannot en- 
 tertain an Appeal from a decision of one of the Heads 
 of Departments, nor revise his judgment in any case 
 where the law authorizes him to exercise his discretion 
 or judgment ; nor can it, by mandamus, act directly upon 
 the officer, or guide and control his judgment or discre- 
 tion, in matters committed to his care in the ordinary 
 discharge of his official duties. The interference of the 
 courts with the performance of the ordinary duties of 
 the Executive Departments of the government, would 
 be productive of nothing but mischief, and this power 
 was never intended to be given to them. 1 
 
 I 12 Peters, 524; 14 Ibid. 497 ; 1 Howard, 120.
 
 106 LECTURES ON 
 
 III. The support of the President, which is the next 
 subject of examination, is secured by a provision in the 
 Constitution, which declares that he shall, at stated 
 times, receive for his services a compensation which 
 shall neither be increased nor diminished during the 
 period for which he was elected ; and that he shall not 
 receive, within that time, any other emolument from 
 the United States, or any of the States. 1 This pro- 
 vision was intended to strengthen and preserve the 
 proper independence and energy of the Executive De- 
 partment. It would be in vain to declare that the 
 different departments of the government should be 
 separate and distinct, if the Legislature possessed a 
 control over the salaries of the Chief Executive Magis- 
 trate and the Judicial officers. This, indeed, would be 
 to disregard the voice of experience, and the operation 
 of invariable principles of human conduct. The former 
 Constitution of Virginia, for instance, considered it as 
 a fundamental maxim of government, that the three 
 great Departments should be kept distinct, so that 
 neither of them should exercise the powers properly 
 belonging to another. But without taking any precau- 
 tions to preserve this principle in practice, it rendered 
 the Governor dependent upon the Legislature for his 
 annual existence and support. The result was, as Mr. 
 Jefferson informs us, " that during the whole session of 
 the Legislature, the direction of the Executive by that 
 body was habitual and familiar." 2 
 
 The Constitution of Massachusetts discovered fnore 
 wisdom, and afforded the first example of a constitu- 
 
 1 Const. U. S., Art. II. Sect. I. 7. 
 
 2 Notes ou Virginia.
 
 CONSTITUTIONAL JURISPRUDENCE. 107 
 
 tional provision for the support of the Executive Magis- 
 trate, by declaring that the Governor should have a 
 salary of a fixed and permanent value, amply sufficient, 
 and established by standing law. Those State Consti- 
 tutions which have been made or amended since the 
 adoption of the Constitution of the United States, have 
 generally followed the example which that instrument 
 happily set to them in this, as well as in many other 
 particulars ; and, it has been well observed by one of 
 our ablest jurists, that " we may consider it as one of 
 the most signal blessings bestowed on this country, 
 that we have such a fabric as the Federal Constitution 
 constantly before our eyes, not only for national pro- 
 tection, but for local imitation and example. 1 
 
 The appointment of an extraordinary person as Vice- 
 President of the United States, and ex-qfficio President 
 of the Senate, was originally objected to as superfluous, 
 if not mischievous. But it was justified principally on 
 two considerations ; the first was, that to secure, at all 
 times, a definite resolution of the Senate, it was neces- 
 sary that the President of that body should have a 
 casting vote ; and to take a Senator from his seat as 
 Senator, and place him in that of the presiding officer, 
 would be, in regard to the State from which he came, 
 to exchange a constant, for a contingent vote. The 
 other consideration was, that as the Vice-President may 
 occasionally become a substitute for the President in 
 the supreme Executive office, all the reasons which 
 recommend the mode of election prescribed, in the first 
 instance, for the one, apply with great, if not with equal 
 force to the other. 
 
 1 By Mr. Chancellor Kent, in his "Commentaries."
 
 108 LECTUKES ON 
 
 The powers and duties of the President devolve, as 
 we have seen, on the Vice- President, not only when no 
 choice is made by the Electors, or the House of Repre- 
 sentatives, but also in case of , the President's removal 
 from office, or of his death, resignation, or inability to 
 discharge his duties ; and Congress is authorized to 
 provide by law for the case of vacancies in the offices 
 of both President and Vice-President. 1 In pursuance 
 of this power, it has been enacted that in the event of 
 such vacancies, the President of the Senate pro tempore, 
 and, in case there should be no such President of the 
 Senate, that the Speaker of the House of Representa- 
 tives for the time being, shall act as President of the 
 United States until the vacancy be supplied. 
 
 The evidence of a refusal to accept, or of a resigna- 
 tion of the office of President or Vice-President, is 
 declared by the same Act of Congress to be a declara- 
 tion in writing, filed in the office of the Secretary of 
 State. 
 
 As it might become a question who would be the 
 person to serve, if the office of President should devolve 
 on the Speaker of the House of Representatives, after 
 the Congress for which the last Speaker was chosen 
 had expired, and before the new Congress has met, it 
 is usual for the Vice-President to withdraw from the 
 Senate shortly before the adjournment of the session, 
 in order to afford that body the opportunity to choose a 
 President, pro tempore, from among those of its members 
 whose terms of service continue over the next session 
 of Congress ; and if he should die or resign during the 
 interval or recess, and a casual vacancy occur in the 
 
 l Const. U. S., Art II. Sect. i. 6.
 
 CONSTITUTIONAL JURISPRUDENCE. 109 
 
 offices of President and Vice-President, the former 
 Speaker would probably be deemed the person upon 
 whom the office was intended to devolve. If the Vice- 
 President succeed to the office of President, he con- 
 tinues in it until the expiration of the term for which 
 the President was elected. If both offices are vacant, 
 it is made the duty of the Secretary of State to take 
 measures under the Act of Congress, for the election of 
 a President. But as that Act was passed before the 
 amendment of the Constitution, directing the Electors 
 to vote separately for the President and Vice-President, 
 and as that amendment omitted, perhaps intentionally, 
 to provide for the case, a Vice-President cannot be 
 elected, in the event of a vacancy in that office, until 
 the next regular period. 1 
 
 In addition to aU the other precautions to prevent 
 abuse in the Executive trust, in the mode of the Presi- 
 dent's appointment, in the limitation of his term of 
 office, and in the precise and definite restrictions on 
 the exercise of his powers, the Constitution provides 
 that, before he enter on the execution of his office, he 
 shall take an oath or affirmation faithfully to execute 
 the same ; and, to the best of his ability, to preserve, 
 protect, and defend the Constitution ; and it renders 
 him amenable to justice for mal-administration. 2 The 
 President, as well as all other officers of the Govern- 
 ment, may be impeached, as we have seen, for treason, 
 bribery, and other high crimes and misdemeanors, and, 
 upon conviction, removed from office. 
 
 1 Const. U. S., Art. II. Secti. 6. Amend. XII. Mr. Justice Story, 
 in his Commentaries, 14-77, hints a doubt, whether the Act in 
 question be constitutional. 
 
 2 Const. U. S., Art. II. Sect. n. 8, and Ibid. Sect. iv. 
 
 10
 
 110 LECTURES ON 
 
 The inviolability of the Supreme Magistrate, as main- 
 tained in the English law, is incompatible with the 
 theory of our government, as well as with the principles 
 of retributive justice ; and if neither the sense of duty, 
 the force of public opinion, nor the transitory nature of* 
 his power, prove sufficient to secure the faithful dis- 
 charge of the Executive office, if a President of the 
 United States will use the authority of his station to 
 violate the Constitution and laws, even he, as easily 
 and as promptly as any subordinate officer, may be 
 arrested in his course by an impeachment. 
 
 Considering the nature and extent of the authority 
 necessarily incident to the station, it was difficult to 
 constitute the office of President so as to render it 
 equally safe and efficient, by combining, in the struc- 
 ture of its power, a due proportion of energy and 
 responsibility. The former is necessary to maintain a 
 firm administration of the laws ; the latter, to preserve 
 inviolate the rights of the People and of the States. 
 " The authors of the Federal Constitution," says the 
 eminent jurist I have so frequently quoted, " appear to 
 have surveyed these two objects with profound discern- 
 ment, and have organized the Executive Department 
 with consummate skill." 1 
 
 1 2 Kent's Comm. Part. 2d, Sect. 13.
 
 CONSTITUTIONAL JUKISPRUDENCE. Ill 
 
 LECTURE V. 
 
 OF THE JUDICIAL POWER. 
 
 As the personal security and private property of 
 every individual depend on the wisdom, stability, and 
 integrity of the Courts of Justice, the Judicial power 
 interferes more directly and uniformly than either of 
 the other departments, with all the concerns of social 
 and private life. No Government can be complete in 
 its form, or perfect in its principles of organization, 
 without this power. To make laws and execute them, 
 are the respective objects of the other two departments, 
 and are, indeed, the two principal operations of govern- 
 ment. But laws cannot be fully and correctly executed 
 unless there be a power in the State to expound and 
 apply them. This power being auxiliary to the Execu- 
 tive authority, partakes, in some degree, of its nature. 
 But its office is, in some cases, to control the exercise 
 of Executive power ; and those acts of the latter, which- 
 are judicially declared to be unconstitutional or unlaw- 
 ful, are thereby rendered inoperative and void. The 
 Judicial department may also be said to participate in 
 the Legislative power, as its construction of Legislative 
 acts is binding and conclusive ; although this does not 
 prevent the Legislature from repairing defects, or ex- 
 plaining ambiguities, by subsequent laws operating on 
 subsequent cases.
 
 112 LECTURES ON 
 
 A higher function, moreover, appertains to this de- 
 partment, under a written Constitution, founded upon 
 true principles of representation, and establishing a just 
 separation of the three branches of Government, and 
 that is, to expound the Constitution, and thereby test 
 the validity of the acts of the Legislature, as well as 
 those of the Executive department, in all cases where 
 the question as to their construction arises in a suit at 
 law or in equity. Hence the more imperious and abso- 
 lute necessity of securing, by fundamental provisions, 
 the independence of the Judicial power. A Constitu- 
 tion which omitted to establish an adequate Judicial 
 power, could not successfully be carried into effect ; and 
 if, instead of being rendered independent, that power 
 be united with one or both of the other departments, or 
 if those charged with its administration were made 
 dependent on either of them, its dignity and utility 
 would be destroyed. 
 
 The Judicial power in every government must be 
 coextensive with the power of legislation. Were there 
 no power to interpret, pronounce, and enforce the laws, 
 the Government, if it did not perish by its own weak- 
 ness, would be corrupted by the usurpation of new 
 powers by the Legislature, to the subversion of public 
 liberty. But the Judicial authority cannot, by the force 
 of language, be made to exceed the Legislative power, 
 for such excess would be inconsistent with its nature ; 
 and if, by express terms, it should, on the other hand, 
 be so restricted as to embrace a 'part only of the subjects 
 of actual legislation, the integrity and efficiency of the 
 whole system would, in proportion, be materially im- 
 paired. The Constitution, therefore, establishes the 
 Judicial power as a substantive, integral, and indepen-
 
 CONSTITUTIONAL JURISPRUDENCE. 113 
 
 dent branch of the Government ; and this was the more 
 necessary, from the extraordinary complications of the 
 authority of the United States with that of the several 
 States, resulting unavoidably from the nature of the 
 Federal Union. The Judicial power of the National 
 Government is accordingly vested "in one Supreme 
 Court, and in such Inferior Courts as Congress may, 
 from time to time, ordain and establish." 1 A Chief 
 Justice is recognized in the article which provides that 
 when the President shall be impeached, " the Chief Jus- 
 tice " shall preside at the trial ; and the existence of 
 other Judges is contemplated by the provision which 
 prescribes the manner of their appointment. The com- 
 plete organization, however, of the Supreme Court, as 
 well as the establishment of inferior and subordinate 
 Courts, is provided for by statute. 
 
 In the survey which I propose to take of this interest- 
 ing and important branch of the Federal Government, 
 I shall consider, First, the manner in which it is consti- 
 tuted ; and Secondly, the extent and distribution of its 
 authority. The first point embraces these several ob- 
 jects, viz : The mode in which the Judges of the several 
 Courts of the United States are appointed; the tenure 
 by which they hold their offices ; the provision for their 
 support; and the precautions to secure their responsi- 
 bility. 
 
 I. The manner in which the Judicial power of the 
 United States is constituted ; and 1st. As to the mode 
 in which the Judges are appointed. 
 
 The mode of appointing public officers, by the Presi- 
 dent and Senate, I have already spoken of as generally 
 
 i Const. U. S., Art. III. Sect. I. 
 
 10*
 
 114 LECTURES ON 
 
 advantageous ; and it seems peculiarly fit and proper 
 with respect to the Judicial department. The just and 
 vigorous investigation and punishment of every species 
 of fraud and violence, and the compelling every man 
 punctually to fulfil his contracts, are duties, not, certainly, 
 of the most popular character, although their faithful 
 discharge will always command the approbation of the 
 candid and judicious. The fittest men would probably 
 possess too much reserve, and too much severity of 
 morals, to secure an election depending on universal 
 suffrage ; nor would the mode of appointment by a 
 large deliberative assembly be entitled to unqualified 
 approbation. There are too many occasions, and too 
 many temptations for intrigue and the operation of 
 party prejudices, and too much scope for the interfer- 
 ence of local interests to permit such a body to act, in 
 such cases, with a sufficiently single and steady regard 
 for the public welfare. 
 
 2. The Judges, both of the Supreme and inferior 
 Courts, hold their offices during good behavior. This 
 tenure, as a standard for the duration and continuance 
 in office of the Judicial Magistracy, is considered by 
 the authors of " The Federalist," l as " one of the most 
 valuable of modern improvements in the practice of 
 government. In a Monarchy, it is a necessary barrier 
 against the despotism of the Prince. In a Republic, it 
 is no less essential as a defence against the encroach- 
 ments of the Executive and Legislative powers ; and 
 it is the best expedient that can be devised, in any 
 Government, to secure a steady, upright, and impartial 
 administration of the laws." This principle, which has 
 
 1 No. 78, by Mr. Hamilton.
 
 CONSTITUTIONAL JURISPRUDENCE. 115 
 
 been the subject of much deserved eulogy, is one of 
 the many benefits derived from the land of our fore- 
 fathers, where the Judges anciently held their seats at 
 the pleasure of the Crown, as does the Chancellor to 
 this day. It is easy to conceive what a dangerous influ- 
 ence this must have given to the King in the adminis- 
 tration of justice in those cases where the claims or 
 pretensions of the Government were made to bear on 
 the rights of a private individual. And, although in 
 the reign of James I., the Barons of the Exchequer, 
 the Court in which jurisdiction is taken of all matters 
 relative to the revenues and property of the Crown, 
 were created during good behavior ; and, although the 
 commissions of the other Judges were made so to run 
 at the restoration of Charles II., it still remained at the 
 pleasure of the Crown to prescribe the form of the com- 
 mission, until the statute of William and Mary estab- 
 lished the commissions of all the Common Law Judges 
 to be quam din bene se gesserint. The excellence of 
 this provision has recommended its adoption by other 
 nations of Europe, and it prevails in many of our State 
 Constitutions ; but in some, under modifications more 
 or less extensive and injurious. 
 
 Whoever attentively considers the different depart- 
 ments of power, must perceive that in a Government in 
 which they are separated from each other, the Judiciary, 
 from the nature of its functions, will always be the 
 least dangerous to the political rights secured by the 
 Constitution, because it will have the least capacity to 
 invade or injure them. The Executive power not only 
 dispenses the honors, but wields the sword of the com- 
 munity. The Legislature not only holds the public 
 purse, but prescribes the rules by which the rights and
 
 116 LECTURES ON 
 
 duties of every citizen are to be enjoyed and regulated. 
 But the Judicial power has no command over the 
 sword or .the purse ; no direction, either of the strength 
 or the wealth of the society, and can take no active 
 resolution whatsoever. It has been truly and emphati- 
 cally said to have " neither force nor will, but merely 
 judgment ; " l and even for the practical exercise of this 
 faculty, it must depend on the protection and support 
 of the Executive arm. This view of the subject shows, 
 in the first place, that the Judicial is, beyond all com- 
 parison, the weakest of the three departments of power ; 
 that it can never attack, with success, either of the 
 others ; and that all possible care is required to defend 
 it from attacks by them. It also shows that, although 
 individual oppression may, now and then, proceed from 
 the Courts of Justice, yet the general liberty of the 
 People can never be endangered from that quarter, so 
 long as the Judicial remains truly distinct from the 
 Legislative and Executive powers ; and lastly, it shows, 
 as a consequence of these previous deductions, and 
 bearing immediately upon the point we are considering, 
 that nothing can contribute so much to the firmness 
 and independence of the Judicial power, as permanency 
 in office. This quality, therefore, may justly be re- 
 garded as an indispensable ingredient in its constitu- 
 tion, and as rendering it the great security of public 
 justice, liberty, and safety. 
 
 3. In addition to the tenure by which the Judges 
 hold their offices, the permanent provision for their 
 support is admirably adapted to secure their independ- 
 ence. It tends, also, to secure a succession of learned 
 
 1 " The Federalist," No. 78.
 
 CONSTITUTIONAL JURISPRUDENCE. 117 
 
 men for the bench, who, in consequence of a certain 
 fixed support, are induced to relinquish the lucrative 
 pursuit of their practice at the bar, for the duties of a 
 more important and honorable station. The Constitu- 
 tion declares, on this subject, that all the Judges of the 
 United States " shall, at stated times, receive for their 
 services, a compensation which shall not be diminished 
 during their continuance in office ; " 1 and this provision 
 was considered an improvement upon the previously 
 existing Constitutions of the States. It was ordained 
 in the Constitution of Massachusetts, that permanent 
 and honorable salaries should be established by law for 
 the Judges. But this was not sufficiently precise and 
 definite, and the more certain provision in the Federal 
 Constitution has been wisely followed in the subse- 
 quent Constitutions of several of the individual States. 
 The complete and perfect independence of the Ju- 
 diciary is peculiarly requisite in a limited Constitution 
 like that of the United States, which contains certain 
 specific restrictions upon the Legislative authority both 
 of the Federal and State Governments, such, for in- 
 stance, as that " Congress shall pass no bills of attainder, 
 or ex post facto law," and that " no State shall coin 
 money, emit bills of credit, or pass laws impairing the 
 obligation of contracts." Limitations of neither of 
 these kinds can be preserved in practice in any other 
 way than through the instrumentality of Courts of Jus- 
 tice; and it is a wise and necessary principle of our 
 Government, as I shall show more fully hereafter, that 
 the Acts both of the Federal and State Legislatures 
 are subject to the severe scrutiny and impartial inter- 
 
 1 Const. U. S., Art. III. Sect. i.
 
 118 LECTURES ON 
 
 pretation of tribunals who are bound to regard the 
 Constitution as the paramount law, and the highest 
 evidence of the will of the People ; and, consequently, 
 to declare void all acts contrary to its tenor. Without 
 this power, not only all the limitations and restrictions 
 such as I .have specified, but all the reservations of 
 rights and privileges, either to the several States, or 
 their individual citizens, would be ineffectual and nu- 
 gatory. 
 
 4. But while the Constitution has thus rendered the 
 Federal Courts independent of undue influence from 
 the other departments of the Government, it has adopted 
 a precaution for their responsibility, by rendering them 
 amenable for any corrupt violation of their trust ; and 
 the Judges of the United States may be held to answer 
 upon an impeachment ; and, if convicted, they may be 
 removed from the bench^ and be disqualified from hold- 
 ing any office in the Government. This, perhaps, is the 
 only provision consistent with the necessary independ- 
 ence of the Judicial character in a Government of the 
 complex nature of that of the United States, and is 
 the only one to be found relative to the subject in the 
 Constitution. 
 
 The want of a provision for removing the Judges on 
 account of inability, or upon the address of the Legis- 
 lature, which exists not only in England, but in some 
 of the States of this Union, afforded ground of objec- 
 tion when the Federal Constitution was under discus- 
 sion in the State Conventions. But the most wise and 
 considerate men of that period believed that such a 
 provision could not be reduced to practice, or, in a 
 Government like ours, would be more liable to abuse 
 than productive of good consequences. A provision
 
 CONSTITUTIONAL JURISPRUDENCE. 119 
 
 similar to that in the first Constitution of New York, 
 which limited the duration of the highest Judicial 
 officers to the age of sixty years, was also complained 
 of as an omission in the Federal Constitution ; but it 
 was admirably replied by Mr. Hamilton, 1 one of the 
 ablest and most illustrious defenders of that instrument, 
 that " in a Republic where fortunes are not affluent, and 
 pensions not expedient, the dismission of men from 
 stations in which they have served their country long 
 and usefully, on which they depend for subsistence, 
 and from which it will be too late to resort to any 
 other occupation, should have some better apology to 
 humanity than is to be found in the imaginary danger 
 of a superannuated bench." 
 
 II. The Federal Judiciary being established, as I 
 have explained, on principles essential to maintain that 
 department in a proper state of independence, and to 
 secure a pure and vigorous administration of the law, 
 the Constitution proceeds to designate the objects of its 
 jurisdiction. It extends the Judicial power of the Union 
 to all cases in Law and Equity, arising under the Consti- 
 tution and laws of the United States, and treaties made 
 under their authority ; to all cases affecting Ambassadors, 
 other public Ministers, and Consuls ; 2 to all cases of 
 Admiralty and Maritime Jurisdiction ; 3 to controversies 
 to which the United States are a party ; to controversies 
 between two or more States; between a State when 
 
 1 In "The Federalist," No. 79. 
 
 2 A State Court cannot claim jurisdiction of civil suits against 
 foreign Consuls. 7 Peters, 27 6. 
 
 3 But the grant of this jurisdiction does not take away the authority 
 of the several States to regulate their fisheries, and punish those who 
 violate such regulations. 4 Washington C. C. 383.
 
 120 LECTURES ON 
 
 plaintiff and citizens of another State ; between citizens 
 of the same State, claiming- lands under grants from 
 different States; and to controversies between citizens 
 of the United States, and foreign States, citizens, or 
 subjects. 1 
 
 A citizen of one State having title to lands in another, 
 is not disabled from suing for those lands in the Courts 
 of the United States by the fact that he derives his 
 title from a citizen of the State in which the lands lie. 2 
 And if the controversy is founded on conflicting grants 
 of different States, the Judicial power of the Federal 
 Courts extends to the case. 3 A citizen of one State 
 has a right to sue upon the bond of a Sheriff of another, 
 and to use the name of the Governor to whom the bond 
 is given, although the parties to the bond, the Sheriff, 
 and the Governor are all citizens of the same State, 
 provided the parties for whose use the suit is brought is a 
 citizen of a different State.* A citizen of one State 
 can sue a Corporation which has been created by, and 
 transacts business in another, the suit being brought 
 in the latter, although some of the members of the 
 Corporation are not citizens of the State in which the 
 suit is brought, and although the State itself may be a 
 member of the corporation. 5 
 
 As the Constitution originally stood, the Judicial 
 power of the United States extended to suits prosecuted 
 against an individual State by a citizen of another 
 State of the Union, or by citizens or subjects of any 
 
 1 Const. U. S., Art. III. Sect. n. 1. 
 
 2 1 Peters, 263. 
 
 3 1 Whealon, 415; 3 Condensed Rep. 580. 
 
 4 2 Howard, 9. 
 
 5 Ibid. 497.
 
 CONSTITUTIONAL JURISPRUDENCE. 121 
 
 foreign State. The States, however, were not willing 
 to be arraigned as defendants before the Federal Courts, 
 at the instance of private persons ; and it was subse- 
 quently declared by an Amendment, that the Judicial 
 power of the United States should not be construed to 
 extend to any suit of law or equity commenced or 
 prosecuted against one of the States by citizens of 
 another State, or by citizens or subjects of any foreign 
 State. 1 
 
 The object of this Amendment was to inhibit the 
 commencement or prosecution of a suit against a State 
 by the citizens of another State, or the subjects of a 
 foreign power. Where the record of a judgment ob- 
 tained by a State, in its own courts, against an indi- 
 vidual, is removed to the Supreme Court of the United 
 States, by writ of error, for the purpose of examining 
 the question Whether that judgment be in violation of 
 the Federal Constitution, or a law of Congress, and not 
 for the purpose of asserting a claim or demand against 
 the State, it is not embraced by the prohibition of this 
 Amendment. For a writ of error is only in the nature 
 of a suit or action where the object is to restore the 
 possession of something withheld from the party obtain- 
 ing it, and not where its operation is wholly defensive. 2 
 
 A motion to dismiss a cause pending in a Court of 
 the United States, for want of jurisdiction, may be 
 made at any stage of the proceedings. It is not analo- 
 gous to a plea to the jurisdiction of a Court of Law, 
 or Equity, in England, where the Superior Courts have 
 a general jurisdiction over all persons within the realm, 
 
 1 Amendments Const. U. S., XL 
 
 2 6 Wheat. 264 ; 5 Cond. Rep. 90. 
 
 11
 
 122 LECTURES ON 
 
 and all causes of action between them. The rule pre- 
 vailing there, in reference to a Court of general jurisdic- 
 tion, is, that a party claiming exemption from its process, 
 must set out the reason by a special plea in abatement, 
 and show that some inferior Court of Law or Equity 
 has exclusive cognizance of the case; otherwise, the 
 Superior Court must proceed in virtue of its general 
 jurisdiction ; but as the Courts of the United States 
 are of a special and limited original jurisdiction, their 
 action must be confined to the particular cases, contro- 
 versies, and parties, over which the Constitution and 
 laws have authorized them to act, any proceeding 
 without the limits prescribed, is coram non judice, and 
 their action a nullity ; and wherever the want of power 
 is objected to by a party, or is apparent to the Court, it 
 must surcease its action, or proceed extra-judicially. 1 
 
 Nor can the local laws of the States confer jurisdic- 
 tion on the Courts of the United States. They can 
 only furnish rules to ascertain the rights of parties ; and 
 thus assist in the administration of the proper remedies 
 where the jurisdiction is vested by the laws of the 
 United States. 2 Neither can State laws confer any 
 authority upon the Federal Courts in the exercise of 
 their jurisdiction, by the use of State process to reach 
 persons or property which could not be reached within 
 the meaning of the law establishing the jurisdiction. 3 
 
 The propriety of vesting the jurisdiction, as it now 
 stands, in the Judicial department of the United States, 
 seems to result necessarily from their union as one 
 nation ; and its exercise by the national tribunals may 
 be considered requisite to the existence of the Federal 
 
 1 12 Peters, 657. 9 n Hid. 175. 3 12 Ibid. 300.
 
 CONSTITUTIONAL JURISPRUDENCE. 123 
 
 Government. It may be profitable, however, at the 
 present moment, to view this branch of our subject 
 somewhat in detail, in particular reference to questions 
 arising under the Constitution and laws of the United 
 States. 
 
 The fitness of extending the jurisdiction of the Fed- 
 eral Courts to cases arising under the Constitution, in 
 contradistinction to those arising under the laws passed 
 in virtue of its authority, results from the obvious neces- 
 sity of a constitutional method of giving efficacy to 
 those provisions of the national compact which neither 
 require nor admit of an act on the part of the national 
 legislature to sanction or enforce them. What, indeed, 
 would avail the restrictions on the States, without some 
 constitutional mode of compelling their observance ? 
 The individual States are prohibited, for instance, from 
 the performance of a variety of acts, some of which 
 are incompatible with the objects and interests of the 
 Union, and others with the principles of good policy. 
 The imposition, by State authority, of duties on im- 
 ported articles, is an example of the first, and the 
 emission of bills of credit, a specimen of the second. 
 Now, in the face of the experience afforded under the 
 former Confederation, it will hardly be pretended that 
 such prohibitions would be scrupulously regarded with- 
 out some effectual power in the General Government 
 to restrain or correct their violation. The power must 
 be either a direct negative on the State laws vested in 
 the Executive authority of the Union, (which, indeed, 
 was proposed as the alternative in the General Con- 
 vention,) or an authority in the Federal Courts, to 
 overrule such laws of the several States as contravene
 
 124 LECTURES ON 
 
 the National Constitution. 1 The latter expedient was 
 preferred by the Convention, and was, unquestionably, 
 most acceptable to their constituents ; and there is no 
 third course that can be imagined short of the modern 
 heresy of nullification, which assumes a power in any 
 one State, to suspend, if not to subvert, within its own 
 limits, the acts and operations of every department of 
 the Federal Government, although every other member 
 of the Union admit their validity, and submit to their 
 authority. 
 
 As to extending the jurisdiction of the National 
 Courts to all cases arising under the laws of the United 
 States, it seems impossible, by any argument or illus- 
 tration, to render its propriety clearer than it appears 
 from the mere statement of the question. If there be 
 such things as political axioms, or truths in the science 
 of government too plain to be disputed, the principle 
 already stated, that " the Judicial power must be coex- 
 tensive with the power of legislation," must certainly 
 be one of them ; and in Governments formed from the 
 union of the People of so many separate and indepen- 
 dent States, as well as of those States themselves, as 
 one Nation, organized under a written compact, the 
 mere necessity of uniformity in the interpretation of 
 the national laws is sufficient to decide the question. 
 
 1 It has accordingly been held by the Supreme Court, that its 
 exposition of the Federal Constitution is conclusive upon the State 
 Courts. 3 Marsh. 423 ; 8 Pick. 196 ; 6 Conn. 493 ; 3 Binn. 84 ; 6 
 Ibid. 272 ; 3 Monr. 55 ; 5 Ibid. 294. But it seems it has no authority 
 on a writ of error from a State Court to declare a State law void by 
 reason of its collision with the State Constitution. 3 Peters, 289 ; 
 2 How. 236 ; 4 Gill Sf Johns. 519.
 
 CONSTITUTIONAL JURISPRUDENCE. 125 
 
 If the Courts of the United States have not this para- 
 mount jurisdiction, it must remain without control in 
 the tribunals of the States; and between thirty and 
 forty independent judicatures, with final jurisdiction 
 over the same kind of causes, arising under the same 
 laws, would present a monstrous anomaly in judicial 
 organization and procedure, from which nothing but 
 contradiction and confusion could ensue. 
 
 The People of the United States have declared that 
 the Constitution, laws, and treaties of the United States 
 shall be the supreme law of the land, and that the 
 Judges in every State shall be bound by them, " any 
 thing in the Constitution and laws of any State to the 
 contrary notwithstanding." 1 Congress, no more than 
 the State Legislatures, have power to pass laws re- 
 pugnant to the Federal Constitution, because that 
 Constitution is not only the paramount, but also the fun- 
 damental law ; and those laws, only, which are passed 
 in pursuance of the Constitution, are declared to be 
 supreme in reference to the Constitutions and laws of 
 the several States. Every act, therefore, of Congress, as 
 well as of the State Legislatures, and every part of the 
 Constitution of any State, which is repugnant to the 
 Constitution of the United States, is necessarily void. 
 This we must regard as a clear and settled principle 
 of our National Jurisprudence, unalterable by any 
 authority but that from which the National compact is 
 derived ; and not liable to any change, even by that 
 authority, except in the mode prescribed by the instru- 
 ment itself. Now, as the Judicial power of the Union 
 is declared to extend to all cases arising under the 
 
 I Const. U. S., Art VI. 2. ' ,, 
 11*
 
 126 LECTURES ON 
 
 Constitution, to that power it must necessarily belong, 
 in cases where the question is judicially presented for 
 decision, to determine what is the Supreme Law ; and 
 the judgment of the Federal Supreme Court must be 
 final and conclusive, because the Constitution invests 
 that tribunal with the power to decide, and gives no 
 appeal from its decision. If an Act of Congress be 
 repugnant to the Constitution, it is ipso facto void ; and 
 the Courts have the power, and it is their duty so to 
 declare it. But if it admit of two interpretations, one 
 of which brings it within, and the other presses it be- 
 yond the constitutional authority of Congress, it is the 
 duty of the Courts to adopt the former construction, 
 because a presumption ought never to be indulged that 
 Congress meant to exercise or usurp any unconstitu- 
 tional authority. Nor will the Courts ever pronounce 
 an Act of Congress void, except in a very clear case. 1 
 
 i For cases, both in the Federal and State Courts, in which Acts 
 of Congress and State Constitutions and laws have been declared void 
 as against the Constitution, laws, or treaties of the United States, see 
 2 Peters, 522 ; 12 Wheat. 270 ; 3 Doll 309 ; 4 Ibid. 18 ; 6 Cranch, 128 ; 
 Charlt. 175; Ibid. 235 ; Walker, 146; 1 Blackf. 206 ; 1 Breese, 209; 
 Ibid. 70 ; 2 Porter, 303 ; 1 Marsh. 290 ; 2 Litt. 90 ; Pr. Dee. 64 ; Ibid. 
 89 ; 4 Monr. 43 ; 1 Hayw. 28 ; Ibid. 272 ; Cooke, 217 ; 4 Yerg. 202 ; 
 
 9 Ibid. 490 ; 1 Rep. Const. C. 267 ; 3 Desauss. 476 ; 1 Me Cord, 238 ; 
 Harper, 385 ; 1 Car. Law Rep. 246 ; 1 Murphy, 58 ; 6 Rand. 245 ; 
 1 Virg. Cos. 20; 1 Sinn. 491 ; 5 Ibid. 355 ; 2 Yeates,493 ; 2 Pennsyl 
 184; 3 Serg. &f Raw. 169 ; 19 Johns. Rep. 58; 1 Cowen, 550; 1 South. 
 192 ; 2 Ibid. 466 ; 1 Har. /. 236 ; 7 GUI if Johns. 7 ; 1 Ibid. 463 ; 
 
 10 Conn. 522; 4 Ibid. 225; 3 Verm. 507; 1 Chip. 237; Ibid. 257; 
 1 Aick. 314; 3 N. H. 473; 4 Ibid. 16; 7 Ibid. 65; 3 Greenl. 326; 
 4 Ibid. 140; 6 Ibid. 412; Ibid. 112; 9 Ibid. 60; 2 Fairf. 118; 11 
 Mass. 396 ; 15 Ibid. 447 ; 7 Pick. 460 ; 13 Ibid. 60. So also Statutes 
 which violate the plain and obvious principles of common right, and 
 common reason, . have been declared by the Courts to be null and
 
 CONSTITUTIONAL JURISPRUDENCE. 127 
 
 Some perplexity, indeed, existed at first, in regard to 
 the rights of Courts of Justice to pronounce Legislative 
 acts void on the ground of their repugnancy to the 
 Constitution. It arose from apprehension that the doc- 
 trine would establish a superiority of the Judicial, over 
 the Legislative power ; and notwithstanding the numer- 
 ous cases above referred to in support of the principle, 
 difficulties, at least, if not doubts on this subject, have 
 been since revived in some of the States, and among 
 a particular class of politicians. The question, there- 
 fore, having of late assumed great practical importance, 
 a rapid survey of the grounds on which the affirmative 
 was maintained by some of the most eminent of the 
 statesmen who framed the Constitution, cannot be dis- 
 advantageous or misplaced, especially as it exhibits a 
 contemporaneous construction of that part of the instru- 
 ment of the highest authority. 
 
 " There is no position," say the illustrious authors of 
 " The Federalist," " which depends on clearer princi- 
 ples, than that every act of a delegated authority con- 
 trary to the commission under which it is exercised, is 
 void." 1 No Legislative act, therefore, contrary to the 
 Constitution, which is the commission whence every 
 department of the Government derives its authority 
 from the People, can be valid. To deny this, would be 
 to affirm that the deputy is superior to his principal ; 
 that the servant is above his master ; that the represent- 
 atives of the People are greater than the People them- 
 selves ; and that persons acting in virtue of a delegated 
 authority, may not only assume what their powers do 
 
 void. 1 Bay, 98. But see 3 Dall 398 ; 1 Bald. 74; 1 Har. /. 249 ; 
 2 liawle, 374. 
 
 1 No. 78, by Mr. Hamilton.
 
 128 LECTURES ON 
 
 not authorize, but what they expressly forbid. If it be 
 alleged that Legislative bodies are themselves the con- 
 stitutional judges of their own powers, and that their 
 own construction of them is conclusive upon the other 
 departments of the Government, it may be answered 
 that this cannot be the natural presumption, where it is 
 not to be collected from the particular provisions of the 
 fundamental compact. Without such express provision, 
 it is not to be intended to enable the representatives of 
 the People to substitute their own will in the place of 
 that of their constituents ; it is far more rational to 
 conclude that the Courts of Justice were, equally with 
 the other departments, intended to represent the sov- 
 ereignty of the People, in a coordinate and independent 
 one ; and in that capacity, to act as an intermediate 
 body between the People and the Legislature, in order, 
 among other things, to keep the latter within the limits 
 assigned to its authority. 
 
 The interpretation of the laws is the proper and 
 peculiar province of the Courts ; and the Constitution 
 is, in fact, and must be regarded by them as a funda- 
 mental law. It must, therefore, belong to them to 
 ascertain its meaning, as well as the meaning of any 
 particular act proceeding from the Legislative body. 
 If there should happen to be an irreconcilable variance 
 between the two, that which has the superior obligation 
 ought, of course, to be preferred. In other words, the 
 Constitution ought to be preferred to the statute, the 
 intention of the People, to the intention of their agents. 
 Nor does this conclusion, by any means, suppose a 
 superiority of the Judicial to the Legislative power. It 
 only presumes that the power of the People is superior 
 to both ; and where the will of the Legislature, declared
 
 CONSTITUTIONAL JURISPRUDENCE. 129 
 
 in the statute-book, stands opposed to the will of the 
 People declared in the Constitution, the Judges are to 
 be governed by the latter, rather than the former, and 
 ought to regulate their decisions by that fundamental 
 law over which the Legislature has no control, rather 
 than by those which it may, at any time, alter or repeal, 
 and ^vhich derive their validity and effect from the 
 Constitution alone. It can be of no weight to say that 
 the Courts of Justice, under the pretence of a repug- 
 nancy between a law and the Constitution, may substi- 
 tute their own pleasure instead of the constitutional 
 intentions of the Legislature, for this supposition not 
 only involves a petition of the question, but might as 
 well happen in the case of two contradictory statutes, 
 or upon every separate adjudication upon the same 
 statute. The Courts are bound to declare the meaning 
 of the law ; and, if they should be disposed to exercise 
 will instead of judgment, the consequence in the one 
 case, as well as in the other, would be the substitution 
 of their own pleasure in lieu of the pleasure of the 
 Legislature. The objection therefore, if it proved any 
 thing, would prove that there should be no Judges 
 distinct from the Legislative body. But the danger of 
 intrusting Judicial and Legislative powers in the same 
 hands has already been pointed out ; and it has been 
 shown, I think, that the object of their separation was 
 not only to create a distinct and independent body to 
 expound the laws, but also to erect a bulwark to defend 
 a Constitution, limited in its powers, against Legislative 
 encroachments or Executive usurpation, while it was 
 itself restrained within its proper bounds by correspond- 
 ing checks, in the hands of the other departments, or 
 inherent in its own constitution.
 
 130 LECTURES ON 
 
 The design of this separation of the Judicial power 
 from the other departments, and of the precautions for 
 maintaining its independence, was, moreover, to afford 
 protection to the Federal Government, in the exercise 
 of its acknowledged powers, against the inroads or 
 influence of the State sovereignties ; and all the re- 
 quirements and illustrations adduced in support <rf the 
 right and duty of the Federal Courts, in the ordinary 
 administration of their authority, to declare void those 
 acts of Congress which, in their judgment, are repug- 
 nant to the Constitution, apply with equal, if not 
 greater force, to establish a more extensive power in 
 regard to the acts and proceedings of the State Govern- 
 ments. We have seen that the People of the several 
 States, in their adoption of the Federal Constitution, 
 acknowledged that Constitution, and the laws and 
 treaties made in pursuance of its authority, to be the 
 supreme law of the land, and as of paramount obliga- 
 tion, therefore, to the Constitutions, as well as of the 
 laws, of any of the States. So far, then, from admit- 
 ting each party to the National compact to interpret 
 that instrument for itself, those very parties, by declaring 
 that the Judicial power of the Union should extend to 
 all cases arising under it, vested in the proper depart- 
 ment authority to determine its construction in every 
 case in which a question should judicially arise, whether 
 directly, between the parties to the suit, or collaterally, 
 between the parties to the " social contract" 1 
 
 The Courts of the United States have no jurisdiction 
 derived from the Common Law to define and punish 
 
 1 The Supreme Court refuses to take up cases that involve consti- 
 tutional questions, when the Court is not full. 9 Peters, 85.
 
 CONSTITUTIONAL JURISPRUDENCE. 131 
 
 criminal offences. 1 Congress, by an Act passed in 1825, 
 provided that all crimes committed in places within the 
 exclusive jurisdiction of the United States, which are 
 not denned by any law of the United States, should 
 be punished in the same manner as such crimes were 
 punished by the laws of the particular States where 
 they were committed. This Act is held to be limited 
 to the laws of the several States as they existed at the 
 time of its enactment. An offence, therefore, neither 
 against the Common Law, nor against any State 
 statute in force at the time the Act of Congress was 
 passed, cannot be punished in the Federal Courts in 
 virtue of that Act. 2 Neither can an offence against a 
 temporary statute be punished in those Courts, after 
 the expiration of the Act, unless a particular provision 
 be made by law for that purpose. 3 
 
 J 7 Cranch, 52 ; 1 Wheat. 416 ; 3 Ibid. 336 ; 2 Cond. Rep. 405 ; 
 3 Ibid. 585-590. 
 
 2 6 Peters, 141. 
 
 3 7 Wheat. 551 ; 6 Crunch, 203 ; 2 Cond. Rep. 346 ; 5 Ibid. 343.
 
 132 LECTURES ON 
 
 LECTURE VI. 
 
 OF THE DISTRIBUTION OF THE JUDICIAL POWER AMONG 
 THE FEDERAL COURTS. 
 
 WE now proceed to ascertain in what manner the 
 Federal jurisdiction has been distributed among the 
 several Courts, either by the Constitution, or the Acts 
 of Congress carrying the system into complete effect. 
 It may be observed generally, that the disposition of 
 this power, except in a few specified cases, is left to 
 Congress ; and that the Courts cannot exercise jurisdic- 
 tion in every case to which the Judicial power extends, 
 without the intervention of Congress. Congress, more- 
 over, is not bound to enlarge the jurisdiction of the 
 respective tribunals to every subject which the Consti- 
 tution warrants, although the whole Judicial power 
 ought, at all times, to be vested in some of the Courts 
 created under the authority of the United States. 
 
 It is laid down as a rule, in the eighty-second number 
 of " The Federalist," * that the State Courts retained 
 all preexisting authority, or the jurisdiction which 
 they had before the adoption of the Constitution of 
 the United States, except where it was taken away 
 either by an exclusive authority granted in express 
 terms to the Union by that instrument, or in a case 
 
 1 By Mr. Hamilton.
 
 CONSTITUTIONAL JURISPRUDENCE. 133 
 
 where a particular authority is granted to the Union, 
 and the exercise of a like authority is prohibited to the 
 States, or in the case where an authority is granted to 
 the Union, with which a similar authority in the States 
 would be incompatible. A concurrent jurisdiction in 
 the State Courts was admitted in all such cases ; but 
 this doctrine is applicable only to those descriptions 
 of causes of which the State Courts had previous 
 cognizance, and not to cases growing out of the new 
 Constitution. 
 
 Congress, in the course of its legislation, may commit 
 the decision of cases arising under its own laws, to the 
 Federal Courts exclusively ; but unless the State Courts 
 were expressly excluded by the Act of Congress, they 
 would, of course, take concurrent jurisdiction of the 
 causes to which those acts may give birth, under the 
 qualifications mentioned. And before the adoption of 
 the Constitution, it was asserted and maintained by its 
 ablest commentators, that in all cases of concurrent 
 jurisdiction, an appeal would lie to the Supreme Court 
 of the United States ; and that, without such appeal, 
 the concurrent jurisdiction of the State Courts in mat- 
 ters of National concern, would be inadmissible, because, 
 in that case, it would be inconsistent with the authority 
 and efficiency of the National Government. The prac- 
 tice of that Government has been conformable to this 
 doctrine ; and the exclusive and concurrent jurisdiction 
 conferred upon the Federal Courts by the Acts of Con- 
 gress, are clearly distinguished and marked in corre- 
 spondence with it. 
 
 It is, nevertheless, manifest, that the Judicial power 
 of the United States may, in all cases which it compre- 
 hends, be made exclusive of State authority, at the 
 12
 
 134 LECTURES ON 
 
 election of Congress. Hence, the concurrent jurisdic- 
 tion of the State tribunals depends altogether upon the 
 pleasure of the National Legislature, and whenever 
 Congress thinks proper, it may be revoked and extin- 
 guished in every case which can constitutionally be 
 made cognizable in the National Courts ; but without 
 an expess provision to the contrary, the State Courts 
 retain a concurrent jurisdiction in all cases of which, 
 previous to the Federal Constitution, they possessed the 
 jurisdiction. But Acts of Congress giving the State 
 Courts jurisdiction of suits on the penal laws of the 
 United States, have in some of the States been declared 
 unconstitutional ; ' although it is admitted that a State 
 magistrate may commit for further examination touch- 
 ing a crime against the United States. 2 
 
 The State Courts, moreover, may, in the exercise of 
 their ordinary original jurisdiction, take cognizance inci- 
 dentally of cases arising under the Constitution, laws, 
 and treaties of the United States ; and the Courts of 
 one State have power to decide on the validity of the 
 Legislative acts of another, with respect to the Consti- 
 tution of the United States, when the question arises 
 in a case within their jurisdiction ; but, in all these 
 cases, the Judicial power of the Union extends by means 
 of its appellate jurisdiction. 3 
 
 In order to ascertain to what extent, and in what 
 manner, the Federal jurisdiction, both original and 
 
 1 7 Conn. 239, 244; 17 Johns. Rep. 4, 261 ; 1 Virg. Cases, 321; 
 2 Ibid. 34 ; 1 Dana, 442. Contra, 11 Serg. Rawle, 193. See also 
 4 Dall. Appendix XXVI.; 2 Atk. 89; 5 Har. tf J. 317; 2 Bailey, 
 44. 
 
 2 2 Cowen, 273. 
 
 3 5 Binn. 355 ; 8 Pick. 194. But see 12 Serg. Rawle, 203.
 
 CONSTITUTIONAL JURISPRUDENCE. 135 
 
 appellate, has been disposed of, either by the Constitu- 
 tion itself, or by Act of Congress, we must review, as 
 we proposed, the various Courts established by the one, 
 or ordained by the other. 
 
 I. THE SUPREME COURT OF THE UNITED STATES, 
 although created by the Constitution, received its or- 
 ganization from the Judiciary Act of 1789, and the 
 several supplementary statutes which have at different 
 times, subsequently, been passed in relation to it. The 
 Constitution had merely declared that there should be 
 a Supreme Court, with certain original and appellate 
 powers ; it is only to be implied from that instrument 
 that " The Chief Justice of the United States " should 
 preside in it, with other Judges to be associated with 
 him. 1 By the existing Act of Congress, it consists of 
 the Chief Justice and eight associate Judges, any five 
 of whom constitute a quorum. It holds one term annu- 
 ally, at the seat of the General Government, commenc- 
 ing on the first Monday in January ; and although the 
 presence of five Judges is required for the general busi- 
 ness of the Court, yet any one or more of them may 
 make all necessary orders in a suit, preparatory to the 
 hearing or trial ; and it is made the special duty of the 
 Chief Justice to attend at Washington on the first 
 Monday in August, annually, for the same purpose. 
 
 The Supreme Court has, by the Constitution, exclu- 
 sive original jurisdiction of all controversies of a civil 
 nature, where a State can be made a party, except in 
 suits by a State against one or more of its citizens, or 
 against citizens of other States, or against aliens ; in 
 which cases it has original but not exclusive jurisdiction. 
 
 i Const. U. S., Art. III. Sect. n. 1.
 
 136 LECTURES ON 
 
 It has, also, exclusively such jurisdiction of suits or 
 proceedings against ambassadors, or other public minis- 
 ters, or their domestics, as a Court of Law can exercise 
 consistently with the Law of Nations; original, but 
 not exclusive jurisdiction of all suits brought by ambas- 
 sadors, or other public ministers, or in which a Consul 
 or Vice-Consul may be a party. 1 
 
 If a foreign Minister, or Consul, sued in a State 
 Court, omit to plead his privilege of exemption, and 
 afterwards, upon removing the suit from an inferior to 
 a higher Court, he claims the privilege, such omission 
 is not a waiver of it. Were it viewed only as a per- 
 sonal privilege, there might be grounds for an opposite 
 conclusion ; but it cannot be so considered. It is the 
 privilege of the Country or Government which the Min- 
 ister or Consul represents. This is the light in which 
 foreign Ministers are viewed by the Law of Nations ; 
 and our Constitution and laws seem to regard Consuls 
 in the same light in this respect. 2 
 
 The Constitution also confers on the Supreme Court 
 an appellate jurisdiction, under such exceptions or regu- 
 lations as Congress may prescribe ; and by the first 
 Judiciary Act, 3 it is declared that appeals shall lie to 
 this Court from the Circuit Courts of the United States, 
 and, in certain cases, from the highest Courts of the 
 several States. Final judgments and decrees in civil 
 actions, and suits in Equity in the Circuit Courts, 
 whether brought there by original process, or removed 
 thither from the State Courts, or by appeal from the 
 
 1 Const U. S., Art. HI. Sect. n. 2. 
 
 7 Peters, 276. 
 
 3 Passed Sept. 24, 1789.
 
 CONSTITUTIONAL JURISPRUDENCE. 137 
 
 District Courts of the United States, where the mat- 
 ter in dispute exceeds a specified sum, may be re exam- 
 ined, and reversed or affirmed by the Supreme Court ; 
 and final judgments or decrees of the Circuit Courts, in 
 cases of Admiralty and Maritime jurisdiction, and in 
 questions of prize or no prize, where the matter in dis- 
 pute exceeds the same amount, may be reviewed on 
 appeal in the Supreme Court ; and in these cases, new 
 evidence is admitted on the appeal, conformably with 
 the general doctrines and usages of appellate Courts of 
 Admiralty. 1 So, also, a final judgment or decree of the 
 highest Court of Law or Equity in a State, may be 
 brought up on the allegation of error in point of law, 
 to the Supreme Court of the United States if the 
 validity of a treaty or of an Act of Congress, or of an 
 authority exercised under the Government of the United 
 States was drawn in question in the State Court, and 
 the decision was against that validity ; or if the validity 
 of any State law or authority was drawn in question 
 on the ground of its repugnancy to the Constitution, 
 laws, or treaties of the United States, and the decision 
 was in favor of its validity ; or if the construction of 
 any clause of the Constitution, or of a treaty, or statute 
 of the United States, or of a commission held under 
 them, was drawn in question, and the decision was 
 against the title, right, privilege, or exemption especially 
 claimed under the authority of the Union. Upon these 
 appeals from the decision of a State Court, however, 
 no other error can be assigned, or regarded in the Su- 
 preme Court than such as appears on the face of the 
 record, and immediately respects the question of the 
 
 1 7 Crunch, 107; 2 Cond. Rep. 434. 
 
 12*
 
 138 LECTURES ON 
 
 validity, or construction of the Constitution, treaties, 
 statutes, commissions, or authority in dispute. 1 
 
 1. The original jurisdiction of the Supreme Court, 
 or that cognizance which it takes of causes in their 
 initiatory proceedings, is, as may have been perceived, 
 of a very limited character. It is confined by the Con- 
 stitution to those cases which affect ambassadors, and 
 other public ministers, and consuls, and those in which 
 a State can be made a party ; and it has been made a 
 question whether the original jurisdiction was intended 
 to be exclusive of the inferior Courts of the United 
 States, or of the State tribunals. The Act of 1789, 
 seems to have considered it competent for Congress to 
 vest concurrent jurisdiction in the above specified cases, 
 in other Courts than the Supreme Court ; for it gives a 
 concurrent jurisdiction in some of them to the Circuit 
 Courts ; and it has been held that the word " original," 
 was not here to be taken to imply exclusive cognizance 
 of the cases enumerated. 2 But an opinion of the Su- 
 preme Court, in another case, goes far towards estab- 
 lishing the principle of exclusive jurisdiction in that 
 Court, in all these cases of original jurisdiction ; and 
 although this last decision was subsequently considered 
 as shaking the first, yet the question was afterwards left 
 in doubt by the Court, and a decision upon it purposely 
 waived. 3 
 
 Admitting, then, that this original jurisdiction can be 
 shared by other Courts, in the discretion of Congress, it 
 has been decided that it cannot be enlarged ; and that 
 
 1 4 Wheat. 311 ; 4 Cond. Rep. 465. 
 
 2 2 Dall. 297. 
 
 3 1 Crunch, 177 ; 5 Serg. # Rawle, 545 ; 11 Wheat. 467.
 
 CONSTITUTIONAL JURISPRUDENCE. 139 
 
 the Supreme Court cannot be invested with an original 
 jurisdiction by Act of Congress, in cases other than 
 those described in the Constitution. Congress has no 
 authority to give it original jurisdiction, where the Con- 
 stitution has declared that it shall be appellate, nor 
 appellate where the Constitution has declared it shall 
 be original. 1 Nor can Congress impose upon Judicial 
 officers, duties not strictly of a Judicial character. 2 
 
 The Constitution gives to the Supreme Court orig- 
 inal jurisdiction in those cases in which a State shall 
 be a party, and the Supreme Court has laid down as a 
 rule that it must be a case in which a State is either 
 nominally or substantially the party, and that it is not 
 sufficient that the State may be consequentially affected. 3 
 But although a State cannot be made a defendant, a 
 suit may be maintained against its officers and agents 
 intrusted with the execution of a law granting a fran- 
 chise. Jurisdiction is 'neither given nor taken away by 
 the relative situation of the parties concerned in interest, 
 but of those named in the record; consequently, the 
 operation of the amendment to the Constitution affect- 
 ing the question is limited to those suits in which a 
 State is a party on the record. For the jurisdiction of 
 the Federal Courts is not ousted by any incidental or 
 consequential interest which a State may have in the 
 decision. Unless, therefore, the interest of the State is 
 to be determined by the inspection of the record, to 
 ascertain whether it be a party, the Constitution has 
 given no rule by which this interest is to be measured. 
 If the Courts of the United States were required to fix 
 a test or standard, the curious anomaly would be pre- 
 
 1 1 Crunch, 137. 2 2 Dall. 409. 3 3 Ibid. 411.
 
 140 LECTURES ON 
 
 sented of a Court examining the whole testimony in the 
 cause, inquiring into, and deciding upon the State's 
 interest, without having, it may be, any jurisdiction in 
 the case. If the authority of the English decisions 
 were to determine the question, it fcs believed that no 
 case can be adduced from the English books where any 
 person has been considered a party to a suit, who was 
 not a party to the record. Where a State is not a 
 party to the record, and the Court has jurisdiction over 
 those who are, the true question is not one of jurisdic- 
 tion, but whether, in the exercise of its jurisdiction, it 
 ought to make a decree against the parties defendant, 
 whether they are to be considered as having a real 
 interest, or as being only nominal parties ; and, where 
 there is a personal responsibility which might be en- 
 forced by an action, the parties must certainly have a 
 real interest at stake. 1 
 
 And although the Judicial power of the Union ex- 
 tends to controversies between a State and foreign 
 States, citizens, or subjects, and the Constitution gives 
 original jurisdiction to the Supreme Court in all cases 
 in which a State shall be a party, yet it was held in the 
 celebrated case of the Cherokee Indians that they were 
 not a foreign nation, within the meaning of the Consti- 
 tution. 2 They were, indeed, considered to be a political 
 community or State ; and have been uniformly treated 
 as such since the first settlement of the country. The 
 numerous treaties with them by the United States 
 recognize them as a people capable of maintaining the 
 relations of peace and war ; as being responsible in 
 
 i 6 Wheat. 264 ; 5 Cond. Rep. 90. 
 5 Peters, 1 ; 1 Cond. Rep. 6.
 
 CONSTITUTIONAL JURISPRUDENCE. 141 
 
 their political character for any violation of their en- 
 gagements, or any aggressions upon our citizens by 
 any individual of their tribe ; laws have been enacted 
 in the spirit of those treaties, and the Courts are held 
 to be bound by those acts of the Government, which 
 have thus plainly recognized this nation of Indians as 
 a State. 
 
 The condition of the Indian tribes, in regard to their 
 connection with the United States, bears little resem- 
 blance to the relations between any other two people in 
 the world. In general, nations not owing a common 
 allegiance are foreign to each other. But the relation 
 of the Indians to the Government of the United States 
 is marked by a peculiar and cardinal distinction. The 
 Cherokees are acknowledged to have an unquestionable, 
 and, until that controversy arose, an unquestioned right 
 to the lands they occupied, until that right was extin- 
 guished by voluntary cession to the Federal Govern- 
 ment. It was, nevertheless, doubted whether they, or 
 any of the tribes residing within the acknowledged 
 boundaries of the United States, could with accuracy 
 be denominated foreign States. They may more cor- 
 rectly be called domestic, dependent nations, occupying 
 a territory over which our Government asserts a right 
 independent of their will, and which must take effect 
 in point of possession when their right of occupancy 
 ceases. In the mean time, their relation to the United 
 States resembles that of a ward to his guardian, they 
 look to the Federal Government for protection, rely on 
 its kindness, and appeal to its sympathies, for the relief 
 of their wants. 
 
 Under these circumstances, the Cherokees sought to 
 restrain the State of Georgia, within whose territorial
 
 142 LECTURES ON 
 
 limits their lands were situate, from the forcible exer- 
 cise of Legislative power over them, claiming their 
 independence as a separate and neighboring people, 
 their right to which the State denied. The Court held 
 its power to interpose for their protection to be, at least, 
 doubtful ; but intimated that the mere question of right 
 might, perhaps, be settled in a proper case with proper 
 parties. But it was asked on that occasion, to do more 
 than decide the title ; it was called on to control the 
 Legislature of Georgia, and to restrain the exertion of 
 its physical force ; and the propriety of such an inter- 
 position might well be questioned, as it savored too 
 much of the exercise of political power to be within 
 the province of the Judicial department ; and it refused 
 to interfere. 
 
 In cases in which the Court has original jurisdiction, 
 the form of proceeding is not regulated by Act of Con- 
 gress, but by the rules and orders of the Court, which 
 are framed in analogy to the practice of the English 
 Court of Chancery. But the Supreme Court does not 
 follow this practice where it would embarrass the case 
 by unnecessary technicality or defeat the purposes of 
 Justice. 1 
 
 Before the adoption of the eleventh Amendment of 
 the Constitution, 2 a suit might have been brought 
 against a State by the citizens of another State ; 3 but 
 since the ratification of that Amendment, the Supreme 
 Court can exercise no jurisdiction in any case, whether 
 pending at that time, or afterwards commenced, in 
 
 1 17 Howard, 47 8. 
 
 2 2 Dall. 419. 
 
 3 3 Ibid. 378 ; 1 Cond. Rep. 169.
 
 CONSTITUTIONAL JURISPRUDENCE. 143 
 
 which a State is sued by citizens of another State, or 
 by citizens or subjects of a foreign State. 1 This amend- 
 ment, however, does not affect the right of a State to 
 assert, as a plaintiff, any interest it may have in a sub- 
 ject which forms a matter of controversy. 2 And where 
 a State is not necessarily a defendant, the mere sug- 
 gestion of its title to property in the possession of an 
 individual cannot arrest the proceedings, or prevent the 
 Court from looking into the suggestion, and examining 
 the validity of the title. 3 
 
 It was once made a question, as we have seen, 
 whether the jurisdiction of the Supreme Court is not 
 only original but exclusive, in cases affecting Ambassa- 
 dors, and other public Ministers, and Consuls, according 
 to the true construction of the second Section of the 
 third Article of the Constitution, and the better opinion 
 seems now to be that it is. 4 
 
 Thus much for the original jurisdiction of the Su- 
 preme Court. We now proceed to that which is 
 appellate. 
 
 2. It is the appellate power of the Supreme Court of 
 the United States which gives to it its greatest dignity 
 and efficacy, and renders it a constant object of solici- 
 tude and attention to the Government and People of 
 the several States. We have seen that, by an Act of 
 Congress, a final judgment or decree of the highest 
 Court of Law or Equity in a State, may, in certain 
 cases, under various circumstances, be reviewed, and 
 
 1 5 Crunch, 115 ; 2 Cond. Rep. 202. 
 
 2 Ibid. 
 
 3 See cases cited above. 
 
 4 11 Wheat. 467; 6 Ibid. 264; 6 Cond. Rep. 394; 5 Ibid. 90; 2 
 Doll. 297.
 
 144 LECTUKES ON 
 
 reversed or affirmed in the Supreme Court of the Union. 
 In cases of reversal, the cause may be remanded to the 
 State Court for final judgment, to be rendered in accord- 
 ance with the opinion of the Supreme Federal tribunal ; 
 or that Court may, at its discretion, if the cause have 
 once before been remanded, proceed itself to a final 
 decision, and award execution of its judgment or de- 
 cree. Under this authority, it has been declared by the 
 Supreme Court, that if the highest Court in a State 
 reverse the judgment of a subordinate Court, and on an 
 appeal, the judgment of the higher Court be, in its 
 turn, reversed by the Supreme Court of the United 
 States, it becomes a mere nullity ; and the mandate for 
 execution may issue directly from that Court to the 
 inferior State Court. 1 
 
 But in a subsequent case, a writ of error from the 
 Supreme Court of the United States was directed to 
 the Court of Appeals in Virginia, being the highest 
 Court in that State, upon a judgment entered on ap- 
 peal from an inferior State Court, against a right 
 claimed under the treaty with Great Britain, and the 
 judgment of the Court of Appeals was reversed by the 
 Supreme Court ; the cause was remanded, and the 
 Virginia Court of Appeals was required to cause the 
 original judgment, which had been reversed in that 
 Court, to be carried into due execution. The Court of 
 Appeals, when the case came back to it, resolved that 
 the appellate power of the Supreme Court did not 
 extend to the State Courts ; that the Act of Congress 
 to that effect was not warranted by the Constitution ; 
 and that the proceedings of the Supreme Court were 
 
 1 3 Dall. 341.
 
 CONSTITUTIONAL JURISPRUDENCE. , 145 
 
 invalid in relation to the Court of Appeals, which 
 consequently declined obedience to the mandate of the 
 former. 1 A new writ of error was awarded upon this 
 refusal, and the case came up again before the Supreme 
 Court, as a case in which the Court below drew in 
 question and denied the validity of the Act of Congress 
 authorizing an appeal from a State Court. In the 
 luminous opinion delivered on that occasion, by the 
 venerable and learned Chief Justice Marshall, he gave 
 a full, argumentative, and conclusive exposition of the 
 powers and jurisdiction vested in the Supreme Court, 
 either by the Constitution or the Acts of Congress, 
 upon every point in which they have been called in 
 question. 
 
 He began by observing that the Judicial power of 
 the United States had been declared by the Constitu- 
 tion to extend to all cases arising under treaties made 
 under the authority of the United States ; which was 
 an absolute grant of jurisdiction in those cases ; and 
 that it was competent for the People to invest the Gen- 
 eral Government with that, or any other powers which 
 they might deem necessary and proper, as well as to 
 prohibit the States from the exercise of any powers 
 which in their (the People's) judgment, were incompati- 
 ble with the objects of the general compact. Congress 
 was bound by the injunctions of the Constitution to 
 create inferior Courts, in which to vest all that Judicial 
 jurisdiction which was exclusively vested in the United 
 States, and of which the Supreme Court cannot take 
 other than appellate cognizance. The whole Judicial 
 power must, at all times, be vested either in an original 
 
 1 7 Cranch, 603. 
 
 13
 
 146 LECTURES ON 
 
 or appellate form, in some Courts created under the 
 authority of the United States. The grant of the Ju- 
 dicial power was thus declared to be absolute ; and it 
 was held to be imperative upon Congress to provide 
 for the appellate jurisdiction of the Federal Courts in 
 all cases in which the Judicial power was granted ex- 
 clusively to the United States by the Constitution, and 
 not already given, by way of original jurisdiction to 
 the Supreme Court. 
 
 This eminent and statesmanlike Judge in entering 
 upon his examination of the Judicial power, took a 
 distinction between the two classes of enumerated cases, 
 and held that the Constitution intended that the Ju- 
 dicial power, either in an original or appellate form, 
 should extend absolutely to all cases in law or equity 
 arising under the Constitution and laws of the United 
 States, and the treaties made under the authority of 
 their Government ; to ALL cases affecting Ambassadors, 
 other public Ministers, and Consuls, and to all cases 
 of admiralty and maritime jurisdiction, because those 
 cases were of vital importance to the sovereignty of the 
 Union, entered into the public policy, and affected the 
 national rights, and the law and comity of nations. 
 The original or the appellate jurisdiction ought, there- 
 fore, in these cases, to be commensurate with the mis- 
 chiefs and policy in view. But in respect to another 
 class of cases, the Constitution had designedly dropped 
 the word " all" so as not absolutely to extend the juris- 
 diction of the Federal Judiciary to all controversies, 
 but merely to controversies in which the United States 
 were a party, or between two or more States, or be- 
 tween citizens of different States, or foreign States, 
 citizens, or subjects, leaving it to Congress to qualify
 
 CONSTITUTIONAL JURISPRUDENCE. 147 
 
 the jurisdiction, original, or appellate, in such manner 
 as public policy might dictate. 1 
 
 But whatever weight may be due to this distinction, 
 it is manifest that the Judicial power was unavoidably, 
 in some instances, exclusive of all State authority, and 
 in all others might be made so at the discretion of 
 Congress. The Act of 1789 assumed that, in all the 
 cases to which the Judicial power of the United States 
 extended, Congress might rightfully vest exclusive juris- 
 diction in their own Courts. The criminal and admi- 
 ralty jurisdiction must be exclusive ; and it is only in 
 those cases where, previously to the Constitution, the 
 State tribunals possessed jurisdiction independently of 
 national authority, that they can now constitutionally 
 exercise a concurrent jurisdiction. But unless Congress 
 had provided a rule to regulate the proceedings of the 
 Supreme Court, as to its appellate jurisdiction, that 
 Court could not have exercised it ; and where such rule 
 has been provided by Congress, the Court cannot de- 
 part from it 2 
 
 The appellate jurisdiction is not limited by the Con- 
 stitution to the Supreme Court, but Congress may 
 create a succession of inferior tribunals, in each of 
 which it may vest appellate as well as original juris- 
 diction. The appellate jurisdiction of the Supreme 
 Court, in cases where it has not original jurisdiction, 
 being by the Constitution subject to such exceptions 
 
 1 The Supreme Court has jurisdiction to ascertain and establish the 
 boundaries between different States. For although the Constitution 
 does not, in terms, extend the Judicial power to all controversies 
 between two or more States, yet it, in terms, excludes none, whatever 
 may be their nature or object. 
 
 2 2 Peters, 657.
 
 148 LECTURES ON 
 
 and regulations as Congress may prescribe, it remained 
 in its discretion to provide for the exercise of the 
 Judicial power in all the various forms of appeal. The 
 right, therefore, of removing a cause from a State Court 
 by a defendant entitled to try his right, or assert his 
 privilege in the National Forum, is, in fact, the exercise 
 of an appellate power, as that power may exist as well 
 before as after judgment, and by availing himself of 
 it at an early stage of the proceeding, the defendant is 
 enabled to save much of the time, and avoid much of 
 the expense, of litigation. Nor is the right limited to 
 cases pending in the Courts of the United States. Had 
 it been so limited, it would necessarily have followed, 
 that the jurisdiction of the Federal tribunals must have 
 been exclusive of the State Courts, in all the cases 
 enumerated in the Constitution ; and inasmuch as the 
 Judicial power of the United States embraces all those 
 cases, the State Courts cannot, consistently with the 
 express terms of the Federal Constitution, entertain 
 any jurisdiction of them without the right of appeal to 
 the Federal tribunals. For if the State Courts were 
 allowed to exercise a concurrent jurisdiction in those 
 cases free from such control, the appellate jurisdiction 
 of the Union would, as to the cases in question, have 
 no existence ; which would be contrary to the manifest 
 intent of the Federal Constitution. 1 
 
 The appellate power of the Federal Courts must, 
 therefore, continue to extend to the State Courts so 
 long as the latter entertain any concurrent jurisdiction 
 over the cases which the Constitution has declared to 
 
 1 Consent of parties cannot confer jurisdiction on the Supreme 
 Court. 16 Peters, 525.
 
 CONSTITUTIONAL JURISPRUDENCE. 149 
 
 fall within the Judicial cognizance of the United States. 
 It is clear that the Constitution contemplated that such 
 cases would not only arise in the State Courts, in the 
 ordinary exercise of their concurrent jurisdiction, but 
 that those tribunals would incidentally take cognizance 
 of questions of which the Courts of the United States 
 have exclusive jurisdiction. Inasmuch, therefore, as the 
 Judicial power of the Union extends to both the above 
 specified classes of .cases, it follows as a necessary con- 
 sequence, that the appellate jurisdiction of the Federal 
 Courts must, and does, extend to every case within the 
 Federal Judicial power. All the enumerated cases of 
 Federal cognizance are those which touch the safety, 
 peace, and sovereignty of the Union, or in which it 
 may be presumed that State attachments, prejudices, 
 jealousies, or interests might sometimes obstruct or 
 control the regular administration of justice. To all 
 such cases the appellate power is applied on the plainest 
 principles of policy and wisdom ; and this is requisite 
 to fulfil effectually the great and beneficial ends of the 
 Constitution; and, especially to give efficacy to the 
 power of deciding in all cases of conflict between the 
 several States, or collision between powers claimed by 
 a State, and those claimed by the General Government ; 
 and especially to maintain the declared supremacy of 
 the Constitution, Laws, and Treaties of the United 
 States, over the Constitution and Laws of the respective 
 States. The existence of such a power was, moreover, 
 deemed necessary to preserve uniformity of decision 
 throughout the Union, upon all subjects within the pur- 
 view of the Constitution ; and to prevent the mischiefs 
 of opposite constructions and contradictory decisions in 
 the several States on these points of general concern. 
 13*
 
 150 LECTURES ON 
 
 The appellate power of the Federal Judiciary over 
 the State tribunals does not, however, extend to a final 
 judgment in a State Court on a question arising under 
 the authority of the Union, although a State be a party ; 
 because that jurisdiction was given to the Federal 
 Courts only in two classes of cases ; in the one, it de- 
 pends on the character of the cause, whoever may be 
 the parties ; in the other, it depends entirely on the 
 character of the parties, and then the subject of the 
 controversy is wholly unimportant. In the celebrated 
 case of the Georgia missionaries, 1 where the validity, 
 or, at least, the construction of the treaty made by the 
 United States with the Cherokee Indians, had been 
 drawn in question in the highest Court of that State, and 
 the decision had been, if not " against the validity," 
 against a " right, privilege, and exemption claimed under 
 them," and where, also, had been drawn in question the 
 validity of a law of Georgia, on the ground of its be- 
 ing repugnant to the Constitution, Treaties, and Laws 
 of the United States, and the decision had been in 
 favor of its validity, it was considered by the Supreme 
 Court too clear for controversy that the Judiciary Act 
 of Congress had given it the power, and, of course, im- 
 posed on it the duty, of exercising an appeUate juris- 
 diction in the case, notwithstanding it arose upon a 
 criminal prosecution in the State Court, founded upon an 
 Act of the State Legislature. The law of Georgia was 
 held to be repugnant to the Constitution, Laws, and 
 Treaties of the United States ; and Chief Justice Mar- 
 shall, who delivered the opinion of the Court, declared 
 that its jurisdiction was no less clear in that case than 
 
 1 6 Peters, 515.
 
 CONSTITUTIONAL JURISPRUDENCE. 151 
 
 in civil cases. He considered the parties not less inter- 
 ested in the operation of this unconstitutional law, than 
 if it had affected their property ; nor less entitled to the 
 protection of the General Government when the judg- 
 ment of the State Court affected their personal liberty, 
 and inflicted a disgraceful punishment. The Court, 
 therefore, ordered the proceedings against the mission- 
 aries to be annulled, and that they should be released 
 from their imprisonment. The special mandate issued 
 to the Court below to carry that judgment into effect, 
 was not obeyed, and compulsory proceedings were in 
 progress to enforce it, when the matter was compro- 
 mised by the discharge of the missionaries upon their 
 withdrawing the suits they had commenced against the 
 State officers for their detention. 
 
 In order to give the Supreme Court jurisdiction in a 
 case brought before it on a writ of error, or an appeal 
 from a State Court, three things must concur, viz : 
 
 1. The validity of a statute of the State must be 
 drawn in question. 
 
 2. It must be drawn in question on the ground that 
 it is repugnant to the Constitution, Laws, or Treaties 
 of the United States. 
 
 3. The decision of the State Court must be in favor 
 of the validity of such statute. 
 
 Where, therefore, the decision of the State Court is 
 against the validity of the statute, the Supreme Court 
 of the United States has no jurisdiction. 1 Neither has 
 it jurisdiction to revise the judgment of a State Court, 
 when the only questions involved in the case depend on 
 the construction and validity of a State law. 2 Nor has 
 
 1 14 Peters, 56 ; 5 Howard, 64, 343 ; 5 Peters, 505 ; 16 Ibid. 149. 
 ' 2 11 Peters, 167.
 
 152 LECTURES ON 
 
 it authority to declare a State law void on account of 
 its collision with the State Constitution. 1 
 
 In a former case, the Supreme Court had observed 
 that if the State Legislatures might annul the judg- 
 ments of the Courts of the United States, and the 
 rights thereby acquired, the Constitution becomes a 
 solemn mockery, and the Nation would be deprived of 
 the means of enforcing its laws by its own tribunals. 
 So fatal a result must be deprecated by all ; and the 
 People of every State must feel a deep interest in re- 
 sisting principles so destructive to the Union, and avert- 
 ing consequences so fatal to themselves. 2 
 
 If two citizens of the same State, in a suit in a State 
 Court, claim title under the same Act of Congress, the 
 Supreme Court of the United States has appellate 
 jurisdiction to revise the judgment or decree, under the 
 twenty-fifth section of the Judiciary 'Act of 1789 ; upon 
 the ground that the Act intended to give the Court the 
 power of rendering uniform the construction of the 
 laws of the United States, and the decisions upon the 
 rights or titles claimed under those laws. 3 
 
 The Supreme Court is also clothed with that super- 
 intending authority over the subordinate Courts of the 
 United States, which should always be deposited in the 
 highest tribunal and last resort of the People for Justice. 
 It has power to issue prohibitory writs to the District 
 Courts when proceeding as Courts of Admiralty and 
 maritime jurisdiction ; and mandatory process in cases 
 warranted by the principles and usages of law, to any 
 Courts established, or persons holding office under the 
 
 1 8 Peters, 280. 
 
 2 12 Ibid. 357. 
 
 3 4 Cranch, 382 ; 2 Cond. Rep. 149.
 
 CONSTITUTIONAL JURISPRUDENCE. 153 
 
 authority of the United States. The, Supreme Court, 
 and all the Federal Courts, have power to issue all 
 writs, not specially provided by statute, which may be 
 necessary for the due exercise of their respective juris- 
 dictions, and conformable to the principles and usages 
 of law ; and the individual Judges of all of them may, 
 by writ of Habeas Corpus, relieve all persons from all 
 manner of unjust imprisonment or restraint occurring 
 under or by color of the authority of the United States. 
 But the Supreme Court has no original jurisdiction to 
 award this writ to bring up the infant child of a 
 Petitioner alleged to be unlawfully detained from him. 1 
 The jurisdiction exercised by the Court upon the re- 
 turn of the writ, is clearly appellate, being the revision 
 of a decision of an inferior Court by which a citizen 
 has been committed to prison. The question brought 
 forward on the Habeas Corpus is always distinct from 
 that involved in the cause itself. The question whether 
 an individual shall be imprisoned, is distinct from the 
 question whether he shall be convicted or acquitted of 
 the charge upon which he is to be tried, and, therefore, 
 may be decided by different Courts ; and as the decision 
 that the individual shall be imprisoned must always 
 precede the application for his discharge, the jurisdiction 
 exercised by the Supreme Court must be of an appel- 
 late, and not of an original character, which is not 
 conferred by the Constitution. 2 This jurisdiction, there- 
 fore, is not affected by the circumstance that the com- 
 mitment was made by a Court having power to commit 
 and bail ; 3 and the Supreme Court may award the writ 
 
 1 2 Howard, 65. 
 
 2 4 Crunch, 75 ; 2 Cond. Rep. 33 ; 5 Ibid. 225 ; 7 Wheat. 38. 
 
 3 3 Ball 17.
 
 154 LECTURES ON 
 
 to revise the effect of the process of a Circuit Court of 
 the United States, under which a prisoner is~detained. 
 
 Although the prohibition in the Constitution against 
 the imposition of excessive fines is mandatory upon the 
 Courts of the United States, yet the Supreme Court 
 cannot reverse such a sentence, notwithstanding the 
 excess of the fine may be apparent upon the face of the 
 record. It cannot, therefore, on a Habeas Corpus, dis- 
 charge a prisoner in custody for non-payment of such 
 fine. Nor will it grant a Habeas Corpus ad subjiciendum 
 where a party has been committed for a contempt by 
 a Court of competent jurisdiction. The laws of the 
 United States have not confided to the Supreme Court 
 an appellate jurisdiction for the trial of criminal cases ; 
 and it has no authority to exercise it indirectly. It 
 holds, as we have seen, that there is always a distinc- 
 tion between the question brought before it on a Habeas 
 Corpus, and that involved in the trial ; but there is no 
 distinction between the case of a contempt, and an 
 application for the writ after judgment upon an indict- 
 ment for an offence within the jurisdiction of the same 
 Courts. For when a party is committed for contempt, 
 the adjudication of the Court is a conviction, and the 
 commitment in consequence of it, is an execution of 
 the judgment. 
 
 Thus was the law settled in England, in the cele- 
 brated case of Brass Crosby, Lord Mayor of London, 1 
 an authority approved by the Supreme Court. 2 In the 
 equally famous case of Thomas W. Dorr, who had 
 been convicted of treason against the State of Rhode 
 Island, and sentenced by a Court of that State to im- 
 
 i 3 WUs. 188. 2 7 Wheat. 38.
 
 CONSTITUTIONAL JURISPRUDENCE. 155 
 
 prisonment for life, the Supreme Court of the United 
 States held that it had no power to grant the writ of 
 Habeas Corpus, as it possessed no jurisdiction of the 
 subject derived from the Common Law. It was not a 
 case, either, in which the Constitution had conferred 
 upon the Court original jurisdiction ; and, under the 
 provisions of the Judiciary Act, the only case where 
 any Court or Judge of the United States could issue 
 the writ to bring up a prisoner in custody under a 
 sentence or execution of a State Court, was where he 
 was to be used as a witness. It is immaterial whether 
 the imprisonment be under civil or criminal process. 
 As the law stands, an individual in custody under the 
 authority of a State is beyond the reach of the Federal 
 Courts, although he may be indicted before them for 
 treason against the United States. 1 
 
 The Judiciary Act authorizes the Supreme Court, as 
 we have seen, to issue writs of prohibition to the Dis- 
 trict Courts when proceeding as Courts of admiralty 
 and maritime jurisdiction, and writs of Mandamus in 
 cases warranted by the principles and usages of law, 
 to any Courts appointed, or persons holding office, 
 under the authority of the United States ; and it should 
 be noted, that a Mandamus to an inferior Court, is in 
 the exercise of appellate jurisdiction, to an officer, in 
 that of original jurisdiction. 2 
 
 But a Superior Court will never by Mandamus direct 
 in what manner the discretion of an inferior one shall 
 be exercised ; although, in a proper case, it will require 
 it to decide. The writ in question is subject to the 
 
 1 3 Howard, 103. 
 
 2 12 Wheat. 561 ; 6 Cond. Rep. 644.
 
 156 LECTURES ON 
 
 discretion of the Court, and should not be issued in cases 
 of doubtful right. It is, however, the only adequate 
 relief where an inferior tribunal refuses to act upon a 
 subject properly brought before it. 1 And although the 
 Supreme Court will not order an inferior one to render 
 judgment for or against either party, yet, in a proper 
 case, it will order it to proceed to judgment. 2 Should 
 the Court before whom a case ripe for judgment is 
 pending, perseveringly refuse to terminate the cause, 
 the Supreme Court, without indicating the character of 
 the judgment, would order the rendition of some judg- 
 ment ; but to justify such a mandate, a plain case of 
 refusing to proceed by the inferior Court must be made 
 out. 3 
 
 The Supreme Court has no power from the Consti- 
 tution, nor can Congress confer it, to grant a new 
 trial in a Court below, by a reexamination of facts tried 
 by a Jury ; as it would violate that part of the seventh 
 Amendment of the Constitution which declares that 
 
 1 6 Peters, 661. 
 
 2 8 Ibid. 291. 
 
 3 The Circuit Court of the United States for the District of Colum- 
 bia has a right to award a Mandamus to an officer of the United States, 
 to enforce the performance of a merely ministerial act which, he has 
 no authority to deny or control ; or where there is no room for the 
 exercise of discretion, official, or otherwise. But, in such cases, the 
 writ issues in virtue of the Common Law, as it was in force in Mary- 
 land when the cession of that part of the State, now within the 
 District of Columbia, was made to the United States ; and it must be 
 considered as it was at Common Law, with respect to its object and 
 purpose, varying only in form as required by the different characters 
 of the Governments of the United States and England. A Mandamus 
 will not lie against the Secretary of the Treasury, at the instance of 
 an officer to enforce the payment of his pay. 6 Howard, 92.
 
 CONSTITUTIONAL JURISPRUDENCE. 157 
 
 " no fact tried by a Jury shall be otherwise reexaminable 
 in any Court of the United States, than according to 
 the rules of the Common Law." The only modes 
 known to the Common Law for reexamining such facts, 
 are the granting a new trial by the Court in which the 
 issue was joined, or to which the record was properly 
 returnable ; and by the award of a venire facias de novo 
 by an appellate Court, for some error of law intervening 
 in the proceedings. 1 
 
 To sustain the appellate jurisdiction of the Supreme 
 Court, under the Judiciary Act of 1789, the value in 
 controversy must exceed two thousand dollars ; and to 
 ascertain that value, recourse must be had to the foun- 
 dation of the original suit, or the matter in dispute 
 when it was instituted. Where the law gives no rule, 
 the demand of the plaintiff must furnish one. But 
 where the law gives the rule, the legal cause of action, 
 and not the plaintiff's demand, must be regarded. 2 If 
 the judgment of the Court below be for the plaintiff, 
 that judgment ascertains the value of the matter in 
 dispute ; but where the judgment below is for the de- 
 fendant, the Supreme Court has not fixed the mode of 
 ascertaining the value. 3 It may, however, be presumed 
 that, as in the case where the plaintiff's demand gives 
 no rule, recourse may be had to the foundation of the 
 controversy, so, in the case of the defendant, recourse 
 may, in like manner, be had to the value of the matter 
 in dispute when the suit was instituted. 4 
 
 But, notwithstanding the cases cited in the margin, 
 
 1 3 Peters, 433. 
 
 2 3 Dull. 401 ; 1 Cond. Rep. 105. 
 
 3 1 Crancfi, 13; 2 Cond. Rep. 103. 
 
 4 See cases last cited. 
 
 14
 
 158 LECTURES ON 
 
 according to the practice since established by the Su- 
 preme Court, its jurisdiction, in this respect, depends 
 upon the sum or value in dispute between the parties, 
 as the case stands upon the writ of error in that Court. 
 Whatever may have been the amount claimed by the 
 plaintiff in the Court below, if the judgment in his favor 
 is for less than two thousand dollars, and the writ of error 
 is sued out by the defendant below, the Supreme Court 
 has no jurisdiction. But if the writ of error be brought 
 by the plaintiff below, provided the amount claimed in 
 his declaration exceed two thousand dollars, the Court 
 has jurisdiction, because, should the judgment be re- 
 versed, he may still recover what he claimed. 1 But this 
 appellate jurisdiction is not limited by the value of the 
 matter in dispute in cases arising under the Constitu- 
 tion, laws, and treaties of the United States ; and it 
 extends to a case where both parties claim a right 
 under the same Act of Congress, and the decision is 
 against the right or title claimed by either. 2 
 
 There is no mode of proceeding by which the Fed- 
 eral Government can bring into review the decisions of 
 the Supreme Court upon a question of boundary be- 
 tween two States. Justice therefore requires that the 
 United States, which represent the rights and interests 
 of the other States, should have an opportunity of 
 being heard before the boundary is established. The 
 Attorney-General files an Information, stating that the 
 interests of the United States are involved in the 
 establishment of the boundary line, and has a right to 
 appear, and adduce proofs in support of the boundary 
 claimed by them to be the true one, and to be heard on 
 
 1 2 Howard, 73 ; 16 Peters, 234. 
 
 2 8 Wheat. 312 ; 5 Cond. Rep. 445.
 
 CONSTITUTIONAL JURISPRUDENCE. 159 
 
 the argument. The United States will not by this 
 proceeding become a party in a technical sense, and no 
 judgment will be rendered for or against them. But 
 the evidence and arguments offered in their behalf will 
 be considered by the Court in deciding the matter in 
 controversy. 1 
 
 The power vested in Congress of creating Courts of 
 inferior jurisdiction, necessarily implies the power of 
 limiting the jurisdiction of those Courts to particular 
 objects ; and when such a Court is created, and its 
 operations defined, it can, with no propriety, assume to 
 itself a more extended jurisdiction, which might be 
 indefinite in its nature, applicable to a variety of sub- 
 jects, varying in every State in the Union, and with 
 regard to which, there may be no definite criterion of 
 distribution between the several inferior Courts which 
 might be created. 2 
 
 Under the power granted for the purpose by the 
 Constitution, two descriptions of inferior Courts, differ- 
 ing materially in the nature and extent of their respec- 
 tive jurisdictions, have been established by Congress. 
 The United States, exclusive of the District of Columbia, 
 are divided by law into a number of Judicial Circuits, 
 corresponding with the number of the Judges of the 
 Supreme Court, each " Circuit" consisting of one or 
 more Districts. Each " District," for the most part, 
 comprises an entire State ; but some of the larger and 
 more populous States are divided into two Districts. 
 
 1 17 Howard, 478. 
 
 2 7 Cranch, 32; 2 Cond. Rep. 405. The plaintiff in the Supreme 
 Court may assign as error his own admissions in the pleadings in the 
 Court below, jvhen they go to the jurisdiction. 2 Cranch, 126 ; 1 
 Cond. Rep. 370.
 
 160 LECTURES ON 
 
 Some Districts are not embraced within any Circuit, 
 and have only " District Courts," which, however, are 
 invested with the powers of a " Circuit Court," within 
 their respective Districts, except in cases of error and 
 appeal. In the " District of Columbia," which consists 
 of the territory ceded to the United States for the seat 
 -of the General Government, there is both a Circuit and 
 a District Court specially and differently organized for 
 that District. The former is composed of a Chief 
 Justice and two associate Judges, from whose decisions 
 writs of error and appeals lie to the Supreme Court of 
 the United States. The jurisdiction vested in these 
 Courts respectively, corresponds with that of the Cir- 
 cuit and District Courts established throughout the 
 States, which we now proceed to explain. 
 
 II. THE CIRCUIT COURTS OF THE UNITED STATES 
 are held annually, or oftener, in each District, by a 
 Justice of the Supreme Court assigned by law to the 
 particular Circuit, and the Judge of the District for 
 which the Court is held. But the Supreme Court may, 
 in cases where special circumstances render it, in their 
 judgment, necessary, assign two Justices of the Supreme 
 Court to attend the Circuit Court. It was once made 
 a question whether the Justices of the Supreme Court 
 could sit as Circuit Judges without a distinct commis- 
 sion, but it was decided that they might lawfully do so, 
 as a contemporaneous construction of the Constitution, 
 acquiesced in, and practised from the first organization 
 of the Judiciary system, had fixed the construction. 1 
 
 If a vacancy happen by the death of the Justice of 
 the Supreme Court to whom the Circuit is allotted, the 
 
 1 1 Cranch, 299 ; 1 Cond. Rep. 316.
 
 CONSTITUTIONAL JURISPRUDENCE. 161 
 
 District Judge may, under the Act of Congress, dis- 
 charge all the duties of the Circuit Court for his Dis- 
 trict, except that he cannot sit upon a writ of error, or 
 upon an appeal from his own Court; and where the 
 District Judge is absent, or has been of counsel, or is 
 interested in the cause, the Circuit Court may be holden 
 by the Justice of the Supreme Court alone. 1 If an 
 opposition of opinions between the Justice of the Su- 
 preme Court and the District Judge occur in a case in 
 which the Circuit Court has original jurisdiction, the 
 point on which they disagree is directed by law to be 
 certified to the Supreme Court; whereupon the cause 
 is removed into that Court for final judgment or decree. 
 But in all cases of appeal or removal from a District 
 to a Circuit Court, judgment is to be rendered in the 
 latter according to the opinion of the Justice of the 
 Supreme Court, presiding at the Circuit. A division 
 of opinion between the Judges of the Circuit Court on 
 a motion for a new trial, is not, however, such an one as 
 is required to be certified to the Supreme Court for its 
 decision, under the sixth section of the Judiciary Act 
 of 1802. 2 Nor can the Supreme Court take jurisdiction 
 of a question upon which the opinions of the Judges 
 of a Circuit Court are opposed to each other, where 
 the division of opinion arises upon some proceeding 
 subsequent to the decision of the cause in that Court. 3 
 i But where the whole cause, and not a point, or points 
 arising in it, is adjourned to the Supreme Court on a 
 
 1 Where the District Judge does not judicially sit in a cause in the 
 Circuit Court, he is considered absent in contemplation of law, although 
 he be personally present on the bench. 3 Doll. 19. 
 
 2 6 Wheat. 542; 5 Cond. Rep. 134. 
 
 3 3 Wheat, 600 5 4 Cond. Rep. 522. 
 
 14*
 
 162 LECTURES ON 
 
 certificate of division of opinion, the case will be re- 
 manded to the Circuit Court. Congress intended to 
 provide for divisions of opinion upon single points, 
 which frequently occur in the trial of a cause, and not 
 to enable a Circuit Court to transmit an entire cause 
 to the Supreme Court before a final judgment of the 
 former. A construction authorizing such a transfer, 
 would counteract the policy which forbids writs of error 
 or appeals, until the judgment or decree of the Court 
 below be final. If an interlocutory judgment or decree 
 could be brought into the Supreme Court, the same 
 case might again be brought up after a final decision in 
 the Circuit Court, and all the delay and expense inci- 
 dent to a repeated revision of the same cause would 
 be incurred. So, if the whole cause, instead of an 
 insulated point, could be adjourned, the judgment or 
 decree finally given by the Circuit Court, might be 
 again brought up, and the whole subject reexamined. 
 Were the Supreme Court, moreover, to decide the case 
 upon such a certificate of division of opinion, it would 
 be the exercise of original, rather than appellate juris- 
 diction. 1 
 
 The Circuit Courts, organized as stated, are invested 
 with original and exclusive jurisdiction, except in 
 certain cases hereafter mentioned, of all crimes and 
 offences cognizable under the authority of the United 
 States, exceeding the degree of ordinary misdemeanors, 2 
 
 1 4 Peters, 392 ; 9 Ibid. 297 ; 12 Ibid. 238. 
 
 8 Under this provision, the Circuit Courts of the United States 
 take cognizance of crimes committed on the high seas. A vessel 
 lying in the open roadstead of a foreign country, is upon the " high 
 seas," within the eighth section of the statute. 5 Wheat. 200 ; 1 Gall. 
 624 ; 2 Sumn. 482. But see contra, as to offences committed in a
 
 CONSTITUTIONAL JURISPRUDENCE. 163 
 
 and of those they have concurrent jurisdiction with the 
 District Courts. They have original cognizance, con- 
 currently with the Courts of the several States, of all 
 suits of a civil nature at Common Law, or in Equity, 
 where the matter in dispute exceeds a certain specified 
 sum, and the United States are plaintiffs, or an alien is 
 a party, or the suit is between a citizen of the State 
 where it is brought, and a citizen of another State. 
 But when both parties are aliens, the Courts of the 
 United States have no jurisdiction ; and a citizen of 
 the District of Columbia is not a citizen of a State, 
 in the sense of the Constitution, and entitled to sue, as 
 such, in the Federal Courts. 1 And in relation to aliens, 
 it should be noted, that they have a right to sue only 
 while peace exists between their country and ours. 
 For if war break out, and they thereby become alien 
 enemies, their right to sue is suspended until the return 
 of peace. 2 
 
 The jurisdiction of the Circuit Courts having once 
 vested, in a suit between citizens of different States, 
 cannot be devested by a subsequent change of domicile 
 of either of the parties. 3 And where an alien is a party, 
 or the suit is between a citizen of the State where the 
 
 bay entirely land-locked and enclosed by reefs. 4 Mason, 307 ; 
 5 Ibid. 290 ; 1 Wash. C. C. 463 ; 4 Ibid. 383 ; 4 Dall. 426 ; 1 Sumn. 
 168 ; Bee, 266. No writ of error, or appeal, lies to the Supreme 
 Court, from the judgment or decree of a Circuit Court in a civil 
 action, which was carried from the District to the Circuit Court, under 
 the 21st section of the Judiciary Act of 1 789. 7 Cranch, 168 ; 2 Cond. 
 Rep. 424 ; 2 Wheat. 395. 
 
 1 4 Cranch, 46 ; 2 Ibid. 448 ; 1 Cond. Rep. 444. 
 
 2 1 Kent's Comm. 64-68. 
 
 3 2 Wheat. 290; 9 Ibid. 537; 5 Cond. Rep. 666; 8 Peters, 1 ; 12 
 Ibid. 165.
 
 164 LECTURES ON 
 
 suit is brought, and a citizen of another State, 1 if the 
 suit be joint, each distinct interest should be represented 
 by persons, all of whom are entitled to sue or be sued 
 in the Federal Courts, that is, where the interest is 
 joint, each of the persons concerned in it must be com- 
 petent to sue or be sued in those Courts. 2 
 
 Where the plaintiff is an alien, and sues not in his 
 own right, but as a trustee, if the trust devolve upon 
 him by operation of law, the Courts of the United 
 States entertain jurisdiction ; 3 but not where the trust 
 arises from the act of a party who could not sue in 
 those Courts. 4 Although in a case between citizens of 
 the same State, if the plaintiff be only a nominal party, 
 suing officially for the use of an alien, the Federal 
 Courts have jurisdiction. 5 The jurisdiction of the Court, 
 in other cases, has been held to be determined by the 
 condition of the party who has the legal interest, and 
 not by that of the party having simply a beneficial 
 interest. 6 
 
 The Circuit Courts have also original jurisdiction in 
 Equity, and at Law, of all suits arising under the Acts 
 of Congress relative to copyrights, and the rights grow- 
 ing out of inventions and discoveries ; and concurrent 
 
 1 The constitutional privilege which a citizen of one State has to 
 sue the citizens of another, cannot be taken away by the erection 
 of a Corporation by the laws of the State in which the latter reside. 
 The Corporation itself may, therefore, be sued as such. 16 Howard, 
 314. 
 
 2 3 Crancli, 267; 1 Wheat. 91. 
 
 3 4 Crunch, 306 ; 2 Cond. Rep. 116 ; 8 Wheat. 642. 
 
 4 6 Crunch, 332. 
 
 5 Ibid. 303. 
 
 6 14 Peters, 293 ; 3 Howard, 374.
 
 CONSTITUTIONAL JURISPRUDENCE. 165 
 
 jurisdiction with the District Courts of the United 
 States, and with the Courts and Magistrates of the 
 several States, where the United States, or an officer 
 thereof, sues under the authority of an Act of Congress, 
 however small the amount, except in cases of admiralty 
 and maritime jurisdiction. 1 
 
 The Circuit Courts of the United States have appel- 
 late jurisdiction in all final judgments and decrees of 
 the District Courts, only in cases of admiralty and 
 maritime jurisdiction ; and if any suit be commenced 
 in a State Court, against an alien, or by a citizen of 
 the State in which the suit is brought against a citizen 
 of another State, the defendant, as we have seen, on 
 giving security, may remove the cause to the Circuit 
 Court for the District in which the suit is brought. 2 In 
 order to maintain a suit in the Circuit Court, jurisdic- 
 tion must appear on the record ; as, if the suit is be- 
 tween citizens of different States, the citizenship of the 
 respective parties must be set forth. 3 A citizen of a 
 " Territory " cannot sue a citizen of a State in the 
 Federal Courts ; nor can those Courts take jurisdiction 
 from the circumstance of other parties being joined 
 who are capable of suing in them ; for the jurisdiction, 
 as we have seen, cannot be sustained unless each indi- 
 vidual party be entitled to claim it. 4 
 
 1 The Circuit Courts have jurisdiction in Writs of Right where the 
 property demanded exceeds $500 in value ; and if upon the trial the 
 demandant recover less, he is not to be allowed his costs, and, in the 
 discretion of the Court, may be adjudged to pay costs. 8 Crunch, 
 229; 3 Cond.Rep. 179. 
 
 2 5 Peters, 1. 
 
 3 6 Wheat. 250. 
 
 4 1 Ibid. 91 ; 3 Cond. Rep. 490.
 
 166 LECTURES ON 
 
 An appeal from the District to the Circuit Courts, in 
 admiralty cases, suspends the sentence altogether ; and 
 the matter is not considered res judicata until the final 
 sentence of the appellate Court is pronounced. 1 And 
 it is the constant practice of appellate Courts of admi- 
 ralty, so to modify the decree of the inferior Court, as 
 the justice of the case may seem to require, or, in 
 other words, to render such a decree as the latter should 
 have done. 2 
 
 The Circuit Courts have no authority to issue a Cer- 
 tiorari, or other compulsory process to the District Courts 
 for the removal of causes from that jurisdiction before a 
 final decree or judgment is pronounced in the latter ; 
 and, in case of the exercise of such power by the former, 
 the District Court may, and should refuse obedience 
 to the process ; and either party to the suit may move 
 the Circuit Court for a Procedendo, after the transcript 
 of the record is removed to that Court, or pursue the 
 cause in the District Court, as if the record had not 
 been removed. 3 But if, instead of taking advantage of 
 this irregularity, at the proper time, and in a proper 
 manner, the defendant enters his appearance to the 
 suit in the Circuit Court, makes his defence, and joins 
 issue upon the pleadings, it is too late, after a verdict, 
 to object to the irregularity. The Supreme Court, as 
 we have seen, will consider the suit as an original one 
 in the Circuit Court, made so by consent of parties.* 
 
 The power of the Circuit Courts to issue the writ of 
 
 1 5 Cranch, 281; 6 Ibid. 329; 3 Peters, 57; 2 Cond. Rep. 256; 
 Ibid. 388. 
 
 2 3 Dall. 54 ; 1 Cond. Rep. 21. 
 
 3 2 Wheat. 221. 
 
 4 4 Cond. Rep. 98.
 
 CONSTITUTIONAL JURISPRUDENCE. 167 
 
 Mandamus, is confined exclusively to those cases in 
 which it may be necessary to the exercise of their juris- 
 diction. Had the eleventh section of the Judiciary Act 
 covered the whole ground of the Constitution, there 
 would be much reason for exercising this power in 
 many cases where some ministerial act is necessary to 
 the completion of an individual right arising under the 
 laws of the United States ; and the fourteenth section 
 would have authorized the issuing of the writ for the 
 purpose. But although the Judicial power of the 
 United States extends to all cases arising under their 
 laws, Congress has not thought proper to delegate the 
 power in question to the Circuit Courts, except in cer- 
 tain specified cases. 1 
 
 When we find Congress withholding from its own 
 Courts the exercise of this controlling power over the 
 ministerial officers of the Government, the inference 
 clearly is, that all violations of private right resulting 
 from the acts of such officers, were meant to be left 
 subject to actions for damages, or for the recovery of 
 specific property, according to circumstances, in a Court 
 of competent jurisdiction. 2 And inasmuch as the whole 
 of this power has not been communicated by law to 
 the Circuit Courts, it remains a dormant power, not 
 yet called into action. 3 
 
 A Circuit Court, although an inferior Court in the 
 language of the Constitution, is not so in the sense 
 which the Common Law attaches to the term ; nor are 
 its proceedings subject to the narrow rules which apply 
 
 1 7 CrancTi, 504 ; 3 Cond. Rep. 4. 
 
 2 6 Wheat. 591 ; 3 Cond. Rep. 197. 
 
 3 12 Peters, 524.
 
 168 LECTURES ON 
 
 to inferior Courts of Common Law, or Courts of special 
 jurisdiction. On the contrary, the Circuit Courts of 
 the United States are Courts of original and durable 
 jurisdiction, and as such entitled to liberal intendments 
 in favor of their powers. They are, nevertheless, Courts 
 of limited jurisdiction, and have cognizance, not of 
 causes generally, but only of a few, under special 
 circumstances, amounting to a small proportion of the 
 cases which an unlimited jurisdiction would embrace; 
 and the legal presumption is, that a cause is without 
 their jurisdiction until the contrary appears. 1 
 
 III. THE DISTRICT COURTS are derived from the 
 same Constitutional power of Congress as the Circuit 
 Courts. They hold annually four stated terms, and 
 special Courts, at the discretion of the respective 
 Judges. 
 
 The District Courts of the United States have, ex- 
 clusively of the State Courts, cognizance of all lesser 
 crimes and offences against the United States, com- 
 mitted within their respective Districts, or upon the 
 high seas, and which are punishable by fine and im- 
 prisonment, to a small amount, and for a short term. 
 They have, also, exclusive original cognizance of all 
 civil cases of admiralty and maritime jurisdiction; of 
 seizures under the impost, navigation, and trade laws 
 of the Union, where the seizures are made on the high 
 seas, or in waters within their District navigable from 
 the ocean by vessels of ten or more tons burden ; and 
 of all suits for penalties or forfeitures incurred under 
 those laws. 
 
 1 A Circuit Court of the United States has not jurisdiction to 
 enjoin proceedings in a State Court. 4 Cranch, 179.
 
 CONSTITUTIONAL JURISPRUDENCE. 169 
 
 They have, moreover, concurrent jurisdiction with 
 the Circuit Courts of the United States, and of the 
 States Courts, of causes in which an alien sues for the 
 violation of a right accruing to him under the Law of 
 Nations, or a treaty of the United States ; and of all 
 suits at Common Law in which the United States are 
 plaintiffs, and the matter in dispute is of a certain 
 small amount. They have jurisdiction, likewise, exclu- 
 sive of the State Courts, of all suits against Consuls, 
 or Vice- Consuls, except offences of a higher degree 
 than those which have been mentioned. They have, 
 also, exclusive cognizance of proceedings to repeal 
 patents obtained surreptitiously, or upon false sugges- 
 tions ; and of complaints, by whomsoever instituted, in 
 cases of capture made within the waters of the United 
 States, or within a marine league of their coasts. 
 
 By an Act of Congress passed in 1851, provision is 
 made for the appointment of a board of Commissioners 
 to settle private land claims in California, and for trans- 
 ferring cases decided by them to the District Court of 
 the United States, by way of appeal. This law was 
 held by the Supreme Court to be constitutional ; that 
 the board of Commissioners was not a Court under the 
 Constitution invested with Judicial powers, and that 
 the commencement of the suit in the District to which 
 it was transferred, must be regarded as an original 
 proceeding. It could, therefore, hear additional evi- 
 dence to that adduced before the Commissioners. 1 
 
 The seventh Amendment of the Constitution excludes 
 the jurisdiction of Admiralty over contracts regulated 
 by Common Law. 2 This jurisdiction is founded, for 
 
 1 17 Howard, 525. 21 Bald. 544. 
 
 15
 
 170 LECTURES ON 
 
 the most part, on the subject-matter of the contract, 
 and not solely on the place where it is made. 1 If the 
 subject-matter of the contract relate to navigation of 
 the sea, though it may be made on land, Admiralty has 
 jurisdiction. 2 It has jurisdiction, also, over all roadsteads, 
 havens, and rivers, which are not within the body of 
 a County. 3 As to contracts, their jurisdiction depends 
 on the subject-matter, whether maritime as above ex- 
 plained, or not. As to torts, it depends on the locality, 
 viz : whether committed on the high seas, or in ports 
 within the flow and reflux of the tide, or not. 4 
 
 The Continental Congress, before the ratification of 
 the Articles of Confederation, had authority to institute. 
 a Court of Appeal in Prize causes, and invest it with 
 power to revise and correct the judgments of the State 
 Courts of Admiralty ; and its decisions in cases falling 
 within its jurisdiction were final and conclusive. 6 Since 
 
 1 1 Peters's Adm. Rep. 231 ; Gilpin, 477 ; Paine, 621. 
 
 2 1 Wash. C. C. 453. 
 
 3 1 Dall. 49. 
 
 4 2 Gallis, 465 ; 2 Sumn. 1 ; 1 Gilpin, 529. For further cases on 
 the subject of admiralty and maritime jurisdiction, see 1 Peters's Adm. 
 Rep. 60-67, 78, 87, 97, 233, 244 ; 2 Ibid. 288, 309, 406; Bee, 51, 116, 
 199, 369, 378, 419, 433 ; Addis. 63 ; 1 Wheat. 96, 238, 402 ; 2 Ibid. 1 ; 
 3 Ibid. 246 ; 4 Ibid. 98 ; 8 Ibid. 394 ; 9 Ibid. 362 ; 10 Ibid. 418, 428, 
 473; 12 Ibid. 487,611; 5 Peters, 465; 776u/. 324; 10 Ibid. 118; 
 11 Ibid. 175; 1 Dall 50; 2 Ibid. 118; 3 Ibid. 54, 121, 133,297; 2 
 Wend. 64; 1 Gallis. 75; 2 Ibid. 191, 325, 349, 398 ; 2 Crunch, 406 ; 
 3 Ibid. 334; 4 Ibid. 2, 112, 320,443 ; 9 Ibid. 102, 289 ; 1 Yeales, 55; 
 2 Ibid. 252 ; 1 Mason, 508 ; 3 Ibid. 6, 161, 242 ; 4 Ibid. 380 ; 5 Ibid. 
 465 ; 1 Bald. 543-547 ; Gilpin, 1, 3, 24, 191, 203, 478, 505, 516, 526, 
 532; I Sumn. 73, 157, 400, 551; 2 Ibid. 589; 1 Wash. C. C. 293 ; 
 2 Ibid. 148; Paine, 620, 671; 17 Amer. Jur. 51 ; 1 Brock, 383; 4 
 Call. 372. 
 
 5 3 Dall. 54; 5 Cranch, 115; 1 Cond. Rep. 21 ; 2 Ibid. 202.
 
 CONSTITUTIONAL JURISPRUDENCE. 171 
 
 the adoption of the present Constitution, the conse- 
 quent abolition of the Courts of Admiralty, and the 
 establishment under it of the Federal Judicial system, 
 every District Court of the United States possesses all 
 the powers of a Court of Admiralty, whether consid- 
 ered as an Instance or a Prize Court ; l and they may 
 sustain a libel to carry into effect a decree of the 
 Continental Court of Appeals, either by enforcing its 
 specific execution, or awarding damages for the non- 
 performance. 2 
 
 The Courts of the United States being invested with 
 exclusive original cognizance of all seizures by land or 
 water, and of all suits for penalties and forfeitures 
 incurred under the laws of the Union, whenever a 
 revenue officer of the United States has a right to 
 seize for a supposed forfeiture, the question whether 
 that forfeiture has been incurred, belongs exclusively 
 to the Federal Courts, and cannot be drawn to another 
 forum. And it depends on the final decree of those 
 Courts, proceeding in rem, whether the seizure is to be 
 adjudged rightful, or not. If sentence of condemnation 
 be pronounced, it is conclusive that such forfeiture has 
 been incurred ; if sentence of acquittal, that is equally 
 conclusive against the forfeitures having been incurred, 
 and, in neither case, can the question be litigated else- 
 where. 3 
 
 As questions of prize belong exclusively to Courts 
 of Admiralty, Courts of Common Law have no juris- 
 diction to determine them ; where property, therefore, 
 
 1 Act of Conf. IX., Sect. i. 
 
 2 3 Dall. 6, 54 ; 1 Cond. Rep. 10, 21 ; 2 Ibid. 4; 3 Tbid. 136 ; 4 
 Hid. 322; 4 Cranch, 2; 8 Ibid. 110 ; 3 Wheat. 546. 
 
 3 3 Wheat. 346 ; 2 Ibid. 1 ; 4 Cond. Rep. 1, 244.
 
 172 LECTURES ON 
 
 has been captured as prize, no action lies at Common 
 Law, before adjudication, to recover it from any person 
 into whose hands it may have fallen. 1 And where pro- 
 vision is made for a forfeiture under the laws of the 
 United States, no State authority can interfere to take 
 possession of the property seized, and prevent the exer- 
 cise of exclusive jurisdiction by the Federal Courts ; 
 and if the property be wrongfully withdrawn, those 
 Courts may enforce its redelivery. 2 
 
 The District Courts, however, have no jurisdiction to 
 entertain a suit, by way of libel, to enforce the payment 
 of duties. The revenue-jurisdiction of those Courts, 
 proceeding in rem, extends only to cases of seizure for 
 forfeiture under the laws of impost, navigation, and 
 trade. 3 But proceeding as Courts of admiralty and 
 maritime jurisdiction, they have cognizance of maritime 
 torts in personam, as well as in rem ; and though the 
 trespass complained of were piratical, the civil remedy 
 does not merge in the crime. "Whatever may have been 
 the barbarous doctrine of antiquity about converting 
 goods piratically taken into droits of admiralty, the 
 day has long gone by since it gave way to a more 
 rational and equitable rule ; and the party dispossessed 
 is now sustained in his remedy to reclaim the property 
 as not devested by the piratical capture. If the party 
 may thus recover his property, there is no reason why 
 he should not recover the value of it from any goods 
 of the offender within reach of the Admiralty Courts. 
 The doctrine of merger has, indeed, no application to 
 
 1 3 Doll. 19 ; 1 Cond. Rep. 13. 
 
 2 2 Wheat. 1 ; 3 Ibid. 246 ; 6 Cond. Rep. 593. 
 312 Wheat. 486 ; 6 Cond. Rep. 593.
 
 CONSTITUTIONAL JURISPKUDENCE. 173 
 
 such a case, for even at Common Law, it was confined 
 to felonies ; and piracy was not deemed felony by that 
 code. 1 
 
 The Admiralty and maritime jurisdiction granted to 
 the Federal Government is not limited to tide waters ; 
 but extends to all public navigable lakes and rivers 
 where commerce is carried on between different States, 
 or with a foreign nation. And the Act of Congress, 
 extending the jurisdiction of the District Courts to 
 certain cases upon particular lakes, and the navigable 
 waters connecting them, does not rest upon the power 
 to regulate commerce, but upon the ground that those 
 lakes and waters are within the scope of Admiralty 
 jurisdiction, as known and understood within the United 
 States when the Constitution was adopted. 2 The Dis- 
 trict Courts, however, have no jurisdiction over vessels 
 employed in purely internal navigation, in cases of 
 dispute between part-owners ; nor to enforce payment 
 of wages due to the crew. 3 
 
 The Courts of this country have no jurisdiction to 
 redress any supposed torts committed on the high seas 
 on the property of its citizens by a cruiser regularly 
 commissioned by a foreign and friendly power, except 
 where such cruiser has been fitted out in violation of 
 its neutrality. The injured neutral must, in other cases, 
 seek redress in the Courts of the captor.* Nor is the 
 jurisdiction of the neutral Court enlarged by the fact 
 
 1 10 Wheat. 473 ; 6 Cond. Rep. 191. 
 
 2 12 Howard, 299. 
 
 3 11 Peters, 175. 
 
 4 10 Wheat. 473; 6 Cond. Rep. 191. 
 
 15*
 
 174 LECTURES ON 
 
 that the subject continues no longer within the power 
 of the captor. 1 
 
 As the laws of the United States have made no pro- 
 vision for an appeal from the judgments or decrees of 
 the District Courts to the Circuit Courts, except in 
 cases of Admiralty and maritime jurisdiction, where 
 a new jurisdiction is conferred upon the former, and a 
 special mode provided for its exercise, there is no right 
 of appeal to the latter ; and if an appeal be entertained 
 in such a case, by the Circuit Court, and its judgment 
 or decree be taken to the Supreme Court, that Court 
 will annul and reverse the proceedings of the Circuit 
 Court as wholly unauthorized, but it can take no fur- 
 ther proceeding in the cause ; it cannot remand it to 
 the Circuit Court, because the Circuit Court has no 
 jurisdiction ; and it cannot retain the cause for further 
 proceeding^ because it an exercise no appellate juris- 
 diction not conferred by statute. 2 
 
 The grant of Admiralty powers in the Constitution 
 to the Courts of the United States, was not intended 
 to be confined to such cases as belonged to the Ad- 
 miralty jurisdiction in England, at the time of the 
 adoption of that instrument. Such a limitation would 
 be inconsistent with, the extent of the Admiralty juris- 
 diction exercised by the Colonies, with a just inter- 
 pretation of the Constitution, and with its contempo- 
 raneous construction. 3 
 
 Where the Judge of a District Court, acting in his 
 Judicial capacity, has determined that there is not 
 
 1 1 Wheat. 228 ; 6 Cond. Rep. 558. 
 
 2 6 Peters, 470. 
 
 3 5 Howard, 441.
 
 CONSTITUTIONAL JURISPRUDENCE. 175 
 
 sufficient evidence to authorize him to proceed in a case 
 before him, the Supreme Cotfrt will not, as has been 
 already intimated, issue a mandamus, and thus in effect 
 compel him to decide contrary to the dictates of his 
 own judgment; 1 nor will it issue one to compel him to 
 grant any application resting in his discretion. 2 For a 
 Superior Court will never, as we have seen, direct in 
 what manner the discretion of an inferior shall be exer- 
 cised ; though, in a proper case, it will require it to 
 decide. 3 
 
 The Judges of the District Courts have, in cases 
 where the party has not had reasonable time to apply 
 to the Circuit Court, as full power as is exercised by 
 the Justices of the Supreme Court to grant writs of 
 injunction in Equity causes, to operate within their 
 respective Districts, and continue in force until the next 
 sitting of the Circuit Court. 
 
 IV. THE COURTS OF THE " TERRITORIES " OF THE 
 UNITED STATES have been created, from time to time, 
 by the several Acts of Congress establishing Territorial 
 Governments in those vast regions in the western part 
 of the continent which were either ceded by individual 
 States for the common benefit, upon condition that the 
 proceeds of sales of the public lands therein should be 
 applied to the payment of the national debt incurred 
 during the revolutionary war, or obtained by treaty from 
 foreign powers, and never included within the boun- 
 daries of any of the original members of the Union. 
 
 1 6 Peters, 216, 661 ; 7 Ibid. 637. 
 
 2 Vide ante. 
 
 3 It has been shown above, in treating of the Circuit Courts, in 
 what Districts the District Court possesses the powers of a Circuit 
 Court, and to what extent they may be exercised.
 
 
 176 LECTURES ON 
 
 These Territories, as they are politically, as well as 
 geographically termed, are not, in either case, con- 
 sidered distinct political societies, known to the Consti- 
 tution as States; but Congress has always assumed to 
 
 L exercise over them supreme powers of sovereignty ; and 
 has generally adopted for that purpose the principles of 
 the Ordinance established under the Confederation, in 
 1787, 1 for governing the territory Northwest of the River 
 Ohio, which now contains the States of Ohio, Indiana, 
 Illinois, Michigan, Wisconsin, and Iowa, and the Min- 
 nesota and Northwest Territories. This Ordinance was 
 
 A formed upon sound and enlightened principles of civil 
 jurisprudence, and the Judges appointed in that original 
 Territory, held their offices during good behavior. The 
 Territory of Florida having since been admitted as a 
 State, into the Union, and California coming into it 
 already organized as such, the remaining Territories, 
 besides Minnesota, and " Northwest," are Oregon, soon 
 to be admitted as a State, Washington, set off from it, 
 Nebraska and Kansas, formerly portions of the French 
 Province of Louisiana, and New Mexico and Utah, 
 acquired with California from Mexico. These are all 
 organized after the model of the Ordinance of 1787 ; 
 and in each of them, the Governor and members of 
 the Legislative Council, as well as the Judges, are ap- 
 pointed by the President and Senate, but are removable 
 at the pleasure of the President, 2 but subject to such 
 removal, the Governor holds his office for three years, 
 and the Judges for four. 3 
 
 1 Appendix G. 
 
 2 The power of the President to remove a Territorial Judge has 
 been questioned and discussed, but not as yet decided. 17 Howard, 284. 
 
 3 The Legislative power in these Territories is vested in the Gov-
 
 CONSTITUTIONAL JURISPRUDENCE. 177 
 
 The " Superior Courts " in these Territories have 
 exclusive cognizance of all capital offences, and the 
 trial by Jury is secured, together with many other great 
 fundamental principles of civil liberty. They have, 
 within their limits, the same jurisdiction, in all cases 
 arising under the Constitution and laws of the United 
 States, which is vested in the District Courts of the 
 United States, in those Districts in which the latter 
 have the powers of a Circuit Court ; and writs of error 
 and appeals from their decisions may be taken to the 
 Supreme Court of the United States, in the same cases, 
 and under the same regulations, as from the Circuit 
 Courts of the Union. 
 
 Admiralty jurisdiction, as we have seen, can be ex- 
 ercised in the several States in those Courts only which 
 are established in pursuance of the third Article of 
 the Federal Constitution ; but this limitation does not 
 extend to the Territories. The Courts are not constitu- 
 tional Courts in which the Judicial power conferred on 
 the General Government by the Constitution can be 
 vested. They are Legislative Courts created in virtue 
 of the general right of sovereignty existing in the Gov- 
 ernment of the Union, or in virtue of that clause of 
 the Constitution which enables Congress to make all 
 needful rules and regulations respecting the territory 
 belonging to the United States. Hence Admiralty 
 
 ernor, and a Legislative Council consisting of nine members, ap- 
 pointed by the President and Senate, to continue in office for five 
 years, and of a House of Representatives chosen by the inhabitants 
 biennially. These Legislatures are prohibited from interfering with 
 the primary disposal of the soil, or from taxing land belonging to the 
 United States, or from imposing higher taxes upon land belonging to 
 non-resident proprietors, than on those of residents.
 
 178 LECTURES ON 
 
 jurisdiction may be vested in Courts created by a Ter- 
 ritorial Legislature. 1 The Acts of Congress, therefore, 
 vesting the .Superior Court of a Territory with jurisdic- 
 tion in " all cases arising under the laws and Constitu- 
 tion of the United States," does not embrace cases of 
 Admiralty and maritime jurisdiction. 
 
 From these various regulations, it appears that Con- 
 gress possesses supreme power in regard to all these 
 Territories, depending solely on the exercise of its 
 sound discretion. A Territory, no more than the Dis- 
 trict of Columbia, is a State within the meaning of the 
 Constitution, or entitled to claim the privileges secured 
 to the members of the Union. 2 Nor will a writ of error, 
 or an appeal lie from a Territorial Court to the Supreme 
 Court of the United States, unless there be a special 
 statutory provision for the purpose. 3 
 
 It was observed by the late Chancellor Kent, in his 
 valuable " Commentaries," that, " if the Government 
 of the United States should carry into execution the 
 project of colonizing the great valley of the Oregon 
 west of the Rocky Mountains, it would afford a subject 
 of grave consideration, what would be the future civil 
 and political destiny of that country. It would be a 
 long time," he thought, " before it would be populous 
 enough to be created into one or more independent 
 States ; and in the mean time, upon the doctrine taught 
 by the Acts of Congress, and the Judicial decisions 
 of the Supreme Court, the colonists would be in a state 
 of complete subordination, and as dependent upon 
 
 1 1 Peters, 511. 
 
 2 2 Crunch, 445 ; 1 Wheat. 91. 
 
 3 1 Cranch, 212; 8 Ibid. 159.
 
 CONSTITUTIONAL JURISPRUDENCE. 179 
 
 the will of Congress as the people of this Country 
 would have been upon the King and Parliament of 
 Great Britain, if they could have enforced their claim 
 to bind us in all cases whatsoever. Such a state," he 
 continues, "of absolute sovereignty on the one hand, 
 and of absolute dependence on the other, is not at all 
 congenial with the free and independent spirit of our 
 native institutions ; and the establishment of distant 
 Territorial Governments, ruled according to will and 
 pleasure, would have a very natural tendency, as all 
 proconsular Governments have had, to abuse and 
 oppression." 1 
 
 The hand that traced these lines has long lain cold 
 in death ; but their learned and estimable author lived 
 to see not only the " project" they refer to realized in 
 the organization of Oregon as a Territory, but the 
 establishment of Territorial Governments in other and 
 more remote portions of the continent, some of which 
 had not as yet been acquired ; and had his already 
 lengthened life been prolonged for a few years more, 
 his fears would have subsided as he witnessed the erec- 
 tion of some of those Territories into States. So rapid, 
 indeed, has been the increase and settlement of the 
 National domain, that our political geography becomes 
 obsolete at home, before it is known abroad. 
 
 V. THE STATE COURTS AND MAGISTRATES are, in 
 some instances, invested by Congress with cognizance 
 of cases arising under the laws of the United States. 
 It seems, indeed, as we have already had occasion to 
 mention, that Congress, in the course of its legislation 
 upon the subjects intrusted to it, may commit the de- 
 
 1 Comm., Part 2d, 17.
 
 180 LECTURES ON 
 
 cision of causes arising under a particular Act, solely, 
 if deemed expedient, to the Courts of the Union ; but 
 in every case in which the State Courts are not ex- 
 pressly excluded, they may take cognizance of causes 
 growing out of an Act of Congress. And although 
 Congress cannot confer jurisdiction upon any Courts 
 but such as exist under the Constitution, and its own 
 laws, yet. the State Courts may exercise it in cases 
 authorized by the laws of the State, and not prohibited 
 by the exclusive jurisdiction of the Federal Courts. 1 
 
 Various duties have been imposed by Congress on 
 the State Courts and Magistrates ; and they have been 
 invested with jurisdiction in civil suits, and in com- 
 plaints and prosecutions for fines, penalties, and forfeit- 
 ures accruing under the laws of the United States. In 
 civil suits, the State Courts entertain such jurisdiction ; 
 but in criminal and penal cases they have, in several 
 instances, declined it. In what cases, and to what ex- 
 tent, they will exercise criminal jurisdiction under the 
 laws of the Union, and under what circumstances, and 
 how far, the Judges of the State Courts have power to 
 issue a Habeas Corpus, and decide on the validity of a 
 commitment or detainer under the authority of the 
 National Government, are questions which have been 
 variously determined in the States, and never defini- 
 tively settled in the Supreme Court of the United 
 States, where the ultimate right of determining them 
 resides. 2 The doctrine, however, seems to be admitted, 
 that Congress cannot compel a State to entertain juris- 
 diction in any case. It only permits such of those 
 tribunals as are competent, and have inherent jurisdic- 
 
 i 5 Wheat. 1. 2 vide ante.
 
 CONSTITUTIONAL JURISPRUDENCE. 181 
 
 tion adequate to the case, to entertain such suits in 
 given cases ; and they do not thereby become Inferior 
 Courts in the sense of the Federal Constitution, because 
 they are not ordained and established by Congress. 1 
 The State Courts are left to consult their own duty, 
 from their State authority and organization ; but if 
 they do voluntarily entertain jurisdiction of causes cog- 
 nizable under the authority of the United States, they 
 
 it upon the condition that the appellate jurisdiction 
 of the Federal Courts shall apply. Their jurisdiction 
 of Federal causes must, nevertheless, be confined to 
 civil actions for civil demands, or to enforce penal 
 statutes. They cannot hold criminal jurisdiction over 
 offences exclusively against the United States ; for every 
 criminal prosecution must charge the offence to have 
 been committed against the sovereign whose Court sits 
 in judgment upon the offender, and whose authority 
 can pardon him. 
 
 In concluding the subject of the Judicial Power, a 
 few supplementary observations upon the general sys- 
 tem, gathered from the adjudications of the Supreme 
 Court, seem to be requisite. The extent to which the 
 modes of proceeding in the Courts of the United States 
 are regulated by the various State laws, is determined 
 by the several Acts of Congress passed at different 
 times for that purpose. 2 Ex proprlo vlgore, they have 
 no operation whatever. They are only obligatory upon 
 the National Courts, so far as they have been adopted 
 and applied to them by Congress. 3 The section of the 
 
 1 14 Johns. Rep. 95. 
 
 2 In 1789, 1792, and 1828. 
 
 3 10 Wheat. 1,51; 6 Cond. Rep. 1, 22 ; 9 Peters, 129 ; 16 Ibid. 89 ; 
 1 Howard, 301. 
 
 16
 
 182 LECTURES ON 
 
 Judiciary Act of 1789, which provides that "the laws 
 of the several States shall be regarded as rules of de- 
 cision in trials at Common Law, in the Courts of 
 the United States, in cases where they apply," includes 
 only civil cases at Common Law, and not criminal 
 offences against the United States. It has no applica- 
 tion to the practice of the Court, or the conduct of its 
 officers in the service of an execution. This section is 
 merely the recognition of a principle of universal law, 
 that contracts are to be governed by the law of the 
 forum, in reference to which they were made. 1 
 
 The process Act of 1789, expressly adopted the forms, 
 writs, and modes of process in the State Courts, then 
 in use in suits at Common Law. The Act of 1792 
 adopts the forms of writs, executions, and other process, 
 and the forms and modes of proceeding in Courts of 
 Common Law then in force in the Courts of the United 
 States, under the former Act, " subject to such altera- 
 tions and additions as the said Courts respectively, in 
 their discretion, deerri expedient, or, to such regulations 
 as the Supreme Court of the United States shall think 
 proper, from time to time, to prescribe to any Circuit or 
 District Court, concerning the same." This delegation 
 of power to the Judiciary by Congress, is held to be 
 " perfectly constitutional;" a general superintendence 
 over the subject seeming to be properly within the 
 Judicial province, and having been always so consid- 
 ered. 2 The power to alter and add to the forms of 
 process, and modes of proceeding in a suit embraces 
 its whole process, and every transaction in it from its 
 commencement to its termination by the satisfaction 
 
 l 10 IVheal. 1. 2 See cases last above cited.
 
 CONSTITUTIONAL JURISPRUDENCE. 183 
 
 of the judgment. Nor can such power be limited to 
 formal, as contradistinguished from substantial altera- 
 tions ; but is to be understood as vesting in the Courts 
 of the United States authority to frame and mould 
 the process so as to adapt it to the purposes intended. 
 Thus, these Courts may so vary the effect and opera- 
 tion of final process as to reach property not liable by 
 the State laws as they stood in 1789, to be taken in 
 .execution ; or it may exempt property, not then, but 
 since exempted by the State laws. 1 
 
 The Act of Congress of 1828, repeals all rules made 
 by the Courts of the United States for the regulation 
 of final process in all the Districts, and adopts the 
 execution laws of the several States, as they then 
 stood, giving, however, to the Federal Courts power 
 to alter final process by rules, so far only as to adapt 
 the same to any subsequent change of the State law. 
 The effect of this Act was to adopt the State laws 
 then existing, as to bail, and exemption from arrest on 
 final process; and a rule of a Circuit Court of the 
 United States, providing that " no individual shall be 
 kept in prison on mesne or final process, who has been 
 released from imprisonment for such demand, by the 
 Insolvent law of the State," is held to be fully author- 
 ized by this Act of Congress. 2 
 
 Although this power of the Courts of the United 
 States, under the Act in question, extends partially to 
 the future legislation of the States, they can adopt the 
 State law only as the Legislature has made it. They 
 cannot adopt it in part, or alter it in any respect. 3 Nor 
 
 1 10 Wheat. 51 ; 1 Peters, 604; 13 Ibid. 45. 
 
 2 9 Peters, 329. 3 13 p eterS] 45 ; 2 Howard, 608.
 
 184 LECTURES ON 
 
 have the Federal Courts authority under the Act to 
 adopt by rule, any provision of a State law incompati- 
 ble with the positive enactments of Congress relative 
 to the jurisdiction, practice, or proceedings of those 
 Courts. 1 
 
 No rule of construction is better established, or more 
 familiar to jurists, than " if two statutes conflict with 
 each other, the Courts must decide on the operation of 
 each, and endeavor, if possible, to harmonize their 
 provisions." 2 If an Act of Congress admit of two in- 
 terpretations, one of which brings it within, and the 
 other presses it beyond the constitutional authority of 
 the Courts, they will adopt the former construction ; as 
 the presumption should never be indulged that Con- 
 gress meant to exercise or usurp any unconstitutional 
 authority, unless, indeed, that conclusion is forced 
 upon the Courts by language altogether unambiguous. 3 
 
 But in the construction of State statutes, the Fed- 
 eral Courts are guided by the decisions of those of the 
 State. This course is founded upon the principle uni- 
 versally recognized, that the Judicial department in 
 every Government where such department exists, is the 
 appropriate organ for construing the laws. A fixed and 
 received construction by a State Court of its statute- 
 laws, make a part of such laws, and must furnish the 
 rule of decision to the Federal Courts, so far as is con- 
 sistent with the Constitution of the United States, in 
 all cases arising within the State enacting them. And 
 it is immaterial whether the decisions of the State 
 Court are grounded upon a statute of the State, or 
 
 1 16 Peters, 89 ; 2 Howard, 241. 
 
 2 1 Crunch, 137; 1 Cond. Rep. 267. 
 
 3 12 Peters, 72.
 
 CONSTITUTIONAL JURISPRUDENCE. 185 
 
 form a part of the unwritten law, which has become 
 a fixed rule of property. 1 So where the policy of a 
 State, on any given subject, is manifest and settled, 
 the Courts of the United States are bound to notice it 
 as a part of its code ; and to declare all contracts, made 
 in the State, repugnant to it, illegal and void. 2 The 
 evidence, however, of such a fixed policy must be clear, 
 before the Federal Courts will set aside a contract on 
 the ground of such a repugnancy. 3 
 
 The fourteenth section of the Judiciary Act of 1789, 
 which provides that " the laws of the several States, 
 except where the Constitution, statutes, or treaties of 
 the United States shall otherwise require, shall be 
 regarded as rules of decision in trials at Common Law, 
 in the Courts of the United States, in cases where 
 they apply," has never been applied to State laws, 
 not strictly local ; that is to say, to none but positive 
 statute-laws, and the construction of them adopted by 
 the local tribunals, or rights and titles to things having 
 a permanent locality, such as the rights and titles to 
 real estate and other matters immovable and intra- 
 territorial in their character. It does not extend to 
 questions of a more general nature, not at all dependent 
 upon local statutes, or usages ; as, for example, to the 
 construction of ordinary contracts, and other written 
 instruments, especially those of a commercial nature, 
 
 1 1 Peters, 351, 476; 5 Ibid. 151; 6 Ibid. 283; 11 Ibid. 1; 12 
 Ibid. 32 ; 2 Ibid. 85; 3 Ibid. 127. 
 
 2 5 Crunch, 22; 9 Ibid., 87; 3 Cond. Rep. 386, 570; 4 Ibid. 
 132; 2 Ibid. 179; 5 Ibid. 18; 6 Ibid. 47, 385, 489; 1 Wheat. 115 
 279; 2 Ibid. 316 ; 6 Ibid. 119 ; 10 Ibid. 152 ; 11 Ibid. 361 ; 12 Ibid 
 153. 
 
 3 15 Peters, 446. 
 
 16*
 
 186 LECTURES ON 
 
 which last are to be interpreted upon the general princi- 
 ples and doctrines of commercial jurisprudence. 
 
 The Courts of the United States, under the Consti- 
 tution and laws of the Union, have, moreover, Equity 
 Jurisdiction; and unless the general principles of Equity 
 have been modified by the laws and usages of a par- 
 ticular State, those general principles will be carried 
 out everywhere in the same manner ; and the same 
 Equity jurisprudence prevail in all the States, when 
 administered by the Federal Courts. Hence, the de- 
 cision of a State Court in a case which involved only 
 general principles of Equity, and was not controlled by 
 local law or usage, is not binding as authority upon the 
 Courts of the United States. 1 
 
 Equity jurisdiction is conferred on the Federal Courts 
 under certain limitations, under which the usages of 
 the High Court of Chancery in England, which have 
 been adopted by the rules of the Supreme Court, fur- 
 nish the Equity-law exercised by the United States 
 Courts in all the States, even in those where no Chan- 
 cery system exists. Under this system, therefore, where 
 relief can be given by the English Chancery, it may be 
 given by the Courts of the Union. 2 
 
 Although, on all questions arising under the Consti- 
 tution and laws of the United States, the Supreme 
 Court may exercise a revising power, and its decisions 
 are final and obligatory upon all other tribunals, 
 State, as well as Federal, yet a State Court has a 
 right to examine and determine any such questions ; 
 but its decisions must conform to those of the Supreme 
 Court; otherwise the corrective power of the latter 
 
 1 13 Howard, 268. 2 ][Ud. 579.
 
 CONSTITUTIONAL JURISPRUDENCE. 187 
 
 must be exercised. The case, however, is very different 
 when the question arises under the local law. In those 
 cases the decision of the highest Judicial tribunal of the 
 State should be considered final by the former, not 
 because the State Court has any power to bind the 
 Federal tribunal, but because, in the language of the 
 Supreme Court, " a fixed and received construction by 
 a State, in its own Courts, makes a part of its statute- 
 law." 1 
 
 The same reason that influences the Supreme Court 
 in adopting the construction given to a strictly local 
 law by the State Courts, in the first instance, is not 
 less strong in favor of following it, should the State 
 tribunal change its construction, inasmuch as the rule 
 is settled, not by a single adjudication, but by a series 
 of decisions. A refusal to adopt the change would 
 establish in the State two rules of property. And the 
 same reasons which would render a change in the con- 
 struction of a law of the United States by the Supreme 
 Court obligatory upon* the State tribunals, induce the 
 Courts of the United States to give effect to the latest 
 exposition of the local law by the State Courts. It is, 
 emphatically, the law of the States, which the Federal 
 Courts, sitting within the State, and the Supreme Court, 
 when the case is brought before it, are called on to en- 
 force. For, if the construction of the highest tribunal 
 of a State, forms a part of its statute-law, as much as 
 an Act of its Legislature, the Courts of the United 
 States can make no distinction between them. The 
 Supreme Court, therefore, has no hesitation in modify- 
 ing its decisions so as to conform them to any alteration 
 
 i 11 Wheat. 361.
 
 188 LECTURES ON 
 
 of the State law, and applying the same rule where the 
 Judicial branch of the same Government, in the exer- 
 cise of its acknowledged functions, gives, by construc- 
 tion, a different aspect to a statute, from that which 
 had, at first, been given to it. The charge of incon- 
 sistency might be made with more force and propriety, 
 against the Federal Courts, for a disregard of this rule, 
 than for conforming to it. 1 
 
 Where the construction of a will has been settled by 
 the highest Court of a State, and long acquiesced in as 
 a rule of property, the Federal Courts will, for that 
 reason, follow it. But the mere construction by a State 
 Court does not, like its construction of a statute, con- 
 stitute a rule of construction for the Courts of the 
 United States. 2 Nor are they governed by the decision 
 of a State Court upon the construction of a deed, as 
 to matters and language belonging to the Common 
 Law, and not to any statute of the State. 3 
 
 Where English statutes, such, for instance, as the 
 statutes of limitation, and the ^statute of frauds, have 
 been ingrafted into our legislation, the known and 
 settled construction of those statutes by the English 
 Courts, has been, either silently incorporated in our 
 Codes, or received with all the weight of authority. 4 
 The rule uniformly observed by the Supreme Court, in 
 construing statutes, is to adopt the construction of the 
 Courts of the country, by whose Legislature the statute 
 was enacted. This rule may be subject to some modi- 
 fication when applied to British statutes adopted in any 
 of the States. By adopting them, they become our 
 
 1 6 Peters, 291. But see 5 Howard, 134. 
 
 2 3 Howard, 464. 3 4 fbid. 353. 4 2 Peters, 1.
 
 CONSTITUTIONAL JURISPRUDENCE. 189 
 
 own as entirely as if enacted by the Legislature of the 
 State. The construction, therefore, which British stat- 
 utes had received in England, at the time of their 
 adoption, in this country, indeed, from the time of 
 its separation from the mother-country, may very 
 properly be considered as accompanying the statutes 
 themselves, and forming an integral part of them. But, 
 however subsequent decisions of the English Courts 
 may be respected here, and, certainly, they are entitled 
 to great respect, their absolute authority is not admit- 
 ted. If those Courts vary in their construction of a 
 statute, ours do not hold themselves bound to fluctuate 
 with them. 1 
 
 From the survey, which I have now completed, of 
 our Federal Judicial establishment, it will have been 
 perceived that the leading features of the system are to 
 be found in the Act of 1789, so often referred to, passed 
 at the first session of the first Congress under the pres- 
 ent Constitution. It is understood to have been drawn 
 up by Mr. Oliver Ellsworth, then a Senator from Con- 
 necticut, and afterwards Chief Justice of the United 
 States. It has stood the test of severe experience since 
 that time, with very little alteration or improvement, 
 a fact that affords the strongest evidence of the wisdom 
 of the plan, and its skilful adaptation to the interests 
 and convenience of the country. It was, evidently, the 
 result of much profound reflection, and great legal 
 knowledge ; and the system thus formed and reduced 
 to practice, has been so successful and beneficial in its 
 operation, that the administration of justice in the 
 
 1 5 Peters, 264.
 
 190 LECTURES ON 
 
 Federal Courts, has, upon the whole, been constantly 
 rising in influence and reputation. In this review of 
 the most important points which have arisen with re- 
 spect to the constitutional powers of the Judicial depart- 
 ment, we have seen that it is competent, not only to 
 construe the Constitution, and thus pronounce on the 
 constitutionality of the laws of the United States, and 
 on the validity of the Constitutions and laws of the 
 several States, and to declare either of the latter void, 
 if repugnant to the Federal Constitution, or to a law, 
 or treaty of the Federal Government, but also to 
 revise the judgments of the State Courts enforcing any 
 ordinance contrary to the provisions of the National 
 compact. We have seen, moreover, that the Federal 
 Courts must either possess exclusive jurisdiction in all 
 cases affecting the Constitution, laws, and treaties of 
 the Union, or they must have power to review the judg- 
 ments rendered on all such questions by the State 
 tribunals ; and, so far as the latter power has hitherto 
 been controverted, it has been sustained by the Supreme 
 National Tribunal with great ability and success, and 
 with equal learning, dignity, and discretion.
 
 CONSTITUTIONAL JURISPRUDENCE. 191 
 
 LECTURE VII. 
 
 OF THE POWERS VESTED IN THE FEDERAL GOVERNMENT, 
 RELATIVE TO SECURITY FROM FOREIGN DANGER. 
 
 WE are now to enter upon the second general division 
 of our subject, which relates to " the nature, extent, and 
 limitation of the powers vested in the Federal Govern- 
 ment, and the restraints imposed by the Constitution 
 on the States." 
 
 The powers conferred on the National Government 
 may be reduced, as I have already mentioned, to differ- 
 ent classes, as they relate to the following different 
 objects, viz: 
 
 First. Security from foreign danger. 
 
 Second. Intercourse with foreign nations. 
 
 Third. Harmony among the States. 
 
 Fourth. Miscellaneous objects of general utility. 
 
 Fifth. Restrictions on the powers of the States ; and, 
 
 Sixth. Provisions for giving efficacy to the powers 
 vested in the Union. 
 
 As security from foreign danger is one of the primary 
 objects of civil society, so it was an avowed and essen- 
 tial purpose of the union of the States ; and, accordingly, 
 the powers requisite to attaining it were effectually con- 
 fided to the National Government, and consist, 
 
 \st. Of the powers of declaring war, and granting 
 letters of marque and reprisal.
 
 192 LECTURES ON 
 
 2d. Of making rules concerning captures by land 
 and water. 
 
 3d. Of providing armies and fleets, and of regulating 
 and calling forth the militia of the States ; and, as 
 connected with these, the substantive and distinct power 
 of levying taxes and borrowing money. 
 
 I. The right of self-defence is a part of the law of 
 our nature, and it is the indispensable duty of civil 
 society to protect its members in the enjoyment of their 
 rights, both of person and property. This is a funda- 
 mental principle of every social compact ; and it is laid 
 down by all approved writers on public law, that on 
 this principle, an injury done or threatened to the per- 
 fect rights of a nation, or any of its members, and, 
 susceptible of no other redress, is just cause of war. 
 But as the evils of war are certain, and its results 
 doubtful, both wisdom and humanity require that every 
 possible precaution should be taken, and every neces- 
 sary preparation made, before engaging in it. It was 
 formerly usual to precede hostilities by a public decla- 
 ration communicated in form to the enemy ; but in 
 modern times this practice has been discontinued ; and 
 the nation proclaiming war now confines itself to a 
 declaration within its own territory, and to its own 
 people. 
 
 The power of declaring war is vested by the Consti- 
 tution of the United States in Congress; without whose 
 consent no State can engage in war, unless actually 
 invaded, or in such imminent danger of invasion as will 
 not admit delay. So that this power of Congress is 
 not only of its own nature exclusive^ but its concurrent 
 exercise is expressly prohibited ; nor is it easy to con- 
 ceive where else but in Congress it could be properly
 
 CONSTITUTIONAL JURISPRUDENCE. 193 
 
 and prudently deposited. Although Congress alone, by 
 its solemn act, passed, like other laws, according to the 
 forms of the Constitution, can subject the nation to the 
 hazardous events of war, yet the interposition of a 
 smaller portion of the Government has power to restore 
 peace. Hostilities may be terminated by a truce, which 
 may be made by the President alone, as Commander- 
 in-chief of the military forces of the Union, and of 
 which the duration may be indefinite ; while treaties, by 
 which peace is completely restored, may be made, as 
 we have seen, by the President and Senate, without the 
 intervention of the House of Representatives. 
 
 As delay in making war may be sometimes detri- 
 mental to individuals who may have suffered from the 
 depredations of foreign powers, Congress is invested 
 also with the power of issuing letters of marque and 
 reprisal ; the latter signifying a " taking in return ; " the 
 former, " passing the frontier in order to such taking." l 
 This power is, in all cases, plainly derived from that of 
 making war. It induces, indeed, only an incomplete 
 state of hostilities, but generally ends in their formal 
 denunciation. By the law of nations, letters of marque 
 and reprisal may be granted whenever the subjects of 
 
 1 This is the literal meaning of the terms ; but the only practical 
 distinction seems to be the one given in the note to Mr. Duponceau's 
 valuable edition of Bynkershoeck, p. 183, which is between Letters of 
 Marque, and Letters of Marque and Reprisal. The latter, he says, is 
 " the old technical expression for what we now call a privateer's 
 commission ; the former is applied to a vessel fitted out for war and 
 merchandise, and armed merely for defence." To the honor, and in 
 proof of the progressive civilization of the age, privateering has been 
 generally discouraged, if not wholly suppressed, in the war now 
 raging in Europe ; and will probably never be revived. 
 17
 
 194 LECTURES ON 
 
 one State are oppressed and injured by those of another, 
 and justice is denied by the State to which the oppres- 
 sor belongs. They are in the nature of a commission 
 granted by the Government to particular citizens, au- 
 thorizing them to seize the bodies or goods of citizens 
 of the offending nation, wherever they may be found, 
 until satisfaction be made. And although this pro- 
 cedure seems to be dictated by Nature herself, yet 
 the necessity is obvious, of calling on the sovereign 
 power to determine when it may be resorted to ; as, 
 otherwise, every private individual might act as a judge 
 in his own cause, and, to avenge his private injury, 
 involve the nation to which he belongs in war. 
 
 II. The power of making "rules concerning captures 
 on land and wates" which is superadded to the consti- 
 tutional power of declaring war, is not confined to 
 captures made beyond the territorial limits of the United 
 States, but comprehends rules respecting the property 
 of an enemy found within those limits. It is an ex- 
 press grant to Congress of the power of confiscating 
 such property, as an independent substantive power, 
 not included in the power of declaring war ; and when 
 a war breaks out, the question as to the disposition of 
 enemy-property in the country, is a question of policy 
 for the consideration of the National Legislature, and 
 not proper for the consideration of the Judicial power, 
 which can only pursue that course in regard to such 
 property as Congress may direct. 1 According to the 
 best writers on the law of nations, a declaration of war 
 by the sovereign power of one State against another, 
 implies that the whole nation declares war ; and that 
 
 i 8 Oanc/i, 109.
 
 CONSTITUTIONAL JURISPRUDENCE. 195 
 
 all the subjects of the one are enemies to all the sub- 
 jects of the other. But although a declaration of war 
 has this effect with regard to individuals, and thus gives 
 to them those mutual and respective rights under the 
 law of nations which a state of war confers, yet the 
 mere declaration does not, by its single operation, pro- 
 duce any of those results which are usually effected by 
 the ulterior measures of the Government, consequent 
 upon the declaration of war. By a strict interpretation, 
 indeed, of the ancient public law, war gives to a nation 
 full right to take the persons and confiscate the property 
 of its enemy, wherever found ; and the mitigation of 
 this rule which the policy of modern times has intro- 
 duced into practice, although it may affect its exercise, 
 can never impair the right itself; and whenever the 
 Legislature chooses to bring it into operation, the Ju- 
 dicial department must give it effect. 
 
 Until the Legislative will, however, is distinctly de- 
 clared, no power of condemnation can exist in the 
 Courts ; and, from the structure of our Government, 
 proceedings to condemn enemy's property found in the 
 country at the declaration of war, can be sustained 
 only on the principle of their having been commenced 
 in execution of an existing law. An Act of Congress 
 simply declaring war, does not, by its own operation, 
 so vest such property in the Government as to support 
 Judicial proceedings for its seizure and condemnation ; 
 but vests merely a right of which the assertion depends 
 on the future action of the Legislature. 1 
 
 In expounding the Constitution of the United States, 
 a construction should not lightly be admitted, which 
 
 i 8 Cranch, 109.
 
 196 LECTURES ON 
 
 would give to a declaration of war an effect in this 
 country, which it does not possess elsewhere ; and 
 which would fetter that entire discretion respecting 
 enemies' property, which may enable us to apply to the 
 enemy the rule that he applies to us. That a declara- 
 tion of war has only the effect of placing the two 
 nations in a state of hostility, but not of operating by 
 its own force any of those results, such as a transfer 
 of property, which are usually produced by ulterior 
 measures of Government, is fairly deducible from the 
 enumeration of the power now in question. It would 
 be restraining the clause "to make rules concerning 
 captures on land and water," within narrower limits 
 than the words themselves import, to say that its mean- 
 ing is confined to captures which are extra-territorial. 
 It extends to rules respecting enemies' property found 
 within the territory; and is an express grant to Congress 
 of the power in question, as an independent, substan- 
 tive power, not included in that of declaring war. A 
 declaration of war, therefore, is not per se a confiscation 
 of enemies' property. 1 
 
 III. The power of raising armies and equipping fleets 
 seems to be involved in the power of declaring war ; 
 and to have left it to be exercised by the States, under 
 the direction of Congress, as was the case under the 
 Confederation, would have inverted a primary principle 
 of the new Constitution, and, in practice, transferred 
 the care of the common defence from the Federal head 
 to the individual members of the Union. The various 
 inconveniences which would attend the system of a 
 separate organization of the national force must be 
 
 * 8 Cranch, 109.
 
 CONSTITUTIONAL JURISPRUDENCE. 197 
 
 obvious. They had been experienced during the war 
 of our Revolution, and had proved that such a system 
 was oppressive to some of the States, and dangerous to 
 all. Under our present Constitution, sufficient reasons 
 have appeared to induce an apprehension that the State 
 Governments are naturally prone to rivalship with the 
 Government of the Union ; and if, in addition to this, 
 their ambition were stimulated by the separate and 
 independent possession of military forces, too strong a 
 temptation and too great a facility would be given 
 them to subvert the constitutional authority of the 
 Union. The liberties of the people would, moreover, 
 be less safe under such an arrangement than under that 
 which leaves the national forces in the hands of the 
 National Government. So far as an army may be 
 likely, in this country, to become an instrument of 
 ambition or power, it had better be at the disposal of 
 that power of which the people are most apt to be 
 jealous ; for it is a truth which the experience of ages 
 has attested, that the people are commonly most in 
 danger when the means of invading their rights are 
 at the command of those of whom they are the least 
 suspicious. 
 
 Standing armies, in time of peace, have, indeed, been 
 objected to as dangerous to our free institutions; but 
 there can scarcely be ground for such apprehension, 
 from the nature of the Federal Government ; while the 
 impolicy of restraints on its discretion with respect to 
 raising forces by land or sea, is manifest, from the 
 consideration that the efficiency of the power depends 
 on its being indefinite, and upon its extending to the 
 maintaining them in peace as well as in war ; for with 
 no show of propriety could the force requisite for de- 
 17
 
 198 LECTURES ON 
 
 fence be limited by those who have no power to limit 
 the strength and power of offence possessed by an 
 enemy ; nor unless our Government could set bounds 
 to the ambition, injustice, or exertions of other nations, 
 could restraints be safely imposed upon its discretion, 
 or limits prescribed to it for self-preservation. Besides, 
 a readiness for war, in time of peace, is not only neces- 
 sary for self-defence, but affords the most certain means 
 of preventing aggression, by exhibiting such resources 
 and preparations for repelling it as may discourage or 
 deter an enemy from attempts which, from that very 
 circumstance, would probably prove unavailing. A 
 prohibition, therefore, against raising and maintaining 
 armies and fleets in time of peace, would not only 
 exhibit the extraordinary spectacle of a nation incapaci- 
 tated by its Constitution from preparing for defence 
 before it was actually invaded, but would be altogether 
 inconsistent with the public safety, and the exigencies 
 of self-protection, unless by its Constitution it could 
 in like manner prohibit the preparations and limit the 
 establishments of every hostile power. The means of 
 security can only be regulated by the means, probabili- 
 ties, and dangers of attack ; and it would be worse than 
 useless to oppose constitutional barriers to the impulse 
 of self-preservation, because it would embody in the 
 Constitution the temptation, if not the necessity of 
 resorting to usurpations of extraordinary power, every 
 precedent of which would be the excuse for unnecessary 
 and multiplied repetitions of measures far more danger- 
 ous to public liberty than a standing army, in a country 
 with a population and under a Government like ours. 
 
 The jealousy which would abolish our military estab- 
 lishments in time of peace, may be traced to those
 
 CONSTITUTIONAL JURISPRUDENCE. 199 
 
 habits of thinking which the inhabitants of the United 
 States derived from the people from which they sprung, 
 and upon the prevailing sentiments on the subject at 
 the period of our Revolution. As incident to the un- 
 defined and unrestricted power of making war, it was 
 the acknowledged prerogative of the British Crown to 
 maintain, by its own authority, regular troops in time 
 of peace. The abuse of this prerogative, among others, 
 led to the public execution of one king, and the expul- 
 sion of another; and to guard for the future against 
 the exercise of power so dangerous, the Bill of Rights, 
 framed by the Convention-Parliament, and acceded to 
 by King William, at the revolution of 1688, declared 
 that " raising or keeping a standing army in time of 
 peace, unless with the consent of Parliament, was 
 against law." 1 The events which led to our own Revo- 
 lution quickened the public sensibility on every point 
 connected with the security of popular rights ; and the 
 principles which taught our fathers to be jealous of the 
 power of an hereditary monarch, were afterward ex- 
 tended to their own representatives. In the Constitu- 
 tions of Pennsylvania and North Carolina, prohibitions 
 of military establishments in time of peace were intro- 
 duced ; and in those of New Hampshire, Massachusetts, 
 Delaware, and Maryland, a declaration was inserted 
 similar to that of the English Bill of Rights, although 
 that declaration was inapplicable to any of the State 
 Governments ; for the power of raising and keeping on 
 foot standing armies could by no possible construction 
 be deemed, at that time, to reside anywhere else than 
 in the Legislatures themselves. It was therefore super- 
 
 1 1 Wittiam and Mary, Stat. 1. Ch. 1.
 
 200 LECTURES ON 
 
 fluous, to say the least of it, to declare that a measure 
 should not be adopted without the consent of that body 
 which alone had the power of adopting it. 
 
 Those State Constitutions which have been most 
 approved are silent on the subject ; and the only direct 
 restriction on Congress in regard to the exercise of its 
 military powers, is contained in an amendment to the 
 Federal Constitution, which declares that " no soldier 
 shall, in time of peace, be quartered in any house with- 
 out the consent of the owner ; nor in time of war but 
 in a manner to be prescribed by law." l Even in those 
 State Constitutions which seem to have meditated 
 a total interdiction of military establishments during 
 peace, the expressions used are monitory rather than 
 prohibitory ; and the ambiguity of their terms appears 
 to have resulted from a conflict between the desire of 
 excluding such establishments, and the conviction that 
 the measure would be unwise and hazardous. The 
 union of the States under the National Constitution 
 removes every pretext for a military establishment in 
 any of the States which could be dangerous ; while our 
 distance from the powerful nations of Europe affords 
 sufficient security that the Federal Government will 
 never be able to persuade or delude the people into the 
 support of large and expensive peace establishments. 
 The danger, indeed, is the other way ; and it is rather 
 to be feared that mistaken notions of economy, if not 
 of jealousy, will always tend to render our military 
 force not merely too weak for the protection, but reduce 
 it too low even for the preservation of our forts and 
 arsenals. The Union itself, however, is our best protec- 
 
 i Amendment to Const. U. S., Art. ui.
 
 CONSTITUTIONAL JURISPRUDENCE. 201 
 
 tion and defence, and our principal . security against 
 danger from abroad, internal commotion, or domestic 
 usurpation. It may, moreover, be numbered among 
 the blessings vouchsafed to our country, that the Union 
 itself is the great source of our maritime strength ; 
 while the palpable necessity of a navy, and its proved 
 efficiency as an arm of national defence, have silenced 
 the jealousy or the scruples which at one period pre- 
 vented due attention to fostering it in time of peace. 
 It has since fought its way to the patronage of the 
 Government, and it always enjoyed the favor of the 
 people. 
 
 Although no State can establish a permanent mili- 
 tary government, yet it may use its military power to 
 put down an armed insurrection too strong to be 
 controlled by the civil authority ; and the State must 
 determine for itself, what degree of force the crisis 
 demands. After it has declared martial law, a military 
 officer may lawfully arrest any person whom he has 
 reasonable grounds to believe was engaged in the in- 
 surrection ; or he may order a house to be forcibly 
 entered for the purpose. But no more force should be 
 used than is necessary for the accomplishment of the 
 object ; and if the power is exercised for the sake of 
 oppression, or any injury be done wilfully to person or 
 property, the party by whom, or by whose order it is 
 committed, would undoubtedly be answerable. 1 
 
 IV. The power of regulating the militia, and com- 
 manding its services in cases of insurrection or inva- 
 sion, are incident to the duties of superintending the 
 common defence, and of watching over the internal 
 peace of the Union. 
 
 1 6 Howard, 1.
 
 202 LECTURES ON 
 
 Uniformity in the organization and discipline of the 
 militia must evidently be attended with the most bene- 
 ficial results whenever they are called into service, as it 
 enables them to discharge their duties with mutual in- 
 telligence and concert. This desirable uniformity could 
 only be accomplished by confiding the regulation of the 
 militia of the several States to the General Govern- 
 ment. It was therefore essential that Congress should 
 have authority, not only " to provide for calling forth 
 the militia to execute the laws of the Union, to sup- 
 press insurrections, and repel invasions," but also " to 
 provide for organizing, arming, and disciplining them ; 
 and for governing such parts of them as may be em- 
 ployed in the service of the United States." ' 
 
 The President is constituted, as we have seen, Com- 
 mander-in-chief of the militia when called into the 
 actual service of the Union ; and he is authorized by 
 law, in cases of invasion, or imminent danger thereof, 
 to call forth such numbers of the militia most con- 
 venient to the scene of action, as he may judge neces- 
 sary. The militia so called forth are subject to the 
 rules of war ; and the law imposes a fine on every 
 delinquent who disobeys the summons, to be adjudged 
 by a court-martial composed of militia officers only, 
 and held and conducted according to the articles of 
 war. During the war of 1812, the authority of the 
 President over the militia of the several States became 
 the subject of doubt and difficulty between the Federal 
 Government and some of the States. It was the 
 opinion of the Connecticut Government, not only that 
 the militia could not be called out at the requisition of 
 the General Government except in a case founded upon 
 
 1 Const. U. S., Art. I. Sect. vm.
 
 CONSTITUTIONAL JURISPRUDENCE. 203 
 
 the existence of one of the specified exigencies, to be 
 judged of by the State Government ; but that, when 
 called out, they could not be taken from the command 
 of the officers duly appointed by the State, and placed 
 under the immediate command of an officer of the 
 United States army ; nor could the United States, in 
 the opinion of that Government, lawfully detach a por- 
 tion of the privates from the body of their company. 
 Similar difficulties arose between the Federal authori- 
 ties and the Government of Massachusetts ; the Gov- 
 ernor of which State, as well as the Governor of 
 Connecticut, refused to furnish detachments of militia 
 for the defence of the maritime frontier, on an exposi- 
 tion of the Federal Constitution, which they, no doubt, 
 believed to be sound and just. In Connecticut, the 
 claim of the Governor to judge whether the exigency 
 existed to authorize a call of the militia of the State, or 
 any portion of it, into the service of the Union, and the 
 claim on the part of the State to retain the command 
 of them, when duly ordered out, against any subordi- 
 nate officer of the United States army, were submitted 
 to the consideration of the State Legislature, and re- 
 ceived the strong and decided sanction of that body. 
 In Massachusetts, the Governor consulted the Judges 
 of the Supreme Court of that State as to the true 
 construction of the Constitution on both those points. 
 The Judges were of opinion that it belonged to the 
 Governors of the several States to determine when any 
 of the exigencies contemplated by the Federal Consti- 
 tution existed to require them to transfer the militia, 
 or any part of it, to the service of the Union, and 
 command of the President. It was supposed that the 
 Constitution did not give the power of judging as to
 
 204 LECTURES ON 
 
 the existence of the exigency, by any express terms, to 
 the President or to Congress ; and that, inasmuch as it 
 was not prohibited to the States, the right of deciding 
 upon that point was, of course, reserved to them. A 
 different construction would, it was alleged, place all 
 the militia, in effect, at the will of Congress, and pro- 
 duce a military consolidation of the States. The Act 
 of Congress vested in the President the power of call- 
 ing forth the militia when any one of the exigencies 
 existed ; and if to that were superadded the power of 
 determining the casus foederis, the militia would, in 
 fact, be under the President's control. 
 
 As to the question how the militia were to be com- 
 manded when duly called out, the Massachusetts Judges 
 were of opinion that the President alone, of all the 
 officers acting under the United States, was authorized 
 to command them ; and that he must command them 
 as they were organized under officers appointed by the 
 State, as they could not be transferred to the command 
 of any officer, not of the militia, except the President. 
 But these learned Judges, acting as councillors, did not 
 undertake to determine how the militia were to be 
 commanded in case of the absence of the President; 
 or of a junction of militia with regular troops ; or 
 whether they were to act under their separate officers, 
 but in concert, as foreign allies ; or whether the officer 
 present of the highest rank, either of the militia or of 
 the regular army, was authorized to command the 
 united forces ; these were found, it seems, to be ques- 
 tions too difficult and perplexing for extra-judicial 
 decision. 
 
 Mr. Madison, one of the most prominent members 
 of the Convention which formed the Constitution, and
 
 CONSTITUTIONAL JURISPRUDENCE. 205 
 
 one of its ablest defenders, was, at the time of these 
 disputes, President of the United States, and as such 
 declared that these constructions of the constitutional 
 powers of the General Government over the militia 
 were " novel and unfortunate." In a message to Con- 
 gress, to which they gave occasion, he observed that, 
 "if the authority of the United States to call into 
 service, and to command the militia, could thus be 
 prostrated, we were not one people for the purpose 
 most of all requiring that we should be united." Since 
 that period, many and deeply interesting questions aris- 
 ing on the powers of the Union have been investigated 
 and decided in the Federal Courts ; and the progress 
 of public opinion, as well as the tenor of those de- 
 cisions, have been favorable to a much more liberal and 
 enlarged construction of the Constitution than that 
 which was adopted by the States in question ; so that 
 the doctrines of the General Government, as now un- 
 derstood, fully support the claim of Mr. Madison, as 
 President of the United States, to judge, exclusively of 
 State authority, of the existence of the exigency upon 
 which the militia may be called into the service of the 
 Union. The Acts of Congress already referred to, as 
 well as the Act for establishing a uniform militia through- 
 out the Union, were considered by the Supreme Court 
 of the United States, in the first case ' that came before 
 them on the subject, as covering the whole ground of 
 Federal legislation in regard to it. By the Act of 
 Congress, the manner in which the militia are to be 
 organized, armed, disciplined, and governed, is fully 
 prescribed; provision is made for drafting, detaching, 
 
 1 5 Wheat. 1. 
 18
 
 206 LECTURES ON 
 
 and calling forth the State quotas when required by 
 the President ; his orders are to be given to the Chief 
 Magistrate of the State, or to any inferior militia officer 
 he may think proper ; neglect or refusal to obey his 
 orders is declared to be a public offence, and subjects 
 the offender to trial and punishment by a court-martial; 
 and the mode of proceeding is perspicuously detailed. 
 The question before the Court was whether it was 
 competent for a court-martial, deriving its jurisdiction 
 under State authority, to try and punish militiamen 
 drafted, detached, and called forth by the President 
 into the service of the United States, and who had 
 refused and neglected to obey the call. The court 
 decided that the militia, when called into the service 
 of the United States, were not to be considered as 
 being in that service until they were mustered at the 
 place of rendezvous ; and that, until then, the State 
 retained a right concurrent with the United States to 
 punish their delinquencies. But after the militia had 
 thus actually entered into the service of the Union, their 
 character changed from State to National militia ; and 
 the authority of the General Government over such 
 detachments became exclusive. 
 
 In a subsequent case, 1 which came up on a writ of 
 error on a judgment of the highest court in the State 
 of New York, where the decision had been against this 
 power of the President over the militia, his claim was 
 unanimously sustained by the Supreme Court. The 
 power confided to the President was, indeed, considered 
 of a very high and delicate nature, but one which could 
 not be executed without corresponding responsibility. 
 
 1 12 Wheat. 19.
 
 CONSTITUTIONAL JURISPRUDENCE. 207 
 
 It is, nevertheless, limited in its terms, and confined to 
 cases of actual invasion or imminent danger ; and upon 
 the question whether the President was the sole and 
 exclusive judge of the existence of the exigency, or 
 whether it was one which every officer to whom his 
 order was addressed might decide for himself, the court 
 was of opinion that the authority to decide belonged 
 exclusively to the President, and that his decision was 
 conclusive upon all other persons. This construction 
 was held necessarily to result from the nature of the 
 power given by the Constitution, and from the manifest 
 object contemplated by the Act of Congress. The 
 power itself is to be exercised on sudden emergencies, 
 and under circumstances which may vitally affect the 
 existence of the Union, and a prompt and unhesitating 
 obedience is indispensable to the attainment of the 
 object. The service is a military service, and the com- 
 mand of a military nature ; and in such cases, every 
 delay and obstacle to an efficient and immediate com- 
 pliance, necessarily tends to put in jeopardy the public 
 interests. While subordinate officers or soldiers are 
 pausing to consider whether they ought to obey, or 
 are scrupulously weighing the evidence of the facts on 
 which the Commander-in-chief exercises the right to 
 demand their services, the hostile enterprise may be 
 accomplished without the means of resistance. If the 
 power of regulating the militia, and of commanding 
 its services in times of insurrection and invasion, be, as 
 has been alleged, natural incidents to the duty of super- 
 intending the common defence, and watching over the 
 internal peace of the Union, then must this power be 
 so construed, with respect to its exercise, as not to de- 
 feat the important ends in view. If the Governor of a
 
 208 LECTURES ON 
 
 State, or other superior officer, has a right to contest 
 the orders of the President, upon his own doubts as to 
 the existence of the exigency, it must be equally the 
 right of every inferior officer, and of every private sen- 
 tinel ; and every act of any person in furtherance of 
 such orders would render him liable in a civil suit, in 
 which his defence must finally rest upon his ability to 
 establish, by competent proof, the facts upon which the 
 exigency was said to have arisen. Such a course would 
 obviously be subversive of all discipline, and expose the 
 best-intentioned officers to the chances of a ruinous 
 litigation ; and, in many instances, the evidence on 
 which the President may have decided might not con- 
 stitute technical proof, or its disclosure might reveal 
 important secrets of state, which the public interests, 
 and even safety, might require to remain concealed. 
 
 This power, therefore, "to provide for calling forth 
 the militia to execute the laws, suppress insurrections, 
 and repel invasions," confided to Congress by the Con- 
 stitution, is carried into effect by the law which provides 
 tha't, when any such exigency exists, the militia of the 
 States may be " called forth " by the Chief Magistrate 
 of the Union, who, by the Constitution, is Commander- 
 in-chief of the militia when in the actual service of the 
 United States, whose duty it is " to take care that the 
 laws be faithfully executed," and whose responsibility 
 for an honest discharge of his official obligations is 
 secured by the highest sanctions. He is necessarily to 
 judge, in the first instance, and is bound to act accord- 
 ing to his belief of the facts. If he decide to call forth 
 the militia, and his requisitions, which are orders, for 
 this purpose, are in conformity with the provisions of 
 the law, it would seem to follow, as a necessary conse-
 
 CONSTITUTIONAL JURISPRUDENCE. 209 
 
 quence, that every subordinate officer is bound to obey 
 them. Whenever the law gives to the President a dis- 
 cretionary power, to be exercised by him upon his own 
 opinion of certain facts, it is a sound rule of construc- 
 tion, that the statute constitutes him the sole and ex- 
 clusive judge of the existence of those facts, and it is 
 not a valid objection that such power may be abused ; 
 for there is no power that is not susceptible of abuse. 
 The remedy for this, and all other official misconduct, 
 is to be found in the Constitution itself. In a free gov- 
 ernment the danger must be remote, since, in addition 
 to the high qualifications which the Chief Magistrate 
 must be presumed to possess, the frequency of elections, 
 and the watchfulness of the National Kepresentatives, 
 carry with them all the checks that can be useful to 
 guard against usurpation or tyranny. 
 
 It has, however, been objected, that even admitting 
 the judgment of the President to be conclusive as to 
 the existence of the exigency, still, it is necessary that 
 it should appear that the particular exigency in fact 
 existed ; and the same principles were alleged to be 
 applicable to the delegation and exercise of this power 
 intrusted to the President for great political purposes, 
 as are applied to the humblest agent of the Govern- 
 ment, acting under the most narrow and special au- 
 thority. But when the President exercises an authority 
 confided to him by law, the presumption is, that it is 
 exercised in pursuance of the law. Every public offi- 
 cer, indeed, is presumed to act in obedience to his duty, 
 until the contrary be shown ; and d fortiori, that pre- 
 sumption ought to be favorably applied to the Chief 
 Magistrate. Nor can the non-existence of the exigency 
 be averred and shown by the delinquent party ; for if it 
 18* "
 
 210 LECTURES ON 
 
 could be averred, it would be traversable, and, of course, 
 might be passed upon by a jury ; and thus the legality 
 of the order would depend, not on the judgment of the 
 President, but upon the finding of those facts upon the 
 proof submitted to the jury. It must, therefore, be 
 sufficient if the President determine the exigency -to 
 exist, and all other persons must be bound by his 
 decision. 
 
 V. The power of raising money by taxation and loans 
 being the main sinew of that which is to be exerted in 
 the national defence, is therefore properly arranged in 
 the same class, especially as this object is specified in 
 the Constitution as one of the purposes of vesting it 
 in Congress. The support of the national forces, the 
 expense of raising troops, of building and equipping 
 fleets, and all the other expenditures in anywise con- 
 nected with military and naval plans and operations, 
 are not, however, the only objects to which the juris- 
 diction of Congress, with respect to revenue, extends. 
 The terms by which the power is conferred, embrace a 
 provision for the support of the civil establishments of 
 the United States, the payment of the national debt, 
 and, in general, for all those objects for which "the 
 general welfare" requires the disbursement of money 
 from the national treasury. The necessity of vesting 
 this power in the Federal Government seems to be too 
 obvious to require elucidation. Money is, indeed, the 
 vital principle of the body politic. It is that which 
 sustains its life and motion, and enables it to perform 
 its most essential functions. No Government, therefore, 
 can be supported without possessing the means within 
 itself, independently of the concurrence of others, of 
 procuring a regular and adequate supply of revenue,
 
 CONSTITUTIONAL JURISPRUDENCE. 211 
 
 so far as the resources at its command will permit. 
 There must, of necessity, then, be interwoven in the 
 texture of every Government a power of taxation in 
 some shape or other. In the Government of the United 
 States, it is coextensive with the purposes of the Con- 
 stitution. Congress is accordingly invested with power 
 " to lay and collect taxes, duties, imposts, and excises, 
 to pay the debts, and provide for the common defence 
 and general welfare ; " 1 and it has also a distinct power 
 " to borrow money on the credit of the United States." 2 
 It was originally urged as an objection to the Consti- 
 tution, and it is still occasionally contended, that the 
 latter branch of the former of these clauses amounts, 
 in terms, to an authority to exercise every power which 
 may be alleged to be necessary for the " general wel- 
 fare." But this construction was promptly refuted by 
 the authors of " The Federalist : " " Had no other 
 enumeration or definition of the powers of Congress," 
 say they, " been found in the Constitution, there might 
 have been some color for this interpretation, though it 
 would then have been difficult to have found a reason 
 for so awkward a form of describing an authority to 
 legislate in all possible cases." It is evident that the 
 expressions in question must be taken in connection 
 with the preceding branch of the clause, and were in- 
 tended merely as a specification of the objects for 
 which taxes are to be laid, and not to convey a distinct 
 and independent power to provide for "the general 
 welfare." 3 
 
 1 Const. U. S., Art. I. Sect. vm. 1. 
 
 2 Ibid. 
 
 3 " The Federalist," No. 41, by Mr. Madison.
 
 212 LECTURES ON 
 
 The power of taxation is, moreover, limited, by re- 
 quiring that " capitation and other direct taxes shall be 
 apportioned among the several States according to their 
 respective numbers, as ascertained by the census, and 
 determined by the rule for the apportionment of Repre- 
 sentatives in Congress." It is qualified, also, by a pro- 
 vision that " all duties, imposts, and excises shall be 
 equal throughout the United States ; " and it is further 
 restricted by a prohibition upon Congress to " lay any 
 tax or duties on articles exported from the United 
 States." The Constitution does not define or select 
 subjects for exclusive taxation by the Federal Govern- 
 ment ; although, in some instances, an interference 
 must have been foreseen from the exercise of a concur- 
 rent power with the States. But it was thought better 
 that a particular State should sustain this inconvenience, 
 than that the National necessities should fail of supply; 
 and it was manifestly intended that Congress should 
 possess full power, subject to the restrictions and ex- 
 ceptions I have mentioned, over every species of tax- 
 able property. 1 But the adoption of the Constitution 
 of the United States did not operate as a repeal of the 
 
 i Where a company incorporated by the State of New York, of 
 which all the stockholders were residents, were owners of vessels em- 
 ployed in the transportation of passengers and freight between the 
 port of New York and that of San Francisco, in California, and 
 between the latter and different parts of the Territory of Oregon, 
 all of which vessels were ocean steamships, and duly registered in 
 New York, and remained in California no longer than was necessary 
 to land their passengers and freight, and prepare for the next voyage, 
 it was held by the Supreme Court of the United States, that these 
 vessels are not liable to assessment and taxation, under the laws of 
 California, and authorities of San Francisco. 17 Howard, 596.
 
 CONSTITUTIONAL JURISPRUDENCE. 213 
 
 revenue laws of a State, before Congress passed an Act 
 for the collection of duties. 1 
 
 The term " taxes " is general, and was made use of 
 in the Constitution to confer a plenary authority in all 
 cases of taxation to which the powers vested in the 
 Union extend. The most familiar general division of 
 taxes is into direct and indirect ; and although the 
 Constitution designates only the former species, it nec- 
 essarily implies the existence of the latter. The general 
 term, then, includes, 
 
 1st. Direct taxes, which are, properly, capitation taxes, 
 and taxes upon land ; although a direct tax might be 
 laid on other subjects, such as generally pervade all 
 parts of the Union. 
 
 2d. Duties, imposts, and excises ; and, 
 
 3d. All other taxes of an indirect operation. 
 
 A direct tax operates and takes effect independently 
 of consumption or expenditure ; while indirect taxes 
 affect expense or consumption ; and the revenue arising 
 from them is dependent thereupon. This distinction 
 between the different species of taxes is of practical 
 importance, arising from the different modes in which 
 they are levied ; direct taxes being required to be " ap- 
 portioned among the several States according to the 
 respective numbers of their inhabitants ;" while indirect 
 taxes, not admitting of such apportionment, are directed 
 to be " uniform throughout the United States." 2 
 
 Whether direct or indirect taxation were most con- 
 sistent with the interests of the country, and the genius 
 of its government, was a point much discussed when 
 
 1 Har. McHen. 480. 
 
 2 Const. U. S., Art. I. Sect. ix. ; Ibid. Art. I. Sect. ix. 4.
 
 214 LECTURES ON 
 
 the Federal Constitution was under the consideration 
 of the State Conventions ; and even among those who 
 admitted the necessity of surrendering to the National 
 Government sources of revenue sufficient to discharge 
 its debts, and adequate to its support, there were some 
 who were jealous of the powers conferred on it for 
 those purposes, and wished to reserve all objects of 
 internal taxation to the States, yielding to the United 
 States the power merely of imposing duties on imported 
 articles. But this discrimination, it was urged, would 
 violate that fundamental maxim of good sense and 
 sound policy, which holds that every power should be 
 proportionate to its object ; and that the General Gov- 
 ernment would still be left in such dependence on the 
 several States as would be inconsistent with its proper 
 vigor and efficiency. Commercial imports alone were 
 shown to be unequal to the existing necessities and 
 future exigencies of the Union ; and as the latter did 
 not admit of calculation or limitation, it was evident 
 that the power of providing for them ought also to be 
 unconfined, especially as, in the usual course of public 
 affairs, the necessities of a nation, in every stage of its 
 progress, are generally found to be at least equal to its 
 resources. 
 
 Whether the present financial condition of this coun- 
 try may not form an exception in its favor, it would, 
 perhaps, be premature to decide, notwithstanding the 
 favorable indications of later years ; and as the power 
 in question was, at all events, vested in the Federal 
 Government, the only practical importance of the dis- 
 tinction between direct and indirect taxation, consists 
 in the different modes in which they are respectively 
 to be levied. Direct taxes are required, as we have
 
 CONSTITUTIONAL JURISPRUDENCE. 215 
 
 seen, to be apportioned among the States according to 
 their respective numbers, while indirect taxes, not admit- 
 ting of this apportionment, are to be uniform through- 
 out the United States. Thus, if Congress should think 
 proper to raise a sum of money by direct taxation, the 
 quota of each State must be fixed according to the 
 census, and in conformity to the rule of apportionment 
 prescribed by the Constitution. If indirect taxation be 
 resorted to, the same duty must be imposed on the 
 article liable to it, whether its quantity or consumption 
 be greater or less in the respective States. 
 
 The Judicial construction given to the powers of 
 Congress relative to taxation has generally turned on 
 this distinction. By an Act passed in 1794, a duty was 
 laid upon carriages for the conveyance of persons ; and 
 the question arose whether it were a direct tax, within 
 the meaning of the Constitution. If it were not a 
 direct tax, it was admitted to be rightly laid ; but if it 
 were a direct tax, it was not constitutionally imposed ; 
 because, in that case, it should have been laid according 
 to the representative numbers of the several States. 
 The Circuit Court for Virginia, where the question 
 arose, was divided in opinion ; but on appeal to the 
 Supreme Court, it was decided that the tax in question 
 was not a direct tax, and had, therefore, been levied 
 according to the Constitution. It was observed, on this 
 occasion, that the Constitution contemplated no taxes 
 as direct taxes but such as could be laid in proportion 
 to the census ; and that the rule of apportionment could 
 not apply to the tax on carriages ; nor could such a tax 
 be laid by that rule, without great inequality and in- 
 justice ; and the argument by which this inequality 
 and injustice were shown was conclusive against the
 
 216 LECTURES ON 
 
 contrary construction. 1 But although duties must be 
 uniform, and direct taxes apportioned according to 
 numbers, yet the provision of the Constitution with 
 respect to the latter does not restrict the power of Con- 
 gress to impose taxes on the inhabitants of the States 
 only, but extends equally to all places over which 
 the Federal Government has jurisdiction ; and applies 
 to the District of Columbia, arid to the Territories, 
 which are not represented in Congress. 2 The power of 
 Congress to exercise exclusive legislation, in all cases 
 whatsoever, over the District of Columbia, includes the 
 power of taxing its inhabitants. But Congress are not 
 absolutely to exercise that power, though they may, in 
 their discretion, extend a tax to all the Territories of 
 the United States, as well as to the States. A direct 
 tax, if laid at all, must be laid according to the census ; 
 and, therefore, Congress has no authority to exempt any 
 State from its due share of the burden ; and although 
 they are not under the same necessity of extending a 
 tax to the unrepresented District, set apart for the seat 
 of the National Government, nor to the National Ter- 
 
 1 SDall.171. An Act of Congress laying duties on stamped paper, 
 &c., which enacted that certain deeds and writings should not be 
 given in evidence in any Court, until stamped as required by the Act, 
 was held to be constitutional. 1 Virg. Cos. 128. But a tax imposed 
 by a State law on stock issued for loans made to the United States is 
 unconstitutional. 2 Peters, 449. See also 3 Har. Sf McHen. 169 ; 
 4 Ham. 107 ; 5 Ibid. 14 ; 4 N. H. 565, 572 ; 5 Hayw. 246 ; 2 Overt. 
 215 ; 2 Hawks, 207 ; 1 Yerg. 452 ; 9 Ibid. 490. The charter of a 
 bank is a franchise which is not taxable as such, if a price has been 
 paid for it, and accepted by the Legislature. But the corporate prop- 
 erty of the bank is separate from the franchise, and may be taxed, 
 unless there is a special agreement to the contrary. 3 Howard, 133. 
 
 2 5 Wheat. 317.
 
 CONSTITUTIONAL JURISPRUDENCE. 217 
 
 ritories, yet, if the tax be actually extended to them, 
 the same constitutional rule of apportionment must be 
 applied in levying it. This construction allowing a 
 discretion in Congress as to the imposition of taxes 
 upon the inhabitants of these Territories, must, at all 
 events, be admitted to be the most convenient, as the 
 expense of collecting a tax in some of them might 
 exceed its amount. Nor can this departure from the 
 rule which holds representation and taxation to be in- 
 separable, be considered very material or important 
 with respect to those settlements which are still in their 
 infancy, though rapidly advancing to manhood, and 
 looking forward with perfect confidence to complete 
 equality as soon as they attain the requisite maturity. 
 As it relates to the District of Columbia, the construc- 
 tion in question can hardly be regarded as impugning 
 the great principle alluded to, inasmuch as its inhabi- 
 tants have voluntarily relinquished the right of repre- 
 sentation, and adopted the whole body of Congress as 
 its legitimate Government. 
 
 There is nothing, however, in the exclusive power 
 of legislation vested in Congress over the District of 
 Columbia, which necessarily confines the operation of 
 laws made in virtue of that power, to the limits of the 
 District. The power in question being conferred by the 
 Constitution, carries with it all those incidental powers 
 which are necessary to its complete and effectual execu- 
 tion. Congress, when legislating for this District, is 
 still the Legislature of the Union, and its Acts, in 
 relation to it, are laws of the United States. 1 
 
 A question, however, of much greater interest and 
 
 1 6 Wheat. 424. 
 19
 
 218 LECTURES ON 
 
 importance has arisen, in regard to this power of taxa- 
 tion, which, of late years, has been much discussed in 
 our public councils, and has hardly yet ceased to agitate 
 a portion of the Union. I refer to the authority of 
 Congress to impose duties on articles of foreign impor- 
 tation for the encouragement and protection of domestic 
 manufactures ; and to the proceedings which call in 
 question and deny the constitutional existence of any 
 such authority in Congress, and denounce its exercise 
 as usurpation. The constitutional validity of those 
 Acts of Congress which impose duties on importations, 
 with that end in view, has never been presented for 
 adjudication in the Federal Courts, but a Legislative 
 construction in favor of the right of Congress to pass 
 them was adopted and acted upon at the earliest period 
 of the existence and operation of the Federal Govern- 
 ment. Of late years, however, a controversy has arisen 
 on the subject, which at one time threatened the peace 
 and integrity of the Union ; and which, though sus- 
 pended, can by no means be considered as definitively 
 settled. Some examination, therefore, of its merits may 
 be useful, if not necessary. 
 
 Although Congress has the express and exclusive 
 power " to lay and collect duties, imposts, and excises, 
 to pay the debts, and provide for the common defence 
 and general welfare of the United States," 1 yet it is 
 denied that these words confer authority to lay duties 
 and imposts for any other purposes than those of dis- 
 charging the national debts, supporting the civil and 
 military establishments of the Government, and of car- 
 rying into effect the powers specifically enumerated, and 
 
 i Const. U. S., Art. I. Sect. vm.
 
 CONSTITUTIONAL JURISPRUDENCE. 219 
 
 vested by the Constitution in Congress; thus excluding 
 from all share of meaning the last member of the 
 clause, which specifies the " general welfare " as one 
 of the objects for which this branch of taxation was 
 wholly given up to the National Government. And 
 while some contend that there is no express authority 
 granted to Congress to lay duties on foreign commodi- 
 ties, in order to favor or protect similar productions and 
 fabrics of our own growth or manufacture nor any 
 power, express or implied, to encourage domestic in- 
 dustry by any means whatsoever ; and that no such 
 authority or power arises from intendment, as necessary 
 to carry into effect any of the enumerated powers ; 
 others allege that this authority, if it exist at all, can 
 only be constitutionally exercised indirectly, as resulting 
 incidentally from the power to regulate commerce with 
 foreign nations ; and that imposts beyond what may be 
 requisite to provide a revenue to meet the necessary 
 and ordinary expenditures of the Government, can only 
 be imposed to the extent required to countervail the 
 commercial restrictions of other countries. 
 
 It will be perceived, in the first place, that this expo- 
 sition of the power in question denies, in effect, any 
 operation whatever to that branch of the clause in the 
 Constitution by which it is supposed to be conferred ; 
 and thus adopts the opposite extreme to that latitude 
 of construction which would give to the expressions 
 relative to providing for the " general welfare," a mean- 
 ing more extensive than any other part of the Consti- 
 tution, and invest Congress with a general power of 
 legislation. It is, however " awkward," a sound rule of 
 construction, and admitted to be universal in its appli- 
 cation, that the different parts of the same instrument
 
 220 LECTURES ON 
 
 are to be so expounded as to give effect to the whole, 
 and to every portion susceptible of meaning. It is 
 not to be presumed that the words in question were 
 introduced without some object ; they are not, there- 
 fore, to be excluded from all share in the interpretation 
 of the clause, unless incapable of bearing any significa- 
 tion in connection with those with which they are con- 
 joined. But the specific ends embraced by these general 
 terms cannot certainly be supposed to be comprised 
 among those more definite objects, subsequently enu- 
 merated in another and separate clause in the same 
 article of the Constitution ; and it must, therefore, be 
 intended that other objects were meant to be accom- 
 plished by means of the taxing power, than the pay- 
 ment of the " public debt," and providing for the 
 "common defence;" and that those further objects 
 comprehend everything to which the " general welfare " 
 requires the power to be applied, as the direct means 
 of effecting the end proposed. 
 
 A different view was, indeed, taken of this clause of 
 the Constitution by the authors of " The Federalist ; " ' 
 and that high authority has been quoted in support 
 of a very different interpretation. In answering the 
 objection urged against the general expressions with 
 which the clause concludes, as conferring a distinct and 
 substantive power " to provide for the common defence 
 and general welfare of the United States," the authors 
 of " The Federalist " did not advert to the circumstance 
 that those expressions are used merely as a general and 
 summary designation of the purpose for which taxes 
 were to be laid, independently of the objects subse- 
 
 1 No. 41, by Mr. Madison.
 
 CONSTITUTIONAL JURISPRUDENCE. 221 
 
 quently specified ; but in refuting the objection, they 
 seem to adopt, in part, the construction of their adver- 
 saries, and admit that the words in question confer a 
 substantive and independent power, distinct from the 
 power of taxation ; and they meet the argument drawn 
 from these terms, against this extensive and sweeping 
 operation of the power, by alleging that it was restricted 
 by the subsequent enumeration of the specific powers 
 of Congress in the same section. It has since, however, 
 been judicially decided, and is even admitted by those, 
 who, nevertheless, seek to avail themselves of this au- 
 thority, that these words do not invest Congress with 
 any power whatsoever distinct from the power of taxa- 
 tion, but that they merely refer to the purposes for 
 which that power may be exercised. So far, moreover, 
 from affording support to the argument against the 
 power of Congress to encourage manufactures, two of 
 the authors of " The Federalist," 1 soon after the or- 
 ganization of the Government, officially asserted that 
 power to be exclusively vested in Congress, which body, 
 they contended, was bound to exercise it. They de- 
 rived it, indeed, from the power to regulate commerce ; 
 but the acknowledged construction of the clause con- 
 ferring the power of taxation, referring to the exercise 
 of that power, as the means or instrument of providing 
 for the general welfare, affords an ampler basis for the 
 right ; and in order to establish it on this broader and 
 more solid foundation, it becomes necessary to show 
 that the " general welfare " is, in fact, promoted by 
 
 1 Mr. Hamilton, as Secretary of the Treasury, in his celebrated 
 Report on Domestic Manufactures ; and Mr. Madison, as a member 
 of the House of Representatives, in his support of the Bill for their 
 encouragement. 
 
 19*
 
 222 LECTURES ON 
 
 imposing duties on foreign commodities to such an 
 amount as will foster our home manufactures. 
 
 This is clearly a question. of national policy and 
 legislation, involving facts and opinions not cognizable, 
 from their nature, in the Judicial tribunals, but depend- 
 ing for their determination upon a sound exercise of 
 legislative discretion. Their decision must of necessity 
 belong to the National Legislature ; for the States 
 cannot afford the protection in the mode contemplated, 
 inasmuch as they are prohibited from laying any duties 
 on imports, except such as may be necessary for execut- 
 ing their own health and inspection laws, and have no 
 power whatsoever to regulate commerce. Whatever, 
 therefore, may be the opinions of the most enlightened 
 men as to the policy of protecting domestic manufac- 
 tures, or, in other words, as to the question whether the 
 "general welfare" is promoted by the imposition of 
 duties on imports with that view, those opinions must 
 necessarily be founded on facts and principles of politi- 
 cal economy, concerning which none but the National 
 Legislature can, for any practical purpose, authorita- 
 tively decide. The necessity of vesting in Congress the 
 power of determining such a question, may be illus- 
 trated by analogy from the power of the President to 
 judge of the existence of the exigency upon which his 
 power of calling forth the militia is made to depend. 
 Without such authority, we have seen that both the 
 existence of the exigency and the legality of the pro- 
 ceedings would turn, not on his knowledge or belief of 
 the one, or his judgment on the other, but upon the 
 verdict of a jury as to the facts, and the judgment of 
 the Court on the legal questions they might present. 
 So with respect to the power now under consideration ;
 
 CONSTITUTIONAL JURISPRUDENCE. 223 
 
 unless Congress have authority to decide on the cir- 
 cumstances upon which the exercise of their legislative 
 discretion depends, both facts and principles of a com- 
 plicated character, concerning which great conflict of 
 opinions exists, would be subject to Judicial examina- 
 tion, and a construction given to the Constitution, not 
 merely by the judgment of the Court on the question 
 whether Congress is authorized " to lay duties to pro- 
 vide for the general welfare," but upon the opinion of 
 the Jury whether "the general welfare" was, upon 
 sound principles of public policy, in fact promoted by 
 protective duties. 
 
 With regard to the existing laws imposing duties on 
 imported articles, the objection, so far as founded- on 
 the nature of the objects to which the revenue thus 
 produced is applied, loses much of its force, from the 
 circumstance that these laws were passed before the 
 extinction of the public debt, for the payment of which, 
 as well as to the support of the national institutions, 
 the proceeds of those duties were intended to be ap- 
 plied. Whether they have, in fact, been so applied, 
 or to what purposes the surplus arising from them has 
 been, from time to time, appropriated, are questions 
 wholly independent of the constitutional validity of 
 laws merely authorizing such duties to be collected. 
 When collected, and paid into the National Treasury, 
 they are mingled with the general mass of funds, and 
 are at the disposal of Congress ; and as, by the Consti- 
 tution, " no money can be drawn from the treasury but 
 in pursuance of appropriations made by law," 1 the 
 question as to the constitutionality of the objects to 
 
 1 Const. U. S., Art. I. Sect. ix. 7.
 
 224 LECTURES ON 
 
 which any part of the public revenues may be applied 
 can never arise, until a law be proposed or enacted for 
 their specific appropriation. 
 
 It has been, moreover, objected, that the existing laws, 
 imposing duties on imports, are unequal in their opera- 
 tion, and therefore contrary to that provision of the 
 Constitution which requires all duties to be " uniform 
 throughout the United States." But the uniformity 
 required is plainly in the imposition, and not in the 
 operation of the duties ; and whatever may be the fact 
 as to the inequality of their operation, it is equally 
 plain that it never can be controlled by the Legislature, 
 but must always be regulated by the consumption of 
 the' article ; for all indirect taxes, except imposts on 
 articles of absolute necessity, may be said to be volun- 
 tary in their operation ; as the amount paid by any 
 individual must always depend on his spontaneous 
 purchase of the article. 
 
 In the late war with Mexico, the port of San Fran- 
 cisco was conquered by the arms of the United States, 
 in 1846, and shortly afterwards they had military pos- 
 session of the whole of California. Early in 1847, the 
 President of the United States, as Commander-in-chief 
 of the army and navy, authorized the military and 
 naval commanders of the United States forces in Cali- 
 fornia, in the exercise of the belligerent rights of con- 
 quest, to form a military government for the conquered 
 territory, with power to impose duties on imposts and 
 tonnage, for the support of the army which had the 
 conquest in possession. This was done, and tonnage 
 and import duties were levied under a war-tariff, estab- 
 lished by the civil Government for that purpose, until 
 official notice was received that a treaty of peace had
 
 CONSTITUTIONAL JURISPRUDENCE. 225 
 
 been concluded with Mexico by which Upper Cali- 
 fornia was ceded to the United States. Upon receiving 
 this intelligence, the Governor directed that imports 
 and tonnage duties should thereafter be levied in con- 
 formity with such paid in other parts of the United 
 States under the Acts of Congress ; and for the pur- 
 pose of collecting them, he appointed a Collector for the 
 port of San Francisco. 
 
 A suit was brought against the Collector to recover 
 from him the amount of certain duties paid by the plain- 
 tiffs between the 3d of February, 1848, the date of the 
 treaty of peace, and the 13th of November, 1849, when 
 the Collector appointed by the President entered upon 
 the duties of his office upon the ground that they 
 had been illegally exacted. The Supreme Court of the 
 United States decided that these duties were legally 
 demanded and collected by the civil Governor, both 
 during the war, and after the ratification of the treaty 
 of peace, until the revenue laws of the United States 
 were extended by Congress to California. 1 
 
 VI. The power of borrowing money on the credit of 
 the United States is conferred on the National Govern- 
 ment in general terms ; but as the public credit of the 
 Union must depend on the sources of revenue placed 
 at its command, this power must have been intended to 
 be exercised in anticipation of the national resources, 
 and must, consequently, be subject to the same restric- 
 tions as to its objects, to which the power of taxation 
 is limited and confined. 
 
 When the present Constitution was adopted, the 
 United States were indebted to foreign nations for the 
 
 1 16 Howard, 164.
 
 226 LECTURES ON 
 
 expenses of our revolutionary war ; and many of our 
 own citizens had large claims either upon the Confed- 
 eracy, or upon its separate members, for services and 
 supplies during that eventful contest. To liquidate and 
 consolidate those debts, discharge a part of them, and 
 secure the remainder, were measures necessary to the 
 preservation of the public faith and credit, and the 
 maintenance of the public interests, both at home and 
 abroad. But to have resorted to taxation, in order 
 immediately to accomplish these objects, would, had it 
 even been practicable, have proved injurious to the 
 nation, and ruinous to private individuals. It was fore- 
 seen that many of the public creditors would be satis- 
 fied with the assumption or recognition by the new 
 Government of the principal, and the payment of the 
 interest of the public debts. Under the power con- 
 ferred on Congress to borrow money, it was enabled to 
 make the necessary provisions for combining the whole 
 expenses of the war, whether incurred by the Confed- 
 eracy or the States, in one general amount, and funding 
 it as one consolidated debt. The sources of revenue 
 placed at the disposal of the Federal Government have 
 since enabled it to discharge, not only the whole of this 
 debt, but that, also, which occurred in the last war with 
 Great Britain. But in case of future exigencies, or a 
 failure of the usual supplies of revenue, similar means 
 are at its command for continuing its operations, main- 
 taining its existence, and vindicating its honor.
 
 CONSTITUTIONAL JURISPRUDENCE. 227 
 
 LECTURE VIII. 
 
 ON THE POWERS VESTED IN THE FEDERAL GOVERNMENT FOR 
 REGULATING INTERCOURSE WITH FOREIGN NATIONS. 
 
 THE powers vested in the General Government for 
 regulating foreign intercourse, consist, 
 
 First. Of the powers to make treaties, and to send 
 and receive Ambassadors, and other public Ministers, 
 and Consuls. 
 
 Secondly. Of the power to define and punish piracies 
 and felonies committed on the high seas, and other 
 offences against the law of nations ; and, 
 
 Thirdly. Of the power of regulating foreign com- 
 merce ; including a power to prohibit, after a certain 
 period, now elapsed, the importation of slaves. 
 
 This class of powers forms an obvious and essential 
 branch of Federal administration ; for if the United 
 States are one nation in any respect, they are most 
 clearly so in respect to other nations. 
 
 I. TJie powers to make treaties, and to send and re- 
 ceive Ambassadors and other public Ministers, and Con- 
 suls, are essential attributes of national sovereignty, 
 and of that international equality which the interests 
 of every sovereignty require it to preserve. Both powers 
 were possessed by Congress under the Confederation, 
 but not to the extent to which they are now enjoyed ; 
 for then the former power was embarrassed by an ex-
 
 228 LECTURES ON 
 
 ception, under which treaties might be substantially 
 frustrated by regulations of the States, and the latter 
 did not comprehend " other public ministers and con- 
 suls." 
 
 As treaties with France and Holland, and especially 
 the treaty of peace with Great Britain, existed when 
 the Constitution was adopted, it became necessary to 
 vary its terms in regard to treaties, from those relative" 
 to the laws of the United States ; the declaration it 
 contains in respect to the supremacy of the latter oper- 
 ating only in future, while in reference to the former 
 the terms are, " all treaties made, or which shall be made, 
 under the authority of the United States, shall be the 
 supreme law of the land." These terms were intended 
 to apply equally to previously existing treaties, as well 
 as to those made subsequently to the Constitution ; and 
 it has, accordingly, been adjudged, by the Supreme 
 Court, that they effectually repeal so much of the State 
 laws and Constitutions as are repugnant to them. 1 
 
 More general and extensive terms, also, are used in 
 vesting the power with respect to treaties, than in con- 
 ferring that relative to laws; and, while the latter is 
 laid under several restrictions, there are none imposed 
 on the exercise of the former, notwithstanding it is 
 committed to the President and Senate, in exclusion of 
 the House of Representatives, and is executed through 
 the instrumentality of agents delegated for the purpose. 
 And although the President and Senate are thus in- 
 vested with this high and exclusive control over all those 
 subjects of negotiation with foreign powers, which, in 
 their consequences, may affect important domestic in- 
 
 1 3 Dall. 199.
 
 CONSTITUTIONAL JURISPRUDENCE. 229 
 
 terests, yet it would have been impossible to have 
 defined a power of this nature, and, therefore, general 
 terms only were used. These general expressions, how- 
 ever, ought strictly to be confined to their legitimate 
 signification ; and in order to ascertain whether the 
 execution of the treaty-making power can be supported 
 in any given case, those principles of the Constitution, 
 from which the power proceeds, should carefully be 
 applied to it. The power must, indeed, be construed 
 in subordination to the Constitution ; and however, in 
 its operation, it may qualify, it cannot supersede or 
 interfere with, any other of its fundamental provisions, 
 nor can it ever be so interpreted as to destroy other 
 powers granted by that instrument. A treaty to change 
 the organization of the Government, or annihilate its 
 sovereignty, or overturn its Republican form, or to de- 
 prive it of any of its constitutional powers, would be 
 void ; because it would defeat the will of the people, 
 which it was designed to fulfil. 
 
 A treaty, in its general sense, is a compact entered 
 into with a foreign power, and extends to all matters 
 which are usually the subject of compact between in- 
 dependent nations. It is, in its nature, a contract, and 
 not a Legislative act ; and does not, according to gen- 
 eral usage, effect of itself the objects intended to be 
 accomplished by it, but requires to be carried into exe- 
 cution by some subsequent act of sovereign power by 
 the contracting parties, especially in cases where it is 
 meant to operate within the territories of either of them. 
 With us, however, a different principle is established, 
 in certain cases. It has been settled by the Supreme 
 Court, 1 that, inasmuch as the Constitution declares a 
 
 1 2 Peters, 314. 
 
 20
 
 230 LECTUKES ON 
 
 treaty to be the law of the land, it is to be regarded in 
 Courts of Justice as equivalent to an act of the Legis- 
 lature, whenever it operates of itself without requiring 
 the aid of any legislative provision. But when the 
 terms of any treaty stipulation import an executory 
 contract, it addresses itself to the political, and not to 
 the Judicial, department for execution, and Congress 
 must pass a law in execution of the compact, before 
 it becomes a rule for the Courts. The Constitution 
 does not expressly declare whether treaties are to be 
 held superior to the Acts of Congress, or whether the 
 laws are to be deemed coequal with, or superior to 
 treaties ; but the representation it holds forth to foreign 
 powers, is that the President, by and with the advice 
 and consent of the Senate, may bind the nation in all 
 legitimate contracts ; and if preexisting laws, contrary 
 to a treaty, could only be abrogated by Congress, this 
 representation would be fallacious. It would subject 
 the public faith to just imputation and reproach, and 
 destroy all confidence in the national engagements. 
 The immediate operation of a treaty must, therefore, 
 be to overrule all existing laws incompatible with its 
 stipulations. 
 
 Nor is this inconsistent with the power of Congress 
 to pass subsequent laws, qualifying, altering, or wholly 
 annulling a treaty; for such an authority, in certain 
 cases, is supported on grounds wholly independent of 
 the treaty-making power. For, as Congress possesses 
 the sole right of declaring war, and as the alteration or 
 abrogation of a treaty tends to produce it, the power 
 in question may be regarded as an incident to that of 
 declaring war. The exercise of such a right may be 
 rendered necessary to the public welfare and safety, by
 
 CONSTITUTIONAL JURISPRUDENCE. 231 
 
 measures of the party with whom the treaty was made, 
 contrary to its spirit, or in open violation of its letter ; 
 and on such grounds alone can this right be reconciled 
 either with the provisions of the Constitution, or the 
 principles of public law. A memorable instance has 
 occurred in our history of the annulment of a treaty 
 by the act of the injured party. In the year 1798, 
 Congress declared that the treaties with France were 
 no longer obligatory on the United States, as they had 
 been repeatedly violated by the French Government, 
 and our just claims for reparation disregarded. Never- 
 theless, all treaties, as soon as ratified by competent 
 authority, become of absolute efficacy, and, as long as 
 they continue in force, are binding upon the whole 
 nation. If a treaty require the payment of money to 
 carry it into effect, and the money can only be raised 
 or appropriated by an Act of the Legislature, it is 
 morally obligatory upon the legislative power to pass 
 the requisite law ; and its refusal to do so would 
 amount to a breach of the public faitfy and afford just 
 cause of war. That department of the Government 
 which is intrusted with the power of making treaties 
 may bind the national faith at its discretion ; for the 
 treaty-making power must be coextensive with the 
 national exigencies, and necessarily involves in it every 
 branch of the national sovereignty, of which the opera- 
 tion may be necessary to give effect to negotiations and 
 compacts with foreign nations. If a nation have con- 
 ferred on its Executive department, without reserve, 
 the right of treating and contracting with other sov- 
 ereignties, it is considered as having invested it with 
 all the power necessary to make a valid contract, be- 
 cause that department is the organ of the Government
 
 232 LECTURES ON 
 
 for the purpose, and its contracts are made by the 
 deputed will of the nation. The fundamental laws of 
 the State may withhold from it the power of alienating 
 the public domain, or other property belonging to it ; 
 but if there be no express provision of that kind, the 
 inference is that it has confided to the department, 
 charged with the duty and the power of making trea- 
 ties, a discretion commensurate with all the great in- 
 terests of the nation. 1 
 
 The concurrence of each branch of the Legislative 
 power, we have seen, is necessary to a declaration of 
 war, while the President, with the advice and consent 
 of the Senate alone, may conclude a treaty of peace. 
 Now a power to make treaties necessarily implies a 
 power to settle the terms on which they shall be con- 
 cluded ; and foreign States could not deal safely with 
 the Government on any other presumption. That 
 branch of the Government which is intrusted thus 
 largely and generally with authority to make valid 
 treaties of peace, can, of course, bind the nation by 
 the alienation of part of its territory ; and this, accord- 
 ing to an approved writer on the law of nations, 2 is 
 equally the case, whether that territory be already in 
 the occupation of the enemy, or remain in possession 
 of the nation, or whether the property be public or 
 private. In a case decided in the Supreme Court of 
 the United States, it was admitted that individual 
 rights acquired by war, and vested rights of the citizen, 
 might be sacrificed by treaty for national purposes. 3 
 
 Vattel's Law of Nations, b. 1, ch. 21, 2 ; 3 Doll 199 ; Grotius's 
 Law of War and Peace, b. 3, ch. 20, 7. 
 
 2 Ibid. b. 4, ch. 2, 11, 12. 
 
 3 1 Crunch, 103.
 
 CONSTITUTIONAL JURISPRUDENCE. 233 
 
 And in another case, it was held to be a clear principle 
 of national law, that private rights might be surren- 
 dered by treaty to secure the public safety, but the 
 Government would be bound to make compensation 
 and indemnity to the individual whose rights had thus 
 been sacrificed. 
 
 The conclusion of a treaty of commerce and navi- 
 gation with Great Britain, in 1794, gave rise to much 
 public discussion as to the nature and extent of the 
 treaty-making power. A resolution was passed by the 
 House of Representatives, requiring the President to 
 lay before them a copy of his instructions to the Min- 
 ister who conducted the negotiation, with the corre- 
 spondence and other documents, relative to the treaty, 
 excepting such papers as any existing negotiations 
 might render it improper to disclose. The illustrious 
 individual who then held the office of President, re- 
 turned for answer, " that, in his opinion, the power of 
 making treaties was exclusively vested in the President, 
 by and with the advice and consent of the Senate, pro- 
 vided two thirds of the Senators present concurred in 
 the ratification ; and that any treaty so made and rati- 
 fied, on being duly promulgated, became the law of the 
 land. It was thus," he added, " that the treaty-making 
 power had been understood by foreign nations; and 
 that in all treaties made with them, we had declared, 
 and they had believed, that, when so ratified, they be- 
 came obligatory on the nation." In this construction 
 of the Constitution, every former House of Represen- 
 tatives had acquiesced, and until that time not a doubt 
 or suspicion had appeared, to his knowledge, that it 
 was held not to be the true construction ; and he 
 concluded by observing that " it was perfectly clear to 
 20*
 
 234 LECTURES ON 
 
 his understanding, that the consent of the House of 
 Representatives was not necessary to the validity of a 
 treaty. As the treaty in question exhibited in itself all 
 the objects requiring Legislative provision, upon which 
 the papers called for could throw no light, and that, as 
 it was essential to the due administration of the Gov- 
 ernment that the boundaries fixed by the Constitution 
 between the different departments should be preserved, 
 a just regard to the Constitution, and to the duties of 
 his office, forbade a compliance with their request." 
 
 The principles thus laid down by General Washing- 
 ton were so far acquiesced in by the House, that they 
 passed a resolution, disclaiming the power to interfere 
 in making treaties ; but asserting the right of the House 
 of Representatives, whenever stipulations are made on 
 subjects committed by the Constitution to Congress, to 
 deliberate on the expediency of carrying them into 
 effect; and subsequently it was declared, by a small 
 majority, to be expedient to pass the laws necessary 
 for carrying the treaty into effect. From that time the 
 question remained undisturbed until the conclusion of 
 a convention with Great Britain, in 1815, when the 
 House of Representatives, after much debate, passed a 
 bill specifically enacting, on a particular subject, the 
 same provisions which were contained as stipulations 
 in the treaty. This dangerous innovation on the treaty- 
 making power was warmly opposed by a minority in 
 the House, and disagreed to by the Senate ; but, after 
 several conferences between them, the affair terminated 
 in a compromise, which it is difficult to reconcile with 
 a sound construction of the Constitution. The law 
 passed on the occasion briefly declares that so much 
 of any Act as imposes a duty on tonnage, contrary to
 
 CONSTITUTIONAL JURISPRUDENCE. 235 
 
 the provisions of the convention with Great Britain, 
 should, from the date of that instrument, and during its 
 continuance, be of no force or eifect; thus setting a 
 precedent which may produce future difficulty in our 
 national legislation, though the Judicial tribunals would 
 probably regard such a law as a work of supererogation, 
 or a mere nullity, and, from its retroactive operation, at 
 variance with the spirit of the Constitution. 
 
 Treaties of every kind, when made by competent 
 authority, are not only to be observed with the most 
 scrupulous good faith, but are to receive a fair and 
 liberal interpretation. Their meaning is to be ascer- 
 tained by the same rules of construction and course of 
 reasoning as are applied to the interpretation of private 
 contracts ; and according to the most authoritative 
 writers of International Law, if a treaty should be in 
 fact violated by one of the parties, either by proceed- 
 ings incompatible with its nature, or by an intentional 
 breach of any of its articles, it rests with the injured 
 party alone, to pronounce it broken. The treaty, in 
 such cases, is not absolutely void, but voidable at the 
 election of the injured .party. If he chooses not to 
 come to a rupture, the treaty remains obligatory. He 
 may waive or remit the infraction, or demand a just 
 satisfaction. 
 
 But the violation of one article of a treaty is a viola- 
 tion of the whole ; for all its articles are dependent on 
 each other ; and the breach of a single article may, at 
 the election of the injured party, overthrow the whole 
 treaty. This consequence, however, may be, and usu- 
 ally is, prevented by an express provision in the treaty 
 itself, that if one article be broken, the others shall 
 nevertheless continue in force; and in this case, the
 
 236 LECTURES ON 
 
 Legislative power could not annul the treaty on the 
 ground of the breach. The nullification of a treaty by 
 the Legislature of one of the parties, under the circum- 
 stances which render such an act justifiable, or its 
 termination by war, does not, however, divest rights of 
 property acquired under it. 1 Nor do treaties become, 
 ipso facto, extinguished by war. Those articles which 
 stipulate for a permanent arrangement of territorial, or 
 other national rights, are, at most, suspended during 
 the war, and revive at the restoration of peace, unless 
 waived by the parties, or new or repugnant arrange- 
 ments are made in a new treaty. 
 
 At a very early period of modern history, the princi- 
 pal European States made provision, by treaty, for the 
 mutual surrender of fugitives from justice ; such prac- 
 tice has been continued to the present time. The 
 Constitution of the United States provides that "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. 2 A similar provision is contained in many 
 of our treaties with foreign powers. But, independently 
 of any such stipulation, the most eminent and ap- 
 proved writers upon public law declare that every State 
 is bound to deny an asylum to criminals, and upon 
 application and due examination of the case, to sur- 
 render the fugitive to the foreign State where the crime 
 was committed. 3 A difficulty, in the absence of posi- 
 
 i 8 Wheat. 492. 2 Const U. S., Art. IV. Sect n. 2. 
 
 3 Grotius, Lex. P. & B. 1. 2, ch. 21 ; Burlamaqui, P. 4, ch. 3 ; Ruth- 
 erf orth's Institutes, P. 2, ch. 9 ; Vattel's Law of Nations, b. 2, ch. 6.
 
 CONSTITUTIONAL JURISPRUDENCE. 237 
 
 tive agreement, arises in drawing the line between the 
 class of offences to which the usage of nations applies, 
 and that in which it does not. But it seems to be 
 understood in practice to apply only to crimes of great 
 atrocity, such as are punishable by the State in which 
 the fugitive has sought refuge ; and not to include 
 political offences. This principle is adopted in an Act 
 of the Legislature of New York, which authorizes the 
 Governor, in his discretion, on requisition from a for- 
 eign Government, to surrender up fugitives charged 
 with murder, forgery, larceny, or other crimes punish- 
 able by the laws of that State with death, or imprison- 
 ment in the State prison, provided the evidence of 
 criminality be sufficient by the State laws to detain 
 the party for trial on a like charge. 1 Such a provision 
 was all that was requisite, and all that the Legislature 
 could make ; for the Judicial power can do no more 
 than cause the fugitive to be arrested and detained, 
 until opportunity be afforded for his surrender by the 
 Supreme Executive power of the Union. And, in order 
 to give effect to the treaty stipulations upon the subject 
 between the United States and foreign Governments, 
 an Act was passed by Congress for that purpose, pre- 
 scribing the mode in which the extradition of the 
 accused party is to be made. 2 
 
 As the Constitution confers absolutely upon the Gov- 
 
 1 In the case of Holmes and Gennison, 14 Peters, 540, four of the 
 Justices of the Supreme Court expressed the opinion that the Gov- 
 ernor of a State had no power to deliver up to a foreign Government, 
 a person charged with having committed a crime in the territory of 
 that Government; but no judgment was given in that case, the 
 Court being equally divided in opinion, on the question of jurisdiction. 
 
 2 Passed August 12, 1808.
 
 238 LECTURES ON 
 
 ernment of the United States, the powers of making 
 war, and of making treaties, it follows that it possesses 
 the power of acquiring territory, either by conquest or 
 by treaty. 1 
 
 The supplementary power of sending, receiving, and 
 dismissing Ambassadors, and other public Ministers, 
 and Consuls, results as a necessary incident to the 
 leading part in the treaty-making power assigned to 
 the President. 'The power of dismissing- a foreign 
 Minister was first exercised by President Washington, 
 who broke off all intercourse with CITIZEN GENET, and 
 demanded his recall by the French Government, in 
 consequence of his insolent assumption of authority to 
 commission private vessels of war, equip them in our 
 ports, and erect consular tribunals, with admiralty juris- 
 diction within our territory. The only instance of the 
 kind that has since occurred, was that of the British 
 Minister, Mr. Francis Jackson, who, in consequence of 
 his disrespectful conduct, and the insulting tone of his 
 correspondence with the Government, was dismissed 
 by President Madison. 2 
 
 1 1 Peters, 542. 
 
 2 This gentleman had previously obtained some notoriety by his 
 belligerent diplomacy at Copenhagen ; and his conduct on his extra- 
 ordinary mission to this country, in relation to the attack of a British 
 line-of-battle ship upon the frigate Chesapeake, fully vindicated the 
 nom de guerre he earned by a similar attack, though upon a much 
 larger scale, which he had promoted upon the former occasion. It 
 was supposed here, that he had been selected for this mission by Mr. 
 Canning, the British Secretary for foreign affairs, in consequence of 
 his exploit in the Baltic ; but a better motive was found in England 
 for the choice, in the private friendship existing between the Secre- 
 tary and the Envoy, arising from the gratitude of Mr. Canning to 
 his friend's father, the Rev. Dr. Cyril Jackson, Dean of Christ Church,
 
 CONSTITUTIONAL JUEISPRUDENCE. 239 
 
 A foreign Consul is a public agent clothed with 
 authority only for commercial purposes. He is not 
 usually considered as a diplomatic agent of his sov- 
 ereign, intrusted, by virtue of his office, with authority 
 to represent him in his negotiations with foreign States, 
 or to vindicate his prerogatives. He cannot, without 
 the special authority of his Government, interpose a 
 claim in the Prize Courts, for the violation of the neu- 
 tral territory of his Sovereign. 1 But he has a right, by 
 virtue of his office, to interpose a claim in a Court of 
 Admiralty, for the restitution of property belonging to 
 the subjects of his country, without a special authority 
 from those for whose benefit he acts ; although, in the 
 absence of such authority, he has no right to receive, in 
 his natural character, the proceeds of property libelled, 
 and transferred to the registry of the Courts. 2 And, 
 though allowed to interpose a claim for subjects un- 
 known, of his nation, he cannot demand actual restitu- 
 tion of the property, without proof of the individual 
 proprietary interest. 3 
 
 Notwithstanding the ordinary character of a Consul 
 is confined to commercial agency, it has been the prac- 
 tice, both of our own Government and those of Europe, 
 
 Oxford, under whose tuition he had been placed at the University. 
 Be that as it rnay, the son behaved, in this country, as unlike as 
 possible to what it may be presumed would have been the conduct 
 and manners of the father, had he been in his son's situation, judging 
 from the character of the former as given by the author of " The 
 Pursuits of Literature," and by Mr. Ward, in his novel of " De 
 Vere." 
 
 1 3 Wheat, 435 ; 4 Cond. Rep. 286. 
 
 2 6 Wheat. 152; 5 Cond. Rep. 45. 
 
 3 10 Wheat. 66 ; 6 Cond. Rep. 30.
 
 240 LECTURES ON 
 
 particularly with respect to the Barbary powers, and 
 certain Eastern nations, to invest Consuls with diplo- 
 matic functions, not merely on special occasions, but 
 as permanent duties of their office, in those peculiar 
 situations. 
 
 II. The power to define and punish piracies and fel- 
 onies committed on the high seas, and offences against 
 the Law of Nations, is substantively and separately 
 vested in Congress ; although, as to the former of these 
 objects, it seems unavoidably incident to the power of 
 regulating foreign commerce, and, as to the latter, to be 
 implied from the authority to declare war and make 
 treaties. 
 
 The power to define, as well as punish, seems rather 
 applicable to felonies, and offences against the Law of 
 Nations, than to piracies, as piracy is well defined by 
 that code ; and by the " high seas," is understood not 
 only the ocean out of sight of land, but waters on the 
 sea-coast beyond the boundary of low-water mark. 
 
 1. Piracy, according to the most approved writers 
 on international law, consists in robbery, or a forcible 
 depredation upon the high seas without lawful au- 
 thority. 1 But felonies, either on the ocean or on waters 
 on the coast beyond low-water mark, and offences 
 against the Law of Nations, are by no means com- 
 pletely ascertained and defined by any code recognized 
 by the common consent of nations ; so that, with 
 respect to these offences, there was a peculiar fitness 
 in granting to Congress the power to define as well 
 as to punish. But in executing the power in regard 
 
 1 Cicero, in Vtrres. 1 List. 113; Bynkershoeck, Q. & P. lib. 1 ; 
 Rutherforlh's Inst. b. 2 ; Cro. Eliz. 685 ; 3 Woodern's Led. 429.
 
 CONSTITUTIONAL JURISPRUDENCE. 241 
 
 to piracy, it was not necessary for Congress to insert 
 in the statute a definition of the crime in terms ; it 
 was enough to refer for its definition to the Law of 
 Nations, as it is there defined with reasonable certainty, 
 and sufficient precision, and does not depend on the 
 particular provisions of any municipal code either for 
 its definition or its punishment. 1 
 
 The Act of Congress referring to the Law of Nations 
 for a definition of the crime of piracy, was a constitu- 
 tional exercise of the power to define, as well as punish 
 it ; as Congress may define by using a term of known 
 and determinate meaning, as well as by an express 
 enumeration of the particulars included in that term. 
 In law, and in logic, that is deemed certain, which, 
 by necessary reference, is made so; and the Law of 
 Nations has described the crime of Piracy with reason- 
 able certainty. 
 
 Congress has a right to pass laws to punish pirates 
 though they may be foreigners, and have committed 
 no particular offence against the United States ; and 
 in executing this power, it has declared, in conformity 
 with the Law of Nations, that the punishment of 
 piracy shall be death. The Act of Congress, which 
 declares certain offences to be piracy which are not so 
 by the Law of Nations, was intended to punish them 
 as offences against the United States, and not as 
 offences against the human race; 2 and such an offence, 
 committed by a person not a citizen of the United 
 States, on board of a vessel belonging exclusively to 
 subjects of a foreign State, is not piracy under the 
 
 1 Act of March 3, 1819 ; 5 Wheat. 153 ; Ibid. 163, note. 
 a Act of May 15, 1820; & Wheat. 610. 
 
 21
 
 242 LECTUKES ON 
 
 statute, nor punishable in the Federal Courts. The 
 offence, in such cases, must be left to be punished by 
 the nation under whose flag the vessel sails, and whose 
 particular jurisdiction extends to all on board ; for it 
 is a .clear and settled principle, that the jurisdiction of 
 every nation extends to its own citizens, on board of 
 its own public and private vessels, at sea. 1 But murder 
 and robbery committed on the high seas by persons 
 on board of a vessel not at the time belonging to any 
 foreign power, but in possession of a crew acting in 
 defiance of all law, and acknowledging obedience to 
 no Government, is within the Act of Congress, and 
 punishable in the Courts of the United States ; for 
 although the statute does not apply to offences com- 
 mitted against the particular sovereignty of a foreign 
 power, and on board of a vessel belonging at the time, 
 in fact as well as of right, to a subject of a foreign 
 State, and in virtue of such propriety subject to his 
 control, yet it does extend to all offence^ committed 
 against all nations, by persons who, by common con- 
 sent, are amenable to the laws of all nations. 2 
 
 In pursuance of this principle, the moment a vessel 
 assumes a piratical character, she loses all claim to 
 national character, and the crew, whether citizens or 
 foreigners, are equally punishable under the statute, 
 for acts which it declares to be piracy. The laws of 
 the United States declare those acts piracy in one of 
 their own citizens, which would be merely belligerent 
 acts if committed on a foreigner ; and a citizen of the 
 United States who offends against the Government, or 
 
 1 Rutherf. Inst. b. 2, ch. 9. 
 
 2 5 Wheat. 144 ; 4 Cond. Rep. 619 ; Laws U. S. 1820, 3.
 
 'CONSTITUTIONAL JUEISPRUDENCE. 243 
 
 his fellow-citizens, under color of a foreign commission, 
 is punishable in the same manner as if he had no 
 commission. The acts of an alien, under the sanction 
 of a national commission may be hostile, and his 
 Government may be responsible for them, but they are 
 not regarded as piratical ; and this rule extends to the 
 Barbary powers, who are now regarded, by the Law 
 of Nations, as lawful powers, and not as they formerly 
 deserved to be, pirates. 
 
 2. Felony, when committed on the high seas, amounts 
 in effect to piracy, and has, to a considerable extent, 
 been so declared by Congress, who, in pursuance of 
 the authority vested in them by the Constitution, have 
 enacted that any person, on the high seas, or in any 
 open roadstead or bay where the sea ebbs and flows, 
 committing the crime of robbery in and upon any 
 vessel, or its crew or lading, shall be adjudged a pirate ; 
 and further, that "if any person concerned in any 
 piratical cruise or enterprise, or being of the crew or 
 ship's company of any piratical ship or vessel, shall 
 land and commit robbery on shore, such person shall 
 be adjudged a pirate ; " in which last respect, the 
 statute seems to be merely declaratory of the Law of 
 Nations. 1 
 
 The power to define and punish piracy and felonies 
 on the high seas is exclusive in its nature ; but it has 
 been doubted whether the power to punish other 
 offences against international law ought not to be con- 
 sidered as exclusively vested in Congress, on the ground 
 that the Law of Nations forms a part of the Common 
 Law of every State in the Union, and that violations 
 
 1 Douglass, 615.
 
 244 LECTURES ON 
 
 of it may be committed on land as well as at sea. 
 The jurisdiction of the several States is certainly super- 
 seded in regard to those offences against international 
 law which are committed at sea ; but it does not seem 
 to follow, as a necessary consequence, that it is also 
 superseded in regard to those committed on shore. 
 These offences are of various kinds, and the power to 
 define and punish them is, with great propriety, given 
 to Congress, as it prevents difficulties which might arise 
 from the doubt of a concurrent jurisdiction of them by 
 the States ; and, so far as they have been defined by Con- 
 gress, they may be said to arise under the Constitution 
 and laws of the United States, and to be finally, if not 
 exclusively, cognizable under the Federal authority. 
 
 But there are some such offences not enumerated in 
 the Acts of Congress; and if the doctrine be sound, 
 that the criminal jurisdiction of the Union is confined 
 to cases expressly provided for by Congress, either those 
 violations of international law, of which the punish- 
 ment remains unprovided for by Congress, must go 
 unpunished, or the State Court must entertain juris- 
 diction of them. The United States being alone re- 
 sponsible to foreign nations for all that affects their 
 mutual intercourse, it rests with the National Govern- 
 ment to declare what shall constitute offences against 
 the law regulating that intercourse, and to prescribe 
 suitable punishments for their commission. But if 
 cases arise for which no provision has been made by 
 Congress, both the National and State Governments, 
 within the spheres of their respective jurisdictions, are 
 thrown upon those general principles, which, being 
 enforced by other nations, those nations have a right 
 to require to be applied in their favor.
 
 CONSTITUTIONAL JURISPRUDENCE. 245 
 
 The offences falling more immediately under the 
 cognizance of the law of nations are, besides piracy, 
 violations of safe-conducts, and infringements of the 
 rights of Ambassadors and other public Ministers. 
 
 3. A safe-conduct or passport contains a pledge of 
 the public faith that it shall be duly respected, and the 
 observance of this duty is essential to the character of 
 the Government which grants it. In furtherance of the 
 general sanction of public law, Congress has provided 
 that persons violating a safe-conduct or passport granted 
 by the Government of the United States, shall, on con- 
 viction, be subjected to fine and imprisonment. 1 The 
 same punishment is inflicted upon persons offering 
 violence to Ambassadors or other public Ministers, or 
 being concerned in prosecuting or arresting them ; 2 and 
 the process whereby their persons, or those of their 
 domestics, may be imprisoned, or their goods seized 
 or attached, is declared void. The policy of these laws 
 regards such proceedings against foreign Ministers as 
 highly injurious to a free and liberal communication 
 between different Governments, and mischievous in 
 their consequences to any nation. They tend, most 
 certainly, to provoke the resentment of the Sovereign 
 whom the Envoy represents, and to bring upon the 
 country the calamity of war ; and, therefore, every 
 civilized nation has an equal interest in upholding the 
 privileges of their representatives abroad, and punishing 
 the breaches of them by its own citizens. 
 
 III. The power of regulating foreign commerce is 
 intimately connected with the power of concluding 
 treaties, especially those of commerce and navigation, 
 
 i Act of April 30, 1790, 27. 2 ibid. 25, 26. 
 
 21*
 
 246 LECTURES ON 
 
 and is, with equal propriety, submitted to the National 
 Government. 
 
 The oppressed and degraded state of commerce be- 
 fore the adoption of the Federal Constitution, and the 
 injury it sustained from the impotent and disconnected 
 efforts of the several States to counteract the restric- 
 tions imposed on it by foreign nations with a view to 
 their own interests, contributed more, perhaps, to the 
 introduction of our present system of Government, 
 than any other of the numerous evils proceeding from 
 the feebleness of the Confederation. The former Con- 
 gress, indeed, possessed the power of making commer- 
 cial treaties, but its inability to enforce them rendered 
 that power, in a great degree, useless ; and all who 
 were capable of estimating the influence of commerce 
 on national prosperity, perceived the necessity of giving 
 the control over this important subject to the General 
 Government. It is not, therefore, matter of surprise, 
 that the grant should be as extensive as the mischiefs 
 that had been experienced ; and it is equally apparent 
 that to construe the grant so as to impair its efficacy, 
 would tend to defeat an object in the attainment of 
 which the American people felt that deep interest 
 which arose from a strong and just conviction that the 
 whole commerce of the nation should be regulated by 
 Congress. From its very nature, this power must be 
 considered as exclusive ; for if the several States had 
 retained the right of regulating their own commerce, 
 each of them, as experience had indicated, would 
 probably have pursued a different system ; mutual jeal- 
 ousies, rivalries, restrictions, and prohibitions would 
 have ensued, which a common superior alone could 
 prevent or cure, and, at the same time, command that
 
 CONSTITUTIONAL JURISPRUDENCE. 247 
 
 confidence of foreign nations, which is necessary to 
 the negotiation of commercial treaties. 
 
 But the nature and extent of this power has been 
 fully and ably discussed, and satisfactorily settled by 
 the Supreme Court of the United States, especially in 
 a case which drew in question, and overruled the con- 
 stitutionality of the laws of New York, vesting in 
 certain individuals the exclusive right of steam navi- 
 gation upon its waters. 1 On that occasion, it was 
 held, that the general power to regulate commerce was 
 not restricted merely to the buying and selling or ex- 
 changing commodities, but included the navigation of 
 vessels, and commercial intercourse in all its branches, 
 and extended to all vessels, by whatsoever force pro- 
 pelled, and to whatever purpose appropriated. It was 
 observed by the venerable and lamented Chief Justice 
 Marshall, in delivering the opinion of the Court, that, 
 if commerce did not include navigation, the Govern- 
 ment of the Union had no direct power over that 
 subject, and could make no law prescribing the requi- 
 sites to constitute American vessels, or require them 
 to be navigated by American seamen ; yet this power 
 had been exercised from the beginning of the Govern- 
 ment, with the universal consent of the States and of 
 the Union, and had been as universally understood to 
 be a commercial regulation. The word commerce, in- 
 deed, must have been understood to comprehend navi- 
 gation when the Constitution was adopted, as the power 
 over both was one of the primary objects for which the 
 
 1 19 Wheat. 446. Having been consulted by the late Mr. Gibbons 
 before he determined to try the validity of this grant, it may not be 
 improper to subjoin the opinion given on that occasion. Vide Ap- 
 pendix F.
 
 248 LECTURES ON 
 
 Constitution was formed ; and in that comprehensive 
 sense is the term used in the Constitution. It is a 
 rule of construction universally acknowledged, that the 
 exceptions from a power mark its extent ; for it would 
 be absurd as well as useless to except from a power 
 granted, that which the words of the grant could never 
 comprehend. If, therefore, the Constitution contains 
 plain exceptions from the power over navigation 
 plain inhibitions against the exercise of that power in a 
 particular way it is evident that the power to which 
 they apply must have been intended to have been 
 granted. 1 
 
 The power to regulate commerce, thus understood, is 
 held to extend to every species of commercial inter- 
 course between the United States and foreign nations, 
 and among the States ; and although the expressions 
 relative to the States were not intended to comprehend 
 that commerce which is completely internal, and carried 
 on between individuals in a State, or different parts 
 of the same State, without extending to, or affecting 
 other States, yet, in regulating commerce with foreign 
 nations, the power of Congress does not stop at the 
 jurisdictional lines of the several States. 2 It would be 
 a very useless power if it could not pass those limits. 
 
 1 The Acts of Congress require that every vessel shall be registered 
 by the Collector of the District in which is the port nearest to the 
 place where the owner or owners reside. The name of this port 
 must be painted on her stern in large letters ; and every bill of sale 
 of her must be recorded in the office where she is registered. 17 
 Howard, 596. 
 
 2 But under this power, Congress cannot interfere with the ferries 
 of a State, except so far as they are used for carrying on the coasting- 
 trade ; nor with navigation on canals constructed by a State, or upon 
 inland lakes and rivers. 3 Cowen, 713.
 
 CONSTITUTIONAL JURISPRUDENCE. 249 
 
 The commerce of the United States with foreign na- 
 tions is the commerce of the whole Union, and every 
 district has a right to participate in it. The deep 
 streams which penetrate our country in every direction, 
 and pass through the interior of almost every State in 
 the Union, furnish the means of exercising this right. 
 If Congress have the power to regulate, that power 
 must be exercised wherever the subject exists. If it 
 exist within the States if a foreign voyage may com- 
 mence or terminate at a port within a State then the 
 power of Congress may be exercised within a State. 
 
 The power to prescribe the rule by which commerce 
 is to be governed, like all other powers vested in Con- 
 gress, is complete in itself, and may be exercised to its 
 utmost extent, without any limitations but such as are 
 prescribed in the Constitution. The restrictions on the 
 powers of Congress are there plainly expressed, and not 
 one of them affects the power in question. If, then, as 
 has always been understood, the sovereignty of Con- 
 gress, though limited to specific objects, be, nevertheless, 
 plenary as to those objects, the power over commerce 
 with foreign nations, and among the several States, is 
 as absolutely vested in the Government of the Union, 
 as it would be in the Government of any single State, 
 if the Union did not exist, and the State Constitution 
 had contained the same restrictions on the exercise of 
 the Legislative power as are found in the Constitution 
 of the United States. The wisdom and the discretion 
 of Congress ; the identity of its members with the 
 people ; and their dependence on their constituents, are 
 in this instance, as in that of declaring war, and many 
 others, the sole restraints upon which the community 
 have relied to secure them from the abuse of the power
 
 250 LECTURES ON 
 
 they have granted ; and such are the securities upon 
 which the people must often, of necessity, rely in all 
 representative Governments. 
 
 From these considerations, the power of Congress 
 was held to comprehend navigation within the limits 
 of every State in the Union, so far as that navigation 
 may be in any manner connected with " commerce 
 with foreign nations, or among the several States, or 
 with the Indian tribes ; " for the power of controlling 
 navigation is incident, as we have seen, to the power 
 to regulate commerce, and, consequently, the power of 
 Congress over vessels employed in navigation is coex- 
 tensive with that expressly vested in it over their 
 cargoes. 1 
 
 This power to regulate commerce, including thus the 
 regulation of navigation, as not confined to acts done 
 on the water. It extends to acts done on land which 
 interfere with, obstruct, or prevent commerce or naviga- 
 tion ; and any offence of this character, though com- 
 mitted on land, may be punished by Congress, under 
 its general authority to make all laws necessary and 
 proper to execute its expressly-delegated powers. A 
 larceny, therefore, of goods belonging to a ship in 
 distress, committed on a beach above high-water mark, 
 is held to be punishable in the Courts of the United 
 States. 2 
 
 Although this extensive power, like many other of 
 the powers formerly exercised by the several States, is 
 now transferred to the Government of the Union, and 
 no part of it thus exclusively vested in Congress, can 
 be exercised by a State, yet the State Governments 
 
 i 9 Wheat. 1. 25 Howard, 504.
 
 CONSTITUTIONAL JURISPRUDENCE. 251 
 
 constitute an important part of our system, and have 
 retained a concurrent power of legislation over many 
 subjects of Federal jurisdiction. The power of taxa- 
 tion, for instance, is indispensable to their existence, 
 and is a power which in its own nature is capable of 
 residing in, and of being exercised by, different authori- 
 ties at the same time. But the power of Congress to 
 lay and collect taxes and duties for the purposes of the 
 Union, does not, as we have seen, necessarily interfere 
 with the power of the States to impose taxes for State 
 objects ; nor is the exercise of that power by the States 
 an exercise o'f any portion of the power granted to the 
 United States. In imposing taxes for State purposes, 
 the State Legislatures are not exercising a power vested 
 in them even concurrently with Congress ; for Congress 
 is not empowered to levy taxes for objects within the 
 exclusive province of the States. Each Government, 
 therefore, when it respectively exercises its proper power 
 of taxation, does not exercise the power of the other. 
 But when a State proceeds to regulate commerce with 
 foreign nations, or among the several States, it exercises 
 the identical power which is granted to the Union, and 
 does the very thing that Congress is authorized to do. 
 The sole question, then, is whether the States can 
 exercise the power of regulating commerce concurrently 
 with the United States. 
 
 It was insisted, in the case referred to, that the States 
 possessed such concurrent power, and the party main- 
 taining the proposition relied on the restriction in the 
 Federal Constitution, which prohibits the States from 
 laying duties on imports or exports. It was alleged, 
 very truly, that limitations of a power furnish a strong 
 argument in favor of its existence, and that the pro-
 
 252 LECTURES ON 
 
 hibition in this case proved that the power to which 
 it related might have been exercised had it not been 
 expressly forbidden ; and hence it was inferred that 
 any commercial regulation, not expressly prohibited, to 
 which the power of the State was originally competent, 
 might still be made by its Legislature. 
 
 It was admitted, indeed, on the other hand, that the 
 restriction in question proved that the States might 
 have imposed duties on imports and exports, had they 
 not been expressly prohibited ; but it was denied that it 
 followed, as a consequence from that concession, that a 
 State may regulate commerce. The levying of duties 
 on imports and exports was held to be a branch of the 
 taxing- power, and entirely distinct from the power to 
 regulate commerce. The latter power is enumerated 
 in the Constitution subsequently to the former, and 
 each is substantively and independently conferred on 
 Congress. The power of imposing duties on imports 
 "is classed with the power of levying taxes ; but the 
 power of levying taxes conferred on Congress, although 
 it abridges the subjects of State taxation, can never 
 be considered as abridging the right of the States rela- 
 tive to taxation itself; and they might, consequently, 
 have exercised it by levying duties on imports and ex- 
 ports, had not the Constitution forbidden them. This 
 prohibition, then, is an exception from the acknowledged 
 power of the States to levy taxes, and not from the 
 questionable power to regulate commerce. So, also, 
 the exception in the Constitution, with regard to duties 
 on tonnage, is considered as a restriction on the power 
 of taxation, not on that to regulate commerce ; and, 
 like the former prohibition, presupposes the existence 
 of that which it restrains, and not of that which it does 
 not purport to restrain.
 
 CONSTITUTIONAL JURISPRUDENCE. 253 
 
 Neither are the State inspection laws regarded as 
 commercial regulations, although they may have a 
 remote and important influence on commerce, and are 
 certainly recognized in the Constitution as proceeding 
 from the exercise of a power remaining in the States. 
 But these, together with quarantine regulations, and 
 health laws of every description, as well as laws regu- 
 lating the internal commerce of a State, and those 
 which relate to canals, turnpike roads, and ferries, are 
 component parts of that immense mass of legislation 
 which embraces every thing within the territory of a 
 State not surrendered to the General Government, and 
 which, being of a local character, can be more advan- 
 tageously regulated by the States themselves. No 
 direct general power being given over these subjects 
 to Congress, they consequently remain subject to State 
 legislation ; and if the Legislative power of the Union 
 reaches them at all, it is for national purposes, and 
 must then be either where the power is expressly given 
 for a special purpose, or where it is clearly incidental 
 to some power expressly given to the National Govern- 
 ment. A State has the same undeniable and unlimited 
 jurisdiction over all persons and things within its terri- 
 torial limits, as any foreign nation, when that jurisdic- 
 tion is not surrendered or restrained by the Federal 
 Constitution. 1 The laws of the United States regu- 
 lating the transportation of passengers in vessels arriv- 
 ing from foreign ports, are obviously regulations of 
 
 1 The soil under the navigable waters of East New Jersey belongs 
 to the State, and not to the riparian proprietors. The Supreme 
 Court so decided in 16 Peters, 367 ; and the principle was held to 
 cover a case where land has been reclaimed from the water under 
 an Act of the State Legislature. 15 Howard, 426. 
 
 22
 
 254 LECTURES ON 
 
 commerce, as they only affect, through the power over 
 navigation, passengers on their voyage, and until they 
 have landed ; after that, and when they have ceased to 
 be passengers, the Acts of Congress, applying to them 
 only as such, and as such only professing to legislate 
 in regard to them, have then performed their office, 
 and can with no propriety of language be said to come 
 into conflict with the laws of a State requiring the 
 master of every vessel arriving therein from abroad to 
 make a report in writing of the names, ages, and last 
 legal settlement of his passengers ; for such law does 
 not assume to regulate commerce ; l its operation begins 
 only where the laws of Congress end, and is not even 
 on the same subject ; for although the persons on 
 whom it operates are the same, yet, having ceased to 
 be passengers, they no longer stand in the only relation 
 in which the laws of Congress either professed or 
 intended to act upon them. 
 
 The laws enacted in some of the States, prohibiting 
 or regulating the sale of intoxicating liquors within 
 their limits, are held not to interfere with the trade in 
 ardent spirits while the article remains a part of foreign 
 commerce, and is in the hands of the importer for sale, 
 in the cask or vessel in which the laws of Congress 
 authorize it to be imported. The State laws in ques- 
 tion act altogether upon the retail or domestic traffic 
 within their respective borders, upon the article after 
 it has passed the line of foreign commerce, and become 
 a part of the general mass of property in the State. 
 Such laws may discourage imports by diminishing the 
 price which ardent spirits would bring ; but no State is 
 
 1 11 Peters, 103.
 
 CONSTITUTIONAL JURISPRUDENCE. 255 
 
 bound to furnish a market for any article of merchan- 
 dise which Congress authorizes to be imported, or to 
 abstain from enacting a law which it may deem neces- 
 sary to guard the health or morals of its citizens, 
 notwithstanding such law may discourage importation, 
 or diminish the profits of the importer, or lessen the 
 revenue of the General Government. 1 
 
 It is obvious, therefore, that the Government of the 
 Union, in the exercise of its express powers, may use 
 means which may also be employed by a State in the 
 exercise of its acknowledged powers. If Congress, for 
 instance, license vessels to sail from one port to another 
 in the same State, the act is supposed to be necessarily 
 incidental to the power expressly granted to regulate 
 commerce with foreign nations and among the States, 
 and implies no claim of a direct power to regulate the 
 purely internal commerce of a State, or to act directly 
 on its system of domestic police. So, if a State, in 
 passing laws on subjects acknowledged to be within 
 its control, and, with a view to those subjects, adopt a 
 measure of the same character with one which Con- 
 gress may adopt, the State does not derive its authority 
 from the residuum which it retains of the particular 
 power granted to the Union, but from some other power 
 which remains with the State, and may be executed by 
 the same means used for the execution of the power by 
 Congress. All experience shows that the same meas- 
 ure or measures, scarcely distinguishable from each 
 other, may flow from distinct powers ; but this does 
 not prove that the powers are identical ; and although 
 the means used in their execution may sometimes ap- 
 
 1 5 Howard, 504.
 
 256 LECTURES ON 
 
 proach each other so nearly as to be confounded, there 
 are other situations in which they are sufficiently dis- 
 tinct to establish their individuality. 
 
 In our complex system, presenting the rare and diffi- 
 cult scheme of a Federal Government, supreme over 
 the whole of its members, but possessing only certain 
 enumerated powers, and of numerous State Govern- 
 ments, retaining and exercising all power not delegated 
 to the Federal head, contests respecting power must 
 necessarily arise. Measures taken respectively by the 
 Governments of the Union and of the States, in the 
 execution of their acknowledged powers, must often be 
 of the same description, and may sometimes interfere. 
 But this does not prove that the one is, in fact, exercis- 
 ing, or has a right to exercise, the powers of the other. 
 The States may sometimes enact laws, the validity of 
 which may depend on their not interfering with, or 
 being contrary to, an Act of Congress, passed in pursu- 
 ance of its constitutional powers ; in all such cases, the 
 inquiry is, whether the State law has, in its application, 
 come into collision with the Act of Congress ; and 
 should an actual collision be found to have taken place, 
 it would be immaterial whether the former were passed 
 by the State in virtue of its concurrent power with 
 Congress, or in virtue of a distinct and independent 
 power relating to a different subject ; in either case, the 
 Act of the State Legislature, and the right or privilege 
 conferred by it, must yield to rights and privileges 
 derived from the Act of Congress. It was therefore 
 held, in the case referred to, that a license under the 
 Acts of Congress, for regulating the coasting trade, is 
 not merely intended to confer a national character on 
 vessels engaging in it, but gives to them permission to
 
 CONSTITUTIONAL JURISPRUDENCE. 257 
 
 carry on that trade ; and as the power of Congress to 
 regulate commerce extends to navigation carried on in 
 vessels exclusively employed in the transportation of 
 passengers, whether those vessels be propelled by steam, 
 or by the instrumentality of wind and sails on waters 
 wholly within a State, but which may be approached 
 by the ocean a case of actual collision was presented 
 between the exclusive privilege conferred by the State 
 law on the one side, and the authority to carry on the 
 coasting trade derived, on the other, from the Act of 
 Congress ; and in so far as this interference extended, 
 the State law was declared to be void, as repugnant to 
 the Federal Constitution. 
 
 In a subsequent case, it was laid down by the same 
 authority, that, as the power to regulate commerce thus 
 reaches the interior of a State, and may there be exer- 
 cised, it must be capable of authorizing the sale of 
 those articles which it introduces, because its efficacy 
 would not be complete if it ceased to operate at the 
 point where the continuance of its operation is indis- 
 pensable to its value. The power to allow importation 
 would, indeed, be nugatory, if unaccompanied with the 
 power to authorize the sale of the thing imported ; for 
 sale is the object of importation, and an essential 
 ingredient of that commercial intercourse of which 
 importation constitutes a part, and is as indispensable 
 to the existence of that intercourse as importation itself. 
 The right of sale, as well as the right to import, was, 
 therefore, considered as involved in the power to regu- 
 late commerce ; and it was accordingly held that Con- 
 gress had a right, not only to authorize importation, 
 but to authorize the importer to sell. An Act of the 
 Legislature of Maryland, requiring all wholesale im- 
 22*
 
 258 LECTURES ON 
 
 porters and sellers of foreign goods to obtain a license 
 from that State, and to pay a sum of money on re- 
 ceiving it, was consequently adjudged to be void, as 
 repugnant not only to that provision of the Federal 
 Constitution which declares that " no State shall, with- 
 out the consent of Congress, lay any impost or duty 
 on imports or exports," but to that also which invests 
 Congress with power "to regulate commerce." 1 The 
 principles laid down on this occasion apply equally to 
 importations from another State, as, in both cases, the 
 powers remaining in the States, when so exercised as 
 to come in conflict with those vested in Congress, that 
 which is not supreme must yield to that which is. This 
 great universal truth is inseparable from the nature of 
 things ; and the Constitution has applied it to the often 
 interfering powers of the General and State Govern- 
 ments, as a vital principle of perpetual operation, so 
 long as the power to regulate commerce is admitted to 
 be exclusive. It has been so considered by every de- 
 partment of the Government, and by all classes of 
 citizens in every quarter of the Union, ever since the 
 adoption of the Federal Constitution. It was, indeed, 
 to effect this transfer of power that the Constitution 
 was established. This was the primary and avowed 
 motive for assembling the Convention of 1787. The 
 exclusive grant of this power to the National Govern- 
 
 1 9 Wheat. 1. But the Pennsylvania Statutes, imposing a duty on 
 retailers of foreign merchandise, have been held by the Supreme 
 Court of that State, not to be repugnant to the Constitution of the 
 United States. 1 Serg. Raw. 405. See also 2 McCord, 495; 14 
 Wend. 87 ; 1 Dev. $ Bar. 19. So also of a tax imposed on all per- 
 sons trading in foreign and domestic goods, within the State, whether 
 the capital employed be owned there or elsewhere. 4 Ham. 107.
 
 CONSTITUTIONAL JURISPRUDENCE. 259 
 
 ment was essential to impart to our shipping engaged 
 in foreign commerce its nationality and protection ; and 
 the surrender of this power became, in several of the 
 States, the most formidable obstacle to the ratification 
 of the new Constitution. The State of New York, 
 where the opposition was the strongest, possessed the 
 finest harbor on the coast " r the fertility of its yet uncul- 
 tivated western territory was already known ; the rapid 
 increase of its population had been confidently antici- 
 pated ; the tide of immigration had begun to flow in 
 upon it ; and the consequent accession of wealth and 
 power afforded the most seductive objects to gratify 
 the ambition of its statesmen and politicians. These 
 causes, indeed, combined to delay and render doubtful 
 its adoption of the Federal Constitution, until it was 
 rendered certain, by the assent of nine of the thirteen, 
 members of the Confederation, that the new Govern- 
 ment would go into immediate operation among the 
 States which had already acceded to it ; and that the 
 recusant States would thereby be deprived of the bene- 
 fits both of the former Confederacy and of the new 
 compact by which it was superseded. 
 
 A controversy, however, has of late years arisen, and 
 still exists, between the supporters of the National 
 jurisdiction and the advocates of " State Rights," with 
 regard to the constitutionality of laws for the improve- 
 ment of the Rivers and Harbors of the United States, 
 under the power vested in Congress " to regulate com- 
 merce," or any other power granted to the General 
 Government. On the one hand, it is maintained " that 
 the great object of the Constitution was to nationalize 
 the commerce and navigable waters of the Union by 
 uniting them under a common authority, to be uni-
 
 260 LECTURES ON 
 
 formly exercised, and that it therefore expressly prohib- 
 ited the several States from interfering in any way with 
 that authority. To those who assert that the States 
 possess merely a concurrent authority which they may 
 lawfully exercise upon the subject, until it be super- 
 seded by the paramount power of the Federal Govern- 
 ment, it has been deemed sufficient to answer that the 
 authority of the Union, at any rate, becomes supreme 
 when exercised. Again, that at the time of forming 
 the Federal Constitution, the common right of all the 
 citizens of all the States to navigate the Mississippi 
 and the Great Lakes was emphatically declared to be a 
 " RIGHT OF THE UNION," as contradistinguished from 
 the right of any separate State ; and it is now claimed 
 that this sacred and fundamental right is accompanied 
 by a duty equally sacred and fundamental ; that the 
 States surrendered to the Union all revenue derived 
 from commerce, and thus parted with the very means 
 of facilitating the business which produced that rev- 
 enue ; that they parted, too, with the control of those 
 navigable waters which furnish the channels of that 
 commerce ; that the States could never have intended 
 to dek'ver themselves up to the care of the Federal 
 Government, stripped of the means of securing the first 
 elements of their prosperity, and thus manacled and 
 fettered without an equivalent; and the only equiv- 
 alent which the case admitted was the substitution 
 of the Federal Government for the exercise of the 
 powers, and the performance of those correlative duties 
 which the exigencies of the Confederacy forbade to the 
 States ; that, in the very nature of things, the Federal 
 Government took the place, and received the powers 
 and, thereby, assumed the duties, of the States respec-
 
 CONSTITUTIONAL JURISPRUDENCE. 261 
 
 tively which they could not separately exercise con- 
 sistently with the peace and prosperity of the whole ; 
 and that this was the great compromise of the Consti- 
 tution." * 
 
 On the other hand, it is contended " that the Gov- 
 ernment of the United States is not a UNION, but a 
 ' CONFEDERACY ' ; in other words, that the People of 
 the United States are not a Nation, but merely a 
 League of States absolutely sovereign ; that the Nation 
 acts, on a grand scale, only as a common attorney for 
 those Sovereign States, each of which may judge of 
 the extent of the powers granted which are strictly 
 limited and must be strictly construed; that the Tribu- 
 nals expressly provided by the Constitution have no 
 authority to decide upon the extent of such limitation, 
 but that the President especially if elected by the 
 party holding these doctrines has full power to narrow 
 the exercise of the powers by Congress to suit his own 
 peculiar tenets." It is somewhat difficult to define or 
 comprehend the doctrines of this class of politicians, 
 but they seem to be these : That the power to regulate 
 commerce is merely the abstract power to regulate the 
 duties to be imposed upon it, and prohibit the States 
 from imposing such duties; that if the power exists 
 at all to afford any physical facilities, it is limited to 
 high-water mark; that Rivers cannot be improved above 
 the ports of entry established by Congress ; that a River 
 cannot be improved if lying wholly within a State ; 
 
 1 Vide the Address of the Convention of Delegates from eighteen 
 of the States, assembled at Chicago, in July, 1847, drawn up by that 
 distinguished jurist and statesman, the late JOHN C. SPENCER, who 
 attended as a Delegate from New York, and their Memorial pre- 
 sented to Congress at its next session.
 
 262 LECTURES ON 
 
 that it is not enough for a River to separate two States, 
 but it must adjoin or pass through three, at least; that 
 Harbors constructed by the General Government, must 
 be harbors for shelter and not for commerce ; that if it 
 be lawful to deepen navigable waters, it is not lawful 
 to place in them piers or any similar structures, as that 
 would encroach upon the territorial jurisdiction of a 
 State, and trespass on its sovereignty; that it is not 
 lawful to remove obstructions in navigable waters, but 
 that it is lawful to erect beacons on those obstructions, 
 although at a cost greater than the expense of removal." 
 On grounds such in substance as these, bills for the 
 improvement of certain Rivers and Harbors have been 
 vetoed by several of our Presidents ; and- on the last 
 occasion, a public meeting was held in the city of New 
 York, which was addressed by Samuel B. Ruggles, 
 Esq., an eminent member of the Bar, with great force 
 and eloquence. He observed that the " masterly expo- 
 sition " made by Mr. Spencer at Chicago, of the right 
 and duty of Congress to improve the Rivers and Har- 
 bors of the Union, was " not only one of the most 
 valuable state-papers ever produced in this country," 
 and conclusive upon the immediate subject, but that 
 it demonstrated besides, "the utter fallacy, folly, and 
 unconstitutionality of a plan of State tonnage duties " 
 which had been proposed by the opponents of the im- 
 provements contemplated by the Bills in question. A 
 Bill had been introduced into the House of Representa- 
 tives, giving the consent of Congress to certain local 
 tonnage duties to be levied by the States, and was 
 referred to the Committee of Commerce, of which Mr. 
 Washington Hunt, afterwards Governor of New York, 
 was Chairman. The Report he presented to the House
 
 CONSTITUTIONAL JURISPRUDENCE. 263 
 
 condemned the plan in the strongest terms. It took a 
 broad and comprehensive view of the commerce, foreign 
 and domestic, of the United States, and insisted upon 
 the just right of every portion of the Union to be fairly 
 protected in its enjoyment; it placed upon a proper 
 national basis, the duty which the Federal Government 
 had for a long time neglected, and reprobated the veto 
 interposed by the President to the Harbor Bill passed 
 by both Houses of Congress. The Resolutions by 
 which the Report was accompanied were passed by 
 large majorities, although the votes of two thirds of 
 the House of Representatives were not obtained to pass 
 the Harbor Bill, notwithstanding the objections of the 
 President. Nor was any such bill passed by Congress 
 until the accession of Mr. Fillmore to the Presidency. 1 
 
 Although the power to regulate commerce includes, 
 as we have seen, navigation, and pilot-laws are regula- 
 tions of navigation, and, therefore, of commerce, within 
 the grant to Congress, yet it does not preclude the 
 States from passing laws to regulate the pilotage. The 
 power in question includes various subjects, upon some 
 of which there should be a uniform rule, and upon 
 others, different rules in different localities. The power 
 in the former class, is exclusively in Congress ; but not 
 in the latter. 2 
 
 Under this power to regulate commerce, Congress 
 can exclude, either partially or wholly, any subject fall- 
 ing within the legitimate sphere of commercial regu- 
 lation. 3 Nor is this doctrine inconsistent with those 
 
 1 Vide " A Defence of the Rights and Duties of the American 
 Union to improve its Navigable Waters," by Samuel B. Ruggles, Esq., 
 New York, 1852. 
 
 2 12 Howard, 299. 3 9 fbid. 560.
 
 264 LECTURES ON 
 
 maintained by the Supreme Court in the case of Fox 
 v. The State of Ohio, 1 where it was held that the power 
 conferred on Congress " to provide for the punishment 
 of counterfeiting the securities and current coins of the 
 United States," does not prevent a State from passing a 
 law to punish the offence of circulating such counterfeit 
 coins. 
 
 The power of prohibiting the importation of slaves 
 into the United States, after a certain period had 
 elapsed, and of imposing a duty on their importation 
 during the intermediate period, is virtually included 
 in the power to regulate commerce, as the exception 
 which postponed its exercise arose from an express 
 restriction of the general power, and in construing the 
 Constitution as to grants of power to the United States 
 and the restrictions upon the States, the Supreme Court 
 has always held that an exception of any particular 
 case, presupposes that those which are not excepted, 
 are included within the grant or prohibition ; and has 
 laid it down as a general rule, that where no exception 
 is made in terms, none will be made by implication or 
 construction. 2 
 
 The words of the Constitution vesting this power 
 are, " The migration or importation" (not of slaves, for 
 that word is not to be found in the Constitution, but) 
 " of such persons as any of the States now existing 
 shall think proper to admit, shall not be prohibited 
 prior to the year 1808." It is by no means difficult to 
 account either for the existence of this restriction, or for 
 the terms in which it is expressed ; and although it is 
 
 1 5 Howard, 433. 
 
 2 12 Peters, 419, 657 ; 6 Wheat. 264 ; 9 Ibid. 206.
 
 CONSTITUTIONAL JURISPRUDENCE. 265 
 
 certainly to be wished that the power in question had 
 been free from it, yet it ought to be remembered that a 
 great point was gained in favor of humanity by fixing 
 a period for the termination of this barbarous traffic. 
 Before the time arrived, the interdiction was prospec- 
 tively enacted by Congress, and it took effect in time to 
 afford an example to civilized Europe of abolishing a 
 species of commerce which had been the opprobrium 
 of modern policy. This interdiction was followed up 
 by denouncing the foreign slave-trade as piracy, and 
 rendering it punishable with death when pursued by 
 our own citizens ; and, by the treaty with Great Britain 
 of 1815, we have stipulated to cooperate with her, by 
 means of our navy, to suppress it more effectually. 
 But still the blot remains : for, though the toleration 
 granted by the Constitution was confined to the States 
 " then existing," yet Congress has refused to imitate 
 the example of their predecessors under the Confedera- 
 tion, who prohibited slavery in the Territories ceded by 
 the elder States for the common benefit, by a similar 
 restriction upon the new States created in them ; it has 
 abstained from suppressing the domestic slave-trade, or 
 "the migration of such persons as any of the States 
 then existing should think proper to admit," which was 
 not exempted from the power of regulating commerce 
 among the States for any longer period than the foreign 
 slave-trade was tolerated as an exception to the power 
 of regulating commerce with foreign nations. Nor has 
 it listened to the numerous petitions for abolishing 
 slavery and the slave-trade in the Territories under its 
 exclusive jurisdiction, and especially in the District of 
 Columbia, the seat of the National Government, the 
 residence of the representatives of foreign sovereigns, 
 23
 
 266 LECTURES ON 
 
 and the resort of strangers and visitors from all quarters 
 of the globe. 
 
 The founders of the Republic seem, universally, to 
 have regarded slavery as an evil ; and under the Con- 
 federation, provided, in the Ordinance of 1787 for the 
 government of the Territory of the United States, 
 Northwest of the River Ohio, against the introduction 
 and existence of slavery therein. 
 
 The original author of this celebrated measure was 
 Mr. Jefferson. As chairman of a committee appointed 
 to prepare a plan for the government of this newly 
 acquired Territory, he reported to Congress an Ordi- 
 nance for that purpose in 1784. As it came from his 
 hands, it contained the prohibition against the introduc- 
 tion of slavery ; but the clause was stricken out in 
 Congress, at the instance of the three Southern States 
 present, because it was unaccompanied by any pro- 
 vision for the recovery of fugitive slaves ; and the 
 Ordinance was passed without any attempt to reinstate 
 the clause. The next year, this prohibitory clause, with 
 some modification, was moved by Mr. Rufus King, then 
 of Massachusetts, and was referred, as a proposition to 
 a Committee, but was not then acted upon. 1 Upon its 
 revision, in 1787, the Ordinance was adopted as it now 
 stands, and it may well be considered as a Southern 
 measure, not only from the source whence it sprang, 
 but from the circumstance that three of the six mem- 
 bers who composed the Committee were from slave- 
 holding States two of them, including the Chairman, 
 from Virginia, 2 and it was finally passed by the votes 
 
 1 See Journ. Cong. 1784-1785. 
 
 2 The authorship of the Ordinance of 1787, has been claimed for 
 Mr. Nathan Dane, of Massachusetts ; but that gentleman did not
 
 CONSTITUTIONAL JURISPRUDENCE. 267 
 
 of the eight States present, and received the individual 
 vote of every member present, except one from New 
 York. 1 By the same vote the Ordinance of 1784 was 
 repeated. 2 
 
 The evil as it existed in the individual States, was 
 not considered beyond cure. In several of them, sys- 
 tems of gradual emancipation were adopted at an early 
 day ; and for some years a remedy, slow but sure, was 
 silently operating in those slave States which bounded 
 upon those from which slavery was excluded. It was 
 supposed that the former would be compelled to aban- 
 don slave labor, from its inability to compete success- 
 fully with the labor of freemen. But the introduction 
 of the cotton-plant into the Southern States, and its 
 cultivation as an article of profitable commerce, in- 
 creased the demand for laborers of African birth or 
 descent, who, by their physical constitution, were sup- 
 posed to be the best adapted, if not alone able, to bear 
 the exposure incident to that species of cultivation. 
 The foreign slave-trade was soon to be abolished, and 
 the subsequent supply could then only be afforded by 
 those States in which slavery still existed. The demand 
 thus created operated as a temptation to retain slavery 
 where the labor of slaves was no longer necessary, for 
 the mere purpose of furnishing, through their natural 
 increase, an article of commerce with those States 
 where their labor continued to be, or had become 
 profitable. 
 
 enter Congress until nearly two years after 1784, and although a 
 member of the committee of 1787, he was not its Chairman. 
 
 1 Mr. Yates, afterwards Chief Justice of the Supreme Court of 
 that State. 
 
 2 See Journ. Cong. July 11, 12, 13, 1787.
 
 268 LECTURES ON 
 
 The acquisition of Louisiana brought with it an 
 additional number of slaves ; and as its population 
 increased, and its agriculture extended, a new market 
 opened for them. When the Missouri Territory, which 
 had been set off from Louisiana, organized itself as a 
 State, in 1829, and sought admission into the Union, 
 as a slave State, it did not gain it until after a severe 
 struggle. The opposers of the measure endeavored to 
 apply to it the provision of the Ordinance of 1787, the 
 authorship of which had been ascribed to Mr. Jefferson, 
 whose authority they quoted in support of their argu- 
 ments. As one of the Revisers of the Laws of Vir- 
 ginia, soon after the Revolution, that eminent statesman 
 and philanthropist proposed to emancipate all slaves 
 born subsequently to the adoption of the revised stat- 
 utes, but that they should continue with their parents 
 to a certain age, and then be brought up at the public 
 expense, until the females should have attained the age 
 of eighteen years, and the males, twenty-one ; " when 
 they should be colonized to such place as the circum- 
 stances of the time should render most proper, to declare 
 them an independent people, and extend to them our alli- 
 ance and protection, till they have acquired strength." 1 
 Thus foreshadowing, with a remarkable coincidence, 
 the scheme since so beneficially carried out by the 
 American Colonization Society. 2 
 
 1 Notes on Virginia, Query, XIV. page 203, Pennington & Gould's 
 edit, N. Y., 1801. 
 
 2 Amongst the objections that Mr. Jefferson supposed would be 
 made to his project, he anticipated the question, " Why not retain, 
 and incorporate the blacks into the State ? " To this he emphatically 
 replied: "Deep-rooted prejudices entertained by the whites; ten 
 thousand recollections by the blacks of the injuries they have sus- 
 tained ; new provocations ; the real distinctions that nature has made,
 
 CONSTITUTIONAL JURISPRUDENCE. 269 
 
 The opposition to the admission of Missouri into 
 the Union as a State, terminated, as is well known, in 
 the compromise that no other slave State should be 
 admitted beyond the parallel of 36 30' of North lati- 
 tude; and thus was an agitation which, for a while, 
 interrupted the harmony, and threatened the integrity 
 of the Union, quieted for a season. When the Floridas 
 were acquired, and had passed from the condition of a 
 Territory into that of a State, no question of this kind 
 could arise, as it lay below the line reserved to freedom. 
 But upon the subsequent acquisition of the extensive 
 territories ceded by Mexico, another and more violent 
 agitation of the same questions which, on the former 
 occasions, disturbed the peace, of the Union, again arose, 
 and were again ended in a compromise which included 
 
 and many other circumstances, will divide us into parties, and produce 
 convulsions which will probably end but in the extermination of one 
 or the other race. Ibid. p. 204. 
 
 In 1803, another Virginian of equal celebrity, John Randolph, of 
 Roanoke, as Chairman of a Committee of the House of Representa- 
 tives, to whom was referred a memorial from Indiana, praying for a 
 temporary suspension of the anti-slavery clause of the Ordinance of 
 178T, reported against it as follows: "That the rapid population of 
 the State of Ohio sufficiently evinces that the labor of the slave is 
 not necessary to promote the growth and settlement of colonies in 
 that region ; that this labor, demonstrably the dearest of any, can 
 only be employed to advantage in the cultivation of products more 
 valuable than any known to that quarter of the United States ; and 
 the Committee deem it highly dangerous and inexpedient to impair a 
 provision wisely calculated to promote the happiness and prosperity 
 of the Northwestern Country, and to give strength and security to that 
 extensive frontier. In the salutary operation of this sagacious and 
 benevolent restraint, it is believed that the inhabitants of Indiana 
 will, at no very distant day, find ample remuneration for a temporary 
 privation of labor and emigration." Journ. H. of Rep. 1803. 
 
 23*
 
 270 LECTURES ON 
 
 further and more stringent provisions for the surrender 
 of " fugitives from labor," or slaves escaping from their 
 Southern Masters, and taking refuge in the free States. 
 
 A provision for this purpose was one of the compro- 
 mises of the Constitution ; and from the phraseology 
 of the clause containing it, it would seem to have been 
 intended to throw the duty of surrendering the fugitive 
 upon the State into which he might escape ; and, con- 
 sequently, to impose upon the Courts and Magistrates 
 of that State, the obligation of giving effect to the 
 provision by their official interposition. 1 But, as we 
 have seen, the duty of executing the laws of the Union, 
 by those Courts and officers, was held to be optional 
 with them, and no State had passed a law to render it 
 otherwise. From these circumstances, probably, Con- 
 gress was induced, notwithstanding the prevalence of 
 the opinion just mentioned, and not until some few 
 years after the adoption of the Federal Constitution, to 
 pass the Act of 1793, relative to fugitives from labor, 
 as well as from justice. 
 
 The constitutionality of this Act, though strenuously 
 questioned, has been eventually affirmed by the Su- 
 preme Court of the United States, in all its leading 
 provisions, except that which confers authority upon 
 State Magistrates. 2 The Judges, however, were not 
 unanimous in their general view of this clause of the 
 Constitution ; and the question may again be brought 
 in review before the Court in relation to the new Act 
 upon the subject passed in 1850, as that Act presents 
 new matter for consideration ; and from the contrariety 
 
 1 See Const. U. S., Art. IV. Sect. n. 8. 
 
 2 16 Peters, 539.
 
 CONSTITUTIONAL JURISPRUDENCE. 271 
 
 of the views taken by the Judges in regard to the 
 former Act, as well as from circumstances since tran- 
 spired in some of the States, it is, indeed, desirable that 
 the subject should be deliberately reconsidered. 1 
 
 1 An occasion for such a review will probably be afforded in con- 
 sequence of a recent decision of one of the State Courts, which it 
 may be safely presumed will not be acquiesced in, but carried up to 
 the Supreme Court of the United States. A person charged with 
 having participated in the forcible rescue of a fugitive slave was 
 brought up on a Habeas Corpus before one of the Judges of the 
 Supreme Court of Wisconsin, and discharged. The opinion delivered 
 by the Judge is very long and elaborate. The chief points made are 
 that the article in the Constitution on which the law of 1850, for the 
 reclamation of fugitive slaves rests, was merely a compact by the 
 contracting parties to the Constitution, by which the free States were 
 to be bound to provide legislation under due course of law, and 
 after examination of facts, for the return of such persons, but that no 
 power was conferred upon Congress to legislate upon the matter, and 
 that it is the duty of the States to provide such legislation. The fact 
 that Congress has not power to punish State officers for refusing to 
 provide such legislation, is a proof that the matter remains in form of 
 a compact. That it is clear that Congress cannot constitutionally act 
 upon this subject ; while it is also clear that the States cannot pass 
 laws discharging fugitives from service. All such laws must be void. 
 That the Constitution contemplates an examination into the claims of 
 the claimant of the fugitive, to be made where he is, by presumption, 
 free, while the Act of 1850 makes the decision or warrant of a Judge 
 or Commissioner a judgment in fact, without trial or examination. 
 That, in order to ascertain to whom " such service or labor is due," 
 examination and inquiry must be made. If services or labor, is due, 
 the fugitive must be given up ; but the fact must be ascertained. 
 There is an issue of fact to be tried. The suit to try this fact is not 
 a suit in Equity or Admiralty, and must be at Common Law ; hence 
 a trial by Jury is demanded properly. The Act of 1850 is unconsti- 
 tutional, in that it violates the principles which forbid that persons 
 shall be deprived of liberty without " due process of law." The 
 summary proceedings under this Act of 1850 clearly violate this
 
 272 LECTURES ON 
 
 This Act of 1850, together with others passed at the 
 same time, formed a new compromise. It adopts the 
 same parallel of latitude for the exclusion of slavery, 
 extending through the additional territory acquired from 
 
 provision. He refers at length to the varying sentiments of the Court 
 in the case of Prigg v. Pennsylvania, and thinks that, in view of the 
 doubts thrown around that case by the United States Judges them- 
 selves, they ought to review their decision. The case having been 
 carried up to the Supreme Court of the State, this opinion was sus- 
 tained and affirmed mainly on two grounds : the insufficiency of the 
 commitment, and the unconstitutionality of the Fugitive Slave Act 
 in delegating to Commissioners the power to hear and determine in 
 cases arising under this Act. One of the Judges, who concurred 
 with his brethren in holding that the party was properly discharged 
 from arrest, and that the writ of Habeas Corpus was rightly granted, 
 dissented from the view taken of the unconstitutionality of the Fugi- 
 tive Slave Act. 
 
 The Court, in giving its opinion, insisted upon the fallacy in the 
 argument that the proceedings under the Fugitive Slave law are 
 analogous to those by which the fugitive from justice is delivered up. 
 
 The fugitive from justice is delivered to an agent appointed by the 
 Governor of the State where the offence is alleged to have been com- 
 mitted, without any adjudication upon the question of his guilt or 
 innocence ; in other words, he is delivered to the officer of the law, 
 and is in the custody of the law for the purpose of being taken to the 
 State where alone he can be tried for the alleged offence. But the 
 case is very different with the alleged fugitive from labor. There is an 
 adjudication before the Commissioner, that he owes service or labor, 
 and that he has escaped. By force of the Act of Congress under 
 consideration, the record made in the State from which he is said to 
 have escaped, is conclusive evidence that his status is that of a slave. 
 
 The Commissioner is obliged, if his identity is proved, so to adjudge, 
 and the certificate, which is given to the claimant, is given because 
 the Commissioner has so adjudged. 
 
 But the Court regarded this power given to the Commissioner to 
 send the alleged fugitive from labor back to the State from which he is 
 alleged to have escaped, as a condemned slave, to be unconstitutional,
 
 CONSTITUTIONAL JURISPRUDENCE. 273 
 
 Mexico. It withdraws from the State Courts and 
 Magistrates all jurisdiction in regard to fugitives from 
 labor, vesting it, exclusively, in the Courts and officers 
 of the United States ; and gives greater facilities for 
 the recovery of the fugitive, and heavy penalties for 
 interference with its execution. Thus, again, was agita- 
 tion calmed, and peace restored, as it was supposed, 
 permanently. But that hope has proved delusive. At 
 the first session of the thirty-third Congress, an Act 
 passed for organizing the Territorial Governments of 
 Nebraska and Kansas, portions of the former Province 
 of Louisiana, but lying north of the parallel of 36 30', 
 and nearly uninhabited, except by roving bands of 
 Indians. 
 
 This Act, which repeals the prohibition of slavery 
 beyond that parallel, and thus opens to it those exten- 
 sive regions, has given rise to greater and more de- 
 termined opposition, and more violent and serious 
 agitation than was manifested on any former occasion. 
 A remedy, however, may, in this case, be afforded by 
 the projected settlement of these Territories by free 
 
 because judgment is entered against him without " due process of 
 law," and without his rights being determined by a jury. A State 
 under its general and admitted power to define and punish offences 
 against its own peace and policy, may repel from its borders an unac- 
 ceptable population, whether paupers, criminals, fugitive, or liberated 
 slaves; and consequently may punish her citizens, and others who 
 thwart this policy, by harboring, secreting, or in any way assisting 
 such fugitives. 15 Howard, 13. In this case, it was held by Taney, 
 Chief Justice, that not only are the States not prohibited from legis- 
 lating respecting the surrender of fugitive slaves, but, on the contrary, 
 that it is enjoined upon them as a duty to protect and support the 
 owner when he is endeavoring to obtain possession of his property 
 found within their respective limits.
 
 LECTURES ON 
 
 immigrants. Such, indeed, would probably have been 
 their character, without any attempt to secure that 
 result, and notwithstanding the efforts to counteract 
 the design by the immediate introduction of slaves. 
 Nor do the authors of the repeal seem to have con- 
 templated any other event ; but to have advocated and 
 sustained their measure with the view of establishing 
 it as a "principle" and applying it, as a precedent, to 
 future acquisitions of territory. Unfortunately, their 
 designs have been forwarded, rather than impeded, by 
 the very interference intended to defeat them. But, 
 however impotent must ever prove the rash and unto- 
 ward attempts of those claiming to be the exclusive 
 friends and infallible advocates of emancipation, who, 
 with the blindness of ignorance and fanaticism, de- 
 nounce all who refuse to cooperate in their impracti- 
 cable schemes, henceforth, the influence of these zealots, 
 increased as it has been by the equally rash proceedings 
 of fanatics of another character, and in another quarter, 
 will be merged in a more general and enlightened oppo- 
 sition to the measures in question. And may we not 
 hope that the latent patriotism of their authors and 
 abettors will deter them from persevering in their reck- 
 less course, at the risk of severing the Union, and the 
 sacrifice of their own usefulness ; or, if this should fail, 
 may we not still hope that the natural influence of 
 benevolence, mildness, and Christian charity and moder- 
 ation will advance in geometrical progression, until the 
 foul blot upon the national escutcheon be obliterated, 
 rather by the hand of Providence, than by any effort 
 of our own. 
 
 Dens hcec fortasse benigna, 
 
 Reducit in sedem vice.
 
 CONSTITUTIONAL JURISPRUDENCE. 275 
 
 LECTURE IX. 
 
 ON THE POWERS VESTED IN THE FEDERAL GOVERNMENT 
 FOR MAINTAINING HARMONY AMONG THE STATES. 
 
 THE authority vested in the General Government to 
 provide for the maintenance of harmony and proper 
 intercourse among the States, comprises the third class 
 of powers enumerated in the Constitution. Under this 
 head might, with propriety, be included the particular 
 restraints on the authority of the States, and certain 
 powers vested in the Judicial department ; but the 
 former are reserved for a distinct head of consideration, 
 and the latter have already been reviewed in our ex- 
 amination of the structure and organization of the 
 Government. 
 
 The remaining powers comprehended in this descrip- 
 tion are, 
 
 First. To regulate commerce among the several 
 States, and with the Indian tribes. 
 
 Second. To establish post-offices and post-roads. 
 
 Third. To coin money, and regulate the value thereof, 
 and of foreign coin ; to fix the standard of weights and 
 measures. 
 
 Fourth. To provide for the punishment of counter- 
 feiting the securities and current coin of the United 
 States. 
 
 Fifth. To prescribe by general laws the manner in
 
 276 LECTURES ON 
 
 which the public acts, records, and Judicial proceedings 
 of one State shall be proved, and the effect they shall 
 have in another. 
 
 Sixth. To establish a uniform rule on the subject of 
 naturalization throughout the United States. 
 
 Seventh. To establish uniform laws on the subject of 
 bankruptcies. 
 
 I. The power to regulate commerce among the States 
 had been clearly pointed out, by experience under the 
 Confederation, to be essential to the General Govern- 
 ment. Without this supplemental provision, indeed, 
 the primary and indispensable power of regulating 
 foreign commerce would have been incomplete and 
 ineffectual, if not altogether nugatory. A very mate- 
 rial object of the power was to secure those States 
 which import and export through other States from 
 unjust contributions levied on them by the latter. It 
 was foreseen that, if the several States were left at 
 liberty to regulate their mutual commerce, means would 
 be discovered or devised to load articles of produce and 
 merchandise, in their transit, with duties that would 
 eventually fall on the growers or manufacturers of the 
 one, and the consumers of the other. Such practices 
 had prevailed, and it was justly apprehended that their 
 continuance would nourish increasing animosities, and 
 not improbably terminate in serious interruptions of the 
 public tranquillity. 
 
 In the important case referred to in the last Lecture, 1 
 the whole doctrine relative to the construction of this 
 part of the Constitution was largely and deliberately 
 discussed, and definitively and satisfactorily settled. It 
 
 1 Gibbons v. Ogden.
 
 CONSTITUTIONAL JURISPRUDENCE. 277 
 
 was declared on that occasion, that the power to regu- 
 late commerce among the States did not extend to 
 that commerce which is completely internal ; and that, 
 comprehensive as are the terms in which it is conferred, 
 the power in question is, nevertheless, restricted to 
 that commerce which concerns more. States than one. 
 Those terms would hardly have been selected to indi- 
 cate the completely interior traffic of a State, because 
 they are not apt terms for that purpose ; and the enu- 
 meration of the particular classes of commerce to which 
 the power was to extend would not have been made, 
 had the intention been to extend the power to com- 
 merce of every description. The specification itself 
 presupposes something not specified, and from the lan- 
 guage and subject of the clause, it would seem that 
 the exclusively internal commerce of a State is not 
 comprehended. The genius and character of the whole 
 Government, indeed, evince that its action is to be 
 applied to all the external concerns of the nation, and 
 to those internal concerns which affect the States gen- 
 erally, but not to those which are completely within a 
 particular State, which do not affect other States, and 
 with which it is not necessary to interfere for the pur- 
 pose of executing any of the general powers of the 
 Federal Government. 
 
 The completely internal commerce, therefore, of every 
 State is reserved for the State itself. But as the power 
 of Congress in regulating foreign commerce does not 
 stop at the jurisdictional lines of the States, and would 
 be a very useless power if it did not pass those limits, 
 it is, if possible clearer, that the power to regulate 
 commerce among the States is not limited by State 
 boundaries. For not only do waters communicating 
 24
 
 278 LECTURES ON 
 
 with the ocean penetrate into the interior of the country, 
 and pass in their course through several States, but in 
 many cases in the signal instance of the Western 
 Lakes there are waters in and upon the boundaries 
 of several States, which are not navigable to the sea 
 for the purposes .of foreign commerce, while they fur- 
 nish means of commercial intercourse between those 
 States, and, consequently, afford occasions to Congress 
 for the exercise of the power in question. This power 
 must be exercised wherever the subject exists, and if 
 the means of commercial intercourse among the States 
 exist within a State if a coasting voyage may com- 
 mence or terminate within a State then the power 
 of Congress to regulate commerce among the several 
 States may be exercised within a State. 
 
 The States either join each other, in which case they 
 are separated by a mathematical line, or they are re- 
 mote from each other, in which case other States lie 
 between them. How, then, it has been asked, is com- 
 mercial intercourse between them to be conducted ? 
 A trading expedition between two adjoining States 
 cannot commence and terminate beyond the limits of 
 either ; and if the trading intercourse be between two 
 States remote from each other, it must commence in 
 one, terminate in another, and pass through at least a 
 third. Commerce among the States must of necessity, 
 then, be commerce within a State. In the regulation 
 of the trade with the Indian tribes, the action of the 
 law, especially when the Constitution was made, was 
 chiefly within a State ; and in this case, as well as in 
 regard to commerce among the States, the power of 
 Congress is coextensive with the subject on which it 
 acts. It cannot, in either case, be stopped at the ex-
 
 CONSTITUTIONAL JURISPRUDENCE. 279 
 
 ternal boundary of a State, but must enter the limits, 
 and be exercised within the territorial jurisdiction of all 
 the States. The grant of Congress, however, to regu- 
 late commerce on the navigable waters of the several 
 States, contains no cession of territory, or of public or 
 private property; the States may regulate the use of 
 fisheries within their territorial limits, though upon 
 navigable waters, provided their free use for the pur- 
 poses of navigation and commerce be not interrupted. 1 
 
 The power of Congress to regulate commerce among 
 the States, extends to the regulation of navigation, and 
 to the coasting trade, and fisheries within, as well as 
 without any State, 2 wherever they are connected with 
 the commercial intercourse with any other State, or 
 with foreign nations. It extends also to the regulation 
 and government of seamen ; to conferring privileges 
 upon vessels engaged in the coasting trade ; and to the 
 navigation of vessels engaged solely in carrying pas- 
 sengers, as well as to those engaged in traffic, whether 
 propelled by steam or otherwise. 
 
 The principles laid down in another case, also re- 
 ferred to in my last Lecture, where an Act of a Legis- 
 lature requiring importers and venders of foreign goods 
 
 1 4 Wash. Cir. Rep. 371. A State, under its general and admitted 
 power to define and punish offences against its own peace and policy, 
 may repel from its borders an unacceptable population, whether pau- 
 pers, criminals, fugitives, or liberated slaves, and, consequently, may 
 punish its citizens, or others who thwart this policy, by harboring, 
 secreting, or in any way assisting such persons ; and it is no objection 
 to such legislation that the offender is liable to punishment under the 
 law of Congress, for the same acts, when injurious to the owner of a 
 fugitive slave. 14 Howard, 13. 
 
 2 See note, p. 258.
 
 280 LECTURES ON 
 
 to pay for a license from a State Government in order 
 to entitle them to pursue that branch of mercantile 
 business, were declared repugnant to the Constitution 
 were held to apply equally to a similar interference 
 with importations from one State into another. In 
 that case, although the power of the State to regulate 
 its purely internal commerce, and to establish its own 
 police to control and promote that trade and intercourse, 
 and to guard the public health and safety, was held to 
 be sacred ; yet it was by no means admitted that these, 
 or any other acknowledged State powers, could, con- 
 sistently with the Federal Constitution, be so used as 
 to obstruct or defeat the power of Congress to regulate 
 commerce in any of its branches. But it was again 
 explicitly declared that, whenever the powers remaining 
 in the States are so exercised as to come into conflict 
 with those vested in Congress, the former must yield to 
 what the Constitution has ordained to be the supreme 
 law of the land. 1 Nevertheless, if measures undoubt- 
 edly within the powers of the States do not come into 
 actual collision with those of the General Government, 
 the Federal Courts can take no cognizance of them or 
 their effects. 2 
 
 1 The Statutes of New York and Massachusetts, imposing taxes 
 upon alien passengers arriving at their ports, have been declared by 
 the Supreme Court to be contrary to the Constitution and laws of the 
 United States, and therefore null and void. 6 Howard, 283. But a 
 State has a right to tax its own citizens for the prosecution of any 
 particular business or profession within the State. 8 Howard, 93. 
 Nor is a State law, imposing a tax upon inheritance and successions 
 to property, by foreigners, not domiciliated therein, repugnant to the 
 Constitution of the United States. Ibid. 490. 
 
 2 2 Peters, 250.
 
 CONSTITUTIONAL JURISPRUDENCE. 281 
 
 With respect to commerce with the Indian tribes, we 
 are to adopt the same broad interpretation of the power 
 of Congress. Under the Confederation, this power was 
 restrained to Indians not members of any of the States ; 
 and was not to violate or infringe the Legislative right 
 of any State within its own limits. But what descrip- 
 tion of Indians were to be deemed members of a State, 
 was a question of perplexity and contention in the 
 Federal councils, and was never settled ; and how the 
 trade with the Indians not members of a State, yet 
 residing within its Legislative jurisdiction, could be 
 regulated by Congress without intruding upon the right 
 of internal legislation, seems to have been considered 
 incomprehensible by that compact. The power in ques- 
 tion was, therefore, very properly, unfettered by the new 
 Constitution from limitations which rendered the former 
 provision so obscure and contradictory. As it now 
 stands, it is applicable to all the Indian tribes ; and it 
 is immaterial whether they continue within the bounda- 
 ries of a State, or inhabit a part of one of the Terri- 
 tories, or roam at large through regions over which 
 the United States have no jurisdiction ; the trade with 
 them is, in all its forms, subject exclusively to the regu- 
 lation of Congress. By the wisdom and benevolence 
 of this provision, the Indians are no longer distracted 
 by the discordant regulations of different sovereignties, 
 but are taught to trust to one supreme head, whose 
 justice they should ever have as much reason to respect, 
 as cause to fear its power. 
 
 The relation of the aborigines to the Government of 
 the United States is marked by peculiar and cardinal 
 distinctions. The Indian territory is admitted to com- 
 24*
 
 282 LECTURES ON 
 
 pose a part of the Federal domain ; in all our maps, 
 geographical treatises, histories, and laws, it is so con- 
 sidered : in all our intercourse with foreign nations ; in 
 our commercial regulations; in any attempt at inter- 
 course between the Indians and foreign powers, they 
 are considered as within the jurisdictional limits of the 
 United States, subject to many of those restraints 
 which are imposed on our own citizens. They ac- 
 knowledge themselves in their treaties to be under the 
 protection of the Federal Government ; they admit that 
 it shall have the sole and exclusive right of regulating 
 the trade with them, and managing all their affairs 
 as it may think proper. In the particular instance of 
 the Cherokees, they were allowed by a treaty, which 
 preceded the present Constitution, " to send a deputy 
 of their choice, whenever they saw fit, to Congress;" 
 and, under the unsettled construction of the Articles of 
 Confederation, treaties were made with some tribes by 
 the State of New York, by which they ceded all their 
 unsettled lands within that State, taking back a limited 
 grant to themselves, in which they admit their depend- 
 ence on that State. 
 
 As to those tribes which reside within the acknowl- 
 edged boundaries of the Union, we have seen that they 
 are not deemed foreign nations within the meaning of 
 the Constitution, but are considered as domestic, depend- 
 ent nations ; they occupy a territory to which we assert 
 a title which must take effect when their right of occu- 
 pancy ceases ; and, in the mean time, they are in a 
 state of pupilage to the Federal Government. They 
 and their country are considered by foreign nations, as 
 well as ourselves, as being so completely under the 
 sovereignty and dominion of the United States that
 
 CONSTITUTIONAL JURISPRUDENCE. 283 
 
 / 
 
 any attempt to acquire their lands, or form a political 
 connection with them, would be considered as a hostile 
 invasion of our territory. They are distinguished in 
 the Constitution, by an appropriate name, from foreign 
 nations, as well as from the several States of the Union ; 
 and the objects to which the power now under consid- 
 eration may be directed, are divided into distinct classes 
 corresponding with that distinction. A brief reference 
 to the origin of these discriminations will explain the 
 principles on which they are founded, and enable us to 
 determine with greater accuracy the nature and char- 
 acter of the subsisting relations between the United 
 States and the Indian tribes. 
 
 When the great maritime powers of Europe visited 
 and discovered different parts of this continent at nearly 
 the same time, the principle adopted for deciding their 
 respective rights was, " that discovery gave title to the 
 Government by whose subjects or by whose authority 
 it was made, against all other European Governments, 
 which title might be consummated by possession. " x 
 The admission of this principle gave to the nation mak- 
 ing a discovery, as an inevitable consequence, the sole 
 right of acquiring the soil and of making settlements 
 upon it ; and while the principle itself was, as to them, 
 an exclusive one, and shut out the right of competition 
 among those who agreed to it, it could not annul 
 the previously acquired rights of those who had never 
 adopted or acknowledged it. It regulated the right 
 given by discovery among the European claimants, but 
 could not affect the rights of those already in possession, 
 either as original occupants, or as occupants by virtue 
 
 i 8 Wheat. 573.
 
 284 LECTUKES ON 
 
 of a discovery beyond the memory of man. It gave 
 an exclusive right to purchase, but did not found that 
 right on a denial of the right of the occupant to sell. 
 
 The relation between the Europeans and the natives 
 was determined in each case by the particular Gov- 
 ernment which asserted, and could maintain, this pre- 
 emptive privilege in the particular place. The United 
 States succeeded to all the claims of Great Britain, 
 both territorial and political ; but no attempt, so far as 
 is known, has been hitherto made to enlarge them. So 
 far as they existed merely in theory, or were, in their 
 nature, exclusive only of the claims of other civilized 
 nations, they still retain their original character, and 
 continue dormant. But so far as they have been prac- 
 tically exerted, they exist in fact ; they are well under- 
 stood by both parties ; have been asserted by the one 
 and admitted by the other. When the war of the 
 Revolution commenced, so far from advancing a claim 
 to their lands, or asserting any right of dominion over 
 their persons, Congress resolved " that the securing and 
 preserving the friendship of the Indian nations was a 
 subject of the utmost moment." Commissioners were 
 appointed " to treat with the Indians, in the name and 
 on the behalf of the United Colonies, in order to pre- 
 serve their peace and friendship;" and the most stren- 
 uous exertions were made to procure those articles on 
 which Indian friendships were supposed to depend ; 
 and, in short, every thing was done to promote trade 
 and avoid hostilities with them. 
 
 The general law of European sovereigns, respecting 
 their claims in America, limited the intercourse of indi- 
 viduals, in a great degree, to the particular potentate 
 whose ultimate right of domain was acknowledged by
 
 CONSTITUTIONAL JURISPRUDENCE. 285 
 
 the others. The consequence was, that their supplies 
 were derived chiefly from that nation, and their trade 
 confined to it. Goods indispensable to their comfort, 
 in the shape of presents, were received from the same 
 hand ; and, what was of still more importance, the 
 strong arm of Government was interposed to restrain 
 the disorderly and licentious from intrusions into their 
 country, encroachments on their lands, and from those 
 acts of violence which were often attended by reciprocal 
 bloodshed and slaughter. The Indians perceived, in 
 this protection, only what was beneficial to themselves. 
 It involved, practically, no claim upon their lands ; no 
 dominion over their persons ; but merely bound them 
 to the British Crown before the Revolution, and to the 
 United States afterwards, as dependent allies, claiming 
 the protection of a powerful friend and neighbor, and 
 receiving the advantages of that protection, without 
 involving a surrender of their national character. 
 
 From the commencement of the Government, Con- 
 gress has, from time to time, passed laws to regulate 
 trade and intercourse with the Indian tribes, which treat 
 them as nations, respect their rights, and manifest a firm 
 purpose to afford that protection to them which treaties 
 stipulate. All these Acts, and especially the law now 
 in force, obviously consider the several Indian nations as 
 distinct political communities, having territorial bound- 
 aries, within which their authority is exclusive. The 
 treaties and laws of the United States contemplate the 
 Indian territory as completely separated from that of 
 the States, and provides that all intercourse with them 
 shall be carried on exclusively by the Government of 
 the United States ; while the powers to regulate com- 
 merce, declare war, make peace, and conclude treaties,
 
 286 LECTURES ON 
 
 comprises all that is required for regulating our inter- 
 course with the Indian tribes. 
 
 II. TJie power to establish post-offices and post-roads is 
 necessarily connected with the regulation of commerce 
 and the promotion of the general welfare. A regular 
 system of free and speedy communication is not only 
 of vital importance to the mercantile interests of the 
 country, but, on a more enlarged view of the subject, 
 must be admitted to be of great general benefit. In 
 time of peace, it facilitates and promotes commercial 
 intercourse, tends to keep the people informed of their 
 political interests, assists the measures of Government 
 and the private communications between individuals. 
 In war, the rapid transmission of intelligence by means 
 of the public mails, and the greater facility of transfer- 
 ring bodies of troops, and transporting military stores, 
 by means of good and substantial roads, are advantages 
 as evident as they are desirable. 
 
 If the establishment of post-offices and post-roads 
 should in practice be productive of no revenue to the 
 public, the expense would be properly chargeable on 
 the general funds of the Union, and the proceeds of 
 taxation in the common forms be justly applied to de- 
 fray it. If, however, as has proved to be the case, the 
 post-office establishment should continue to yield a 
 revenue, which, in common with the other funds of the 
 Union, is applicable only to the purposes of the Gen- 
 eral Government, it is obvious that no State should be 
 permitted to interfere by establishing a post-office de- 
 partment of its own. The power, therefore, vested in 
 Congress is exclusive, so far as relates to the convey- 
 ance of letters, and other articles transmissible by post. 
 In regard to post-roads, it would be unnecessary, and
 
 CONSTITUTIONAL JURISPRUDENCE. 287 
 
 therefore unwarrantable, in Congress, to make another 
 road where a sufficient one already exists; while, on 
 the other hand, no State has power to deny or obstruct 
 the passage of the mails, the marching of troops, or the 
 transportation of the property of the United States 
 over its public roads. 
 
 The power of Congress in relation to the subject 
 was brought into operation soon after the adoption of 
 the Constitution, and various provisions respecting it 
 have since, at different times, been enacted, all founded 
 on the principle of its being exclusive, so far as it re- 
 spects the establishment of post-roads, and the convey- 
 ance of letters and other articles by post. Under this 
 power, in conjunction with the powers of Congress to 
 raise money to provide for the general welfare, and to 
 pass all laws necessary and proper to carry into execu- 
 tion the other powers vested in the General Govern- 
 ment, Congress has from time to time set apart funds 
 for internal improvements, in the several States, by 
 means of roads and canals. This power has been 
 exercised for a long series of years ; and although often 
 questioned and denied, is vindicated by precedent. 
 The practice has been to allow to the new States, on 
 their admission into the Union, a certain proportion of 
 the proceeds arising from the sale of the public lands 
 therein, to be laid out in the construction of roads and 
 canals within those States, or leading thereto. In the 
 year 1806, Congress authorized a road to be opened 
 from Nashville, in Tennessee, to Natchez, in the then 
 Mississippi Territory, without asking the consent of the 
 State of Tennessee ; and in 1809, the President was 
 authorized to cause the canal De Carondelet, leading 
 from the Lake Ponchartrain to the city of New Orleans,
 
 288 LECTURES ON 
 
 to be extended to the River Mississippi. The bill au- 
 thorizing the former of these works was objected to by 
 Mr. Jefferson, but was, upon reconsideration, passed, 
 notwithstanding his objections, by the constitutional 
 majority of two thirds of the members present in both 
 houses of Congress ; while the bill authorizing the latter 
 was not objected to, though passed under the same 
 administration, from the circumstance, it may be pre- 
 sumed, that the improvement it contemplated was 
 wholly within a Territory of the United States. 
 
 The Cumberland Road, upon which so much has 
 been said in and out of Congress, and so much public 
 money has been expended, was first authorized by an 
 Act of Congress, passed also in 1806, and was con- 
 structed under a covenant with the State of Ohio, that 
 a portion of the proceeds of the public lands lying 
 within that State should be applied to the opening 
 of roads leading to it, with the consent of the States 
 through which the road might pass. But the expendi- 
 tures upon it having exceeded the proceeds of the lands 
 appropriated for its construction, President Madison, in 
 1816, objected to a bill appropriating a fund, of which 
 a portion would have been available for continuing it, 
 on the ground that the Constitution did not extend to 
 making roads and canals, and improving water-courses 
 through the different States ; and that the assent of 
 those States could not confer the power. Afterward, 
 in 1822, President Monroe objected to a bill appropri- 
 ating money for repairing the Cumberland Road, and 
 establishing gates and tolls upon it, on similar grounds ; 
 and in both instances the bills were eventually lost. 
 
 On these and other similar occasions, there was, 
 however, a decided difference of opinion between the
 
 CONSTITUTIONAL JURISPRUDENCE. 289 
 
 majority of Congress and the President. Mr. Jefferson, 
 in 1806, Mr. Madison, in 1816, and Mr. Monroe in 
 1822, denied any such power in Congress as these bills 
 assumed to exist; or that it could be vested in that 
 body, either by the consent of the States to the works 
 proposed, or in any other mode than an amendment of 
 the Federal Constitution. On the other hand, it ap- 
 pears that Congress claims the power to lay out, con- 
 struct, and improve post-roads and military roads, at all 
 events with the assent of the States through which they 
 pass, as well as to cut canals for promoting internal com- 
 merce, and the more safe and economical transportation 
 of military stores in time of war, leaving, in all these 
 cases, the jurisdiction al right over the soil in the respec- 
 tive States. By an Act passed in 1824, with the assent 
 of Mr. Monroe, the necessary surveys, plans, and esti- 
 mates were directed to be made of such roads and 
 canals as the President might deem of material impor- 
 tance in a commercial or military point of view, or 
 necessary for the transportation of the public mail, and 
 appropriated a sum of money for the purpose.. 
 
 The younger President Adams, in his inaugural ad- 
 dress in 1825, alluded to this question ; and his opinion 
 seemed to be in favor of the right, as well as the policy, 
 of a liberal application of the national resources to the 
 internal improvement of the country. He intimated 
 that speculative scruples on the subject would probably 
 be solved by the practical blessings resulting from the 
 application of the power. But in the year 1836, this 
 subject was again discussed in Congress, and a bill 
 passed both houses, appropriating a sum of money 
 for a subscription to the stock of a turnpike road, ex- 
 clusively within the State of Kentucky, but leading 
 25
 
 290 LECTURES ON 
 
 from Maysville, in the interior of that State, to the 
 River Ohio. This bill was returned by President Jack- 
 son, and, on the question of its passage, notwithstand- 
 ing the objections of the President, was finally lost in 
 the House of Representatives, in which it had origi- 
 nated. In his annual message at the commencement of 
 the session, the President had adverted to the difficulties 
 which had before attended appropriations for purposes 
 of internal improvement, and expressed a hope that 
 some plan might be devised to attain its benefits in 
 a satisfactory manner. He observed, that the mode 
 adopted on former occasions had been deprecated by 
 many as an infraction of the Constitution, while it had 
 been viewed by others as inexpedient, and that all felt 
 that it had been employed at the expense of harmony 
 in the public councils. Upon returning the bill relative 
 to the Maysville Road, he referred to the sentiments he 
 had expressed at the opening of the session, and pro- 
 ceeded to consider the constitutional power of the 
 General Government to construct or promote works of 
 internal improvement, as then presenting itself, in two 
 points of view ; first, as bearing on the sovereignty of 
 the States within whose limits the execution was con- 
 templated, if jurisdiction of the territory they occupy 
 were claimed as necessary to their preservation and 
 use ; the second, as asserting the simple right to appro- 
 priate money from the National Treasury in aid of 
 such works when undertaken by State authority, sur- 
 rendering the claim of jurisdiction on the part of the 
 United States. 1 
 
 In the first view, he regarded the question of power 
 as an open one, which could be decided without the 
 
 i Vide ante, p. 287.
 
 CONSTITUTIONAL JURISPRUDENCE. 291 
 
 embarrassments attending the other, arising from the 
 practice of the Government. To the extent contem- 
 plated by this first view of the power, he asserted that, 
 although frequently and strenuously attempted, it had 
 never been attained in a single instance. The Govern- 
 ment, he insisted, did not possess it ; and he therefore 
 declared that no bill admitting it would receive his 
 official sanction. But in the other view of the power, 
 he considered the question differently situated, and 
 remarked, that the ground taken at an early period of 
 the Government was, that whenever money raised by 
 the general authority was proposed to be applied to 
 a particular measure, a question arose whether that 
 measure was within the enumerated authorities vested 
 in Congress. If it were, the money requisite might be 
 applied to it. If it were not, no such application could 
 be made. In all cases, he averred, in which the power 
 to apply money had, in fact, been exercised by the 
 General Government, such grants had always been 
 professedly under the control of the general principle, 
 that the works thus aided should be of a general, not 
 local ; of a National, not of a State character. This 
 distinction he considered sufficiently definite and im- 
 perative to forbid his approbation of a bill of the char- 
 acter of that in question, which he was not able to 
 view in any other light than as a measure purely local. 
 As to the principle, indeed, he was indubitably right, 
 but he was wrong in its application ; for, most assuredly, 
 a road terminating on the very river which forms the 
 great line of communication between the Western and 
 the Atlantic States, must be considered of infinitely 
 more importance in its general and National, than in 
 its local and State character. The true rule on the
 
 292 LECTURES ON 
 
 subject, which seems to have been forgotten or disre- 
 garded on this occasion, had been laid down by Chief 
 Justice Marshall long before, and is this : " That the 
 action of the General Government should be applied 
 to all the external concerns of the nation, and to those 
 internal concerns which affect the States generally, but 
 not to those which are completely within a particular 
 State, which do not affect other States, and with which 
 it is not necessary to interfere for the purpose of exe- 
 cuting any of the general powers of the Government." 1 
 
 III. The powers to coin money, to regulate its value, 
 and that of foreign coins, and to fix the standard of 
 weights and measures, were possessed by the old Con- 
 gress, with the exception of that relating to foreign 
 coins. The new Constitution, therefore, supplied a 
 material omission in the Articles of Confederation, by 
 which the power of Congress was restrained to coin 
 struck by its own authority, or that of the respective 
 States. It must be obvious that the proposed uni- 
 formity in the value of the current coin might be de- 
 stroyed by subjecting the foreign coin to the different 
 regulations of the several States. The power with re- 
 spect to the coin, both domestic and foreign, is rendered 
 exclusive, by a subsequent provision of the Constitu- 
 tion, prohibiting the individual States from its exercise. 
 And the power of fixing the standard of weights and 
 measures seems also proper to be exclusively exercised 
 by Congress ; but until it shall legislate on the subject, 
 each State, it is presumed, retains the right of adopting 
 and regulating its own standard. 
 
 Nor does the power relative to the coin, prohibit the 
 
 1 10 Wheat. 446. 
 
 J
 
 CONSTITUTIONAL JURISPRUDENCE. 293 
 
 States, as we have seen, from enacting laws to punish 
 the circulating of false coins. The offences of counter- 
 feiting or debasing the coin, are entirely distinct. The 
 former is a crime directly against the Government, by 
 which individuals may be affected ; the latter is a 
 private wrong, by which Government may be reached 
 remotely, if at all. This distinction is recognized in the 
 criminal law of England, where counterfeiting coin is 
 made high treason, whether it be uttered or not, but 
 those who barely utter false money, are guilty neither of 
 treason, nor misprision of treason. 1 Congress, neverthe- 
 less, under the power to regulate the value of foreign 
 coins, can protect the creature and object of that power, 
 and the Act passed for the punishment of persons bring- 
 ing into the United States, with intent to pass, any false, 
 forged, or counterfeited coins, or knowingly utter the 
 same, was warranted by the Constitution. 2 
 
 IV. The power of providing for the punishment of 
 counterfeiting the public securities and current coin of 
 the United States is incidental to the foregoing powers 
 relative to the coin, and in itself seems to purport the 
 exclusion of State power, as it is an appropriate means 
 for carrying into effect other delegated powers not ante- 
 cedently existing in the States. It appears, neverthe- 
 less, by the Acts of Congress relative to this subject, 
 that cognizance of such cases may, under certain cir- 
 cumstances, be concurrently exercised by the State 
 Courts. The Judiciary Act of 1789, vested, as we have 
 seen, in the Federal Courts, exclusive jurisdiction of all 
 offences cognizable under the authority of the United 
 States, unless where their laws should otherwise direct. 3 
 
 1 5 Howard, 410. 2 9 Ibid. 560. 
 
 3 9 Wheat. 26 ; 11 Johns. Rep. 549. 
 
 25*
 
 294 LECTURES ON 
 
 The States, therefore, could not exercise a concurrent 
 jurisdiction in those cases without coming into direct 
 collision with the laws of Congress. But by a proviso 
 in a subsequent Act concerning counterfeiters of the 
 current coins of the United States, Congress has de- 
 clared that the jurisdiction of the Federal Courts, in 
 certain specified cases, should not be exclusive ; so that 
 the concurrent jurisdiction of the State Courts is re- 
 stored, so far as it can be exercised under State authority. 
 There are, besides, other Acts of Congress which permit 
 jurisdiction over the offences described in them to be 
 exercised by the State Courts under the same condition, 
 and in all these cases where the jurisdiction of the 
 State Courts is made concurrent with that of the Fed- 
 eral Courts, the sentences of the one, whether of ac- 
 quittal or conviction, are a bar to the prosecution in the 
 other, for the same offence. 
 
 V. The power to prescribe by general laws the manner 
 in which the public acts, records, and Judicial proceeding's 
 of each State shall be proved, and the effect they shall 
 have in other Slates, is referred to this class by the 
 authors of " The Federalist." It is an evident and 
 valuable improvement on the provision relating to the 
 same subject in the Articles of Confederation, of which 
 the meaning was so indeterminate as to render it of 
 little practical importance. The power, as it now 
 stands, has been found, as was intended, to be a con- 
 venient instrument of justice, and particularly beneficial 
 on the borders of contiguous States, where persons and 
 effects liable to Judicial process may be suddenly and 
 secretly withdrawn to a foreign jurisdiction. 
 
 The clause in the Constitution which vests this power 
 in Congress, previously declares that "full faith and
 
 CONSTITUTIONAL JURISPRUDENCE. 295 
 
 credit shall be given in each State to the public Acts, 
 Records, and Judicial proceedings of every other State." 
 And the Act passed by Congress in execution of this 
 power, prescribes the manner of authenticating such 
 acts, records, and proceedings ; and declares that, when 
 so authenticated, they " shall have such faith and credit 
 given to them in every Court within the United States, 
 as they have by law or usage in the Courts of the State 
 from whence they are taken." 1 
 
 Under the clause of the Constitution, and this Legis- 
 lative provision for giving it effect, if a judgment have 
 the effect of record evidence, or, in other words, be 
 conclusive evidence, i. e. admitting neither of impeach- 
 ment nor contradiction in the Courts of the State in 
 which it was rendered, it has the same effect in the 
 Courts of all the other States. 2 And the Supreme 
 Court of the United States, in so ruling, declared that 
 the Common Law gives to a judgment of the Courts 
 of one State the effect of primd facie evidence, i. e. 
 evidence open to impeachment, explanation, or contra- 
 diction, in the Courts of every other State; but that 
 the Constitution contemplates a power in Congress to 
 give a conclusive effect to such judgments, which power 
 it has exercised by rendering a judgment conclusive 
 when the Courts of the particular State ^ would pro- 
 nounce the same decision. 3 And in a recent case, it 
 was declared that fhe clause in question cannot, by any 
 just construction of its words, be held to embrace an 
 alleged error in a decree of a State Court, asserted to 
 be in collision with a prior decision of the same case. 4 
 
 1 Const. U. S., Art. IV. Sect. i. 3 7 Cranch,481. 
 
 2 Laws U. S. 1790, ch. 38. 4 3 Wheat. 234.
 
 296 LECTURES ON 
 
 Nor did Congress intend by this Act to declare that a 
 judgment rendered in one State, against the person of 
 a citizen of another, who had not been served with 
 process, or voluntarily made defence, should have such 
 faith and credit in every other State, as it had in the 
 Courts of the State in which it was rendered. 1 
 
 VI. The power " to establish a uniform system of 
 naturalization" which was the next we proposed to 
 examine, is necessarily exclusive ; especially as it is 
 provided, in a subsequent part of the Constitution, that 
 " the citizens of each State shall be entitled to all the 
 privileges and immunities of citizens in the several 
 States." 2 
 
 The dissimilarity of the rules of naturalization which 
 existed in the different States, had given rise, under the 
 Confederation, to some intricate and delicate questions, 
 from the ambiguous terms of the article in relation to 
 the subject. To put an end to all such questions in 
 future, the new Constitution authorized the General 
 Government to establish a uniform rule throughout the 
 United States. There is, indeed, no express prohibition 
 of State legislation in regard to it; but if each State 
 retained the power of naturalization, while the citizens 
 of each State were entitled to the privileges of citizens 
 in the several States, any one State might impose on 
 all the others such persons as citizens whom it might 
 think proper to admit. In one State, a short residence, 
 with a slight declaration of allegiance, as was the case 
 under the first Constitution of Pennsylvania, might 
 confer the right of citizenship ; in another, higher quali- 
 fications, as was, in fact, generally the case, might be 
 
 1 14 Peters, 481. 
 
 2 2 Wheat. 259 ; 5 Ibid. 49 ; 4 Const. 111.
 
 CONSTITUTIONAL JURISPRUDENCE. 297 
 
 required ; and an alien, desirous of eluding the latter, 
 might, by complying with the former, become a citizen 
 of a State in opposition to its own regulations ; and 
 thus the laws of one State, might become paramount 
 in a matter of vital consequence to another. Hence the 
 importance of rendering this power exclusive. That it 
 is, indeed, so vested in Congress, was considered incon- 
 trovertible by the Supreme Court of the United States, 
 in a case in which the decision depended on that 
 point; 1 and it was declared, subsequently, to have been 
 so held on the ground of a direct repugnancy or incom- 
 patibility in the exercise of a similar power by the 
 States. 2 
 
 No definition of the character of a citizen is con- 
 tained in the Constitution of the United States. The 
 term is used with a plain indication that its meaning 
 must have been generally understood, by reference to 
 that system of national jurisprudence which, as I had 
 occasion to observe in a former Lecture, is justly re- 
 garded as the means or instrument of exercising the 
 jurisdiction conferred by the Constitution. At the 
 time of its adoption, the citizens of the several States 
 collectively constituted the citizens of the United States. 
 They were either native citizens, or those born within 
 the States, or naturalized citizens, or persons born 
 elsewhere, but who, upon assuming the allegiance, be- 
 came entitled to the privileges of native citizens. All 
 who were resident citizens at the time of the Declara- 
 tion of Independence, and deliberately yielded to that 
 measure an express or implied assent, became parties 
 to it, and are considered as natives, their social tie 
 being coeval with the nation itself. 
 
 l 2 Wheat. 269; 2 Dall. 370. 2 5 Wheat. 49.
 
 298 LECTURES ON 
 
 And by the Constitution of the United States, it is 
 declared, as we have seen, that " the citizens of each 
 State shall be entitled to all the privileges and immuni- 
 ties of citizens in the several States." 1 But a limited, 
 not a full operation has been given to these words. It 
 has been held in some of the States, that they do not 
 mean the right of election, of being elected, or holding 
 office ; but merely that the citizens of all the States 
 shall have the peculiar advantage of acquiring and 
 holding real, as well as personal property, and that such 
 property shall be protected and secured by the laws of 
 the State, in the same manner as is the property of its 
 own citizens, and shall not be liable to any taxes or 
 burdens to which the property of the citizens of the 
 State is subject. 2 It seems, moreover, that no person 
 can be deemed a citizen of a State, under the Article 
 of the Federal Constitution, who is not entitled, on the 
 terms prescribed by the institutions of the State, to all 
 the rights and privileges conferred by those institutions 
 upon the highest classes of society. Thus, free negroes 
 and mulattoes are held not to be such citizens as were 
 contemplated by the Article in question, inasmuch as, 
 before the adoption of the Constitution of the United 
 States, each State had a right to make citizens of such 
 persons as it pleased, but as the Constitution does not 
 authorize any but " WHITE " persons to become citizens 
 of the United States, it creates a presumption that no 
 State had made citizens of persons of any other color ; 
 and this presumption will stand until repelled by posi- 
 tive testimony. 3 
 
 1 Const. U. S., Art IV. Sect. n. 2. 
 
 2 3 Har. fy Me Hen. 554 ; 2 Munf. 396. 
 
 3 1 Lilt. 33; 1 Bailey, 215 ; 10 Conn. 340.
 
 CONSTITUTIONAL JURISPRUDENCE. 299 
 
 A citizen of the United States, however, residing in 
 any State of the Union, is a citizen of that State. 1 A 
 temporary absence will not divest a person of the 
 character of a citizen of the State to which he may 
 belong. There must be a removal with an intention 
 of laying aside that character, and he must actually 
 join himself to some other community. 2 
 
 A corporation aggregate is not a citizen. 3 A cor- 
 poration created by the laws of one State, and com- 
 posed entirely of its own citizens, is not entitled, under 
 this Article of the Constitution, to all the privileges 
 and immunities of citizens of every other State. Such 
 a construction would deprive a State of all control 
 
 1 3 Peters, 128 ; 1 Wallace, 51 ; 2 Binn. 120 ; 3 Ibid. 75 ; 3 Cranch, 
 97; 4 Ibid. 209, 321; 7 Ibid. 603; 1 Wheat. 197; 2 Ibid. 259; 3 
 Ibid. 1, 563, 589 ; 4 Ibid. 453, 575 ; 7 Ibid. 535, 545 ; 9 Ibid. 354, 
 489; 10 Ibid. 181; 11 Ibid. 332; 1 Johns. Cas. 29; 2 Ibid. 399; 3 
 Ibid. 109; 6 Ibid. 360; 4 Johns. Rep. 20, 75; Ibid. 313, 707; 6 
 Ibid. 332 ; 7 Ibid. 214 ; 9 Ibid. 303 ; 11 Ibid. 418 ; 1 Const. Rep. 61, 
 111 ; 1 Desauss. 449 ; 3 Ibid. 106 ; 4 Ibid. 330 ; 2 Leigh, 109 ; 2 Dall. 
 133; 4 /6zW. 353; 1 Peters, 343; 3 Ibid. 121, 156, 160, 164, 242 ; 
 4 /oid. 393 ; 6 Ibid. 102 ; 7 /foW. 413 ; .Bee, 25 ; Harp. Eq. Rep. 5 ; 
 
 1 Mass. 256 ; 2 Jozo 7 . 179, note; Ibid. 226, note; 7oid. 236; 7 7 Jit?. 
 523; 9 JToid. 363,377; 12 Ibid. 143; 15 Ibid. 354; .fiSroy, 407; 1 
 #a#w;. 338, 485 ; 2 /oid. 37, 104 ; 1 N. gr M. 292 ; 2 Ibid. 293, 400 ; 
 
 2 Dev. 249 ; 3 .Zozd. 191, 196 ; 4 Mason, 208 ; 1 Brock, 466 ; 1 Ear. Sf 
 Gill. 280; 1 McCord, 187; 4 7oid. 552; 2 j?m#. 20 ; Ibid. 150 ; 6 
 Afonr. 260; 7 /ota 7 . 143 ; 3 Call 122; 5 Ibid. 364; 6 I6td. 60; 4 
 Wend. 507 ; 7 76tW. 333, 367 ; 10 Ibid. 9, 379 ; 12 Ibid. 342 ; 13 Ibid. 
 458, 546 ; 9 Hard. 61 ; Martin Sf Yerg. 248 ; McCord, Chan. 352, 370 ; 
 1 Lilt. 149 ; 3 Ibid. 375 ; 4 Far. Sf McHen. 409 ; 3 Stew. 60 ; 5 TWan/. 
 117, 160; 1 Bald. 216; 1 Rep. Const. Ct. 411 ; 4 Conn. 44 ; 4 #too, 90; 
 
 3 Ser<jr. .Raw'e, 29 ; 1 Green'. 196 ; 3 Ibid. 455 ; C%arfc. 285 ; 1 3fi7e, 
 82 ; 5 Day, 169 ; 2 Picfc. 394 ; 13 Ibid. 345 ; 2 #and. 276 ; 4 7ozW. 204. 
 
 2 2 Mm/. 397 ; 3 TFasA. C. C. 546; I Zitt. 265 ; 3 Marsh. 549. 
 
 3 5 Crunch, 86.
 
 300 LECTURES ON 
 
 over the extent of corporate franchises proper to be 
 granted within its limits. But, by the comity of na- 
 tions, a corporation created by one Government, may 
 make a contract within the domain of another; and 
 such contract will be enforced in the foreign tribunals. 1 
 The Courts of the United States will, therefore, pre- 
 sume that a State has adopted the comity of nations 
 towards other States as part of its jurisprudence. 2 
 
 It has been admitted, both in the English Courts and 
 our own, 3 that all persons born within the Colonies 
 while subject to the Crown of Great Britain, were 
 natural-born subjects ; but it was held, as a necessary 
 consequence, that this character was changed by the 
 separation of the Colonies from the parent State, and 
 the acknowledgment of their independence. The rule, 
 however, as to the point of time at which Americans 
 born before the separation ceased to be British subjects, 
 differs in this country and in England. The rule estab- 
 lished by the English Courts adopts the date of the 
 treaty of peace in 1783 ; whilst ours have fixed upon 
 that of the Declaration of Independence. But in the 
 application of the rule to different cases, some difference 
 of opinion may arise. The settled doctrine in this 
 country is, that a person born here, who left the Colonies 
 before the Declaration of Independence, and never re- 
 turned, become thereby an alien ; and, as a general rule, 
 the character in which Americans born before the Revo- 
 lution are to be regarded, depends on the situation of 
 the party, and the election made by him, at the Decla- 
 ration of Independence, according to our rule, and at 
 
 1 5 Cranch, 86. 2 
 
 3 3 Peters, 128, and cases above cited with it.
 
 CONSTITUTIONAL JURISPRUDENCE. 301 
 
 the treaty of peace, according to the English. Difficul- 
 ties, however, have occurred where rights have accrued 
 between these dates. But, if the right of election be 
 admitted at all, it must be determined by what took 
 place during the Revolution, and between the Declara- 
 tion of Independence and the treaty of peace. 
 
 The Declaration of Independence did not operate so 
 completely to separate the United States from Great 
 Britain, as to subject all the British ante-nati to the 
 disability of alienage ; their rights continued until the 
 acknowledgment of our independence by Great Britain. 1 
 The concessions made by the British Crown in the 
 treaty of 1783, amounted to a formal renunciation of 
 all claim to the allegiance of the citizens of the United 
 States ; but the question, Who were citizens at that 
 period ? was necessarily left to depend on the laws of 
 the respective States, who, previously to the Federal 
 Constitution had, in their sovereign capacities, acted 
 authoritatively of the subject. The allegiance formerly 
 due to the Sovereign of Great Britain, was transferred 
 by the Revolution to the several States ; and the treaty 
 of peace left their citizens in the situation it found 
 them, neither making those citizens who, by the laws 
 of any State, had been declared citizens, nor releasing 
 from their allegiance any who had become, and were 
 claimed as citizens. 2 
 
 Persons born in this country who left it before the 
 Declaration of Independence, and never returned, are 
 aliens. So those born here before that event and re- 
 maining during infancy in a place in this country occu- 
 
 i 2 Halst. 305 ; 6 Call. GO. 
 
 8 4 Crunch, 209 ; 2 Cond. Rep. 86. 
 
 26
 
 302 LECTURES ON 
 
 pied by the British troops, and before attaining their 
 majority, were carried by loyalist parents to England, 
 and never returned to the United States, must be con- 
 sidered aliens. If such a person were born after the 
 Declaration of Independence, and before the British 
 troops took possession of the place of his residence, 
 and those adjacent, infancy would have incapacitated 
 him from making any election for himself, and his 
 election and character would follow those of his father, 
 subject, however, to the right of disaffirmance within a 
 reasonable period after the termination of his minority. 1 
 But the provisions of the treaty of peace protect such 
 persons, holding lands in the United States, from the 
 disability of alienage in regard to descents and sales. 2 
 
 It is a doctrine of the English law that natural-born 
 subjects owe an allegiance which is intrinsic and per- 
 petual, and which cannot be diverted by any act of 
 their own. But it has been made a question, frequently 
 and earnestly debated, whether this doctrine of perpet- 
 ual allegiance applies, in its full extent to the United 
 States. 3 The best writers on public law 4 have treated 
 this subject rather loosely, but seem, generally, to 
 favor the right of the citizen to emigrate and aban- 
 don his native country, unless there be some positive 
 restraint by law, or he is, at the time, in possession of 
 some public trust, or his country be in distress, or at 
 war, and in need of his services. The principle de- 
 
 1 3 Peters, 99. 
 
 2 Ibid. 242; 9 Ibid. 642. 
 
 3 7 Wheat. 348 ; 3 Binn. 85 ; Peters's Adm. Cos. 61 ; 3 Peters, 121, 
 160 ; 2 Joins. Cos. 407 ; 2 Cranch, 120 ; 2 Munf. 393 ; 4 Hall's Am. 
 Law Journ. 361 ; 9 Mass. 461. 
 
 4 Grotius, b. 2, ch. 5 ; Puffend. b. 8, ch. 11 ; Vattell, b. 1, ch. 19.
 
 CONSTITUTIONAL JURISPRUDENCE. 303 
 
 clared in some of our State Constitutions, that the 
 citizens have a natural right to emigrate, goes far to- 
 wards a renunciation of the English law, as repugnant 
 to the natural liberty of mankind provided emigration 
 is intended in those cases to be used as synonymous 
 with expatriation. But the allegiance of our citizens 
 is due, not merely nor principally to the local Govern- 
 ment of the State in which they reside, but primarily 
 and chiefly to the United States, which Government 
 alone affords them national protection, and imparts to 
 them their national character ; and the doctrine of final 
 and absolute expatriation, though frequently discussed 
 in our Courts, remains yet to be settled, and requires 
 to be defined with precision, and subjected to certain 
 established limitations, before it can be admitted into 
 our jurisprudence, or laid down broadly as a wise and 
 salutary rule of national policy. 
 
 It is not, however, applied by the English Courts to 
 the American ante^nati; as is manifest from a case 
 decided some years since in the Court of the King's 
 Bench, 1 in which the treaty of peace was considered as 
 a release from their aUegiance of all British subjects 
 who remained in this country. The British doctrine, 
 therefore, is that the American ante-nati, by remaining 
 in this country after the peace, lost their character as 
 British subjects ; and our doctrine is, that by withdraw- 
 ing from this country they lost, or perhaps, more prop- 
 erly speaking, they never acquired the character of 
 American citizens. 
 
 All persons born out of the allegiance and jurisdic- 
 tion of the United States are termed aliens. There 
 
 1 2 Barn. Cress. 779.
 
 304 LECTURES ON 
 
 are, however, some exceptions to this rule derived from 
 the ancient English law ; as in the case of the children 
 of public ministers born abroad, for their parents owed 
 not even a local allegiance to the foreign .power. So, 
 also, in every case, the children born abroad of English 
 parents were considered as natives of England if the 
 father went and continued abroad in the character of 
 an Englishman. By the existing law of the United 
 States relative to naturalization, it is declared that the 
 children of persons who were or had been citizens of 
 the United States at the time of passing the Act, should, 
 though born out of the United States, be considered 
 as citizens ; but that the right of citizenship should 
 not descend to persons whose fathers had never resided 
 within the United States. This statute does not ex- 
 tend to the children of persons who left the country 
 before the Declaration of Independence, and not being 
 prospective in its operation, the benefit of it narrows 
 rapidly by lapse of time, and the period will soon 
 arrive when there will be no statutory regulation in 
 favor of children born abroad of American parents ; 
 and, unless one be made in season, they will be driven 
 to resort for aid to the dormant and doubtful principles 
 of the Common Law. 
 
 Aliens coming to this country with the intention of 
 making it their permanent residence, have many in- 
 ducements to become citizens. They are incapable, 
 until naturalized, of holding a stable interest in land 
 in many of the States ; or of holding any civil office ; 
 or of voting at elections ; or of taking any active share 
 in the administration of the Federal or State Govern- 
 ments. A convenient and easy mode (perhaps too 
 easy and convenient) has been provided by Congress
 
 CONSTITUTIONAL JURISPRUDENCE. 305 
 
 for removing the disabilities of alienage ; and the terms 
 on which every alien, being a free white person, can 
 obtain the qualifications and privileges of a natural- 
 born citizen, are prescribed in the several Acts of Con- 
 gress on the subject. 1 But an alien enemy cannot be 
 permitted to make the declaration required by law 
 preparatory to naturalization. 2 And the provision of 
 this Act, which excludes from citizenship aliens whose 
 country shall at the time of the application be at war 
 with the United States, extends to the supplementary 
 Act, authorizing the naturalization of the widow and 
 children of persons who, having pursued the directions 
 of the original Act, died before they became natural- 
 ized. Consequently, the minor son of an alien who 
 had made report of himself conformably to the Act, 
 but died before he had resided long enough to be enti- 
 tled to naturalization, is held not to be admissible to 
 the rights of citizenship, the country from which he 
 emigrated being, at the time of the son's application, at 
 war with the United States. 3 
 
 The right of aliens to the privileges of naturalization 
 are, by these laws relating to the subject, submitted to 
 the decision of any Court of Record within the United 
 
 1 Laws of U. S. 1802, ch. xviii. ; 1813, ch. clxxxiv. ; 1816, ch, 
 xxxii. 
 
 2 1 Gall. 11, contrii; 2 Binn. 218. 
 
 3 5 Binn. 371. See also Peters's C. C. 106, 457, 466 ; 1 Dall. 69; 
 1 Gallis. 366, 563; 2 Ibid. 105 ; 1 Wash. C. C. 484; 1 Johns. Cos. 
 206; 10 Johns. Rep. 69, 117, 183; 11 Ibid. 418; 6 Cranch, 176; 7 
 Ibid. 428 ; 9 Ibid. 180 ; 1 Johns. Ch. Cos. 399 ; 2 Ibid. 588 ; 1 Black/. 
 255 ; 6 Lift. 226 ; Paine, 68 ; 1 Wheat. 46 ; Ibid. 128, note; 10 Wend. 
 379 ; 13 Ibid. 524 ; 16 Ibid. 617, 625 ; 4 Peters, 406 ; 1 McCord, 187; 
 1 Ibid. Ch. 370; 1 Hill, 141; 2 Car. Law Rep. 112 ; 1 Cowen, 89; 
 4 Rand. 585. 
 
 26*
 
 306 LECTURES ON 
 
 States ; and a person duly naturalized (which he may 
 be after a residence of five years) becomes entitled to 
 all the privileges and immunities of a natural-born 
 citizen, except that a residence of seven years is re- 
 quired by the Constitution to enable him to hold a 
 seat in the House of Representatives, of nine years to 
 hold a seat in the Senate, and that he remains always 
 ineligible to the offices of President of the United 
 States and Governor in several of the States. The 
 policy of these laws has been strongly doubted by 
 some of our wisest and best statesmen and native 
 politicians, and every year's experience tends amply to 
 confirm those doubts. For a short period, during the 
 administration of the elder Adams, the term of resi- 
 dence prescribed by law to entitle an alien to naturali- 
 zation was fourteen years. But the passing of that law 
 was one of the most powerful causes of the expulsion 
 of Mr. Adams and the Federal party from the adminis- 
 tration of the General Government; and however some 
 of his successors may have regretted its repeal, they 
 have been too \vell convinced of the difficulty of recall- 
 ing a popular concession to attempt its reenactment. 
 There are two improvements, however, that seem equally 
 practicable and desirable, and would go far to remedy 
 the existing evils of the system ; the one is, to render, 
 by an amendment of the Constitution, the naturalized 
 citizen incapable of holding any office of trust or profit ; 
 the second, to vest, by an amendment of the statutes, 
 the jurisdiction in cases of naturalization, exclusively in 
 the Federal Courts. 
 
 VII. The power of Congress "to establish uniform 
 laws on the subject of bankruptcies " is intimately con- 
 nected with the regulation of commerce ; and there are
 
 CONSTITUTIONAL JURISPRUDENCE. 307 
 
 peculiar reasons why the National Government should 
 be intrusted with this power, arising from the impor- 
 tance of preserving uniformity and equality of rights 
 among the citizens of all the States, and of maintaining 
 commerce, credit, and intercourse with foreign nations. 
 It has been found necessary, in Governments which 
 authorize personal arrests and imprisonment for debt, 
 to interpose and provide relief for the debtor in cases 
 of inevitable misfortune ; and this has been particularly 
 the case in regard to insolvent merchants, who are fre- 
 quently tempted, if not obliged, by the habits, pursuits, 
 and enterprising nature of trade, to give and receive 
 credit, and encounter extraordinary hazards ; and, be- 
 sides relieving the debtor, bankrupt and insolvent laws 
 are intended to secure the application of his effects to 
 the payment of his debts. Bankruptcy, in the English 
 law, has by long and settled usage received an appro- 
 priate meaning ; and has been considered applicable to 
 unfortunate or fraudulent traders, who do certain acts 
 affording evidence of their inability to pay their debts, 
 or of their intention to avoid it. But the line of par- 
 tition between bankrupt and insolvent laws is not so 
 distinctly marked as to enable laymen, or even lawmen 
 to determine with positive precision what belongs ex- 
 clusively to the one or to the other ; and it is the more 
 difficult to discriminate between them, because bank- 
 rupt laws may, and frequently do, contain regulations 
 which are generally found in insolvent laws ; and in 
 insolvent laws, some that are common in a bankrupt 
 law. And although bankrupt laws are generally and 
 properly confined to the trading classes, who are most 
 exposed to pecuniary vicissitudes, yet, as misfortune 
 and poverty may also overtake those who pursue other
 
 308 LECTURES ON 
 
 occupations, the latter ought not to be excluded from 
 the humane protection of the State Legislatures. Nor, 
 indeed, should the former, or their creditors, be left 
 without the means of relief, in case Congress does 
 not in its discretion think proper to exercise the power 
 vested in them in relation to bankruptcy. This power 
 of Congress has, accordingly, been held not to exclude 
 the right of the States to legislate on the same subject, 
 except where the power has been already executed by 
 a subsisting law of Congress with which the State law 
 would conflict. 1 
 
 Whenever, indeed, the terms in which a power is 
 granted by the Constitution, or the nature and character 
 of the power itself, require that it should be exercised 
 exclusively by Congress, the subject, as we have already 
 seen, is as completely taken away from the State as if 
 its Legislature had been expressly forbidden to act on 
 it But the power now in question is held not to be of 
 this description ; and a State has a right, consistently 
 with the provision in the Federal Constitution, to pass 
 bankrupt and insolvent laws, provided they do not im- 
 pair the obligation of contracts, and there be no Act of 
 Congress in force with which the State laws would 
 come into collision. Nor is the right of a State to 
 pass bankrupt laws extinguished by the enactment of 
 a uniform law by the Legislature of the Union; but 
 is only suspended while the law of Congress exists, 
 and so far only as the State law might be found to 
 
 1 4 Wheat. 122; 12 Ibid. 213. It was originally held by Mr. Jus- 
 tice Washington in the Circuit Court of the United States for Penn- 
 sylvania, that the exercise by a State of the power to pass a bankrupt 
 law, was prohibited by the grant of the power of Congress to pass 
 uniform bankrupt laws. 5 Wash. C. C. 313.
 
 CONSTITUTIONAL JURISPRUDENCE. 309 
 
 conflict with it. While the Act of Congress remains 
 in force, the power of the State continues over such 
 cases which the Act of Congress does not embrace. 
 Hence the power of passing insolvent laws, not coming 
 within the technical description of bankrupt laws, is 
 always in force ; and from the expiration or repeal of 
 a bankrupt law of Congress, the ability of the State to 
 exercise its concurrent power in regard to bankruptcy, 
 qualified as I have mentioned, immediately revives. 
 
 The Legislature of the Union, then, possesses the 
 power of enacting bankrupt laws, and those of the 
 States of passing insolvent laws ; 1 and a State has, 
 moreover, authority to pass a bankrupt law when no 
 Act of Congress exists on the subject with which the 
 State law might conflict ; but no State bankrupt or 
 insolvent law is permitted to impair the obligation of 
 contracts. There is this further limitation upon the 
 power of the several States to pass either bankrupt or 
 insolvent laws that they cannot, in the exercise of 
 that power, act upon the rights of citizens of other 
 States ; and hence the greater necessity of investing 
 Congress with power to establish a uniform system of 
 bankruptcy throughout the Union ; as a discharge un- 
 der a State law would be no bar to a suit by a citizen 
 of another State in the Courts either of the United 
 States, or any other State than that in which the dis- 
 charge was obtained. It only operates upon contracts 
 made within the State; between its own citizens or 
 
 1 Mr. Justice Story, however, observes, in reference to the case of 
 Sturges r. Crowninshield, that " no distinction was ever practically, or 
 even theoretically, attempted to be made between bankruptcies and 
 insolvencies." Comm. 1106.
 
 310 LECTURES ON 
 
 suitors subject to State powers. 1 And it is a principle 
 of universal law, that the municipal law of the State 
 is the law of the contract made and to be executed 
 within the State, and that it travels with it, whereso- 
 ever the parties to it may be found ; unless it refer to 
 the law of some other country, or be immoral, or con- 
 trary to the policy of the country where it is sought to 
 be enforced ; and, consequently, the discharge of the 
 contract, or of the party where the contract was made, 
 is a discharge everywhere. But a discharge under a 
 State law is no bar to a suit on a contract not existing 
 when the law was passed ; as the exercise of the power 
 remaining in the States to pass bankrupt and insolvent 
 laws does not, in the sense of the Federal Constitution, 
 impair the obligation of posterior contracts, but only of 
 those made antecedently to the law? 
 
 Upon the question of the constitutionality of the 
 insolvent law of New York, passed in 1811, the prin- 
 ciples of construction are' thus summed up by C. J. 
 Marshall : " The intention of the instrument must pre- 
 vail. This intention must be collected from its words ; 
 its words must be understood in that sense in which 
 they are generally used by those for whom the instru- 
 ment was intended ; and its provisions are neither to 
 be restricted into insignificance, nor extended to objects 
 not comprehended in them, nor contemplated by its 
 framers." 
 
 Acts of Congress, which have been pronounced con- 
 stitutional, secure to the United States priority in 
 
 1 12 Wheat. 213. 
 
 2 The validity of a State insolvent law cannot now be considered 
 as an open question. 17 Howard, 157.
 
 CONSTITUTIONAL JURISPRUDENCE. 311 
 
 payment of debts due to them over all other creditors, 
 in all cases of insolvency and bankruptcy. But they 
 do not extend to cases where the debtor has not made 
 an assignment of his whole property. 1 
 
 The first bankrupt law passed by Congress pursued 
 strictly the power vested in that body, and was in its 
 terms confined to merchants and traders. It was but a 
 few years in operation, and was suffered to expire by 
 its own limitation. Nor was any attempt made for a 
 long time to revive the system ; and when afterwards 
 the effort was made, it was for some years unsuccessful ; 
 nor was the last Act on the subject ever renewed. 
 
 The obstacles to its revival were such as to repress 
 every hope of renewing the experiment until a material 
 change is wrought in public opinion. These objections 
 were, in the first place, the difficulty of defining, to the 
 satisfaction of all parts of the Union, the precise class 
 of debtors who could, consistently with the constitu- 
 tional jurisdiction of Congress, be made subjects of a 
 bankrupt law. It seemed, on all these occasions, to be 
 taken for granted that the power of Congress extended 
 no further than to bankruptcy in its technical and lim- 
 ited sense, by which its operation is restricted to mer- 
 chants and traders. But the more general, and, perhaps, 
 more substantial objection, was the expense, delay, and 
 litigation which had been found to attend its proceed- 
 ings ; and the still more grievous abuses and frauds to 
 which the system leads, however great the vigilance 
 and integrity of those to whom its administration is 
 committed. It was observed by the Chancellor and the 
 
 1 3 Cranch, 73 ; 2 Wheat. 396. See also Acts of Congress, August 
 4, 1790, May 2, 1792, March 3, 1797.
 
 312 LECTURES ON 
 
 Judges of the Supreme Court of New York, in a report 
 made to the Legislature of that State, by whom their 
 opinions had been requested as to the expediency of 
 the insolvent laws, that, "judging from then: former 
 experience, and from observation in the course of their 
 Judicial duties, they were of opinion that it was a 
 source of fraud and perjury. They were apprehensive," 
 they stated, " that the evil was incurable, and arose 
 principally from the infirmity inherent in such a sys- 
 tem." With respect to the infirmities of the English 
 system of bankruptcy, which are the growth of more 
 than two centuries, during which it has been constantly 
 under the view of Parliament, and maturing by the 
 wisdom of a succession of distinguished Judges, the 
 late Lord Eldon, one of the ablest ministers and sound- 
 est lawyers of modern times, after his appointment as 
 Chancellor, took the earliest opportunity to express his 
 indignation at the frauds which had been committed 
 under cover of that system, and emphatically remarked, 
 that"th^ abuse of the bankrupt law was a disgrace 
 to the country." 
 
 In the face of such testimony, thus derived from men 
 of the greatest learning and experience in the practice 
 and administration of the law both in England and in 
 this country, the friends and advocates of the bankrupt 
 system have persevered, and by straining the constitu- 
 tional point, and inducing Congress, on the last occa- 
 sion, to adopt a latitude of construction which had not 
 been thought of on any of the former occasions, even- 
 tually procured the passage of an Act which, under the 
 title of a Bankrupt Law, embraced provisions peculiar 
 to insolvent laws, rendering it the voluntary refuge of 
 the debtor, and extending its benefits to every descrip-
 
 CONSTITUTIONAL JURISPRUDENCE. 313 
 
 tion of persons owing debts, with the exception of those 
 created in consequence of a defalcation as a public 
 officer, or as an executor, administrator, guardian, or 
 trustee, or while acting in any other fiduciary capacity. 
 It moreover subjected merchants, traders, bankers, fac- 
 tors, brokers, and underwriters to be declared bankrupt 
 on the petition of their creditors, and proof of their 
 having committed an act of bankruptcy. And this 
 measure prevailed more from the atrophy under which 
 commercial enterprise and credit had labored for the 
 few preceding years, than from real conviction of its 
 consistency either with the provisions of the Constitu- 
 tion, or the rules of sound policy. It was, indeed, 
 considered as a temporary expedient, to be abandoned 
 when it had performed its office, and the causes which 
 produced it had ceased to operate ; and it has, accord- 
 ingly, been since repealed. None of the States have 
 enacted bankrupt laws, technically so called. Most of 
 them, however, have permanent insolvent laws ; but, 
 inasmuch as they cannot discharge the debtor from the 
 obligation of his contract, and imprisonment for debt 
 has been abolished in most of the States, the operation 
 of those laws is, in effect, confined to the person of the 
 debtor in the States where that relic of a barbarous age 
 is still preserved, 
 
 " And where he cannot be discharged, 
 Till nature tire with its own weight, and then 
 Is he but more undone to be at liberty." 
 
 27
 
 314 LECTURES ON 
 
 LECTURE X. 
 
 ON THE POWERS VESTED IN THE FEDERAL GOVERNMENT 
 RELATIVE TO CERTAIN MISCELLANEOUS OBJECTS OP GEN- 
 ERAL UTILITY. 
 
 THE first to be enumerated in this class is the power 
 " to promote the progress of science and the useful arts, 
 by securing, for limited times, to authors and inventors, 
 the exclusive right to their writings and discoveries" J 
 
 The claims of authors and inventors are so con- 
 genial to our notions of natural justice, and accord so 
 harmoniously with the ultimate objects of society in 
 establishing the rights of property, that, at first sight, 
 it seems strange that the existence of this right should 
 ever have been made a question. It was so, however, 
 in the great case of literary property which arose in 
 England. It was, nevertheless, finally settled, by a 
 solemn judgment of the House of Lords, that, although 
 such right had existed at Common Law, yet that 
 the statute passed in the reign of Queen Anne for 
 securing copyrights had limited the right, which had 
 before been perpetual, to a term of years. But those 
 Judges, whose opinions were overruled by this reversal 
 of an almost unanimous opinion of the Court of King's 
 Bench, 2 and who, reasoning upon different principles, 
 
 1 Const. U. S., Art. I. Sect. vm. 8. 
 
 2 This celebrated case is reported in 4 Burrow, 2303, under the
 
 CONSTITUTIONAL JURISPRUDENCE. 315 
 
 arrived at a different result, were perplexed by the in- 
 definite nature of the right, and embarrassed by the 
 consequences of admitting it. On the one hand, to 
 
 title of Miller v. Taylor, which was the cause decided in the Court of 
 King's Bench, all the Judges, excepting Mr. Justice Yates, agreeing 
 that an author had the sole right of printing and publishing his work 
 in perpetuity by the Common Law, and that such right is in nowise 
 impeached by the statute of Anne. A writ of error was afterward 
 brought, but the plaintiff in error suffered himself to be non-prossed; 
 and the Court of Chancery granted an injunction in 1770. In 1774, 
 the case of Donaldson v. Becket brought the question on appeal be- 
 fore the House of Lords. The Lords Commissioners of the Great 
 Seal had granted an injunction against violating a copyright at Com- 
 mon Law ; and when the appeal from that decree was brought up to 
 the Lords, the Judges were directed to deliver their opinions upon 
 the following questions, viz : 
 
 1. Whether, at Common Law, an author had the sole right of first 
 printing and publishing his book for sale ; and might bring an action 
 against any person who printed, published, and sold the same without 
 his consent ? 
 
 2. If the author had such right originally, did the law take it away 
 upon his printing and publishing his work for sale ; and might any 
 person afterward reprint and sell it for his own benefit against the 
 will of the author ? 
 
 3. If such action would have laid at Common Law, is it taken 
 away by the statute of Anne ? And is an author by that statute 
 precluded from every remedy, except on the foundation of said 
 statute, and on the terms and conditions prescribed thereby ? 
 
 4. Whether the author of any literary composition, and his assigns, 
 had the sole right of printing and publishing the same in perpetuity 
 by the Common Law ? 
 
 5. Whether this right is in any way impeached, restrained, or taken 
 away by the statute ? 
 
 Upon the first question, the Judges were eight to three in the 
 affirmative ; on the second, seven to four ; on the third, six to five in 
 the negative ; so that the general result was, " that an author had the 
 sole right in perpetuity at Common Law, and that such right was in 
 nowise impeached by the statute." It was known that Lord Mans-
 
 316 LECTURES ON 
 
 deprive men of genius of the right to the profits of 
 invention was discouraging literature and the useful 
 arts, and throwing impediments in the way of science 
 and learning. On the other hand, an unlimited right 
 to the exclusive enjoyment of the fruits of genius and 
 discovery, though for a time it might stimulate both, 
 yet, in its consequences, would levy a perpetual tax 
 on posterity, and check the progress of invention itself. 
 
 The full result of admitting an exclusive and per- 
 petual right of property in the produce of intellectual 
 labor was not, and could not be fully known or esti- 
 mated ; but that it would operate as a bar to the 
 advancement of human knowledge, and powerfully 
 retard the progress of society, was clear to demonstra- 
 tion. Yet, to deny to inventors the fair profits deriva- 
 ble from their talents and exertions, seemed to be at 
 variance with every idea of natural justice and every 
 dictate of liberal policy. It was, in effect, to deny to 
 genius its appropriate reward, and to withhold from 
 the powers of intellect one of the strongest stimulants 
 to their exertion. From a balanced consideration, 
 therefore, of both sides of this important question, the 
 statute of Anne, limiting the rights of authors and 
 inventors, in their writings and discoveries, to a term 
 
 field adhered to the opinion delivered by him in the Court of King's 
 Bench ; and therefore concurred with the eight upon the first ques- 
 tion ; and with the seven upon the second ; and with the five on the 
 third. But, it being unusual for a peer to support his own judgment 
 on an appeal, he gave no opinion ; and the Lord Chancellor (Apsley) 
 seconding Lord Camden's, his predecessor's, motion " to reverse," the 
 decree of the Court of Chancery was reversed. So that the decision 
 of the Peers was, in effect, that the right was perpetual at Common 
 Law, but reduced by the statute to a term of years.
 
 CONSTITUTIONAL JURISPRUDENCE. 317 
 
 of years, was regarded as a compromise, by which the 
 claims of the inventor were acknowledged, his rights 
 defined and protected, and his reward secured; while 
 a public interest was effectually created, and a barrier 
 against injurious consequences erected for the benefit 
 of posterity. 
 
 Hence may be collected both the origin and the 
 policy of the Act of Parliament. With this statute 
 before them, and with a full knowledge of the principles 
 and policy on which it was founded, the several States 
 ceded to Congress " a power to promote the progress 
 of science and the useful arts, by securing to authors 
 and inventors the exclusive right to their writings and 
 discoveries." The English law had limited the right 
 to a term of years. The power ceded by our Constitu- 
 tion was to secure it "for limited times ;" the former 
 restricting the right to a definite period ; the latter 
 adopting the same principle, but leaving the quantum 
 of interest to the discretion of the National Legisla- 
 ture. In execution of this power, several Acts have 
 been passed by Congress, and are now in force, defin- 
 ing the limits for which the exclusive rights of authors 
 and inventors to their writings and discoveries shall be 
 enjoyed, and securing such enjoyment for different 
 periods in different cases, by penalties and other appro- 
 priate remedies against those who violate the right. 1 
 
 The object, therefore, of this provision of the Con- 
 stitution, and of the laws enacted in virtue of it, is 
 twofold : first, to secure to inventors and to authors a 
 
 1 The first of these Acts, passed in 1790, instead of sanctioning a 
 preexisting perpetual right in an author, created the right, and se- 
 cured it for a limited time. 8 Peters, 591. 
 
 27*
 
 318 LECTURES ON 
 
 reward for their labors ; and, secondly, to secure to 
 the public the benefit of their works, by bringing the 
 property in them into the common stock, after the 
 expiration of the times limited for the exclusive priv- 
 ilege ; and it is manifest that this double object can 
 only be effected by such a construction of the Consti- 
 tution as will leave to Congress the exclusive power 
 of legislation on the subject. Prior to the adoption 
 of the Federal Constitution, Legislative Acts in favor 
 of valuable discoveries and improvements had been 
 passed in several of the States ; but their efficacy be- 
 ing confined to the limits of those States, the privileges 
 thus secured were of little value ; and, whatever they 
 were worth, all these State enactments ceased as soon 
 as the Federal Constitution was adopted. For greater 
 caution, however, it was provided, in one of the first 
 Acts of the National Legislature, that the applicant 
 for the benefit of the protection of Congress should 
 surrender his right under the .State law, and that his 
 obtaining a patent under the laws of the United States 
 should be evidence of such surrender. 
 
 An important and protracted controversy, neverthe- 
 less, arose in the State of New York as to the nature 
 and extent of the power in question, which occupied, 
 at different times, the attention both of the Legislature 
 and Courts for several years before it was happily set 
 at rest by the Supreme Court of the United States 
 not by an express construction of this particular power, 
 but by a series of decisions upon analogous cases in- 
 volving similar principles, and bearing in one case on 
 the subject itself. I refer to the case of Livingston 
 and Van Ing-en, in which the question arose as to the 
 validity of the grant made by the Legislature of New
 
 CONSTITUTIONAL JURISPRUDENCE. 319 
 
 York to certain individuals, of the exclusive right of 
 navigating its waters with boats propelled by means 
 of fire or steam. 
 
 Before the adoption of the Federal Constitution, an 
 Act was passed by the Legislature of that State grant- 
 ing and securing to one John Fitch " the sole right and 
 advantage of employing the STEAMBOAT by him lately 
 invented" and investing him and his representatives 
 " with the exclusive right and privilege of navigating 
 all kinds of boats, propelled by the force of fire or 
 steam, within all the waters within the territory and 
 jurisdiction of" the State of New York, " for the term of 
 twenty years " from the passing of that Act, in March, 
 1789. In March, 1798, nearly ten years subsequent to 
 the ratification of the Federal Constitution, and after 
 Congress had passed that Act, in execution of the 
 power under discussion, which contains the provisions 
 requiring the surrender by applicants under it of the 
 State rights before granted to them, another Act was 
 passed by the Legislature of the same State, of which 
 the preamble sets forth, " that Robert R. Livingston 
 had represented that he was possessed of a mode of 
 applying the steam-engine to propel a boat on new 
 and advantageous principles ; but that he was deterred 
 from carrying it into effect by the uncertainty and 
 hazard of a very expensive experiment, unless he could 
 be assured of an exclusive advantage from it should it 
 be found successful ; " and that " he was also deterred 
 from the enterprise by the existence of the previous 
 Act in favor of Fitch, who was stated to be dead, or 
 to have withdrawn from this State without having 1 
 made any attempt to execute the plan for which he had 
 obtained the exclusive privilege," whereby it was alleged
 
 320 LECTURES ON 
 
 to have been justly forfeited ; it was " therefore enacted 
 that privileges similar to those granted to John Fitch " 
 should be extended to Mr. Livingston and his repre- 
 sentatives, for the term of twenty years, upon condition 
 that he should, within one year, build a boat to be 
 propelled by fire or steam, " the mean rate of whose 
 progress should not be less than four miles an hour ; 
 and that he should at no time omit, for the space of 
 one year, to have a boat," of a certain burden and 
 construction, " plying between the cities of New York 
 and Albany." 
 
 These conditions not having been performed within 
 the period specified, the time for fulfilling them was 
 repeatedly enlarged by successive Acts of the Legisla- 
 ture for the purpose. One of these, passed after the 
 former ones had expired, revived the privileges granted 
 by them in favor of Robert R. Livingston and Robert 
 Fulton. In the year 1807, the proof required of per- 
 formance of the first condition of the grant was duly 
 exhibited, and a boat propelled by steam, at the rate of 
 more than four miles an hour, began to " ply between 
 the cities of New York and Albany," in pursuance of 
 the second. Other boats were subsequently built by 
 the grantees of the State, and after they had continued 
 for some years in successful operation, rival boats, pro- 
 pelled in the same manner, were established, in ^defi- 
 ance of the State grant, both on the Hudson River and 
 on Lake Champlain, by persons denying its validity. 
 Application for redress was speedily made by Messrs. 
 Livingston and Fulton to the State Courts of New 
 York, and the question presented was, whether the grant 
 made to them by the Legislature was not absolutely 
 void, as made in contravention of the powers of Con-
 
 CONSTITUTIONAL JURISPRUDENCE. 321 
 
 gress to promote the progress of science and the arts, and 
 to regulate commerce. It was decided in the Court of 
 Chancery that the State grant was void on the ground 
 alleged ; but on an appeal to the Court of Errors and 
 Appeals, that decision was overruled, and it was de- 
 clared by this tribunal of the last resort in the State, 
 that the grant was not absolutely void, on two distinct 
 grounds, viz : that, considering Messrs. Livingston and 
 Fulton as inventors, the State had a concurrent power 
 with Congress to reward them as such, by the grant of 
 exclusive privileges to be exercised within its jurisdic- 
 tion ; and, secondly, that, considering them merely as 
 the possessors and importers of a foreign invention, the 
 State had an independent power to reward them for the 
 introduction of such invention into beneficial use upon 
 its waters a power not ceded to Congress at all. It 
 was observed, however, by one of the Judges, that " if 
 the opposite party could have shown a right by patent 
 from the United States, as inventors, they must have 
 prevailed, and the State law would have given way to 
 the superior power of Congress." For it must be borne 
 in mind that the opponents of Messrs. Livingston and 
 Fulton claimed no right or title whatsoever, either 
 under a patent or coasting license ; and, for aught that 
 appeared, their mode of applying the steam-engine in 
 the navigation of their boats might be, as in fact it 
 was, the same which had been introduced by the 
 grantees of the State. 1 
 
 After notice of an appeal, on the part of their adver- 
 saries, to the Supreme Court of the United States, 
 Messrs. Livingston and Fulton offered terms of com- 
 
 1 9 Johns. Rep. 557.
 
 322 LECTURES ON 
 
 promise which were too advantageous to be refused 
 by the other side, and, consequently, these questions 
 were not then carried up to the Federal Court ; and in 
 the subsequent case, 1 referred to in a former Lecture, 
 the question respecting the nature and effect of the 
 power to promote the progress of science and the arts, 
 did not arise. That case turned wholly upon the 
 collision between the exclusive privilege granted by 
 the State Legislature and the power of Congress to 
 regulate commerce ; and the State laws were declared 
 to be void, merely from their repugnance to the exer- 
 cise of that power by the Federal Government. The 
 leading principles, however, of that decision, as well 
 as much of the reasoning in the case relative to the 
 licenses required by the State of Maryland from im- 
 porters of foreign goods, apply with equal force to the 
 power now under discussion ; and although the in- 
 validity of the State grant has thus been established, 
 and the question relative to the nature and operation 
 of a patent from the United States can never arise 
 with respect to that grant, yet it may become material 
 in other controversies, and, from its general importance, 
 deserves examination. With all due deference to the 
 opinion of " the highest Court in the State " of New 
 York, I shall endeavor to show the obvious meaning 
 of the Constitution to be, that Congress shall secure 
 " the exclusive rights of authors and inventors to their 
 respective writings and discoveries," by the exercise of 
 an exclusive power of legislation. 
 
 In a confederated Government, extending, like ours, 
 over many independent sovereignties, it seems difficult 
 
 1 10 Wheat. 446.
 
 CONSTITUTIONAL JURISPRUDENCE. 323 
 
 to conceive in what manner the right in question can 
 possibly be secured, except by vesting such exclusive 
 power in a paramount authority ; and the necessity of 
 such a power to the attainment of the end was an 
 adequate reason for vesting it in the Supreme Legisla- 
 ture of the Union. The power under consideration 
 comes under that class of cases enumerated in the 
 thirty-second number of " The Federalist," 1 to which 
 the exercise of a similar power in the States would be 
 repugnant and contradictory. The example which the 
 learned and eloquent author of that paper selected to 
 illustrate his reasoning, involved a contradiction by 
 direct implication, from the force of the terms. It was 
 an example taken from the power of Congress to estab- 
 lish a uniform system of naturalization ; and it was 
 argued that such power must necessarily be exclusive, 
 because, if each State had power to prescribe a distinct 
 rule, the rule of Congress could not be uniform. In 
 the present case, the power given is necessarily exclu- 
 sive, both from the terms and the nature of the grant. 
 The words are, that " Congress shall have power to 
 secure the exclusive rights of authors and inventors, 
 for limited times" Now, if a State have a concurrent 
 power with Congress over the subject, it must be a 
 power arising from the unceded portion of its sov- 
 ereignty, and, consequently, a power to grant without 
 limit of time. But how could Congress secure to the 
 inventor, for a limited period, the enjoyment of that 
 which the State might grant to another forever? It 
 was said, on the occasion referred to, in the Court of 
 Errors, by one of its most eminent judges, " that if an 
 
 1 By Mr. Hamilton.
 
 324 LECTURES ON 
 
 author or inventor, instead of resorting to the Act of 
 Congress, should apply to the State Legislature for an 
 exclusive right to his production, there is nothing to 
 prevent the State from granting such exclusive priv- 
 ilege, provided it be confined in its exercise to the 
 particular jurisdiction." But, with all due submission, 
 if this opinion be correct, one of two things must 
 follow : either that Congress may secure to an inventor 
 or author an exclusive right in his discovery or writing, 
 and the State secure to another, either as author or 
 possessor of the same invention, the exclusive right to 
 use it within its own jurisdiction ; or that Congress 
 cannot secure such a right to the inventor after the 
 State has secured it to the possessor. In the former 
 conclusion this consequence seems to be involved : that 
 Congress may grant an exclusive right to one person 
 to the use of a certain thing throughout the Union; and 
 that the individual States may grant an exclusive right 
 to another person to use the same thing within the 
 limits of a particular district ; or, in other words, that 
 over the same subject, and within the same jurisdiction, 
 two coordinate powers may grant exclusive privileges 
 to different persons. The other branch of the dilemma 
 supposes the State to derogate, by an assumption of 
 power, from the express terms of its grant to the Fed- 
 eral Government, and actually to exercise an exclusive 
 power to secure exclusive privileges, in direct contra- 
 diction to the terms of the power ceded to Congress. 
 Nor does it obviate this repugnancy to say that, when 
 these separate powers come into direct conflict, the 
 grant of the State must yield to " the supreme law of 
 the land," because the repugnancy is, from the nature 
 of the subject, different from that arising under the
 
 CONSTITUTIONAL JURISPRUDENCE. 325 
 
 power to regulate commerce, and is directly deduci- 
 ble from the propositions themselves, and not from 
 any casual effects or consequences arising from the 
 accidental collision of concurrent or of independent 
 powers. 
 
 The power now in question is, moreover, exclusive, 
 from the nature of the grant ; because, if each State 
 have a concurrent power, its exercise would defeat the 
 twofold object for which the Federal Constitution in- 
 tended to provide. That object, we have seen, was to 
 secure to the public the benefit and transmission of 
 invention, as well as to secure to genius a reward for 
 its productions and discoveries. But if the individual 
 States have a concurrent power with Congress, neither 
 branch of this object can be secured by the latter; for, 
 in regard to the former branch, if Congress prescribe 
 fourteen years as the limit of exclusive rights, and 
 render them common at the expiration of that period, 
 each State might fix a different period, or might secure 
 a right of property to authors and inventors in per- 
 petuity. Nor could the latter branch of the object be 
 secured by Congress if the States could exercise a 
 concurrent power; because each State might, upon 
 that supposition, reduce the term of exclusive enjoy- 
 ment to a minimum, or declare, at once, the fruits and 
 industry of genius to be common property. 
 
 The arguments against the exclusive nature of this 
 power of Congress, drawn from the nature and effect 
 of a patent in merely securing, as was alleged, a title 
 or right of property, without conferring a right of sale 
 or of use ; and the objection deduced from the right of 
 legislation retained by the States in regard to their 
 purely internal trade and intercourse, and their police, 
 28
 
 326 LECTURES ON 
 
 health, and inspection laws, 1 have, in effect, been met 
 and refuted by the Supreme Court, in their opinions 
 declaring that a coasting license not only ascertains 
 the national character and ownership of a vessel, but 
 confers a right of navigation ; that a right to import 
 goods involves the right to sell them ; and that, when- 
 ever those rights come into collision with State laws, 
 passed in virtue either of a concurrent or of an inde- 
 pendent right of legislation, on these, or any other 
 subjects, and the exercise of the Federal and State 
 authorities are found repugnant or irreconcilable to 
 each other, the State law must yield to the superior 
 power of Congress. So a patent or a copyright not 
 only ascertains the title of the patentee or author, but 
 confers the same paramount right of using, and vend- 
 ing to others to use, their respective discoveries and 
 writings. 
 
 In applying, however, the reasoning of Chief Justice 
 Marshall to the case of a patent or copyright, it is, 
 perhaps, necessary to remark that the property which 
 an author may have in his writings appears to be 
 somewhat different from that which an inventor may 
 have in his discoveries. The former has no beneficial 
 use or property whatever in his writings, independently 
 of that which may be derived from the sale of them. 
 The latter may, though in a very restricted sense, use 
 his invention for purposes of profit ; to both, however, 
 a right of sale is indispensable, but more manifestly so 
 in the first case than in the last. Every other subject 
 of property may be partially enjoyed, though the right 
 
 1 Vide a pamphlet entitled " A Vindication of the Laws of New 
 York, granting exclusive privileges to Robert R. Livingston and 
 Robert Fulton," by Cadwallader D. Colden, Esq., Albany, 1818.
 
 CONSTITUTIONAL JURISPRUDENCE. 327 
 
 of sale be restricted or forbidden ; but the right of prop- 
 erty of authors and inventors is so essentially connected 
 with the right of sale, that the inhibition of that right 
 annihilates the whole subject. The right of sale, in 
 these instances, therefore, is an elementary principle in 
 the very idea of property. Separate it from the rest, 
 and the complex legal notion of property is destroyed ; 
 the value the thing intended to be secured, is lost to 
 it. All human laws proceed upon the assumption of 
 value as implicitly involved in the idea of property ; 
 and as new discoveries in science, and new improve- 
 ments in the arts, give rise to new modifications of 
 property, the first thing that attracts the attention of 
 the Legislature to any subject as being capable of 
 appropriation or exclusive ownership is its VALUE. Ac- 
 cordingly, we find that the laws passed by Congress l 
 in virtue of the constitutional power now in question, 
 secure to an author or his assignee " the sole^ right and 
 liberty of printing, reprinting, publishing, and vending-" 
 his work ; and to a patentee, " the full and exclusive 
 right and liberty of making, constructing, using, and 
 vending' to others to be used," his invention or discovery 
 within the several times limited for the enjoyment of 
 their respective privileges. 
 
 How far the exercise of this right of property is liable 
 to be controlled and regulated by the municipal laws of 
 the several States, depends in a great measure on the 
 principles recognized and established in the two Cases 
 to which I have so often referred, as decided in the 
 Supreme Court of the United States. In the prior 
 case, 2 decided in the Court of Errors of the State of 
 
 1 Laws U. S. 1 Cong. 2 Sess. ch. xv. ; 2 Cong. 2 Sess. ch. xi. 
 
 2 9 Johns. Rep. 507.
 
 328 LECTURES ON 
 
 New York, it was held that the Legislature of a State 
 may prohibit the use of any particular invention, as 
 noxious to the health, injurious to the morals, or in any 
 respect prejudicial to the welfare of its citizens. But, 
 in addition to the qualifications which this assertion 
 must receive from the doctrine of the Supreme Court, 
 it seems to me that the Government of the Union must 
 possess exclusively the power of determining whether 
 an invention for which a patent is sought be useful or 
 pernicious ; or, in other words, whether it be one for 
 which a patent ought to be granted. The object of the 
 constitutional power of Congress is the promotion of 
 the " useful arts ; " an invention useless or pernicious 
 would not be a proper object for its exercise ; but 
 should a patent for such an invention have unad- 
 visedly issued, there can be no doubt that the Federal 
 authority might repeal the patent, and interdict the 
 use of the noxious discovery. If a thing in itself per- 
 nicious be patented, the patentee could recover no 
 damages for the violation of his right, as his patent 
 would confer no right of property upon him. If it be 
 useful in itself, but the art or manufacture to which it 
 relates be injurious, in its exercise, to the public health, 
 the patent would afford no protection for the nuisance, 
 because private interests must yield to the public good, 
 and not because the Federal power is superseded or 
 controlled by the State law. So, if the author of an 
 imrrtoral or libellous book prosecute for the invasion of 
 his copyright, he could receive no indemnity ; and if 
 prosecuted for his offence against the State law, in 
 issuing such a publication, the authority of the United 
 States would not protect him, as, in the one case, his 
 copyright would invest him with no right of property,
 
 CONSTITUTIONAL JURISPRUDENCE. 329 
 
 and, in the other, would convey no right to use his 
 property to the injury of others. Nor would the pat- 
 entee of a newly-invented vehicle, any more than the 
 owner of a post-coach conveying the mail of the United 
 States, be entitled to pass over a State turnpike-road 
 without paying the toll, nor a patented steamboat per- 
 mitted to ply on a ferry established by State authority, 
 without being subjected to the accustomed ferriage, or 
 to the penalties provided in cases of such violation of 
 the particular right to the ferry, any more than that or 
 any other vessel would be exempted from them by a 
 coasting license. Restrictions of this nature are gen- 
 eral in their operation. They are not confined to the 
 patentee, and in no sense do they derogate from- the 
 exclusive power of Congress in relation to the promo- 
 tion of science and the useful arts. But a construction 
 of the Constitution admitting that the States, in the 
 exercise of an absolute discretion, may prohibit the in- 
 troduction or use of any particular invention for which 
 a patent had been regularly obtained, would render the 
 power in question completely nugatory, and the States 
 would retain substantially the very power they had 
 nominally parted with. 
 
 This power of securing to authors and inventors a 
 right of beneficial ownership in their writings and dis- 
 coveries, has been surrendered to Congress, and any 
 encouragement to invention, invitation to the intro- 
 duction of improvements, or attempt to promote the 
 progress of literature, science, and the arts, which inter- 
 feres with, or prevents the exercise of that power, is an 
 assumption of authority fairly, and on good considera- 
 tion, yielded to the General Government. The several 
 States, nevertheless, retain all other means of securing 
 28*
 
 330 LECTURES ON 
 
 rewards to genius, of promoting learning and science, 
 of encouraging new discoveries, and inviting improve- 
 ments in the arts, except the power thus ceded to the 
 Union. And although an individual State can neither 
 secure to an inventor an exclusive property in his inven- 
 tion, nor, for any known and used improvement, grant 
 exclusive privileges in the use of anything that may 
 become the subject of a patent, yet it may promote 
 the progress of learning, encourage new discoveries in 
 science, and invite the introduction of new improve- 
 ments in all the liberal and useful arts, in any other 
 way that human ingenuity can devise, or good policy 
 may dictate, and which does not interfere with the 
 exercise of the power vested for the same purposes in 
 Congress. And the reason of the difference is simply 
 this : that all the other modes of effecting those objects 
 may, without danger of being defeated by the clashing 
 laws of coordinate Legislatures, be safely committed 
 to the several States, while the simple mode of securing 
 the right of property must be possessed by the supreme 
 Federal authority alone ; for, in the peculiar condition 
 and circumstances of the country, that end cannot 
 otherwise be effected. 
 
 II. The power vested in Congress "to exercise ex- 
 clusive legislation, in all cases whatsoever, over such 
 District, not exceeding ten miles square, as may, by 
 cession of particular States, and the acceptance of Con- 
 gress, become the seat of the Government of the United 
 States ; and to exercise like authority over all places 
 purchased by the consent of the Legislatures of the 
 States in which the same shall be situated, for the erec- 
 tion of forts, magazines, arsenals, dockyards, and other 
 needful buildings"
 
 CONSTITUTIONAL JURISPRUDENCE. 331 
 
 This power was granted to Congress from a convic- 
 tion of the indispensable necessity of investing that 
 body with complete supremacy and control at the seat 
 of the National Government. Without the possession 
 of such a power, the Federal authority might be in- 
 sulted, and its proceedings interrupted with impunity ; 
 and the dependence of the functionaries of the General 
 Government on one of the States for protection in the 
 exercise of their duties, might subject the national 
 councils to the imputation of partiality, and be produc- 
 tive of an influence equally dishonorable to the Gov- 
 ernment, and dissatisfactory to the other members of 
 the Union. This consideration was of greater weight, 
 as the public archives liable to destruction would 
 accumulate, and the gradual multiplication of public 
 improvements at the permanent residence of the Na- 
 tional Government would, it was thought, create so 
 many additional obstacles to its removal, and still 
 further abridge its necessary independence. The ne- 
 cessity of a like authority over the forts, arsenals, and 
 dockyards, and their appendages, established by the 
 Federal Government, was supposed to be not less 
 evident. The public money expended on such estab- 
 lishments, and the public property deposited in them, 
 require their exemption from the local authority of the 
 State where they are situated. Nor would it be proper 
 that places on which the security of the entire Union 
 may depend, should be in any degree dependent on a 
 particular member ; and all objections and scruples 
 were obviated by requiring the concurrence of the 
 States concerned in every such establishment. 
 
 The cessions of territory contemplated by the Con- 
 stitution were duly made by the States of Maryland
 
 332 LECTURES ON 
 
 and Virginia, whereby Congress was enabled to execute 
 this power by establishing, under its own jurisdiction, 
 a permanent seat for the National Government. This 
 territory was erected into a " District," under the ex- 
 clusive jurisdiction of Congress, by the name of the 
 " District of Columbia." The City of WASHINGTON" 
 was built, and the necessary edifices for the accommo- 
 dation of all the different branches of the Federal 
 Government were erected on the banks of the Potomac, 
 in conformity with a favorite wish of General Wash- 
 ington, and almost in sight of the place of his residence 
 in life, and his repose in death. The seat of Govern- 
 ment was removed thence at the commencement of the 
 present century. Municipal corporations were created 
 by Congress for managing the local concerns of the 
 " Federal city," and of the cities of Georgetown and 
 Alexandria, 1 situated within the " ten miles square," 
 ceded by the respective States within whose limits they 
 had been previously included. Laws have, from time 
 to time, been passed by Congress for the government 
 of the District of Columbia, and local courts estab- 
 lished, as we have seen, for the administration of justice 
 within its limits. But the Acts of Congress adopted 
 the laws of Maryland and Virginia as the laws of the 
 several portions of the District ceded by those States 
 respectively, with such alterations only as were ren- 
 dered necessary by the change of jurisdiction. 2 Nor 
 were the separation of the territory and the transfer of 
 the jurisdiction permitted to affect existing contracts 
 between individuals. 3 
 
 1 The city of Alexandria has since been receded to the State of 
 Virginia. 
 
 2 1 Cranch, 252. 3 Q 2bid. 192.
 
 CONSTITUTIONAL JURISPRUDENCE. 333 
 
 Although the inhabitants of the District of Columbia, 
 by its separation from Maryland and Virginia, ceased 
 to be citizens of those respective States, yet, as citizens 
 of the United States, they are entitled to the benefit 
 of all commercial and political treaties with foreign 
 powers, and to the protection of the Union at home, 
 as well as abroad. 1 And notwithstanding the power 
 of Congress to exercise exclusive legislation over this 
 Federal territory includes the power of taxing its inhab- 
 itants, they do not in any manner participate in the 
 election of members of the House of Representatives. 
 I have already had occasion to explain upon what 
 principles this anomaly in the Constitution has been 
 justified ; 2 and it may now be added, that the adequate 
 provisions for their local government, and the advan- 
 tages derived from the residence of the General Gov- 
 ernment, are deemed by the inhabitants themselves 
 sufficient to counterbalance their political disabilities ; 
 that no public inconvenience has been experienced from 
 their existence ; and that the circumstance was known 
 before the cession of the territory, and when the inhab- 
 itants voluntarily established their residence within it. 
 
 III. The next power falling within this miscellaneous 
 class is the power of Congress " to declare the punish- 
 ment of treason " against the United States. 
 
 It is a general principle, that every Government con- 
 tains within itself the means and capacity for its own 
 preservation. Had the express enumeration, therefore, 
 of this power been omitted in the Constitution, it could 
 not have been intended that the Federal Government 
 was to depend upon the individual States to protect it 
 
 1 2 Cranch, 243. 85 Wheat. 324.
 
 334 LECTURES ON 
 
 from treason and conspiracies; yet, to have left the 
 power of self-defence to inference or argument, would 
 have been unwise and unsafe. As the crime of treason 
 against the* United States was. one which might be 
 committed, the United States themselves might, with- 
 out this express authority, have punished its perpe- 
 trators ; but as artificial and constructive treasons had 
 been frequently made engines of oppression by tyran- 
 nical governments, and, during the prevalence of vin- 
 dictive factions, by such as were comparatively free, it 
 was deemed expedient to insert in the Constitution a 
 definition of the crime, to prescribe the proof necessary 
 for conviction, and to restrain Congress, in punishing 
 it, from extending the consequences of guilt beyond the 
 person of its authqr. 
 
 Treason against the United, States is, accordingly, 
 declared to " consist only in levying war against them, 
 or in adhering to their enemies, giving them aid and 
 comfort." 1 The term "levying war" is of technical 
 signification, and is adopted fnom the English statute 
 of treasons, and receives the same construction with us 
 which has been given to it in England ; and the " war," 
 included in the term, embraces internal rebellion, as 
 well as hostilities from without. A conspiracy to sub- 
 vert by force the Government of the United States, 
 violently to dismember the Union, to coerce the repeal 
 of a general law, or to revolutionize a Territorial Gov- 
 ernment by force, if carried into effect, by imbodying 
 and assembling an armed force in a military posture, 
 is an overt act of levying war ; and not only those who 
 bear arms, but those who perform the various essential 
 
 * Const. U. S., Art. in. Sect. in.
 
 CONSTITUTIONAL JURISPRUDENCE. 335 
 
 parts which must be assigned to different persons for 
 the purpose of prosecuting the war, are guilty of the 
 crime. 1 But a mere conspiracy for any such purpose, 
 unaccompanied by any overt act, is not treason ; and 
 to constitute a "levying of war," there must be an 
 assemblage of persons, with intent to effect by force 
 a treasonable purpose. 2 The mere enlistment of men 
 for the purpose is not sufficient. Nor is it necessary, 
 on the other hand, that an individual should appear 
 in arms against his country to constitute the guilt of 
 treason. If war be actually levied, that is, if a body 
 of men be actually assembled in arms for the purpose 
 of effecting by force a treasonable design, all those who 
 perform any part in the conspiracy, however minute, or 
 however remote themselves from the scene of action, if 
 actually leagued in the general enterprise, are consid- 
 ered as traitors. Similar acts committed against the 
 Government or laws of a particular State are punish- 
 able according to the law of that State, but adhering 
 to a foreign nation at war with the United States, and 
 affording it aid in the prosecution of hostilities, is 
 treason against the United States, and not against the 
 particular State of which the party is a citizen. 8 
 
 The Constitution further 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." A confession out of Court, although 
 before a magistrate, is not sufficient; 4 but after the 
 treason is proved by two witnesses, such confession 
 may be given in evidence by way of corroboration. 
 
 1 4 Cranch, 470. 2 4 /jjd. 75-126. 3 11 Johns. Rep. 553. 
 4 Fries's Case, in U. S. Cir. Ct. for Pennsylvania.
 
 336 LECTURES ON 
 
 The testimony of the two witnesses must be to the 
 same overt act, and not, as in England, to two different 
 overt acts of the same treason. The restriction on Con- 
 gress with respect to the punishment is, that " no 
 attainder of treason shall work corruption of blood or 
 forfeiture, except during the life of the person at- 
 tainted." Corruption of blood, in common with many 
 better things, we derive again from the Common Law. 
 It signifies that an attainted person can neither inherit 
 land from his ancestors, retain that of which he is in 
 possession, nor transmit it to his heirs ; and that he is, 
 moreover, incapable of transmitting a title derived by 
 descent through him, even from a remote ancestor. 
 This is visiting the sins of the fathers upon the chil- 
 dren with a vengeance, as it is not confined to the 
 third and fourth generations, but extends to a man's 
 latest posterity. The doctrine is founded upon a legal 
 fiction ; and is equaUy at variance with the liberal 
 principles of modern times, and the very elements of 
 justice. And in carrying this power into execution, 
 Congress has humanely stopped short of their consti- 
 tutional authority ; for, in affixing the punishment of 
 death to the crime of treason, it has declared, that "no 
 conviction or judgment shall work corruption of blood, 
 or any forfeiture of estate ; " thus acting upon a con- 
 struction of the Constitution which assumes a discretion 
 in omitting the latter as a part of the punishment of 
 treason, even during the life of the offender himself. 
 
 IV. The fourth power of a miscellaneous nature 
 vested in Congress is that of "admitting new States 
 into the Union" 
 
 The Constitution of the United States treats the 
 admission of new States into the Union as a political
 
 CONSTITUTIONAL JURISPRUDENCE. 337 
 
 question, and has placed it in the hands of Congress. 
 The exercise of this power, therefore, by the Courts, 
 would be entirely inconsistent with any existing legis- 
 lation of Congress on the subject. 1 
 
 No provision of this kind was made in the Articles 
 of Confederation, and great inconvenience, and much 
 assumption of power, were the necessary consequences. 
 With great propriety and advantage, therefore, the new 
 Constitution supplied this defect. But the power was 
 not granted without restriction ; for " no new State " 
 can " be formed or erected within the jurisdiction of 
 any other State ; nor can any State be formed by the 
 junction of two or more States, without the consent of 
 the Legislatures of the States concerned, as well as of 
 Congress." 2 These precautions, which prevent either 
 the partition of a large State, or the junction of small 
 ones, without their consent, were necessary to allay the 
 jealousies existing on the subject, both in the more pow- 
 erful and in the weaker members of the Confederacy. 
 
 Upon the purchase of Louisiana by the United 
 States, some doubt was entertained whether the power 
 of the General Government to admit new States into 
 the Union extended to territories not comprised within 
 the boundaries of the United States at the adoption 
 of the Constitution. This question, although never 
 presented in a form for Judicial decision, was, however, 
 decided in the affirmative by large majorities of both 
 houses of Congress, on the several occasions of admit- 
 ting different parts of that province into the Union, as 
 the separate States of Louisiana, Mississippi, Missouri, 
 and Arkansas ; which Acts were severally approved by 
 
 i 6 Howard, 1. 2 Const U. S., Art. IV. Sect. in. 1. 
 
 29
 
 338 LECTURES ON 
 
 successive Chief Magistrates of the Union. It mast 
 therefore be considered as practically settled, and it 
 would savor too much of the spirit of controversy, and 
 betray too much self-confidence, to offer, at this time 
 of day, any argument in support of the negative side 
 of that question, and to assert that such a measure 
 required not only the consent of the inhabitants of the 
 territory, but an amendment of the Constitution to 
 render it valid. All doubt, indeed, seems long since 
 to have subsided, and public opinion has sustained the 
 Government in this exercise of the power in question, 
 on the ground of constitutional right, as strongly as it 
 has been declared in favor of its policy. 
 
 V. The power " to dispose of and make all needful 
 regulations respecting the territory or other property 
 belonging to the United States" is the next one com- 
 prehended in this class. 1 
 
 It was requisite that this power should be vested in 
 Congress, by considerations similar to those upon which 
 rests the propriety of its possessing the power next 
 preceding it ; and it is accompanied by a condition, not 
 only proper in itself, but which was probably rendered 
 absolutely necessary by the jealousies and controversies 
 that existed concerning the Western territory, and which 
 provides that " nothing in the Constitution shall be so 
 construed as to prejudice any claims of the United 
 States, or of any particular State." 2 
 
 The authority thus restricted, is adapted to all the 
 territorial rights of the Federal Government, beyond 
 the limits of any of the States ; but is not applicable, 
 it seems, to a fortress which has never been actually 
 
 i Const U. S., Art. IV. Sect. m. 2. 2 iud.
 
 CONSTITUTIONAL JURISPRUDENCE. 339 
 
 ceded to the United States ; nor to any land occupied 
 by the General Government for any similar purpose, 
 with the tacit consent of the State, although the title to 
 the soil may have been conveyed to the United States. 
 It is under this power that Congress claims authority 
 to legislate for the Territories, erected in provinces, 
 acquired, like Louisiana and the Floridas, since the 
 adoption of the Federal Constitution. But if the Fed- 
 eral Government possessed authority to purchase them, 
 there seems no necessity for resting the right of legisla- 
 tion in regard to them on such narrow and insufficient 
 grounds, for the power of governing a territory is the 
 inevitable consequence of the right to acquire and 
 hold it. 
 
 The formation of civil government in Upper Cali- 
 fornia at the time of its conquest, was the lawful 
 exercise of a belligerent right. It was the existing 
 Government when the Province was ceded to the 
 United States, and did not cease, as a matter of course, 
 or as a consequence of the restoration of peace ; and 
 was rightfully continued after peace was made, and 
 until Congress established a Territorial Government 
 there, under its constitutional power to dispose of and 
 make all needful rules and regulations respecting the 
 territory and other property belonging to the United 
 States. 1 
 
 VI. The guarantee by the " United States to every 
 State in the Union of a Republican form of Government; 
 to protect each of them against invasion ; and on appli- 
 cation of the Legislature, or of the Executive, when the 
 Legislature cannot be convened, against domestic vio- 
 
 1 16 Hoioard, 164.
 
 340 LECTURES ON 
 
 f 
 
 fence" may also be classed among the miscellaneous 
 powers of the Federal Government, as it gives to it 
 a right of interference to effect the objects of the 
 guarantee. 1 
 
 Governments of dissimilar principles and forms have 
 been found less adapted to a Federal coalition of any 
 sort, than those of a kindred nature. In a Confederacy 
 founded on Republican principles, and composed of 
 Republican members, the paramount superintending 
 Government created by it ought certainly to possess 
 the authority to defend the whole system against inno- 
 vation ; and the more intimate the union, the greater 
 the interests of its members in the separate institutions 
 of each other, and the more imperative the right to 
 insist that the respective forms of government under 
 which the general compact was entered into should be 
 substantially maintained. But a right implies a rem- 
 edy, and nowhere else could an effectual remedy be 
 found in such a case than where it is actually deposited 
 by the Constitution. The mere stipulation, without 
 the power to enforce its observance, would be of little 
 value; hence the term "guarantee" indicates that the 
 United States are authorized to oppose,.and, if possible, 
 prevent every State in the Union from abandoning the 
 Republican form of Government. But the authority 
 extends no further ; and it presumes the preexistence 
 of Governments of the form guaranteed. So long, 
 therefore, as the Republican forms existing at the time 
 the Constitution was adopted are continued by the- 
 States, they are guaranteed by the Federal Govern- 
 ment, and the Federal Constitution imposes no other 
 
 1 Const U. S., Art. IV. Sect. iv.
 
 CONSTITUTIONAL JURISPRUDENCE. 341 
 
 restriction upon the alteration of the respective State 
 Constitutions than that they shall not vary from the 
 Republican form. Whenever a State may choose to 
 substitute another Republican Government in place of 
 that previously existing, it has a right so to do, and 
 is equally entitled to claim for it the benefit of a 
 Federal guarantee. 
 
 Protection against invasion is due from every society 
 to the members composing it, and the latitude of the 
 expressions used in the Constitution secures each State, 
 not only from foreign hostility, but against the am- 
 bitious or vindictive enterprise of its more powerful 
 neighbors. The protection against domestic violence 
 is added with equal policy and propriety, as it affords 
 the means of enforcing the guarantee before provided 
 for, whenever a faction or minority in a State endeavors 
 by violence to subvert the Republican form of its Con- 
 stitution. It is by no means, however, confined to that 
 particular case, nor that particular object, but extends 
 to protection against the acts even of a majority of 
 the people of a State, when directed to any object of 
 unconstitutional violence. For, although it may at the 
 first view appear inconsistent with the Republican 
 theory either that the minority will have the power, or 
 that a majority have not the right to subvert the Gov- 
 ernment, yet mere speculative reasoning must in these 
 cases, as in all others, be qualified by the lessons of 
 practice and experience. 
 
 Unlawful combinations for purposes of violence may 
 
 be formed by a majority of persons in a State, especially 
 
 in a slave-holding State, as well as by a majority of a 
 
 county, or other subdivision of a State ; and if the 
 
 29*
 
 342 LECTURES ON 
 
 authority of the State is bound in the latter case to 
 protect the local magistracy, the Government of the 
 Union is equally bound in the former to protect the 
 State authority. Besides, there are certain parts of the 
 State Constitutions which are so interwoven with the 
 Federal compact, that a violent assault cannot be made 
 on the one without injury to the other. The po*wer in 
 question, however, can only be exercised when the blow 
 is directed against the State Constitution and authority, 
 or when it incidentally or indirectly affects the Govern- 
 ment of the United States. Where the violence is 
 immediately directed against the Federal authority, the 
 General Government is invested with power to suppress 
 it, independently of any^ requisition of the State Gov- 
 ernment. But insurrections against the State Govern- 
 ments will rarely require Federal interposition, unless 
 the number of those concerned in them bears some 
 proportion to the friends of the State Constitution ; and 
 it will then be much better that the violence should be 
 suppressed by the superintending power, than that even 
 a majority in a State should be left to maintain its 
 cause by a bloody and obstinate contest. The exist- 
 ence itself of the right of the General Government to 
 interpose will, however, generally prevent the necessity 
 of exercising the power ; and in cases where it may be 
 doubtful on which side justice lies, no better umpire 
 could be desired in a State quarrel than the represen- 
 tative authority of the Union, which would be free from 
 the influence of local interests, and from participation 
 in local or pe sonal animosities. 
 
 VII. The power of Congress to "propose amend- 
 ments to the Constitution, and call conventions for the
 
 CONSTITUTIONAL JURISPRUDENCE. 343 
 
 purpose" is the last to be referred to in this class of 
 the Federal powers. 1 
 
 That useful alterations would be suggested by expe- 
 rience, could not but have been foreseen by the framers 
 of the Constitution. It was requisite, therefore, that a 
 mode for introducing amendments should be provided ; 
 and that which was adopted guards equally against that 
 extreme facility which would render the Constitution 
 too mutable, and the extreme difficulty which might 
 perpetuate its faults. The article in question provides 
 that " Congress, whenever two thirds of both houses 
 shall deem it necessary, shall propose amendments to 
 the Constitution ; or, on the application of two thirds of 
 the Legislatures of the several States, shall call a Con- 
 vention for proposing amendments, which, in either 
 case, shall be valid to all intents and purposes, as 
 part of the Constitution, when ratified by the Legisla- 
 tures of three fourths of the States, or by Conventions 
 in three fourths thereof, as the one or the other mode 
 of ratification may be proposed by Congress ; provided 
 " that no amendment, which may be made prior to the 
 year 1808, shall in any manner affect " the previous 
 provisions respecting the importation of slaves, and the 
 proportional imposition of capitation and other direct 
 taxes ; " and that no State, without its consent, shall be 
 deprived of its equal suffrage in the Senate." 
 
 Thus the General and State Governments are equally 
 enabled to originate amendments, as their necessity is 
 pointed out by experience ; and I have already had 
 occasion to remark that those proposed or adopted 
 since the ratification of the Constitution, were few in 
 
 i Const. U. S., Art. V.
 
 344 LECTURES ON 
 
 number. They consist only of three : first, that 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 citizens of another State, or by citi- 
 zens or subjects of any foreign State; 1 second, that 
 which changed the mode of balloting for President and 
 Vice-President by the Electors ; 2 and, third, an amend- 
 ment ordaining that, " if any citizen of the United 
 States shall accept, claim, receive, or retain any title 
 of nobility or honor ; or shall, without the consent of 
 Congress, accept or retain any present, pension, office, 
 or emolument of any kind whatever, from any emperor, 
 king, prince, or foreign power, such person shall cease 
 to be a citizen of the United States, and shall be inca- 
 pable of holding any office of trust or profit under 
 them, or either of them." 3 
 
 The previous and more numerous amendments were 
 proposed by some of the States as conditions of their 
 accession to the Constitution. They all operate as 
 general restrictions upon the powers of Congress, and 
 are, for the most part, affirmative either of the inalien- 
 able rights of individuals, or of the civil and political 
 rights and privileges substituted in their stead, as ex- 
 plained in our review of the fundamental principles of 
 the Government ; and they were manifestly adopted 
 from superabundant caution, inasmuch as those rights 
 were already sufficiently guarded by the State Consti- 
 tutions and bills of rights. The following, however, 
 may be enumerated as exceptions, viz : 
 
 1st. That which prohibits Congress from making any 
 
 i Amend. Const. U. S., XI. 2 ibid. XH. 3 ibid. XIIL
 
 CONSTITUTIONAL JURISPRUDENCE. 345 
 
 law respecting a religious establishment, prohibiting the 
 free exercise of religious worship, or abridging the free- 
 dom of speech or of the press. 1 
 
 2d. That " the enumeration in the Constitution of 
 certain rights shall not be construed to deny or dis- 
 parage others retained by the people." 2 And,' 
 
 3d. 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." 3 
 
 The second of thtjse amendments was intended to 
 prevent any perverse or ingenious misapplication of the 
 maxim that " an affirmation in particular cases implies 
 a negation in all others." The one last specified is 
 merely an affirmation of a necessary rule for the inter- 
 pretation of the Constitution ; which, being an instru- 
 ment of limited and enumerated powers, what is not 
 conferred by it is withheld, and retained by the State 
 Governments, if vested in them by their Constitutions, 
 and if not so vested, remains with the People, as a part 
 of their residuary sovereignty. This amendment, how- 
 ever, does not confine the Federal Government to the 
 exercise of express powers ; for implied powers must 
 necessarily have been admitted, unless the Constitution 
 had descended to the regulation of the minutest details 
 of legislation. It is a general principle, that all bodies 
 politic possess all the powers incident to a corporate 
 capacity, without any express declaration to that effect ; 
 and one of those defects of the Confederation which 
 led to its abolition, was its prohibiting Congress from 
 the exercise of any power " not expressly delegated." 
 
 i Amends. Const. U. S. I. 2 Ibid. IX. 3 Hid. X.
 
 346 LECTURES ON 
 
 It could never, therefore, have been intended by the 
 amendment in question to abridge any of the powers 
 granted under the new Constitution, whether express 
 or implied, direct or incidental. Its manifest and sole 
 design was to exclude any interpretation by which other 
 powers should be assumed beyond those granted. All 
 the powers granted by the Constitution, whether ex- 
 press or implied, direct or incidental, are left by the 
 amendment in their original state, while all powers 
 "not delegated" (not all powers "not expressly dele- 
 gated") and not prohibited are reserved. 
 
 In these, and all the other restrictions on the Legis- 
 lative powers of the Union, the two great objects were 
 to secure the rights of the People^ and to preserve the 
 Federal system.
 
 CONSTITUTIONAL JURISPRUDENCE. 347 
 
 LECTURE XI. 
 
 OF THE CONSTITUTIONAL RESTRICTIONS UPON THE POWERS 
 OF THE SEVERAL STATES. 
 
 THE fifth class of provisions in favor of the Federal 
 authority consists of restrictions on the powers of the 
 several States. These may be distinguished by their 
 character as two sorts : the first comprehending those 
 limitations which are absolute ; and the second, such as 
 are qualified. 
 
 I. The former prohibit any State from entering into 
 any treaty of alliance or confederation ; from granting 
 letters of marque and reprisal ; from coining money, 
 emitting bills of credit, or making any thing but gold 
 or silver coin a tender in payment of debts ; .from pass- 
 ing any bill of attainder, ex post facto law, or law 
 impairing the obligation of contracts ; and from grant- 
 ing any title of nobility. 1 
 
 1st. The prohibition against treaties, alliances, and 
 confederations was contained in the articles of the 
 former union of the States, and copied in the new 
 Constitution. It rests upon the consideration that if 
 every State were at liberty to enter into treaties, alli- 
 ances, and confederacies with foreign States, or with 
 other members of the Union, the power confided to the 
 
 1 Const. U. S., Art. I. Sect. x. 1.
 
 348 LECTURES ON 
 
 National Government in regard to the former would be 
 rendered nugatory, while the Constitution itself might 
 be subverted by the exercise of such a power among 
 the States. 
 
 The prohibition of letters of marque and reprisal 
 was also a part of the old system, and adopted, but 
 with some extension, in the new. According to the 
 former, they might be granted by the States, after a 
 declaration of war by Congress ; under the latter, they 
 must be obtained, as well during the war as previously 
 to its declaration, from the General Government. This 
 alteration is fully justified by the advantages of uni- 
 formity, in all points relating to foreign powers ; and 
 by the necessity of an immediate responsibility to the 
 nation, in all matters in which the nation itself is 
 responsible to others. Moreover, were it otherwise, it 
 would be in the power of a single State to involve the 
 whole Union in war, at its pleasure ; and although the 
 issuing of letters of marque is not always designed as 
 a preliminary or provocative to war, yet, in its essence, 
 it is a measure of hostile retaliation for unredressed 
 grievances, real or supposed, and is most generally suc- 
 ceeded by open hostilities. 
 
 2d. The prohibition of the States to coin money 
 was necessary to give complete effect to the power of 
 the Union in relation to the current coin, and arose 
 from a consideration of the danger and facility of 
 circulating base or spurious coins, where the coins are 
 various in value and denomination, and issued by sev- 
 eral independent and irresponsible authorities. Under 
 the Confederation, it was left in the hands of the 
 States as a concurrent right, with an exception in favor 
 of the exclusive right of Congress to regulate the alloy
 
 CONSTITUTIONAL JURISPRUDENCE. 349 
 
 and the value. In this particular these two provisions 
 have been found to be an improvement on the old ; for 
 while the alloy and the value depended on the General 
 Government, a right of coinage in the individual States 
 could have no other effect than to multiply expensive 
 mints, and diversify the forms and weights of the coins 
 in circulation. The latter measure was found to defeat 
 the purposes for which the power was originally sub- 
 mitted to the Federal authority ; and so far' as the 
 former might prevent the easy remittance of gold and 
 silver to the central mint for recoinage, the end can 
 be as well attained by local mints established by the 
 General Government in particular States. But the 
 general substitution of a paper medium for a metallic 
 currency obviates the objection entirely, and gives, 
 therefore, greater importance to the extension of the 
 prohibition to " bills of credit" 
 
 The loss which this country had sustained between 
 the war of the Revolution and the adoption of the 
 Federal Constitution, from the fatal effects of paper 
 money on public and private confidence, on the indus- 
 try and morals of the people, the national reputation, 
 and the character of Republicanism itself, could be re- 
 deemed in no other way than by the voluntary surren- 
 der by the several States of the power which had been 
 rendered the instrument of such profligate and destruc- 
 tive mischief. In addition to these considerations, the 
 same reasons which evince the necessity of denying to 
 the individual States the power of regulating the coin, 
 apply with equal force to inhibit them from substituting 
 a paper medium in its place. Were every State at 
 liberty to regulate the value of its metallic currency, 
 there would be as many different currencies as States ; 
 30
 
 350 LECTURES ON 
 
 and thus the commercial intercourse between them 
 would be embarrassed and impeded ; retrospective alter- 
 ations of the value of its coin might be made by any 
 State, in fraud not only of its own citizens, and those 
 of other States, but of foreigners, which would not 
 merely interrupt the harmony among the States, and 
 engender animosities between them, but discredit and 
 compromise the Union with foreign nations, by the 
 indiscretion or profligacy of a single State. Nor are 
 these mischiefs less incident to a power in the States 
 to emit bills of credit than to coin money ; and the 
 power to make anything but gold or silver coin a 
 tender in payment of debts is withdrawn from the 
 States, on the same principle as that of issuing a paper 
 currency. 
 
 This restriction upon the power of the States has 
 received a construction of the utmost importance, both 
 to their individual rights and the authority of the Fed- 
 eral Government. It has been ruled by the Supreme 
 Court, that although the term " bills of credit," in its 
 enlarged, and, perhaps, in its literal sense, may compre- 
 hend any instrument by which a State engages to pay 
 money at a future day, thereby including a certificate 
 given for money borrowed, yet that the language of 
 the Constitution, and the mischief intended to be pre- 
 vented, equally limit its interpretation. The word 
 " emit," it was observed, is never employed in describ- 
 ing those contracts by which a State binds itself to 
 pay money at a future day, for services actually re- 
 ceived, or money borrowed for immediate use. Nor 
 are instruments executed for such purposes denomi- 
 nated in common language " bills of credit." To emit 
 bills of credit conveys to the mind the idea of issuing
 
 CONSTITUTIONAL JURISPKUDENCE. 351 
 
 paper, redeemable at a future day, in anticipation 
 of the public resources, and intended to circulate as 
 money. 1 This is the sense, indeed, in which the terms 
 have always been understood, and in which they were 
 interpreted by the Court. The Constitution, moreover, 
 considers the emission of bills of credit, and the enact- 
 ment of tender laws, as distinct operations, which may 
 be separately performed, independently of each other. 
 Both acts are forbidden ; and to affirm, as has been 
 done in some of the States, 2 that bills of credit may be 
 emitted, if not made a legal tender, is, in effect, to 
 expunge that distinct and independent prohibition, and 
 to read the Constitution as if that branch of the clause 
 had been omitted. But there is too much reason to 
 fear that such an expedient has since been resorted 
 to, or, rather, that a successful attempt has been made 
 to elude this wholesome restriction. 
 
 The Legislature of Kentucky, in the year 1820, 
 passed an Act establishing a bank, and constituting 
 the president and directors a corporation, with a capital 
 consisting of all moneys paid into the treasury of the 
 State for the sale of its vacant lands, and other prop- 
 erty. The bank was authorized to receive money on 
 deposit, to make loans, and issue promissory notes ; and 
 was the exclusive property of the State. In relation to 
 this bank, thus constituted, with such a capital, and so 
 owned, it was held that its notes thus issued were not 
 bills of credit within the meaning of the Constitution. 3 
 It was admitted, indeed, that to constitute a bill of 
 credit within the purview of the prohibition, it must be 
 issued by a State, on the faith of a State, and designed 
 
 1 4 Peters, 431. 23 Ibid. 40. 311 Ibid. 257.
 
 352 LECTURES ON 
 
 to circulate as money ; that the paper which it issues 
 must circulate on the credit of the State, and be so 
 received and used in the ordinary business of life ; that 
 the persons issuing it must have power to bind the 
 State; they must act as agents, and, of course, not 
 incur any personal responsibility, nor impart as indi- 
 viduals any credit to the paper. These were admitted 
 to be the leading characteristics of a bill of credit, and 
 yet the notes issued by this " Bank of the Common- 
 wealth of Kentucky" for such, moreover, was its 
 title were held not to be bills of credit within the 
 meaning of the Federal Constitution. Before we as- 
 sent to this conclusion, let us bring the question to the 
 test merely of the characteristics specified by the Court. 
 These shall serve as interrogatories, to which answers 
 will be drawn from its own statement of the facts. 
 
 1st. Were the notes of this bank issued by the 
 State ? 
 
 Answer. The bank was established by the State ; 
 its capital consisted of the funds of the State, and it 
 was authorized by the State to issue its notes. 
 
 2d. Did its paper circulate on the credit of the 
 State ? 
 
 Ans. Its issues were founded on its capital, which 
 was the property of the State. 
 
 3d. Had the persons who issued its notes authority 
 to bind the State ? 
 
 Ans. The bank was the property of the State, who 
 named or appointed its directors in the Act of incor- 
 poration. 
 
 4th. Did the directors or officers of the bank act as 
 agents of the State, without incurring personal respon- 
 sibility?
 
 CONSTITUTIONAL JURISPRUDENCE. 353 
 
 Ans. Of course. There was no other stockholder 
 than the State ; and they could not have acted on any 
 other responsibility to the public than that of the State, 
 as they were not made personally responsible as prin- 
 cipals by the act of incorporation. 
 
 5th. Did the directors or officers of the bank impart 
 any credit, as individuals, to the notes of the bank ? 
 
 Ans. No other than is imparted by the signatures of 
 the officers of every other bank. It is to the capital of 
 the bank, and to the responsibility of the stockholders, 
 that the public look for security, and not to the persons 
 whose official signatures are affixed to its notes. 
 
 If there be any " other matter or thing " which may 
 be put by way of general interrogatory, the answer is 
 obvious : " Qui facit per alium, faclt per se" In short, 
 if a State wishes to evade the Constitution and emit 
 bills of credit, it has merely tt> incorporate its public 
 officers, or other agents, as a bank, and thus render a 
 prohibition intended to prevent a recurrence of those 
 evils, which had been found from experience to attend 
 the practice, a dead letter. 1 
 
 3d. It is a principle of universal jurisprudence, that 
 laws, civil or criminal, must be prospective, and cannot 
 ordinarily have a retroactive effect. Bills of attainder, 
 ex post facto laws, and laws impairing the obligation of 
 contracts, are, therefore, contrary to the first principles 
 of the social contract, and to every principle of sound 
 legislation. The two former are expressly prohibited to 
 
 1 The decision in this case was made after the death of Chief 
 Justice Marshall, and the opinion of the Court delivered by Mr. 
 Justice M'Lean ; Mr. Justice Thompson concurring, and Mr. Justice 
 Story dissenting. This decision was confirmed in a subsequent case. 
 13 Howard, 12. 
 
 30*
 
 354 LECTURES ON 
 
 Congress by the Federal Constitution, and to some of 
 the State Legislatures, by declarations of rights pre- 
 fixed to their Constitutions. 1 The framers of the Fed- 
 eral compact were, nevertheless, admonished by their 
 own experience, of the necessity of additional bulwarks 
 in favor of personal security and private rights ; and 
 the experience of their successors has shown that, in 
 imposing these restrictions, the Convention maintained 
 its character for strict integrity, high moral sense, and 
 sound practical wisdom. 
 
 Bills of attainder are such special acts of the Legis- 
 lature as inflict capital punishment upon persons whom 
 they declare to be guilty of high offences, without trial 
 or conviction in the ordinary course of Judicial pro- 
 ceedings. They have generally been confined to cases 
 of treason, and have never been resorted to but in 
 times of internal commotion and arbitrary misgovern- 
 ment. If the bill inflict a milder punishment than 
 death, it is called a bill of pains and penalties ; but, in 
 the sense of the Constitution, bills of attainder include 
 bills of pains and penalties, as the former may affect 
 the life of an individual, or may confiscate his property, 
 or both. 
 
 1 The Bill of Rights prefixed to the Constitution of New Hamp- 
 shire declares that retrospective laws are injurious, oppressive, and 
 unjust, and ought not to be made. Within the intent and meaning 
 of this article, every statute which takes aVay or impairs vested rights 
 acquired under existing laws, or creates a new obligation, imposes a 
 new duty, or attaches a new disability in respect to transactions already 
 past must be deemed retrospective. Per Story, J., 2 Gallis, 139. See 
 also 5 Yerg. 320; 1 Ibid. 360; 7 Johns. Rep. 477; 18 Ibid. 138; 3 
 DaU. 381, 386; 2 Root, 350; 2 Pick. 165, 170, 172; 11 Ibid. 28; 9 
 Mass. 363 ; 3 N. H. 475 ; 5 Monr. 133 ; 7 Johns. Rep. 488 ; 2 Peters, 
 861 ; 8 Ibid. 110 ; 1 Blackf. 193, 196 ; 6 Binn. 271 ; 1 J. J. Marsh, 
 563; 3 Cowen, 347; Harper, 88; 2 Gallis. 105; 1 Yerg. 360.
 
 CONSTITUTIONAL JURISPRUDENCE. 355 
 
 Ex post facto laws are often supposed to signify all 
 laws having a retroactive operation. Every ex post 
 facto law must necessarily be retrospective, but every 
 retrospective law is not an ex post facto law. The 
 terms are not synonymous ; and the technical mean- 
 ing of the latter is confined to such as render criminal 
 an act done before the law was passed, which was then 
 innocent ; or to such as aggravate the offence, or render 
 it more criminal than it was when committed ; or such 
 as inflict a greater punishment than'the law annexed to 
 the crime when perpetrated ; or such as alter the rules 
 of evidence, and admit different or less testimony than 
 was required at the time the offence was committed, to 
 convict the offender. With more comprehensive brevity, 
 these laws have been defined by Chief Justice Marshall 
 as " those which render an act punishable in a manner 
 in which it was not punishable when committed ; " and 
 this definition includes both laws inflicting personal or 
 pecuniary penalties for acts before innocent, and laws 
 passed after the commission of an unlawful act, which 
 enhance its guilt or aggravate its punishment. 
 
 The Constitution of the United States does not 
 prohibit the States from passing retrospective laws 
 generally, but only ex post facto laws. 1 Hence the 
 Supreme Court of the United States cannot pronounce 
 an Act of a State Legislature void, merely because 
 such Act divests antecedent vested rights of property. 2 
 
 4:th. A similar restriction with regard to bills of at- 
 tainder and ex post facto laws is imposed by the 
 Constitution on Congress, as well as upon the State 
 Legislatures ; but not with regard to laws impairing the 
 
 i 8 Peters, 110 ; 2 Ibid. 414 ; 1 Bald. 74. 2 11 Peters, 420.
 
 356 LECTURES ON 
 
 obligation of contracts, which are also retrospective in 
 their operation, and equally inconsistent with sound 
 legislation, and the fundamental principles of the social 
 compact. 
 
 The reason of this difference is obvious. By con- 
 tracts, in the sense of the Constitution, we are to 
 understand every executed agreement, whether between 
 individuals, or between individuals and a State, by 
 which a right is vested ; and also every executory agree- 
 ment which confers a right of action, or creates a bind- 
 ing obligation in relation to subjects of a valuable 
 nature, which may be asserted in a court of justice ; 
 but it does not comprehend the political relations be- 
 tween a Government and its citizens. The power 
 possessed by a State Legislature to which every thing 
 not expressly reserved is granted, and the temptations 
 to abuse that power, render express restrictions, if not 
 absolutely necessary, at least prudent and useful ; but 
 the National Legislature has no power to interfere with 
 contracts, except where it is expressly given to it. By 
 the obligation of contracts, in the meaning and intend- 
 ment of the Constitution, is understood not merely the 
 moral, but the legal obligation. Nor is it an obligation 
 arising from the universal law of civilized nations ; but 
 that which results from the laws of the State where 
 the contract is made ; l and in this sense, a system of 
 bankruptcy impairs the obligation of contracts when it 
 releases the party from the necessity of performing 
 them ; but Congress is expressly invested with this 
 power in regard to bankruptcies, as an enumerated, and 
 not as an implied power, and in no other form can it 
 impair the obligation of a contract. 
 
 i 12 Wheat. 213.
 
 CONSTITUTIONAL JURISPRUDENCE. 357 
 
 This prohibition in regard to the States extensively 
 and deeply affects their Legislative authority ; and there 
 is no part of the Federal Constitution that has given 
 rise to more various and able discussions, or to more 
 obstinate and protracted litigation. Contracts executed, 
 as well as executory, are included in it ; not only con- 
 veyances of land, public grants from a State to corpo- 
 rations or individuals, grants and charters in existence 
 when the Federal Constitution was adopted, but even 
 those existing before the Revolution ; and contracts be- 
 tween the different States themselves. 1 But the clause 
 in question does not extend to a State law enacted 
 before the Constitution commenced its operation, though 
 such law operate on rights of property vested before 
 that time. 2 A compact between two States, or a grant 
 from a State (which amounts to a contract) to indi- 
 viduals, is as much protected by it as a grant from one 
 individual to another, and the State is as effectually 
 inhibited from impairing its own contracts, or those to 
 which it is a party, as it is from impairing the obliga- 
 tion of a contract between two individuals. And the 
 rule for determining these questions in the Courts of 
 the United States, is of an international character ; and 
 is not to be collected from the decisions of the Courts 
 of either of the States who are parties to the compact. 3 
 
 The clause under consideration was first brought into 
 direct judicial discussion by an Act of the Legislature 
 of Georgia, passed in the year 1795. This Act author- 
 ized the sale of a large tract of wild land, in what was 
 
 1 6 Cranch, 137; 9 Ibid. 52; 2 Hay w. 310, 374; 4 Wheat. 641, 
 651 ; 8 Ibid. 1 ; 4 Gill Johns. 1. 
 
 2 5 Wheat. 420. 3 n Peters, 22.
 
 358 LECTURES ON 
 
 called the Yazoo country, and a grant was made in 
 pursuance of the law, to a number of individuals, under 
 the name of the " Georgia Company." But by an Act 
 passed the next year, the Legislature declared its pre- 
 vious grant to be null and void, on the ground of fraud 
 and corruption in obtaining it. One of the questions 
 presented to the Supreme Court of the United States 
 for decision arose upon a sale to a third person, by a 
 grantee of the State under the first Act, and it was 
 this : Whether the Legislature of Georgia had the 
 constitutional power to repeal the former law, and 
 avoid the sale made under its authority. The Court 
 declared that, when a law in its nature imports a 
 contract, and absolute rights have vested under it, its 
 repeal could neither divest those rights, nor annihilate 
 or impair the title thus acquired. 1 A party cannot 
 pronounce his own deed invalid, whatever cause may 
 be assigned to impeach it, although that party be the 
 Legislature of a State. It was accordingly declared 
 that an estate held under the Act of 1795, having 
 passed into the hands of a bond fide purchaser for a 
 valuable consideration, the State of Georgia was dis- 
 abled by the Constitution from passing any law by 
 which that estate could be legally impaired and ren- 
 dered void. 
 
 The next case in which this prohibition was brought 
 in review was from the State of New Jersey ; on which 
 occasion it was held that, where a State Legislature 
 declared by law that certain lands to be purchased for 
 the use of certain Indians should not be subject to taxa- 
 tion, such Act amounted to a contract, which could not 
 
 i 6 Cranch, 87.
 
 CONSTITUTIONAL JURISPRUDENCE. 359 
 
 be rescinded by a subsequent Legislature. 1 In this 
 case the Colonial Legislature, in 1758, authorized a 
 purchase of lands for the Delaware Indians, and made 
 the stipulation mentioned. The Indians occupied the 
 land in pursuance of the law until the year 1803, when 
 it was sold under the authority of the Legislature. In 
 1804, the Legislature repealed the Act exempting the 
 land from taxation ; but the Act of 1758 was held to 
 be a contract, and that of 1804 a breach of it, and it 
 was accordingly declared void, under the Constitution 
 of the United States; thereby at once confirming the 
 former decision, and recognizing the principle alluded 
 to in a former Lecture, that a change of Government 
 does not affect the previously vested rights of property. 
 
 In a subsequent case from the State of Virginia, the 
 same points again arose, and the Court went more 
 largely into the consideration of this delicate and in- 
 teresting constitutional doctrine, not only establishing 
 the last-mentioned principle in regard to the effect of 
 the Revolution on prior contracts, but at the same time 
 declaring that a Legislative grant, competently made, 
 vested an indefeasible and irrevocable title. 2 
 
 There is, indeed, no authority which can support on 
 principle the contrary position. The Legislature of a 
 State cannot repeal statutes creating private corpora- 
 tions, or confirming to them property acquired under 
 the faith of previous laws, and, by such repeal, vest it in 
 others, without the consent or default of the corporators. 
 Nor can rights legally vested in any corporation be 
 controlled or destroyed by a subsequent statute, unless 
 power for that purpose be expressly reserved to the 
 
 1 7 Crancli, 164. 2 9 JMd. 43.
 
 360 LECTURES ON 
 
 Legislature in the Act of incorporation. 1 This rule 
 applies as well to implied as to express powers. 2 A 
 contrary doctrine would be equally repugnant to the 
 letter and spirit of the Constitution, and to the princi- 
 ples of natural justice. But the charter of any corpo- 
 rate body may be altered in its most essential features, 
 by the Legislature granting it, if the alteration be 
 agreed to by the corporators either before or after the 
 Act making the alterations. 3 
 
 Where the legal interest in literary or charitable in- 
 stitutions is vested by law in trustees in order to 
 promote the objects for which they were incorporated, 
 and donations made to them, they are considered within 
 the protection of the Constitution; and it was in the 
 great case of Dartmouth College that this inhibition 
 
 i 2 Mass. 146. 2 9 Wend. 351. 
 
 3 1 Rawle, 190 ; 1 Monr. 5. An apt illustration of the refined legal 
 notion of property, to which this provision applies, is afforded in the 
 right which the representative of a person deceased has to the dispo- 
 sition of the corpse in case of its removal. This right was drawn in 
 question by proceedings instituted in the Supreme Court of New York 
 for removing a cemetery and its contents ; when the question was re- 
 ferred to Samuel B. Ruggles, Esq., already mentioned as an eminent 
 member of the bar. In his " Report " which was adopted by the 
 Court the "LAW OF BURIAL" is examined and discussed in a 
 manner at once elaborate and lucid, and with equal learning and in- 
 genuity. He thoroughly explores the grounds of both the Common 
 and the Ecclesiastical Law of England relating to the subject ; and 
 points out, with great clearness and precision, the modifications they 
 have received in this country from the Revolution, and consequent 
 separation of Church and State. This remarkable document forms 
 a complete, as well as a luminous and recondite treatise, of an 
 original character and permanent value, upon a branch of national 
 jurisprudence which its author may be said, indeed, to have created.
 
 CONSTITUTIONAL JURISPRUDENCE. 361 
 
 upon the States received the most elaborate discussion, 
 and the most efficient and instructive application. 1 It 
 was there decided that the charter granted by the 
 British Crown to that institution in 1769, was a con- 
 tract within the meaning of the Constitution, and pro- 
 tected by the clause in question. It was held that the 
 College was a private charitable institution, not liable 
 to Legislative control, and that a law of New Hamp- 
 shire altering the charter in a material point, without 
 the consent of the corporation, was a " law impairing 
 the obligation " of the charter, and it was consequently 
 declared to be unconstitutional and void. Chief Justice 
 Marshall, in delivering the opinion of the Court, ob- 
 served, " that Dartmouth College was a private elee- 
 mosynary institution, endowed with a capacity to take 
 and hold property for objects unconnected with Govern- 
 ment. Its funds were bestowed by individuals on the 
 faith of the charter, and consisted entirely of private 
 donations. The corporation was not invested with any 
 portion of political power, nor did it, in fact, partake in 
 any degree in the administration of civil government. 
 It was instituted as a private corporation for general 
 charity ; and the charter was a contract to which the 
 donors, the trustees, and the Crown were the original 
 parties, and it was made on a valuable consideration 
 for the security and disposition of property." 
 
 The legal interest in every literary and charitable 
 institution is vested in trustees, to be asserted by them, 
 and they claim or defend in behalf of the object to 
 promote which the corporation was created and the 
 donations made. Contracts of this kind are most rea- 
 
 i 4 Wheat. 518. 
 
 31
 
 362 LECTURES ON 
 
 sonably considered within the purview and protection 
 of the Constitution. The one in question remained 
 unchanged by the Revolution, and the duties as well 
 as the powers of the former Government devolved on 
 the people of New Hampshire. But the law of that 
 State transferred the whole power of governing the 
 college from the trustees, under the charter, to the Ex- 
 ecutive of New Hampshire ; and the will of the State 
 was thereby substituted for the will of the donors, in 
 every essential operation of the college. The charter 
 was reorganized in such a manner as to convert a 
 literary institution, moulded according to the will of 
 its founders, into a machine entirely subservient to the 
 will of the State. A proceeding thus subversive of the 
 contract on the faith of which the donors invested their 
 property was, consequently, held to be repugnant to 
 the Constitution. This celebrated case, it has been 
 well said, 1 " contains one of the most full and elaborate 
 expositions of the constitutional sanctity of contracts 
 anywhere to be met with ; and has done more than any 
 other single act proceeding from the authority of the 
 United States to throw an impregnable barrier around 
 all rights and franchises derived from the grant of 
 Government, and to give solidity and inviolability to 
 the literary, charitable, and commercial institutions of 
 the country." 2 
 
 In another case, in which this prohibitory clause of 
 the Federal Constitution came again under discussion, 
 
 1 1 Kent's Comm. 389. 
 
 2 The Supreme Court of North Carolina declared unconstitutional 
 and void, an Act of the Legislature repealing a grant of land to the 
 University of that State. 2 Hayw. 310 ; Murphy, 58. See also 2 
 Me Cord, 354.
 
 CONSTITUTIONAL JURISPRUDENCE. 363 
 
 I 
 
 it was observed by the Court that the objection to a 
 law, on the ground of its impairing the obligation of 
 contracts, did not depend on the extent of the change 
 effected by the law; any deviation from the terms of 
 the contract, by accelerating or postponing the period 
 of performance, which the latter prescribes, imposing 
 conditions not expressed in it, or dispensing with the 
 performance of those which are, however minute or 
 apparently immaterial or partial in their effect on the 
 contract, impairs its obligation. Another material point 
 decided on this occasion was, that a compact between 
 two States was a contract within the constitutional 
 prohibition. 1 
 
 Another case, which led to a very extensive inquiry 
 into the operation of this constitutional restriction, arose 
 under an Insolvent Ao.t of New York, passed in 1811. 
 This law was retrospective, and discharged the debtor, 
 upon his single petition and the surrender of his prop- 
 erty, without the concurrence of any creditor, from all 
 preexisting debts, and from all liability and responsi- 
 bility by reason of them. The Court on this occasion 
 recognized the doctrine adverted to in a former Lecture, 
 that until Congress exercise its power on the subject 
 of bankruptcy, the individual States may pass bankrupt 
 laws, provided they contain no provision violating the 
 obligation of contracts. It was admitted that the States 
 might discharge debtors from imprisonment, because 
 imprisonment is no part of the contract, but only a 
 means for coercing its performance. It was also ad- 
 mitted that a State may pass statutes of limitations, as 
 they are termed, for these also relate only to the remedy, 
 
 1 8 Wheat. 1.
 
 364 LECTURES ON 
 
 | 
 
 and not to the obligation of the contract ; and it was 
 stated that the insolvent laws of far the greater number 
 of States only discharged the person of the debtor, and 
 left the obligation in full force. But a law which dis- 
 charged the debtor from his contract, and released him 
 without payment, impaired, because it entirely dis- 
 charged the obligation of the contract ; for it is to be 
 observed that there is an obvious distinction in the 
 nature of things, between the obligation of a contract, 
 and the remedy to enforce it. The latter may be modi- 
 fied as the wisdom of the Legislature may direct. But 
 the Constitution intending to restore and preserve com- 
 pletely the public credit and ^confidence, established as 
 a fundamental principle, that the former shall be in- 
 violable. 1 
 
 The case in which the above decision was made, had 
 arisen in a Federal Court, and the contract existed 
 when the State law was passed ; but it was afterwards 
 held that there was no difference when the suit is 
 brought in a Court of a State, of which both parties 
 are citizens, and in which the contract was made, and 
 the discharge obtained, and where the parties continue 
 to reside until the suit be brought. 2 A distinction, 
 however, was taken in the Courts of New York and 
 Massachusetts, between a contract made before, and 
 one made after the passing of the State law. 3 The 
 doctrine they maintained was this, that an insolvent 
 Act in force when the contract was made, did not, in 
 the sense of the Constitution, impair its obligation, 
 because the parties to every contract have reference to 
 
 1 4 Wheat. 122. 2 6 Ibid. 131. 
 
 3 16 Johns. Rep. 233 ; 7 Johns. Ch. Rep. 297 ; 13 Mass. 1.
 
 CONSTITUTIONAL JURISPRUDENCE. 365 
 
 the existing laws of the country where it is made, and 
 are presumed to make their contracts in reference to 
 them. This distinction was supposed to be consistent 
 with the decision of the Supreme Court of the United 
 States. But in a subsequent case, where the' discharge 
 was under an insolvent law of a different State from 
 that in which the contract was made, the Supreme 
 Court went a step further, and held that a discharge 
 under such a law existing when the debt was con- 
 tracted, was equally within the principle before estab- 
 lished. 1 
 
 It remained, however, to be settled whether a State 
 could constitutionally pass an insolvent law which 
 should effectually discharge the debtor from a debt 
 contracted after the passing of the Act, and within the 
 State in which the law was passed. The general lan- 
 guage of the Court on the last occasion, seemed to 
 reach this case; but the facts on which the question 
 then arose, did not cover the whole ground. The de- 
 cision, therefore, was not authority to the extent men- 
 tioned ; and it was subsequently ruled by a bare 
 majority of the Court, and after much apparent hesi- 
 tation, that a bankrupt or insolvent law of a State, 
 discharging both the person of the debtor, and his 
 future acquisitions of property, is not a law " impairing 
 the obligation of contracts," in respect to debts con- 
 tracted within the State, subsequently to its enactment. 2 
 
 The venerable Chief Justice Marshall was among 
 the minority of the Court, and delivered the reasons 
 for their dissent. He admitted that none of the former 
 decisions comprehended the question then presented, 
 
 i 4 Wheat. 209. 2 12 Ibid. 213. 
 
 31*
 
 366 LECTURES ON 
 
 and that, consequently, it was an open one. He also 
 admitted that there was an essential difference in prin- 
 ciple between laws which act on past or future con- 
 tracts ; and that while those of a former description 
 could seldom be justified, those of the latter were 
 proper subjects of ordinary Legislative discretion. A 
 constitutional restriction, therefore, on the power to 
 pass laws of the one class, might very well consist with 
 entire Legislative freedom in regard to the other. Yet, 
 when we consider the nature of the Union ; that it was 
 intended to make us, in a great measure, one people 
 as to commercial objects ; that so far as respects the 
 intercommunication of individuals, the lines of separa- 
 tion between States are in many respects obliterated, 
 it would be matter of surprise if, on the delicate subject 
 of contracts actually formed, the interference of State 
 legislation should not be greatly .abridged, or entirely 
 forbidden. In the nature of the existing provision, 
 then, there seems to be nothing which should induce 
 us to adopt the limited construction which had been 
 given in that case to the prohibitory clause. 
 
 The former part of the section, comprehending the 
 prohibition, enumerates the cases in which the action 
 of the State Legislatures is absolutely and entirely 
 forbidden ; while the latter part specifies those in which 
 the prohibitions are qualified. The former comprehends 
 two classes of powers ; those of the first class are po- 
 litical and general in their nature, consisting in the 
 exercise of sovereignty without affecting the rights of 
 individuals ; while the second class comprehends those 
 laws which operate upon individuals, and includes, 
 among others, " laws impairing the obligation of con- 
 tracts." In all the cases embraced in both classes,
 
 CONSTITUTIONAL JURISPRUDENCE. 367 
 
 whether the thing prohibited be the exercise of mere 
 political legislation, or Legislative action upon indi- 
 viduals, the prohibition is complete and total. Legisla- 
 tion of every description on those subjects is, without 
 any exception, comprehended and forbidden. A State 
 is as entirely prohibited from passing laws impairing 
 the obligation of contracts as from making treaties or 
 coining money. So much of the prohibition as re- 
 strains the power of the State to punish offenders in 
 criminal cases, and inhibits bills of attainder and ex 
 post facto laws, is, in its very terms, confined to pre- 
 existing cases. But that part of the clause which 
 relates to the civil transactions of individuals is ex- 
 pressed in more general terms in terms which compre- 
 hend, in their ordinary acceptation, cases which occur 
 after, as well as before the passing of the Act. It 
 forbids a State to make anything but gold or silver 
 coin a tender in payment of debts, or to pass any law 
 impairing the obligation of contracts. These prohi- 
 bitions relate to kindred subjects ; they contemplate 
 Legislative interference with private rights, and restrain 
 such interference. In construing that part of the clause 
 which respects tender laws, a distinction has never been 
 attempted between debts existing at the time the law 
 was passed and those afterwards contracted. The pro- 
 hibition in that case is total; and yet the difference 
 in principle between making property a tender in pay- 
 ment of debts contracted after the passage of the Act, 
 and discharging those debts without payment or by a 
 surrender of property ; in other words, between an abso- 
 lute and a contingent right to tender in payment, is not 
 clearly discernible. Nor is the difference in language 
 so obvious as to denote plainly a difference of intention
 
 368 LECTURES ON 
 
 in the framers of the Constitution. The same train of 
 reasoning which would confine the words relative to 
 contracts to those contracts only which existed at the 
 passage of the law, would go far in limiting those 
 relative to a tender in payment of debts to such as 
 previously existed ; yet the distinction between these 
 and such as were contracted subsequently to the law 
 seems never before to have occurred to any expounder 
 of the Constitution, and would unquestionably defeat 
 the object of the clause. 
 
 A point of greater difficulty, and that upon which 
 the decision of the question appears to have turned, 
 was the nature of the original obligation of the con- 
 tract made after the passage of such an insolvent law ; 
 whether it were unconditional to perform the very act 
 stipulated; or whether a condition were implied that, 
 in the event of insolvency, the contract should be satis- 
 fied by a surrender of property. It was admitted on 
 all hands that the Constitution refers to, and preserves 
 the legal, not the moral obligation of a contract ; be- 
 cause obligations purely moral are not enforced by the 
 agency of human laws ; and the restraints imposed on 
 the States by the Constitution are intended for objects 
 which, if not restrained, would be the subject of State 
 legislation. The principle insisted on by the Chief 
 Justice was, that laws act upon a contract, and do not 
 enter into it and become a stipulation of the parties. 
 " Society," he observed, " affords a remedy for breaches 
 of contract, and if that remedy has been applied, the 
 claim to it is extinguished." The external action of 
 law upon contracts, by administering the remedy for 
 their breach, is the usual exercise of Legislative power ; 
 and an interference with those contracts, by introducing
 
 CONSTITUTIONAL JURISPRUDENCE. 369 
 
 into them conditions not agreed to by the parties, would 
 be a very unusual and extraordinary exercise of the 
 power of legislation, and one not, certainly, to be gra- 
 tuitously attributed to laws which do not profess to 
 claim it. 
 
 If the law becomes part of the contract, change of 
 place will not expunge the condition. A contract made 
 in New York would be the same in any other State ; 
 and would still retain the stipulation originally intro- 
 duced into it that the debtor should be discharged by 
 the surrender of his estate. It cannot be true that 
 contracts are entered into in contemplation of the in- 
 solvency of parties to be bound by them. They are 
 framed with the expectation that they will be literally 
 performed. Insolvency, undoubtedly, is a casualty which 
 
 may possibly OOCur, V>u.t it ie ma-u-oj? oirpp>r>t.prL In ln 
 
 ordinary course of human transactions, if ks probability 
 be even suspected, security is taken against it. But 
 when it comes unlooked for, it would be entirely con- 
 trary to reason to consider it as a part of the contract. 
 However, therefore, a law may act upon contracts, it 
 does not enter into them and become a part of them. 
 The effect of such a principle would be a mischievous 
 abridgment of Legislative power over subjects within 
 the proper jurisdiction of a State, by arresting its power 
 to repeal or modify such laws with respect to existing 
 contracts. 
 
 But it has been objected that " a contract, being a 
 creature of civil society, derives its obligation from the 
 law, which, although it may not enter into the agree- 
 ment, still acts externally upon it, and determines how 
 far the principle of coercion shall be applied to it ; and 
 this rule being universally understood^ no individual
 
 370 LECTURES ON 
 
 can justly complain of its application to himself." 
 This argument was illustrated by reference to the stat- 
 utes to prevent frauds, which require certain contracts 
 to be reduced to writing, in order to render them obliga- 
 tory ; to those against usury, which declare an usurious 
 contract void from its origin ; and to the statutes of 
 limitations, which enable one party to prevent the other 
 from enforcing the contract between them, after the 
 expiration of a certain period from its breach or non- 
 performance. But here the fallacy lies at the very 
 foundation of the argument, as it assumes that the 
 contract is the mere creature of civil society, and de- 
 rives all its obligation from human legislation ; that it 
 is not the stipulation that the individual makes which 
 binds him, but some declaration of the supreme power 
 of the body politic to whirb HP belongs ; and that, 
 though the anginal declaration to this effect be lost in 
 remote antiquity, yet it must be presumed to be the 
 origin of the obligation of contracts. It is, however, 
 an objection of no considerable weight against the 
 truth of this position, that no trace exists of any such 
 enactment. As far back as human research extends, 
 we find the Judicial power administering remedies to 
 violated rights or broken contracts, and applying those 
 remedies on the idea of a preexisting obligation on 
 every man to do that which he has promised to do; 
 that the breach of this obligation is an injury for which 
 the party has a just claim for compensation ; and that 
 society ought to afford him a remedy for that injury. 
 We find, too, allusions to the modes of acquiring prop- 
 erty ; but from the earliest time, we find no allusion to 
 any supposed act of the governing power as giving 
 obligation to contracts. On the contrary, all the pro-
 
 CONSTITUTIONAL JURISPRUDENCE. 371 
 
 ceedings respecting them, of which we know anything, 
 support the notion of a preexisting obligation, which 
 human laws merely enforce. 
 
 Upon this supposition, that the obligation of the 
 contract is derived from the agreement of the parties, 
 let us proceed to inquire how far laws act externally 
 upon contracts, and in that way control their obligation. 
 It was not denied that a law might have such an effect 
 upon subsequent contracts ; nor that it may be capable 
 of discharging a debtor, under the circumstances and 
 conditions prescribed in the statute, which was relied 
 on in the case referred to. But as that was an effect 
 neither contemplated nor intended by the parties, an 
 Act of the Legislature can only have this operation 
 when it has the full force of law. A law may deter- 
 mine the obligation of a contract on the happening of 
 a contingency, because it is the law. But if it be not 
 the law, it cannot have this effect ; and when its exist- 
 ence or force as law is denied, they cannot either of 
 them be proved by showing what are the qualities of a 
 law. Law has been defined to be " a rule of civil 
 conduct, prescribed by the supreme power in a state." 
 In our system, the Legislature of a State is the supreme 
 power in all cases in which its action is not restrained 
 by the State Constitution or the Constitution of the 
 United States. Where it is so restrained, the State 
 Legislature ceases to be the supreme power, and its 
 Acts are not law. It was, therefore, begging the ques- 
 tion to say that, because contracts may be discharged 
 by a law previously enacted, it was discharged in that 
 case by the Act of the Legislature set up for the 
 purpose ; for the question returned, Was that act LAW ? 
 Was it consistent with, or repugnant to, the Constitu- 
 tion of the United States ?
 
 372 LECTURES ON 
 
 It was readily admitted that the whole subject of 
 contracts was under the control of society, and that all 
 the power of society over them resides in the State 
 Legislatures, except in those special cases where re- 
 straint is imposed by the Federal Constitution. The 
 extent of the restraint on the power to impair the 
 obligation of contracts cannot, however, be ascertained 
 by showing that the Legislature may prescribe the 
 circumstances on which their original validity may be 
 made to depend. If the Legislative will were that 
 certain agreements should be in writing ; that they 
 should be sealed and attested by a given number of 
 witnesses ; that they should be recorded, or assume any 
 prescribed form before they became obligatory, all these 
 are regulations which society may rightfully make ; and 
 they do not come within the restriction of the Consti- 
 tution, because they do not impair the obligation of the 
 contract. The obligation must exist before it can be 
 impaired ; and a prohibition to impair it when made, 
 does not imply an inability to prescribe those conditions 
 which shall create its obligation. The statutes of frauds 
 which have been enacted in the several States, and 
 which are acknowledged to flow from the proper exer- 
 cise of State sovereignty, prescribe regulations which 
 must precede the obligation of the contract, and, conse- 
 quently, cannot impair it. Acts of this description, 
 therefore, are most clearly not within the prohibition. 
 The Acts against usury are of the same character ; 
 they declare the contract to be void from the beginning, 
 and deny that the instrument ever became a contract ; 
 they deny it all original obligation, and cannot, there- 
 fore, impair that which never came into existence. 
 Statutes of limitation approach more nearly to the
 
 CONSTITUTIONAL JURISPRUDENCE. 373 
 
 subject under consideration, but can never be identified 
 with it ; they defeat a contract once obligatory, but, as 
 has been before observed, they relate only to the reme- 
 dies furnished to enforce the contract, and their language 
 is generally confined to the remedy ; they do not pur- 
 port to dispense with the performance of the contract, 
 but proceed upon the presumption that a certain length 
 of time, if unexplained by circumstances, affords rea- 
 sonable evidence of its having been performed. In 
 prescribing the proofs that shall be received in their 
 Courts, and the effect of those proofs, the States exer- 
 cise their acknowledged powers, as they also do in 
 regulating the remedies and modes of proceeding in 
 those Courts. 1 
 
 It was, nevertheless, insisted that the right to regulate 
 the remedy, and to modify the obligation of the con- 
 tract, were the same ; that obligation and remedy were 
 identical and synonymous. But the answer given to 
 this proposition seems to be conclusive. It was, " that 
 the obligation and the remedy originate at different 
 times." The obligation to perform is certainly coeval 
 with the contract itself, and operates anterior to the 
 time of performance ; while the remedy acts upon a 
 broken contract, and enforces a preexisting obligation. 
 The right to contract is the acknowledged attribute 
 
 1 A repeal of the statutes. of limitations is void so far as it respects 
 claims already barred. 3 N. H. 473. See also 5 Pick. 65 ; 11 Mass. 
 396 ; 2 Pick. 284 ; 3 Greenl. 326. And statutes of limitations which 
 do not allow a reasonable time after the passing thereof for commenc- 
 ing suits on existing causes of action, are unconstitutional. 8 Mass. 
 430 ; 2 Greenl. 294 ; 2 Gallis. 141 ; 4 Wheat. 207. See also 2 Peters, 
 290 ; 1 Blackf. 36 ; 1 Car. Law Rep. 385 ; 2 Ibid. 428 ; Pick. 1 ; 5 
 Monro, 98 ; 7 Ibid. 11 ; Ibid. 544-588 ; 4 Litt. 34-53 ; Charlt. 175. 
 
 32
 
 374 LECTURES ON 
 
 of a free agent, and he may rightfully coerce perform- 
 ance from another free agent, who violates his faith. 
 Contracts have, consequently, an intrinsic obligation. 
 When men enter into societies, they can no longer 
 exercise this original and natural right of coercion ; it 
 is surrendered for the means of coercion afforded by 
 society. But the right to contract is not surrendered 
 with the right to coerce performance. The former is 
 still incidental to that degree of free agency which the 
 laws of society leave to every individual, and the obli- 
 gation of the contract is the necessary consequence of 
 the right to make it. Laws regulate this right ; and 
 where it is not regulated, it is retained in its original 
 extent. Obligation and remedy, then, are not identical; 
 they originate at different times, and are derived from 
 different sources. 
 
 But it was alleged that " the power of the State over 
 the remedy might be used to the destruction of all 
 beneficial results from the right;" and hence it was 
 inferred that "the construction which maintains the 
 inviolability of the obligation must be extended to the 
 power of regulating the remedy." The difficulty, how- 
 ever, which this view of the subject presents, does not 
 proceed from the identity or connection of right and 
 remedy, but from the existence of distinct Governments, 
 acting on kindred subjects. The Constitution of the 
 United States contemplates restraint as to the obliga- 
 tion of contracts, not as to the application of the remedy. 
 If this restraint affect a power which the Constitution 
 did not mean to touch, it can only be when that power 
 is used as an instrument of hostility to invade the 
 inviolability of contracts, which is placed beyond its 
 reach. A State may use many of its acknowledged
 
 CONSTITUTIONAL JURISPRUDENCE. 375 
 
 powers in such a manner as to come into conflict with 
 the provisions of the Federal Constitution ; thus the 
 powers over the domestic police, and the power to 
 regulate its purely internal commerce, may, as we have 
 already seen, be so exercised as to interfere with the 
 regulation by Congress of commerce with foreign na- 
 tions, or among the States. In such cases, as we have 
 before observed, the power which is supreme must con- 
 trol that which is subordinate. This principle neither 
 involves self-contradiction, nor denies the existence of 
 the several powers in the respective Governments. So, 
 if a State shall not merely modify or withhold a par- 
 ticular remedy, but shall apply it in such a manner as 
 to extinguish the obligation without performance of a 
 contract, it would be an abuse of power whicli could 
 scarcely be misunderstood ; but it would not prove that 
 remedy could not be regulated without regulating 
 obligation. 
 
 It was urged, however, as a conclusive argument 
 against the existence of a distinct line of division be- 
 tween obligation and remedy, that " the same power 
 which can withdraw the remedy against the person of 
 the debtor, can also withdraw that against his property" 
 and thus effectually defeat the obligation. " The Con- 
 stitution," it was said, " did not deal with form, but 
 with substance ; and could not be presumed, if it de- 
 signed to protect the obligation of contracts from State 
 legislation, to have left it thus obviously exposed to 
 destruction." The answer is, that the State law goes 
 further, and annuls the obligation without affording the 
 remedy which satisfies it ; or, if its action on the rem- 
 edy be such as palpably to impair the obligation of the 
 contract, the very case arises which was supposed to
 
 376 LECTURES ON 
 
 be prohibited. If the law leaves the obligation un- 
 touched, but withholds the remedy, or affords one which 
 is merely nominal, why, this is like all other cases of 
 misgovernment, and leaves the debtor still liable to his 
 creditors, should he, or his property, be found where the 
 laws afford a remedy. But should it even be deter- 
 mined that such a law was a successful evasion of the 
 Constitution, it would not follow that an Act which 
 operates directly on the contract after it is made was 
 not within the restriction imposed on the States. The . 
 validity of a law acting immediately upon the obliga- 
 tion is not proved by showing that the Constitution has 
 provided no means for compelling the States to enforce 
 the contract. The prohibition in question is, therefore, 
 not incompatible with the fair exercise of that discre- 
 tion which the State Legislatures possess, in common 
 with all Governments, to regulate the remedies afforded 
 by their own Courts. 
 
 It is impossible to look back to the history of the 
 times when the august spectacle was exhibited of a 
 whole people assembling by their representatives in 
 order to unite thirteen independent sovereignties under 
 one Government, so far as might be necessary for the 
 purposes of union, without being sensible of the great 
 importance which was attached to this article of the 
 Constitution. The power of changing the relative 
 situations of debtor and creditor, of interfering with 
 contracts, a power which comes home to the business 
 of every man, touches the interest of all classes, and 
 controls the conduct of every individual in those things 
 which he supposes proper for his own exclusive man- 
 agement, had been abused to such an excess by the 
 State Legislatures as to break in upon the ordinary
 
 CONSTITUTIONAL JURISPRUDENCE. 377 
 
 intercourse of society, and destroy all confidence be- 
 tween man and man. The mischief had become so 
 great and so alarming, as not only to impede commer- 
 cial intercourse and threaten the existence of public 
 credit, but to injure the morals of the people, and de- 
 stroy the sanctity of private faith. To guard against 
 the recurrence of such evils was an object of deep in- 
 terest with all the truly wise and virtuous men in the 
 community, as well as in the Convention, and one 
 of the most important benefits anticipated and realized 
 from the reform of the Government. 
 
 The imposition of restraints on State legislation in 
 regard to this delicate subject was thought necessary 
 by all who took an honest, enlightened, and compre- 
 hensive view of the situation of the country, and the 
 principle in question obtained an early admission into 
 the various schemes of Government submitted to the 
 Convention. In framing a national compact intended 
 to be perpetual, the presumption is, that every impor- 
 tant principle introduced into it was intended to be 
 perpetual also ; and, if expressed in terms which give 
 it operation in all future time, the fair inference is, that 
 it was intended so to operate. But, if the construction 
 against which we have been contending be the true 
 one, the Constitution will have imposed a restriction in 
 words, which every State in the Union may elude at 
 pleasure. The obligation of contracts in force at any 
 given period is but of short duration, and if the inhi- 
 bition be of retrospective laws only, a very short lapse 
 of time would remove every subject on which the Act 
 is forbidden by the Constitution to operate, and render 
 this provision so far useless. Instead of introducing a 
 great principle prohibiting all laws of this obnoxious 
 32*
 
 378 LECTURES ON 
 
 character, the Constitution would only suspend their 
 operation for a season, or only except preexisting cases ; 
 an object which would hardly have been deemed of 
 sufficient importance to have found a place in that 
 instrument. Such a construction, moreover, would 
 change the character of the provision, and convert an 
 inhibition to pass laws impairing the obligation of con- 
 tracts into an inhibition to pass retrospective laws. 
 Had this been all that was intended by the Convention, 
 it would probably have been expressed in those very 
 words ; the prohibition would have been against " any 
 retrospective law" instead of the more general one 
 against " any law impairing the obligation of con- 
 tracts ; " or, if the intention had been not to embrace 
 all retrospective laws, but those only which related to 
 contracts, the State Legislature would have been for- 
 bidden to pass " any retrospective law impairing the 
 obligation of contracts" or " any law impairing the 
 obligation of contracts previously made" For if the 
 minds of the Convention, in framing this prohibition, 
 had been directed not generally to the operation of 
 laws upon the obligation of contracts, but particularly 
 to their retrospective operation, it is scarcely conceivable, 
 notwithstanding the imperfection of human language, 
 that some words would not have been used to indicate 
 that idea, and limit their intention. In instruments 
 prepared on great consideration, and especially in those 
 granting political power, general terms, comprehending 
 a whole subject, are seldom employed to designate a 
 particular or minute portion of it. The general lan- 
 guage of this clause is such as might be suggested by 
 a general intent to prohibit State legislation on the 
 subject to which that language is applied the obliga-
 
 CONSTITUTIONAL JURISPRUDENCE. 379 
 
 tion of contracts not such as would be suggested by 
 a particular intent to prohibit retrospective legislation. 
 Besides, the laws which had effected all the mischief 
 the Constitution intended to prevent, were prospective, 
 as well as retrospective in their operation. They em- 
 braced future contracts as well as those previously 
 made ; from this circumstance, therefore, there is less 
 reason for imputing to the Convention an intention not 
 manifested by their language, and adopt a construction 
 which would confine a restriction designed to guard 
 against those mischiefs in future, to retrospective legis- 
 lation. 
 
 Notwithstanding all this, the decision of the majority 
 of the Supreme Court, in the case which gave rise to 
 this discussion, was, as we have mentioned, in favor 
 of the validity of a discharge under a State insolvent 
 law, where the contract was made between citizens of 
 the State under the insolvent system of which the dis- 
 charge had been obtained, and in whose Courts it had 
 been pleaded. But upon the question whether a dis- 
 charge of a debtor, under a State insolvent law, would 
 be valid against a creditor or citizen of another State, 
 who had never voluntarily subjected himself to the 
 State authority, otherwise than by the origin of his 
 contract, one of the judges in the majority agreed with 
 those in the minority on the former question, that the 
 discharge was not available in an action brought by a 
 citizen of another State, either in the Courts of the 
 United States, or of any other State than that in which 
 the discharge was obtained. So that the decision in 
 favor of State insolvent laws impairing the obligation 
 of subsequent contracts, is restricted to cases in which 
 the contract was made within the State, and between
 
 380 LECTUKES ON 
 
 citizens of the same State, or aliens, but is sought to 
 be enforced in the Courts of that State in which the 
 law was passed. 1 
 
 1 That a State law may be retrospective in its character, ' and 
 devest private rights, -without violating the Federal Constitution, 
 unless it also impairs the obligation of contracts, was affirmed, more 
 recently, by the Supreme Court of the United States, in a case 
 brought up on appeal from the highest Court of Massachusetts. The 
 Legislature of that State had granted to Harvard College the liberty 
 and power of disposing of a ferry from Charlestown to Boston, and of 
 receiving a rent for it. Afterward the Legislature incorporated a 
 company to erect a bridge over Charles River, at the place where the 
 ferry had been established, the company paying annually to the col- 
 lege a certain sum of money. The charter gave the company the right 
 to take tolls for forty years, and afterward extended it to seventy. 
 Before the forty years expired, the Legislature authorized the erec- 
 tion of another bridge, so near the first as injuriously to affect its 
 tolls. The proprietors of the first bridge applied to the Massachusetts 
 Court to restrain by injunction the construction of the second bridge ; 
 but the Court dismissed the bill, and the case was carried by appeal 
 to the Supreme Court of the United States, on the ground that the 
 first charter was a contract, and the grant of the second a violation 
 of it. The decree of the Massachusetts Court was affirmed ; and in 
 giving its opinion, the Supreme Court observed, that " a uniform 
 course of action, involving the right to the exercise of an important 
 power by the State Government for half a century, and this almost 
 without question, was not satisfactory evidence that the power was 
 rightfully exercised." Vide 11 Peters's Rep. 257. On the other hand, 
 an Act of the Legislature of Vermont, releasing the body of a debtor 
 from imprisonment, and directing that the bond he had given for the 
 prison-liberties should be discharged, was held to be void. 1 Chip. 
 257. See also 2 Stew. 30; 3 Ibid. 387; Ibid. 199; 2 Fair/. 118; 
 7 Gill fr Johns. 7; 2 Pennsyl. 184; 1 Rawle, 181, 190; 1 Monr. 5 ; 
 1 Blackf. 220 ; 2 Yerg. 534 ; 7 Johns. Rep.477 ; 1 7 Ibid. 195 ; 20 Ibid. 
 269 ; 1 Wend. 53 ; 13 Ibid. 325 ; 5 Cowen, 538 ; 7 Ibid. 349, 585 ; 
 4 Wheat. 659, 694 ; 6 Ibid. 593 ; 12 Pick. 184 ; 8 Mass. 468 ; 9 Ibid. 
 151, 360; 12 Ibid. 443; 15 Ibid. 197; 4 Ham. 457 ; 5 Greenl. 342;
 
 CONSTITUTIONAL JURISPRUDENCE. 381 
 
 If any part of a State law is unconstitutional, such 
 part may, as we have seen, be disregarded, while full 
 effect is given to the rest. The present Constitution 
 did not commence its operation until the first Wednes- 
 day in March, 1789, and the prohibition against laws 
 impairing the obligation of contracts, does not extend 
 to a State law enacted before that day, and operating 
 upon rights previously vested. 
 
 ' II. The other limitations on the State powers are 
 those in which the prohibition is qualified, and restrict 
 a State, without the consent of Congress, from laying 
 " any imposts or duties on imports or exports, except 
 what may be absolutely necessary" for executing its 
 inspection laws ; from laying any duty on tonnage ; 
 keeping troops or ships of war in time of peace ; enter- 
 ing into any agreement or compact with another State, 
 or with a foreign power, or from engaging in war, 
 unless actually invaded, or in such imminent danger 
 of invasion as will not admit of delay. 
 
 1st. The restraint on the power of the States as to 
 imports and exports is enforced by all the arguments 
 which prove the necessity of submitting the regulation ' 
 of commerce to the General Government. From the 
 vast inequality between the different States as to com- 
 mercial advantages, few subjects were viewed with 
 deeper interest, or excited greater irritation, than the 
 manner in which the several States exercised, or seemed 
 under the Confederation disposed to exercise, the power 
 of laying duties on imports. From motives which were 
 thought sufficient by the Convention, the general power 
 of taxation, indispensably necessary as it was, and 
 
 Walk. 328; Lift. 326; 3 Peters, 280; 6 Serg. Sf Rawle, 322; 2 Whart. 
 395; 1 Monr. 24.
 
 382 LECTURES ON 
 
 jealous as the States were of any encroachments upon 
 it, was so far abridged as to forbid their touching im- 
 ports or exports, with the single exception specified in 
 the Constitution ; and they were thus restrained from 
 a general conviction that the interest of all would be 
 promoted by placing the whole subject under the ex- 
 clusive control of Congress. 
 
 In considering the power of Congress to regulate 
 commerce, I referred to a decision of the Supreme 
 Court, declaring unconstitutional an Act of a State 
 Legislature requiring importers of foreign goods, and 
 the vendors of the same at wholesale, to obtain a license 
 from the State, and pay a sum of money for the same 
 to the State Treasury. 1 This Act was also declared 
 to be repugnant to the prohibition of the States from 
 laying duties on exports and imports without the con- 
 sent of Congress. An impost or duty on imports is a 
 custom or tax levied upon articles brought into the 
 country for sale or use; and is most usually secured 
 before the importer is allowed to exercise his right of 
 ownership over them, because evasions of the revenue 
 laws can be prevented more certainly by executing 
 them while the articles are in the custody of the Gov- 
 ernment. It would not, however, be less an impost on 
 the articles if it were levied on them after they were 
 landed. The policy, and consequent practice of levy- 
 ing or securing the duty before or on entering the port, 
 does not limit the exercise of the power to that period ; 
 and, consequently, the prohibition on the States is not 
 limited to that state of circumstances, unless the true 
 meaning of the clause so confines it. If we resort 
 
 1 12 Wheat. 419.
 
 CONSTITUTIONAL JURISPRUDENCE. 383 
 
 either to technical authority or to common usage for 
 the meaning of the term " imports," we find it signifies 
 " the things imported," or the articles themselves, which 
 are brought into the country. It is not in its literal 
 sense confined to a duty levied while the article is 
 entering the country, but extends to a tax levied after 
 it has actually entered it. Again, if we look to the 
 objects of the prohibition, we find that there is no 
 difference, in effect, between the power to prohibit the 
 sale of an article and a power to prohibit its introduc- 
 tion. The one is a necessary consequence of the other. 
 No goods would be imported if none could be sold ; 
 nor can any object of any description be accomplished 
 with equal certainty by laying a duty on the thing 
 imported in the hands of the importer ; and it is ob- 
 vious that the same power which imposes a light duty 
 might impose one amounting to a prohibition. The 
 prohibition on the States to lay a duty on imports may, 
 indeed, come in conflict with their acknowledged power 
 to tax persons and property within their jurisdiction ; 
 and although this power, and the restriction of it, are 
 easily distinguishable when they do not approach each 
 other, yet they may approach so nearly as to perplex 
 us in marking the distinction between them. The dis- 
 tinction, nevertheless, exists, and must be defined as 
 the cases in which it exists arise. It was deemed 
 sufficient, in the case referred to, to say generally, that 
 when the importer has so dealt with the thing imported 
 that it has become incorporated and mixed np with the 
 mass of property in the country, it has, perhaps, lost its 
 distinctive character as an import, and become subject 
 to the taxing, power of the State ; but while it con- 
 tinues the property of the importer, and remains in his
 
 384 LECTURES ON 
 
 warehouse in the original form or package in which it 
 was imported, a tax upon it is too plainly a duty on 
 imports to escape this prohibition of the Constitution. 
 
 The general power of taxation is retained by the 
 States, without being abridged by the grant of a simi- 
 lar power to the Government of the Union, and is to 
 be concurrently exercised by both Governments, under 
 then: respective Constitutions ; but, from the paramount 
 authority of the General Government, the States are 
 restrained, without any express prohibition, from any 
 exercise of their taxing power, which, in its nature, is 
 incompatible with, or repugnant to, the constitutional 
 laws of the Union. As they have no power, by taxa- 
 tion or otherwise, to retard, impede, burden, or in any 
 manner to control the operation of constitutional laws 
 enacted by Congress to carry into execution any of the 
 powers vested in the Federal Government, they cannot 
 tax certificates issued by it for money borrowed on the 
 credit of the United States, 1 nor the stock of a bank 
 chartered by Congress ; the latter is an instrument, and 
 the former are incidents of a power essential to the 
 fiscal operations of the Union. 2 
 
 2d. The other qualified prohibitions have their origin 
 in the same general policy which absolutely forbids any 
 State from entering into any treaty, alliance, or con- 
 federation, and from granting letters of marque and 
 reprisal ; and they are supported by the same reasoning 
 which establishes the propriety of confiding every thing 
 relative to the power of declaring war to the exclu- 
 sive direction and control of the General Government. 
 Treaties of alliance, for purposes of peace or war, of 
 
 1 2 Peters, 449. 2 4 Wheat. 316 ; 9 Ibid. 738.
 
 CONSTITUTIONAL JURISPRUDENCE. 385 
 
 external political dependence, or general commercial 
 privileges ; treaties of confederation for mutual govern- 
 ment, political cooperation, or the exercise of political 
 sovereignty, or for conferring internal political jurisdic- 
 tion, are absolutely prohibited to the States. But com- 
 pacts and agreements, which apply to the mere private 
 rights of sovereignty, such as questions of boundary 
 between a State and a foreign province, or another 
 State ; interests in land situate within their respective 
 boundaries, and other internal regulations for the mu- 
 tual accommodation of States bordering on each other, 
 may be entered into by the respective States, with the 
 consent of Congress. A total interdiction of such agree- 
 ments or contracts might have been attended with per- 
 manent inconvenience, or public injury to the States ; 
 and the consent of Congress to their being entered into 
 is required to guard against every infringement of the 
 national rights, which might be involved in them. 
 Hence it is that the rule of decision adopted by the 
 Courts of the United States in questions that arise 
 under a compact between States, is of an international 
 character ; and is not, as we have seen, to be collected 
 from the decisions of the Courts of either State. 1 
 
 As the maintenance of an army and navy by a State 
 in time of peace might produce jealousies and alarm 
 in neighboring States, and in foreign nations bordering 
 on its territory, the States are prohibited from such 
 establishments, unless with the consent of the General 
 Government. But as a State may be so situated in 
 time of war as to render a military force necessary to 
 
 i 11 Peters, 22. See also 8 Wheat. 1 ; 1 Peters, 457, 465 ; 4 Bibb, 
 54; 1 Lift. 367; 1 Yeates, 513; 3 Ibid. 440, 448; 2 Pennsyl. 49 ; 
 Cooke, 130, 149 ; 1 Overt, 243. 
 
 33
 
 386 LECTURES ON 
 
 resist an invasion, of which the danger may be too 
 imminent to admit of delay in organizing it, the States 
 have a right to raise troops, and fit out fleets for its 
 own safety in time of war, without obtaining the con- 
 sent of Congress. 
 
 Besides the express restrictions upon the powers of 
 the several States, there are others arising by necessary 
 implication from the supremacy of the Federal Govern- 
 ment within the sphere of its proper jurisdiction, and 
 which, from its paramount authority, restrain the State 
 Governments : 
 
 1. Where an exclusive power is expressly granted to 
 Congress, there the State power ceases to operate, as in 
 the grant of exclusive legislation over places ceded for 
 forts and arsenals. 1 
 
 2. Where there is a direct incompatibility in the 
 exercise of a power by the States, which has been 
 granted to the United States ; as in the power to estab- 
 lish an uniform rule of naturalization, and the exercise 
 of admiralty and maritime jurisdiction. 2 
 
 3. Where the law of a State attempts to impede or 
 control the lawful institutions or measures of the Gen- 
 eral Government ; as to interfere with the judgments, 
 process, or proceedings of the Courts or officers of the 
 United States. 3 
 
 In all these cases, the powers of the National Gov- 
 ernment are, as we have seen, exclusive, and the laws 
 of the States conflicting with them, are absolutely void. 
 But, as we have also seen : 
 
 1 2 Mason, 69 ; 5 Ibid. 356; 5 Wheat. 317. 
 a 1 Wheat. 304 ; 2 Ibid. 269 ; 5 Ibid. 49. 
 
 3 2 Crunch, 397 ; 5 Ibid. 117 ; 7 Ibid. 279 ; 4 Wheat. 316 ; 6 Ibid. 
 598 ; 2 Peters, 449.
 
 CONSTITUTIONAL JURISPRUDENCE. 387 
 
 4. Where a power is granted to Congress, not in its 
 nature exclusive, and a law passed in virtue of such 
 power, comes in direct and manifest collision with a 
 State law, the former being paramount, the latter 
 must yield so far, and so far only, as the incompatibility 
 extends j as in the cases of bankrupt laws, tax laws, 
 and others in which, under the proper heads, it has been 
 shown that the powers of the two Governments are 
 concurrent, and the State law binding in the absence 
 of any incompatible law of Congress. 
 
 The powers granted to Congress then are not exclu- 
 sive of similar powers existing in the States, unless 
 where the Constitution has in express terms given 
 exclusive power to Congress, or the exercise is prohib- 
 ited to the States, or there is a direct repugnancy or 
 incompatibility in the exercise of it by the States. 1 
 An example of the first class we have found in the 
 exclusive legislation of Congress, over places purchased 
 by consent of a State Legislature for forts, arsenals, 
 &c. Of the second class, besides the examples already 
 adduced, is the prohibition of a State to coin money, 
 or emit bills of credit ; of the third, is the power of 
 Congress to establish a uniform rule of naturalization, 
 and the delegation of admiralty and maritime jurisdic- 
 tion to the General Government : in all other classes 
 of cases the States retain concurrent jurisdiction with 
 Congress. We have seen, also, that although a mere 
 grant of power, in affirmative terms, to Congress does 
 not per se, transfer an exclusive sovereignty over such 
 subjects, unless it be incompatible with the existence 
 of a like power in the States, yet when the Legis- 
 
 1 4 Wheat. 122] 5 Ibid. 1, 49 ; 4 Cond. 109.
 
 388 LECTURES ON 
 
 lature of the Union has exercised its powers on 'the 
 given subject, the State power over that subject, which 
 had before been concurrent, becomes, by such exercise, 
 prohibited. And we have previously seen that in con- 
 struing the Constitution of the United States, in regard 
 to the restrictions on the powers of the States, as well 
 as to the grants of power to the Union, the Supreme 
 Court has ever held that an exception of any particular 
 case, presupposes that those which are not excepted 
 are included, and has laid it down as a general rule 
 that, where no exception is made in terms, none will 
 be made by implication or construction. 1 
 
 1 12 Peters, 657 ; 6 Wheat. 264; 9 Ibid. 206 ; 12 Ibid. 419. See 
 also Lecture VIII.
 
 CONSTITUTIONAL JURISPRUDENCE. 389 
 
 LECTURE XII. 
 
 ON THE PROVISIONS CONTAINED IN THE CONSTITUTION FOR 
 GIVING EFFICACY TO THE FEDERAL POWERS. 
 
 THE sixth, and last class of powers enumerated in 
 the Constitution, consists of certain provisions by which 
 efficiency is given to the rest. The first of these is the 
 power " to make all laws necessary and proper for carry- 
 ing the foregoing powers into execution" l 
 
 I. It was remarked by the authors of " The Fed- 
 eralist," that " without the substance of this power, the 
 whole Constitution would be a dead letter ; " and, as 
 few parts of that instrument had been assailed with 
 more intemperance, they justly inferred that " it was 
 the form only, of the provision that was objected to, 
 and they accordingly proceeded to consider" whether a 
 better one could have been substituted. " There were 
 four other methods," they observe, " which the Conven- 
 tion might have pursued; they might have copied the 
 article of the Confederation which prohibited the ex- 
 ercise of any power not expressly delegated ; they 
 might have attempted a positive enumeration of the 
 powers comprehended under the general terms neces- 
 sary and proper ; they might have attempted a negative 
 enumeration of them, by specifying the powers ex- 
 
 i Const. U. S., Art. I. Sect. vm. to xvm. 
 33*
 
 390 LECTURES ON 
 
 cepted from the general definition ; or they might have 
 been altogether silent on the subject, and left these 
 necessary and proper powers to construction and in- 
 ference." 1 
 
 Had the first method been adopted, it is evident that 
 the new Congress, like their predecessors, would have 
 been continually exposed to the alternative, either of 
 construing the term " expressly " with so much rigor as 
 to disarm the Government of aU real authority, or with 
 so much latitude as altogether to destroy the force of 
 the restriction. It would be easy to show, were it 
 necessary, that no important power delegated by the 
 Articles of Confederation was or could have been exe- 
 cuted by Congress, without recurring, more or less, to 
 the doctrine of construction or implication. As the 
 powers delegated under the new system were more 
 extensive, the Government, which was to administer 
 it, would have found itself still more frequently driven 
 to the dilemma of doing nothing, or violating the Con- 
 stitution, by exercising powers indispensably necessary, 
 but not expressly granted. 
 
 Had the Convention made a positive enumeration of 
 the powers necessary and proper for carrying the other 
 powers into effect, it would have involved a complete 
 digest of laws on every subject to which the Constitu- 
 tion relates ; accommodated, too, not only to the exist- 
 ing state of things, but to all possible changes which 
 futurity might produce. Had they attempted to enu- 
 merate the particular powers or means not necessary or 
 proper for carrying the general powers into execution, 
 the undertaking would have been no less chimerical, 
 
 ' No. 144, by Mr. Hamilton.
 
 CONSTITUTIONAL JURISPRUDENCE. 391 
 
 and would, moreover, have been liable to this further 
 objection, that every defect in the enumeration would 
 have been equivalent to a positive grant of authority. 
 If, to avoid this consequence, they had attempted a 
 partial enumeration of exceptions, and described the 
 residue by the general terms " necessary and proper," 
 the enumeration must have comprehended only a few 
 of the excepted cases, and those the least likely to be 
 assumed or tolerated ; because the enumeration would, 
 of course, have selected such as would have been least 
 necessary and proper, and therefore the unnecessary 
 and improper powers included in the remainder would 
 be less forcibly assumed than if no particular enumera- 
 tion had been made. 
 
 Had the Constitution been silent on this subject, 
 there can be no doubt that all the particular powers 
 requisite, as means of executing the general powers, 
 would have resulted to the Government by unavoidable 
 implication. No axiom is more clearly established in 
 law or reason, than that, wherever an end is required, 
 the means are authorized ; wherever a general power 
 to do a thing is given, every particular power necessary 
 for doing it is included. Had this last method, there- 
 fore, been pursued, every objection urged against this 
 part of the Constitution would have remained, in all 
 its plausibility, and the real inconvenience felt of not 
 removing a pretext which might be used on critical 
 occasions for drawing in question the essential powers 
 of the Union. But, with the view of quieting the 
 excessive jealousy which had been excited by this pro- 
 vision, an amendment of the Constitution was adopted, 
 which, omitting the word " expressly " in the Articles 
 of Confederation, simply declares that the powers " not
 
 392 LECTURES ON 
 
 delegated to the United States, nor prohibited to the 
 States, are reserved to the States or to the People ;" 
 thus leaving the question, whether the particular power, 
 which may become the subject of controversy, has been 
 delegated to the one Government or the other, to de- 
 pend upon a fair construction of the whole instrument. 
 The first occasion which called for an interpretation 
 of this part of the Constitution, arose during the first 
 Congress assembled under its authority. Alexander 
 Hamilton, at that time Secretary of the Treasury, had 
 recommended the institution of a National Bank, as of 
 primary importance to the prosperous administration of 
 the finances, and of the greatest utility in the opera- 
 tions connected with the support of public credit. 
 The bill introduced into the House of Representatives 
 for that purpose, was opposed, as unconstitutional. It 
 was contended that the Federal Government was lim- 
 ited to the exercise of its enumerated powers, and that 
 the power to incorporate a Bank was not one of them ; 
 that if such power was vested in the Government, that 
 it must be an implied power, and that the power given 
 to Congress to pass all laws necessary and proper to 
 execute the specified powers, must be limited to means 
 necessary to the end, and incident to the nature of the 
 specified power. On the other side, it was urged that 
 incidental as well as express powers necessarily belong 
 to every Government ; and that when a power was 
 delegated to effect particular objects, all the known and 
 usual means of effecting them followed, as incidental 
 to it ; and it was on this ground insisted that a Bank 
 was a known and usual instrument which several of 
 the enumerated powers of the Government required 
 for their due execution.
 
 CONSTITUTIONAL JURISPRUDENCE. 393 
 
 After the bill had passed both Houses of Congress, 
 the question touching its conformity to the Constitu- 
 tion was agitated with equal ability and ardor in the 
 Executive cabinet. Mr. Jefferson, the Secretary of State, 
 and Mr. Edmund Randolph, the Attorney-General, con- 
 ceived that Congress had transcended its powers ; but 
 the Secretary of the Treasury maintained the opposite 
 opinion, and was supported by General Knox, the 
 Secretary at War. It was argued against the validity 
 of the Act, that " the power to incorporate a Bank 
 was not among the enumerated powers ; and to take 
 a single step beyond the boundaries specially drawn 
 around the powers of Congress, would be to take pos- 
 session of an undefined and undefinable field of power ; 
 that, though Congress were authorized to make all 
 laws necessary and proper for carrying into execution 
 the enumerated powers, they were confined to those 
 means which were necessary, and not merely conve- 
 nient. It meant those means without which the grant 
 of the power would be nugatory ; and if such a latitude 
 of construction were allowed as to give to Congress 
 any implied powers on the ground of convenience, it 
 would swallow up all the enumerated powers, and re- 
 duce the whole list to one phrase." 
 
 To this it was replied, that " every power vested in 
 a Government was, in its nature, sovereign, and gave 
 a right to employ all the means fairly applicable to the 
 attainment of the end of the power, and not specially 
 precluded by specified exceptions, nor contrary to the 
 essential ends of political society ; and though the 
 Government of the United States was one of limited 
 and specified powers, it was sovereign with regard to 
 its proper objects and declared purposes and trusts ;
 
 394 LECTURES ON 
 
 that it was incident to sovereign power to erect corpo- 
 rations, and, consequently, it was incident to the Gov- 
 ernment of the United States to erect one in relation 
 to the objects intrusted to its management ; that im- 
 plied powers are as completely delegated as those which 
 are expressed, and the power of erecting a corporation 
 may as well be implied as any other instrument or 
 means of carrying into execution any of the specified 
 powers ; that the exercise of the power in that case 
 had a natural relation to the lawful ends of the Govern- 
 ment, and it was incident to the sovereign power to 
 regulate the currency, and to employ all the means 
 which apply with the best advantage to that regula- 
 tion ; that the word necessary in the Constitution ought 
 not to be confined to those means without which the 
 grant of the power would be nugatory ; that it often 
 means no more than needful, requisite, useful, or con- 
 ducive to; and that this was the sense in which the 
 word was used in the Constitution. The relation be- 
 tween the measure and the end was the criterion of 
 constitutionality, and not whether there was a greater 
 or less degree of necessity or utility. The infinite 
 variety, extent, and complexity of national exigencies, 
 necessarily required great latitude of discretion in the 
 selection and application of means ; and the authority 
 intrusted to Government ought and must be exercised 
 on principles of liberal construction." 
 
 General Washington gave to these arguments a de- 
 liberate and profound consideration, which terminated 
 in his conviction that the incorporation of a Bank was 
 a measure authorized by the Constitution. The bill 
 for that purpose accordingly received his approval and 
 became a law.
 
 CONSTITUTIONAL JURISPRUDENCE. 395 
 
 The same question came before the Supreme Court 
 of the United States, in 1819, in reference to the then 
 existing Bank, which had been incorporated in 1816, 
 and upon which the State of Maryland had subse- 
 quently imposed a tax ; and although the question had 
 twice been settled, so far as a Legislative Act could 
 settle it, yet it was thought worthy of a renewed dis- 
 cussion in the Judicial department. The Chief Justice, 1 
 however, observed " that it could hardly be considered 
 an open one, after the principle had been so early intro- 
 duced and recognized by many successive Legislatures, 
 and had acted upon the Judiciary as a law of un- 
 doubted obligation." He nevertheless admitted that 
 it belonged to the Supreme Court alone to make a final 
 decision, and that the question involved a consideration 
 of the Constitution in its most interesting and vital 
 parts. 
 
 It was, moreover, admitted that " the Government of 
 the United States was one of enumerated powers ; but, 
 though limited in its powers, it was supreme within 
 its sphere of action." There was nothing, however, in 
 the Constitution which excluded incidental or implied 
 powers. The Articles of Confederation, indeed, gave 
 nothing to the United States but what was expressly 
 granted ; but the amendment to the new Constitution 
 had dropped the word " expressly," and left the ques- 
 tion whether a particular power was granted to depend, 
 as we have seen, on a fair construction of the whole 
 instrument. " No Constitution," he continued, " can 
 contain an accurate detail of all the subdivisions of its 
 powers, and of all the means by which they may be 
 
 1 Marshall.
 
 396 LECTURES ON 
 
 carried into execution. Its nature required that only 
 the great outlines should be marked, and its important 
 objects designated, and all the minor ingredients left 
 to be deduced from the nature of those objects. The 
 sword and the purse, all the external relations, and no 
 inconsiderable portion of the industry of the nation, 
 were intrusted to the General Government ; and a 
 Government intrusted with such ample powers, on the 
 due execution of which the happiness and prosperity 
 of the nation vitally depend, must also be intrusted 
 with ample means for their execution ; and unless the 
 words imperiously require it, we ought not to adopt a 
 construction which would impute to the framers of 
 the Constitution, when granting great powers for the 
 public good, the intention of impeding their exercise 
 by withholding a choice of means." 
 
 " The powers given to the Government," he said, 
 " imply the ordinary means of execution ; and the Gov- 
 ernment, in all sound reasoning and fair interpretation, 
 must have the choice of the means which it deems 
 the most convenient and appropriate to the execution 
 of the power. The power of creating a corporation, 
 though appertaining to sovereignty, was held not to be 
 a great substantive and independent power, but merely 
 a means by which other objects are accomplished ; in 
 like manner as no seminary of learning is instituted in 
 order to be incorporated, but the corporate charter is 
 conferred to subserve the purposes of education. The 
 power of creating a corporation, indeed, was never used 
 for its own sake, but always for the purpose of effecting 
 something else. It was nothing, therefore, but the ordi- 
 nary means of attaining some public and useful end. 
 But the Constitution had not left the right of Congress
 
 CONSTITUTIONAL JURISPRUDENCE. 397 
 
 to employ the necessary means for the execution of its 
 powers to general reasoning ; it was expressly author- 
 ized to employ such means ; and * necessary means] 
 in the sense of the Constitution, did not import an 
 absolute physical necessity so strong that one thing 
 could not exist without the other, but the term signified 
 any means calculated to produce the end." 
 
 " The word necessary" it was observed, " admitted 
 of all degrees of comparison. A thing might be neces- 
 sary, or very necessary, or absolutely and indispensably 
 necessary; to no mind would the same idea be con- 
 veyed by these several phrases ; " and the remark was 
 well illustrated by a reference to that article of the 
 Constitution which prohibits a State from laying " im- 
 posts or duties on imports or exports, except what may 
 be absolutely necessary for carrying into execution its 
 inspection laws." It is impossible to compare this 
 clause with that under consideration, without feeling 
 a conviction that the Convention understood itself to 
 change materially the meaning of the word " neces- 
 sary," by prefixing to it the word " absolutely " in the 
 one case, and to qualify its signification by dropping it 
 in the other. 
 
 The word " necessary," then, like many others, is 
 used in various senses ; and in fixing its construction, 
 the intention, the subject, the context, are all to be 
 taken into view. The powers of the General Govern- 
 ment were given for the welfare of the nation ; they 
 were intended to endure for ages, and to be adapted 
 to the various exigencies of human affairs. To have 
 prescribed the specific means by which the Government 
 should, in all future time, execute its powers, would 
 have changed entirely the character of the Constitution, 
 34
 
 398 LECTURES ON 
 
 and given it the properties of a legal code. It would 
 have been an unwise attempt to provide by immutable 
 rules for cases which, if foreseen at all, must have been 
 perceived indistinctly, and which could have been better 
 provided for as they occurred: To have declared that 
 the best means should not be used, but those only 
 without which the power given would be nugatory, 
 would have deprived Congress of the capacity to avail 
 itself of experience, or to exercise its reason and ac- 
 commodate its legislation to circumstances. 
 
 If the end be legitimate, and within the scope of 
 the Constitution, ah 1 means which are appropriate and 
 plainly adapted to those ends, and which are not pro- 
 Vhibited, are lawful ; and a corporation was considered 
 as a means not less usual, nor of higher dignity, nor 
 more requiring a particular specification, than other 
 means. A National Bank was deemed a convenient, 
 useful, and essential instrument in the prosecution of 
 the fiscal operations of the Government. It was clearly 
 an appropriate measure ; and while the Court declared 
 it to be within its power, and its duty to maintain that 
 an Act of Congress exceeding its constitutional power 
 of legislation was not the law of the land, yet, if a 
 law was not prohibited by the Constitution, and was 
 really calculated to effect an object intrusted to the 
 Government, it did not pretend to the power to inquire 
 into the degree of its necessity, as that would be pass- 
 ing the line which circumscribes the Judicial power, 
 and treading on Legislative ground. 
 
 The Court, therefore, decided that the law creating 
 the Bank was made in pursuance of the Constitution, 
 and that the branches of the National Bank, proceeding 
 from the same stock, and conducing to the complete
 
 CONSTITUTIONAL JURISPRUDENCE. 399 
 
 accomplishment of its objects, were equally consistent 
 with the Constitution. 1 It was afterward led, in some 
 degree, to review this decision, and, in a subsequent 
 case, admitted that Congress could not create a corpo- 
 ration for its own sake* or for private purposes. 2 It 
 was observed on this occasion, that the opinion in the 
 former case was founded on and sustained by the idea 
 that the Bank was an instrument which was " necessary 
 and proper for carrying into effect the powers " vested 
 in the Government. It was created for national pur- 
 poses only, though it was undoubtedly capable of 
 transacting private as well as public business ; and 
 while it was the great instrument by which the fiscal 
 operations of the Government were effected, it was 
 also engaged in trading with individuals for its own 
 advantage. It could not, on any rational calculation, 
 effect its object unless it were endowed with the faculty 
 of dealing in money, which, indeed, was necessary to 
 render the Bank competent to fulfil the purposes of the 
 Government, and was, therefore, constitutionally and 
 rightfully ingrafted on the institution. 
 
 The Acts of Congress 3 giving to the United States 
 a priority in the payment of debts over other creditors, 
 are held, as we have seen, to be constitutional and 
 valid, as founded on this authority of Congress to make 
 all laws necessary and proper to carry into effect the 
 powers vested by the Constitution in the General Gov- 
 ernment. That Government is to pay the debts of 
 the Union ; and is authorized to use the means most 
 eligible to effect that object. If this claim of priority 
 
 1 4 Wheat. 316. 2 9 Jbid. 860. 
 
 3 Passed August 4, 1790, May 2, 1792, March 3, 1797.
 
 400 LECTURES ON 
 
 interferes with the right of a State respecting the dig- 
 nity of debts, and defeats the measures it would other- 
 wise be entitled to adopt to secure them, it is a 
 necessary consequence of the supremacy of the laws 
 of the Union on all subjects to which the Legislative 
 power of Congress extends. 1 From the construction 
 given by the Supreme Court to the fifth section of the 
 Act of 1797, the following points are clearly estab- 
 lished, viz : 
 
 1. That no lien is created by the statute. 
 
 2. That the priority established can never attach 
 while the debtor continues the owner, and in possession 
 of the property, although he may be unable to pay his 
 debts. 
 
 3. That no evidence can be received of the insol- 
 vency of the debtor until he has been divested of the 
 property in one of the modes stated in the section. 
 
 4. Whenever the debtor is thus divested of his prop- 
 erty, the person who becomes invested with the title 
 is thereby made a trustee for the United States, and is 
 bound to pay their debt first, out of the proceeds of 
 the bankrupt's or insolvent's property. 
 
 The priority of the United States attaches as well 
 with respect to debts owing, but not yet payable, as to 
 those already payable, where death or insolvency takes 
 place. This construction is consistent with the lan- 
 guage and reason of the Act, and required by the 
 public policy which led to its passage. 2 
 
 The right of priority of payment of debts due to the 
 Government, is a prerogative of the British Crown, 
 well known to the Common Law. It is founded, not 
 
 i 2 Cranch, 358 ; 1 Cond. 420. 2 6 Peters, 29.
 
 CONSTITUTIONAL JURISPRUDENCE. 401 
 
 so much upon any personal advantage to the Sovereign, 
 as upon motives of public policy, in order to secure an 
 adequate revenue to sustain the public burdens, and 
 discharge the public debts. The claim of the United 
 States, however, does not stand upon any sovereign 
 prerogative, but is exclusively founded upon their own 
 statutes. The same policy which governed in the case 
 of the royal prerogative may, nevertheless, be clearly 
 traced in these statutes ; and as that policy has mainly 
 reference to the public good, there is no reason for 
 giving them a strict and narrow interpretation. Like 
 all other statutes of this nature, they should receive a 
 fair and liberal construction, according to the just im- 
 port of the terms. 
 
 II. The next provision for giving effect to the powers 
 of the Federal Constitution is that requiring the Sen- 
 ators and Representatives in Congress, and the members 
 of the State Legislatures, and all Executive and Judicial 
 officers, both of the United States and of the several 
 States, to be bound by oath or affirmation to support the 
 Constitution of the United States. 
 
 The election of the President and Senate depends, 
 in all cases, on the Legislatures of the several States ; 
 and the election of members of the House of Repre- 
 sentatives depended in the first instance, and still, in 
 fact, depends on the same authority, and will probably 
 always be conducted by the officers, and according to 
 the laws of the States. In order, therefore, to insure 
 the stability, and, as far as possible, the perpetuity of 
 the Federal Government, it was necessary to provide 
 a sanction similar to that relied on for the continuance 
 of the State Governments, and to obtain, by an appeal 
 to the consciences of individuals, an equal security in 
 34*
 
 402 LECTURES ON 
 
 both cases. This dependence on the action of the State 
 Governments for the organization of the Executive 
 and Legislative branches of the National Government, 
 and especially for the appointment of electors of Presi- 
 dent and Vice- President, and the election of Senators, 
 has been used as an argument in support of the right 
 of a State, in virtue of its sovereign power, to secede 
 from the Union. But were it even true that the Legis- 
 lative* powers of the Union would be suspended if all 
 the States, or a majority of them, were to refuse to elect 
 Senators, yet, if any one State should refuse, Congress 
 would not, on that account, be the less capable of per- 
 forming all its functions. The same reasoning would 
 apply to any number of States less than a majority of 
 the whole ; and the argument founded on this delin- 
 quency proves rather the subordination of the parts to 
 the whole than the complete independence of any one 
 of them. The framers of the Constitution were unable 
 to make any provision which should protect it against 
 a general combination of the States or of the People 
 for its destruction, and, conscious of this inability, they 
 did not make the attempt. But they were able to 
 provide against the operation of measures adopted in 
 any one State, the tendency of which might be to 
 arrest the execution of the laws of the Union ; and 
 this they have done. 
 
 To this it may be added, that they provided against 
 a dissolution of the Union, and against any direct or 
 indirect attempts on the part of a State to withdraw 
 from the Union, not only by this provision requiring all 
 officers, civil and military, of the State Governments 
 to take an oath to support the Feddral Constitution, 
 but by creating distinct Executive and Judicial de-
 
 CONSTITUTIONAL JURISPRUDENCE. 403 
 
 partments, and by adopting various other provisions, 
 operating immediately and individually upon the People 
 of the several States. Thus the Constitution exacts no 
 pledge from the States to maintain its inviolability, but 
 makes its preservation depend on individual obligation 
 and duty. It permits no man to sit in the Legisla- 
 ture of a State who is not first sworn to support the 
 Constitution of the United States. From the obliga- 
 tion of this oath no State power can discharge them. 
 All the members of all the State Legislatures are as re- 
 ligiously bound to support the Federal Constitution as 
 they are to support their own State Constitution, and 
 as solemnly sworn to do so as the members of Con- 
 gress. No member of a State Legislature can refuse 
 to proceed at the appointed time to elect Senators in 
 Congress, or to provide for the choice of Electors of 
 President and Vice- President, any more than the mem- 
 bers of the Senate of the United States can refuse, 
 when the appointed time arrives, to meet the members 
 of the other House to witness the counting of the votes 
 given by the Electors for those officers, and ascertain 
 who are chosen. In either case, the duty binds with 
 equal strength the conscience of the individual, and is 
 imposed on every member by an oath in the same 
 words. It cannot, therefore, be a matter of discretion 
 with the States whether they will continue the Govern- 
 ment or break it up, by refusing to elect Senators and 
 appoint Electors. Nor can the members of their Legis- 
 latures neglect or evade those duties, when the times 
 arrive for their performance, without such a violation 
 of their oaths and duties as would destroy any other 
 Government. 
 
 III. Among the provisions for giving efficacy to the
 
 404 LECTURES ON 
 
 Federal Legislative powers may be included those spec- 
 ially vested in the Executive and Judicial departments, 
 and especially the provision extending the jurisdiction 
 of the Federal Courts to all cases arising under the 
 Constitution of the United States. But these powers 
 have already been subjected to particular examination 
 in our review of the structure and organization of the 
 Government, and do not, perhaps, require any further 
 elucidation. It may, however, be as well here to ob- 
 serve, that the provision last specified in effect creates 
 in the Supreme Court of the United States a COMMON 
 ARBITER in all cases of collision between the power and 
 authority of the Union and of the several States. Such 
 collisions, we have seen, have already taken place, in 
 times, too, of no extraordinary commotion, and have 
 hitherto been happily adjusted. " But a Constitution," 
 said its great Judicial oracle, 1 "is framed for ages to 
 come, and designed to approach immortality as nearly 
 as human institutions can attain to it. Its course can- 
 not always be tranquil ; experience as well as reason 
 teaches us that it is exposed to storms and tempests." 
 The same lesson had been taught to its framers under 
 the Confederation, and had confirmed the suggestions 
 of their own experience, and induced them to devise 
 a new form of Government for themselves and their 
 posterity. They accordingly provided it, as far as its 
 nature would permit, with the means of self-preservation 
 from the perils it was destined to encounter. They 
 well understood that no Government should be so de- 
 fective in its organization as not to contain within itself 
 the means of securing the execution of its own laws 
 
 1 Chief Justice Marshall.
 
 CONSTITUTIONAL JURISPRUDENCE. 405 
 
 against other dangers than those of ordinary occurrence. 
 They were aware that courts of justice were the means 
 most usually employed ; and under the full pressure of 
 the evils which had arisen from the want of such a 
 power under the Confederation, they created in the 
 new system a distinct and independent Judicial depart- 
 ment ; they conferred on it the power of construing the 
 Constitution and laws of the Union, in the last resort, 
 in all cases, and of preserving them from all violation 
 from any quarter, so far as Judicial decisions could 
 preserve them ; and they conferred on the Chief Execu- 
 tive Magistrate the powers necessary to carry into effect 
 the judgments and decrees of the Courts, either directly 
 in the Constitution itself, or indirectly, by vesting in the 
 Legislative department authority to do so. 
 
 IV. The next provision for giving effect to the powers 
 of the General Government is the declaration that the 
 " Constitution, and the laws of the United States which 
 shall be made in pursuance thereof, and all treaties made, 
 or which shall be made, under the authority of the United 
 States, shall be the supreme law of the land ; and the 
 judges in every State shall be bound thereby, any thing 
 in the Constitution and laws of any State to the contrary 
 notwithstanding" 1 
 
 Without this provision, the Constitution would have 
 been evidently and radically defective. To be fully 
 sensible of this, we need only suppose, with the authors 
 of " The Federalist," 2 that the supremacy of the State 
 Constitutions had been left complete by a saving 
 clause in their favor. In the first place, as those Con- 
 stitutions invested the State Legislatures with absolute 
 
 i Const. U. S., Art. VI. Sect. n. 2 No. 44.
 
 406 LECTURES ON 
 
 sovereignty in all cases, not excepted by the Arti- 
 cles of Confederation, all the authorities contained in 
 the present Constitution, so far as they exceed those 
 enumerated in the Confederation, would have been 
 annulled, and the new Congress would have been re- 
 duced to the same impotent condition as their prede- 
 cessors, which it was the avowed and leading design 
 of the Convention in this particular to amend. In the 
 next place, as the Constitutions of some of the States 
 did not expressly and fully recognize the powers even 
 of the former Confederacy, an express saving of such 
 Constitutions would in those States have brought in 
 question every power contained in the new Federal 
 Constitution. In the third place, as the Constitutions 
 of the States differ much from each other, it might 
 have happened that a treaty, or national law of great 
 importance to the States, would interfere with some, 
 and not with others, of the State Constitutions, and 
 would, consequently, have been valid in some States, 
 and not in others. In the last place, there would have 
 been exhibited a system (such as some modern theorists 
 and political visionaries have conceived the Federal 
 Constitution to be) founded on an inversion of the 
 fundamental principles of all Government, in which 
 the authority of the whole society would be subordinate 
 to that of the parts, the head under the direction of 
 each of the members. 
 
 But the provision in question marks the characteristic 
 distinctions between the Government of the Union and 
 the Governments of the States ; and when the Consti- 
 tution or laws of a State have been deemed repugnant 
 to, or incompatible with, the Federal Constitution, with 
 laws made in pursuance of it, or with treaties negotiated
 
 CONSTITUTIONAL JURISPRUDENCE. 407 
 
 under its authority, the validity of the former has been 
 inquired into and decided upon in a variety of cases ; 
 and in every instance where the repugnance existed, 
 such State Constitutions or laws, or such parts of them 
 as were incompatible with the former, have been, as we 
 have seen, judicially abrogated and annulled. In the 
 important case of the Bank of the United States, re- 
 ferred to in the last Lecture, 1 it was declared that the 
 law of Maryland imposing a tax on the Bank was 
 unconstitutional and void, on the ground that the State 
 Governments have no right to tax any of the consti- 
 tutional means employed by the Government of the 
 Union to execute its constitutional powers ; nor, by 
 taxation or otherwise, to retard, impede, burden, or in 
 any manner control the operation of constitutional laws 
 enacted by Congress, to carry into effect the powers 
 vested in the National Government. 
 
 It was contended, on that occasion, on behalf of the 
 State authority, that the powers of the General Gov- 
 ernment were delegated by the State Governments, and 
 that the Federal authority must be exercised in sub- 
 ordination to the States, who alone possessed supreme 
 dominion. But the impossibility of sustaining such 
 a proposition was fully and clearly demonstrated. It 
 was admitted, indeed, that the Convention that framed 
 the Constitution was elected by the State Legislatures ; 
 but that instrument, when it came from the hands of 
 the Convention, was a mere proposal, without actual 
 obligation, or any^ pretension to it. It was reported to 
 the then existing Congress, to " be submitted to a Con- 
 vention of delegates to be chosen in each State by the 
 
 i 4 Wheat. 316.
 
 408 LECTURES ON 
 
 People thereof, under the recommendation of its Legis- 
 lature, for their assent and ratification." This mode of 
 proceeding was adopted, and the proposed Constitution 
 was accordingly submitted to the People, who acted 
 upon it in the only manner in which they can act 
 effectually and wisely on such subjects, by assembling 
 in Conventions. They assembled in their respective 
 States, not merely from convenience, but from neces- 
 sity. There existed no authority under the Confedera- 
 tion, as now exists under the Constitution, for calling 
 a General Convention ; and if such authority had ex- 
 isted, that mode would not have been the proper one, 
 in a case where the People were, in effect, to pass upon 
 virtual amendments and partial abrogations of their 
 State Constitutions. They assembled and acted, there- 
 fore, in their several States, the People of each State 
 thus exercising a separate and independent voice in 
 the adoption of the Federal Constitution. But the 
 measure they adopted did not on that account cease 
 to be the act of the People themselves, or become the 
 measure of the State Governments. 
 
 From these State Conventions, then, the Constitu- 
 tion of the United States owes its whole authority. 
 The instrument submitted to them purports on the face 
 of it to proceed from " the People of the United States" 
 to be "ordained and established" in their name; and 
 is declared to be thus ordained and established " in 
 order to form a more perfect union, to establish justice, 
 insure domestic tranquillity, and secure the blessings 
 of liberty to them and their posterity." Now, if the 
 People of the United States had never before acquired 
 a common character, they assumed it then. The pre- 
 amble to the Federal Constitution, containing these
 
 CONSTITUTIONAL JURISPRUDENCE. 409 
 
 declarations, is an essential and necessary part of that 
 instrument ; and it not only enumerates the objects for 
 which it was formed, but designates the parties by 
 whom, and by whose authority alone, it was " ordained 
 and established." The assent of the States in their 
 sovereign capacities is implied, if not expressed, in 
 calling their Conventions, and thus submitting the new 
 scheme of Government to the People. But the People 
 of each State were at perfect liberty to accept or reject 
 it, and their act was final. The Constitution required 
 not the affirmance of the State Governments, nor could 
 it be negatived by their act ; but, when ratified by the 
 People, it became of perfect obligation, and bound the 
 States. 
 
 It has, to be sure, been said that the People had 
 already surrendered all their powers to the State Gov- 
 ernments, and had nothing more to give. But the 
 question whether the People may resume and modify 
 the powers granted by them to the State or General 
 Governments for their own benefit, does not, surely, 
 remain to be settled in this country. The same sov- 
 ereign powers which had separately established the 
 State Governments, united with each other in forming 
 a paramount sovereignty, and establishing a Supreme 
 Government. For this purpose each yielded a portion 
 of its individual sovereignty, and modified its State 
 Constitution, by rendering it subordinate to the Fed- 
 eral power. Their authority to do this cannot for a 
 moment be seriously doubted. Much more, indeed, 
 might the legitimacy of the Federal Government have 
 been questioned, had it been erected by the States to 
 operate upon the individual citizens of the several 
 States. The powers delegated to the State Govern- 
 35
 
 410 LECTURES ON 
 
 ments were to be exercised by themselves, not by a 
 distinct and independent sovereignty erected by them. 
 To the formation of a league such as the Confedera- 
 tion, the State Governments vere certainly competent. 
 But when, "in order to form a more perfect union" 
 and change that league into an effective Government, 
 clothed with high sovereign powers for national objects, 
 and acting directly on the People as individuals, the 
 necessity of referring it to the People themselves, and 
 deriving its powers immediately from them, was univer- 
 sally felt and acknowledged ; and the Article of the 
 Constitution which provides, as one of the modes for 
 its amendment, a Convention of the People of the United 
 States, is conclusive as to the real character of the 
 instrument, and the sense in which it must have been 
 understood. 
 
 The Government of the Union, then, is emphatically 
 and truly a Government of the People. In form and 
 substance, it emanates from them ; its powers are 
 granted by them, and are to be exercised directly on 
 them as individuals, and for their common benefit ; and 
 can be abrogated only by their consent. This Govern- 
 ment, however, is acknowledged by all to be a Govern- 
 ment of enumerated powers. The principle that it can 
 only exercise the powers granted to it is admitted on 
 all hands ; but questions respecting the extent of the 
 powers actually granted to it are, as we have seen, 
 perpetually arising, and will probably continue to arise, 
 as long as the system shall exist. In discussing these 
 questions, the conflicting powers of the General and 
 State Governments must be brought into view ; and 
 the supremacy of their respective laws, when in oppo- 
 sition to each other, must be settled by that power in
 
 CONSTITUTIONAL JURISPRUDENCE. 411 
 
 the Federal Constitution which was created, among 
 other purposes, for this one expressly. Though limited 
 in its powers, it would seem to result necessarily, from 
 the nature of the General Government, that it should 
 be supreme within its sphere of action. It is the Gov- 
 ernment of all ; its powers are delegated by all ; it 
 represents all ; and it acts for all, and upon all. Though 
 any one State may be willing to control its operations, 
 no other State is willing that other States should con- 
 trol them. The Nation^ on those subjects upon which 
 it can act at all, must necessarily bind its component 
 parts. But the question is not left to mere reason, the 
 People have in express terms decided it, by adopting 
 the clause now under discussion, in conjunction with 
 that requiring the oath to support the Federal Consti- 
 tution to be taken by every State, as well as Federal 
 officer. And yet we have witnessed an attempt on 
 the part of one of the States, not merely to assert and 
 vindicate its own supremacy, in cases of collision with 
 the authority of the Union, and to reject the control 
 and jurisdiction of the SUPREME ARBITER on all consti- 
 tutional questions, but by its own act to repudiate and 
 nullify an Act of Congress, which it took upon itself 
 to pronounce to be contrary to the Constitution, and 
 insisted that its decision was final. This monstrous 
 claim it is even pretended to reconcile with the doc- 
 trines of the Federal Constitution itself, founding it 
 principally on the amendment which declares that " the 
 powers not delegated to the United States, nor pro- 
 hibited to the States, are reserved to the States respec- 
 tively, or to the People," and thereby assuming that 
 the power exercised by Congress in passing the law 
 in question was not delegated to the General Govern-
 
 412 LECTUKES ON 
 
 ment, and that the power claimed by the State was not 
 prohibited to it by the Federal Constitution, which were 
 no other than the very points in controversy. 
 
 It was, moreover, asserted that any State had the 
 right to arrest the execution of an Act of Congress, 
 until three fourths of the States should approve it ; and, 
 in the mean time, to resist all attempts to enforce it. 
 The equally untenable position was also contended for, 
 that a State, at its pleasure, had a right to secede 
 peaceably, and separate permanently from the Union, 
 without necessarily producing a revolution in the Gov- 
 ernment. And tjiese extravagant claims were sought 
 to be justified by the doctrines put forth in the cele- 
 brated Virginia Resolutions of 1798, 1 and especially 
 by some expressions in those of Kentucky in 1799 
 erroneously, as it seems, attributed to Mr. Jefferson. 
 
 These Resolutions, as is well known, were called 
 forth by the enactment of the Alien and Sedition 
 Laws by Congress ; and it is equally well known that 
 Mr. Madison, although not then a member of the Vir- 
 ginia Legislature, was the author not only of the Reso- 
 lutions of 1798, but of the Report by which they were 
 introduced. Upon being appealed to, upon the occa- 
 sion now in question, by several of his correspondents, 
 he vindicated those documents from the construction 
 given to them in favor of nullification, and referred to a 
 letter of Mr. Jefferson's to prove the Resolutions of the 
 Legislature of Kentucky, in which that word occurs, 
 
 1 These famous Resolutions were reported by John Taylor, of Caro- 
 line ; but Mr. Madison was always reputed to be their author ; and 
 in a letter to Mr. James Robertson, written in March, 1831, he dis- 
 tinctly avows the authorship, both of the Resolutions and the Report. 
 See " Select Correspondence of Mr. Madison."
 
 CONSTITUTIONAL JURISPRUDENCE. 413 
 
 were not drawn up by him, although that gentleman 
 was the author of those adopted by it the year pre- 
 vious, " which do not," however, as he says, " contain 
 this, or any equivalent word." 1 
 
 From a " Memorandum on Nullification," written by 
 the survivor of those venerable and illustrious states- 
 men, in" the eighty-sixth and last year of his life, thus 
 proving at once, both his solicitude upon the subject 
 and the undiminished vigor of his mind in treating it, 
 Mr. Madison observes that " although the Legislature 
 of Virginia, at a late session, declared almost unani- 
 mously, 2 that South Carolina was not supported in her 
 doctrine of nullification by the Resolutions of 1798, 
 it appears that those Resolutions are still appealed to 
 as expressly or constructively favoring the doctrine. 
 And what," he asks, " is the text in the proceedings of 
 Virginia which this spurious doctrine of nullification 
 claims for its patronage ? " " It is found," he adds, " in 
 the third of the Resolutions of 1798. 3 Now, is there 
 
 1 In a letter of May 31, 1830, to J. C. Cabell, Mr. Madison vindi- 
 cates both Mr. Jefferson and Mr. Monroe from any participation in 
 the Kentucky Resolutions of 1799, and refers to a letter to W. C. 
 Nicholas, in the 3d vol. of Mr. Jefferson's Correspondence, page 429, 
 to prove it. 
 
 2 Alluding to the Resolutions to that effect, passed by the Legisla- 
 ture, in 1835. 
 
 3 The third of these Resolutions is as follows : " That this Assembly 
 doth explicitly and peremptorily declare, that it views the powers of 
 the Federal Government as resulting from the compact, to which the 
 States are parties, as limited by the plain sense of the instrument 
 constituting that compact ; and that in case of a deliberate, palpable, 
 and dangerous exercise of other powers not granted by the said com- 
 pact, the States who are the parties thereto, have the right, and are 
 in duty bound to interpose for arresting the progress of the evil, and 
 
 35*
 
 414 LECTURES ON 
 
 anything here," he demands, " from which a single 
 State can infer a right to arrest or annul an act of the 
 General Government, which it may deem unconstitu- 
 tional ? So far from it," he declares, "that the obvi- 
 ous and proper inference precludes such a right. In a 
 word," he adds, " the nullifying claims, if reduced to 
 practice, instead of being the conservative principle of 
 the Constitution, would necessarily, and it may be said, 
 obviously, be a deadly poison." 
 
 " The true question, therefore," as he concludes, " is 
 whether there be a Constitutional right in a single State 
 to nullify a law of the United States ? " He then pro- 
 ceeds to remark on " the absurdity of such a claim, in 
 its naked suicidal form, and " turns to it as modified 
 by South Carolina, into a right in every State to resist 
 within itself the execution of a Federal law, deemed 
 by it to be unconstitutional, and to demand a Conven- 
 tion of the States", to decide the question of constitu- 
 tionality, the annulment of the law to continue in the 
 mean time, and to be permanent, unless three fourths 
 of the States concur in overruling the annulment." 
 
 " Thus," he continues, " during the temporary nulli- 
 fication of the law, the results would be the same as 
 those proceeding from an unqualified nullification, and 
 the result of a Convention might be that seven out of 
 twenty-four States might make the temporary results 
 permanent. 
 
 " It follows, that any State which could obtain the 
 concurrence of six others, might abrogate any law of 
 the United States whatever, and give to the Constitu- 
 
 for maintaining within their respective limits the authorities, rights, 
 and liberties appertaining to them."
 
 CONSTITUTIONAL JURISPRUDENCE. 415 
 
 tion, constructively, any shape they pleased, in oppo- 
 sition to the construction and will of the other seven- 
 teen. 1 Every feature of the Constitution might thus be 
 successively changed ; and after a scene of unexampled 
 confusion and distraction, what had been unanimously 
 agreed to as a whole, would not, as a whole, be agreed 
 to by any single party." 
 
 But these heresies were promptly met and ably re- 
 futed by the proclamation issued on the occasion by 
 the President of the United States. 2 This admirable 
 document, which confers more durable and honorable 
 fame on the name of General Jackson than even the 
 victory of New Orleans, exhibits the true doctrines of 
 the Constitution in strict conformity with those princi- 
 ples of construction which I have endeavored to explain 
 and enforce. In language becoming the dignity and 
 responsibility of his station, the Chief Magistrate of 
 the Union reminds the individuals concerned in these 
 proceedings of their paramount obligations as citizens 
 of the United States, and warns them of the treason- 
 able tendency of their acts ; and upon his subsequent 
 reference of the subject to the National Legislature, he 
 recommended the adoption of such measures as were 
 necessary to enforce the laws of the Union, and sup- 
 press the opposition to their execution, devised by evil 
 councils and authorized in an evil hour, by the State 
 of South Carolina. The Act required was passed ; 
 
 1 This was written when the number of States was twenty-four. 
 Their number being now thirty-one, the corresponding proportions 
 would be eight to twenty-three, to produce the same results. 
 
 2 This celebrated state paper is well known to have been the pro- 
 duction of the late Edward Livingston, then Secretary of State. Vide 
 Appendix E.
 
 416 LECTURES ON 
 
 and thus has every department of the Government 
 concurred in the declaration approved and sanctioned 
 by a vast majority of the People, that the Government 
 of the United States is supreme within its limited juris- 
 diction, and that its laws in pursuance of the Constitu- 
 tion form the supreme law of the land, " anything in 
 the Constitution and laws of any State to the contrary 
 notwithstanding;" and that the existence and effect 
 of a collision between them must be decided by the 
 general head, and not by any of the members of the 
 Union. 
 
 V. The last provision contained in the Constitution 
 for giving efficacy to its powers is that by which effect 
 and operation were given to the system by declaring 
 that " the ratifications of the conventions of nine States 
 should be sufficient for its establishment between the 
 States so ratifying the same" 1 
 
 The express authority of the People alone could 
 give validity to the Constitution ; and to have required 
 the unanimous ratification of the People of the several 
 States would have subjected the essential interests of 
 the whole to the caprice or corruption of the smallest 
 majority in any one State. But a question of a very 
 delicate nature arose with respect to this article when 
 the Constitution was proposed for adoption a ques- 
 tion similar in its character to the one which has just 
 been discussed. It was asked by the objectors to the 
 Federal system, upon what principle it was that the 
 Confederation, which stood in the solemn form of a 
 compact between the States, could be superseded with- 
 out unanimous consent; and it was thereupon suggested 
 
 i Const U. S., Art. VII.
 
 CONSTITUTIONAL JURISPRUDENCE. 417 
 
 by Mr. Madison, in one of the numbers of " The Fed- 
 eralist," ] that an answer might be found without search- 
 ing beyond the principles of the former compact itself. 
 It had been noted among its defects, that in many of 
 the States it had received no higher sanction than a mere 
 Legislative ratification. The principle of reciprocity, 
 therefore, seemed to require that its obligation on the 
 other States in which it had been ratified by the People 
 in their Conventions should be reduced to the same 
 standard. A compact between independent sovereigns, 
 founded, as was the Confederation, upon acts of Legis- 
 lative authority, could pretend to no higher validity 
 than a league or treaty between the parties ; and it is 
 the established doctrine that all the articles of a treaty 
 are mutual conditions ; a breach of any one article is 
 a breach of the whole ; and a breach committed by any 
 of the parties absolves the others, and authorizes them, 
 if they choose, to pronounce the compact violated, and 
 at an end. 
 
 Had it been necessary to appeal to these principles 
 as a justification for dispensing with the consent of 
 particular States to a dissolution of the compact then 
 existing, it would by no means have been difficult to 
 confront the objecting parties with multiplied and im- 
 portant infractions of the Articles of Confederation. 
 But a more direct answer was given to them by recur- 
 ring to the absolute necessity of the case, to the great 
 principle of self-preservation, to the transcendent law 
 of God and nature, which declares the safety and hap- 
 piness of society to be the objects which all political 
 institutions should aim to accomplish, and for which 
 
 1 No. 43.
 
 418 LECTURES ON 
 
 they may all be sacrificed ; and from what is known of 
 the state of public affairs at that portentous crisis, we 
 cannot doubt that this answer was felt to be conclusive. 
 It is, however, well worthy of observation, that it was 
 not pretended on this occasion that any of the States 
 could withdraw even from the Confederation, consid- 
 ered merely as a treaty of alliance, at its mere will 
 and pleasure; nor absolve itself at its own discretion 
 from its perpetual obligation, except in cases of the 
 extreme urgency of self-preservation, or of the breach 
 or violation of the compact by some other of the par- 
 ties, of which the several parties, from the very nature 
 of the Confederation, as a treaty between independent 
 sovereigns, were themselves the judges. It has, never- 
 theless, been contended, as we have already had oc- 
 casion to lament, that a State has a right, under the 
 present Constitution, independently of the natural right 
 of self-preservation, and resistance to intolerable oppres- 
 sion, to secede, at its own will and discretion, from the 
 Union. But if the Federal Constitution be a Govern- 
 ment owing protection to individuals and entitled to 
 their obedience, whether formed by the People of the 
 United States in the aggregate, or by the same People 
 as citizens of the respective States, no State authority 
 can dissolve the relations subsisting between that Gov- 
 ernment and the individuals subjected, in either mode, 
 to its authority. From the very nature of those rela- 
 tions, nothing can dissolve them but REVOLUTION ; and 
 there can, therefore, be no such thing as secession with- 
 out revolution. The Constitution establishes a union 
 between the People of the several States, intended to 
 be perpetual. It contains numerous provisions founded 
 on that supposition, and among them, one for its own
 
 CONSTITUTIONAL JURISPRUDENCE. 419 
 
 amendment ; none for its abandonment. It declares 
 that new States may be admitted into the Union, but 
 not that old States may withdraw from it. The Union 
 is not, like the Confederation, reducible even to a per- 
 petual alliance between the States, much less to a 
 temporary one ; but it is an association of the People 
 of the several States in one mass, under a permanent 
 and paramount constitution of Government, operating 
 upon them as individuals, created and assented to by 
 that power in each State which alone had authority to 
 abrogate its particular Constitution, or so far to modify 
 it as to surrender powers to the General Government 
 which had previously been delegated to the State Gov- 
 ernments. No State, therefore, can undo what the 
 People have done, nor absolve its citizens from their 
 obligations to obey the laws of the Union. It cannot 
 divest them of their paramount rights as citizens of 
 the United States ; nor can the members of the State 
 Legislatures renounce their own oaths to support the 
 Federal Constitution as the supreme law of the land ; 
 neither can any Convention of the People of any State, 
 any more than the People themselves, collectively or 
 individually, dispense with their obligations, or dissolve 
 their allegiance to the United States, unless they re- 
 spectively possess the constitutional power of settling 
 for themselves the construction of this supreme law in 
 all doubtful cases. 
 
 The practical result of this great question turns, then, 
 on this single point. It has not as yet been seriously 
 pretended that each individual may judge for himself, 
 and determine in his own case, the nature and extent 
 of his obligations as a member of the Union. But if 
 the State within whose local jurisdiction he may hap-
 
 420 LECTURES OX 
 
 pen to reside, may judge for him, or for itself, in a case 
 of an alleged violation of the Federal Constitution, 
 and finally decide and execute their respective decisions 
 by their own powers, the inference follows that, being 
 sovereign, there is no power to control the decision of 
 the State, and its own judgment on its own contract 
 must be conclusive. But this doctrine is founded in 
 mere theory and assumption ; and is refuted, not only 
 by plain and express constitutional provisions, but by 
 the very nature of the compact. It has been shown 
 most conclusively, in the legislative halls, 1 as well as in 
 the judicial tribunals of the Union, that the Government 
 of the United States possesses, in its appropriate de- 
 partments, the authority of final decision on all these 
 questions of power, both by necessary implication and 
 express grant. 
 
 If the Constitution be, indeed, a Government exist- 
 ing over all the States, operating upon individuals, and 
 not a mere treaty of alliance, it must, upon general 
 principles, possess the authority in question, as it is, in 
 fact, an authority naturally belonging to all Govern- 
 ments. And although the Constitution establishes a 
 Government of limited powers, yet, as it extends equally 
 over all the States, it follows, independently of the 
 express declaration to that effect, that to the extent of 
 those powers it must necessarily be supreme ; while, 
 from the nature of the powers granted, that Govern- 
 ment must be National in its character, as well as 
 Federal in its principles of organization. The infer- 
 ence, then, appears to be irresistible, that the Govern- 
 
 1 Vide the speeches of Mr. Webster on this subject in the Senate 
 of the United States.
 
 CONSTITUTIONAL JURISPRUDENCE. 421 
 
 ment, thus created by the whole, for the whole, and 
 extending over the whole, must possess an authority 
 superior to that of the particular Governments of any 
 of its parts. As the Government of the Union; it 
 has a Legislative power of its own, and a Judicial 
 power coextensive with the Legislative power. To 
 hold, therefore, that these are not supreme, but subor- 
 dinate in authority to the Legislative and Judicial 
 powers of a State, is equally repugnant to common 
 sense, to sound reasoning, and established principles. 
 The Legislative, Executive, and Judicial departments 
 of the Union must each necessarily judge of the extent 
 of their own powers, as often as it is called on to ex- 
 ercise them ; and that independently of State control, 
 or they could not act at all. Without any express 
 declaration, therefore, to that effect in the Constitution, 
 the whole question is necessarily decided by those pro- 
 visions which create a Legislative, an Executive, and 
 a Judicial power ; for if the powers exist in a Govern- 
 ment intended for the Union, the inevitable consequence 
 is, that the acts of the Federal Legislature and the 
 decisions of the Federal Judiciary must be binding 
 over the whole Union, and on each of its federative 
 parts. From the nature of the case, then, and as an 
 inference wholly unavoidable, the laws of Congress 
 and the decisions of the Federal Courts must be of 
 higher authority than those of the States. 
 
 But the Constitution, as we have already seen, has 
 not left this point without full and explicit provision. 
 For if the express grant to Congress of distinct and 
 substantive power to make all laws necessary and 
 proper for carrying into execution all other powers 
 vested in the Government of the United States, mean 
 36
 
 422 LECTURES ON 
 
 anything, it means that Congress may determine what 
 is necessary and proper for that purpose ; and if Con- 
 gress may judge of what is requisite for the execution 
 of 'those powers, it must of necessity judge of their 
 extent, as well as interpret them. With regard to the 
 Judicial power, the Constitution is still more explicit 
 and emphatic. If any case arise depending on the 
 construction of the Federal Constitution, the Judicial 
 power of the Union, we have seen, extends to it, in 
 whatsoever Court it may originate. Of all such cases 
 the Supreme Court of the Union has appellate juris- 
 diction, and its judgments are final and conclusive. 
 Nothing more effectual could have been done for sub- 
 jecting all constitutional questions, whenever and wher- 
 ever they may arise, to the ultimate decision of the 
 Supreme Court than has actually been accomplished 
 by this salutary provision of the Constitution. Con- 
 gress was saved by it from the necessity of any super- 
 vision of the State laws ; and while the whole sphere 
 of State legislation was thus left untouched, an ade- 
 quate security was obtained against any infringement 
 of the constitutional power of the General Government. 
 It is clear, then, that the Constitution, by express 
 grant, as well as by necessary implication, has rendered 
 the Government of the United States, in its several 
 departments, the judge of its own powers ; and that 
 the Supreme Court, in order to preserve uniformity in 
 the interpretation and administration of the laws of 
 the Union, must be the ultimate tribunal to decide in 
 the last resort upon them, in all cases of a constitu- 
 tional nature which arise in a suit at law or equity, 
 either in the Federal or State Courts. The early legis- 
 lation of Congress, the Judiciary Act of 1789, and the
 
 CONSTITUTIONAL JURISPRUDENCE. 423 
 
 whole course of Judicial decisions since that period, 
 concur in proving that there is, in fact and in truth, a 
 supreme law^ and a final interpreter of the Constitution, 
 created by the Constitution itself, to the exclusion of 
 the authority and jurisdiction of the several States. 
 A State, therefore, having no power to interpret the 
 Constitution finally for itself, cannot secede from the 
 Union without adopting a proceeding essentially revo- 
 lutionary in its character ; and every attempt by a State 
 to abrogate or nullify a law of Congress is not only a 
 usurpation of the powers of the National Government, 
 but of the rights of the other States ; for if the States, 
 as such, have equal rights in matters concerning the 
 whole, then for one State to set up its judgment against 
 that of the others, and to insist on executing its own 
 judgment by force, is a manifest usurpation upon the 
 rights of all the rest ; and if that be revolutionary 
 which arrests the Legislative, Executive, and Judicial 
 powers of the General Government in their course, 
 dispenses with existing oaths, dissolves the obligations 
 of allegiance to the supreme authority of the Union, 
 and elevates another power in its place, then are nullifi- 
 cation and secession, in character and principle, equally 
 revolutionary. 1 
 
 1 In a letter to Mr. Edward Everett, written in August, 1830, and 
 published shortly afterwards in the North American Review, Mr. 
 Madison expresses his opinion on this subject as follows : 
 
 "Between these different constitutional Governments, the one 
 operating on all the States, the others operating separately in each, 
 with the -aggregate powers of Government divided between them, it 
 could not escape attention that controversies would arise concerning 
 the boundaries of jurisdiction. That to have left a final decision, in 
 such cases, to each of the States, could not fail to make the Constitu- 
 tion and laws of the United States different in different States, was
 
 424 LECTURES ON 
 
 I have now completed the proposed examination of 
 the powers vested in the General Government, as well 
 as of its fundamental principles and organization. And 
 I trust it has abundantly and satisfactorily appeared, 
 
 1. That all the powers requisite to secure the objects 
 of National Union are vested in the Federal Govern- 
 ment, while those only which are not essential to that 
 object are reserved to the States, or to the People. 
 
 2. That this National Government, though limited in 
 its powers to national objects, is supreme in the exercise 
 of those powers, whether exclusive or concurrent, ex- 
 press or implied ; and that, whenever any of these 
 powers come into collision with the concurrent or in- 
 dependent powers of the States, the State authority, 
 which is subordinate, must yield to that of the nation, 
 which is supreme. 3. That this Constitution, the laws 
 
 obvious, and not less obvious that this diversity of independent de- 
 cisions, must altogether distract the Government of the Union, and 
 speedily put an end to the Union itself. To have made the decision 
 under the authority of the individual States coordinate in all cases 
 with decisions under the authority of the United States, would un- 
 avoidably produce collisions incompatible with the peace of society. 
 To have referred every clashing decision under the two authorities, 
 for a final decision, to the States as parties to the Constitution, would 
 be attended with delays, with inconveniences, and expenses, amount- 
 ing to a prohibition of the expedient. To have trusted to negotiation 
 for adjustment of disputes between the Government of the United 
 States and the State Governments, as between independent and 
 separate sovereignties, would have lost sight altogether of a Constitu- 
 tion and Government of the Union, and opened a direct road, from a 
 failure of that resort, to the ultima ratio between nations wholly inde- 
 pendent of and alien to each other. Although the issue of negotiation 
 might sometimes avoid this extremity, how often would it happen, 
 among so many States, that an unaccommodating spirit in some would 
 render that resource unavailing."
 
 CONSTITUTIONAL JURISPRUDENCE. 425 
 
 made in pursuance of it, and treaties made under the 
 authority of the United States, whether before or after 
 the adoption of the Federal Constitution, are the su- 
 preme law of the land, and that both from the nature 
 of the case, and the provisions of the Constitution, the 
 National Legislature must judge of and interpret the 
 supreme law, as often as it exercises its Legislative 
 functions ; that the Chief Executive Magistrate of the 
 Union, in like manner, possesses the right of judging 
 of the nature and extent of his political authority ; and 
 that, in all cases assuming the character of a suit in 
 law or equity, the supreme Judicial tribunal of the 
 Union is the final interpreter of the Constitution. 
 4. That no State authority has power to dissolve the 
 relations between the Government of the United States 
 and the People of the several States, and that, conse- 
 quently, no State has a right to secede from the Union, 
 except under such circumstances as would justify a 
 revolution ; and that an attempt by any State to abro- 
 gate or annul an Act of the National Legislature is a 
 direct usurpation of the powers of the General Govern- 
 ment, an infringement of the rights of all the other 
 States, and a violation of the paramount obligation of 
 its members to support and obey the Federal Consti- 
 tution. 
 
 In this exposition, it has, I trust, been rendered also 
 manifest, that unless such were the nature and princi- 
 ples of that Constitution, it would never have accom- 
 plished, as it has most effectually and happily, the great 
 ends for which it was ordained, nor delivered the People 
 of this country from the evils they had experienced 
 under the Confederation. I trust, too, that, in review- 
 ing this system of Government in its practical operation 
 36*
 
 426 LECTURES ON CONSTITUTIONAL JURISPRUDENCE. 
 
 and results, you will have perceived that we have abun- 
 dant cause of gratitude to Heaven, not only for defend- 
 ing us from those former evils which must necessarily 
 have increased under a mere alliance between the 
 States, but for bestowing on us, in their stead, those 
 blessings of liberty, law, order, peace, and prosperity, 
 which, under Providence, the present Constitution has 
 secured to the present generation and promises to pos- 
 terity. And, finally, I trust, most confidently, that you 
 will not hesitate to join with me in earnest and devout 
 prayer to the Supreme Ruler of the Universe that our 
 National Government, as established by this Constitu- 
 tion, and the happiness hitherto enjoyed under it, may 
 stand as fast and endure as long as the vast continent 
 over which it seems destined to extend its influence or 
 its sway.
 
 ALTHOUGH but one of the uses contemplated by the fore- 
 going work is that of a text-book for Colleges, Academies, and 
 other public schools, the following questions are appended the 
 better to accommodate it to that purpose. 
 
 QUESTIONS ON THE FEDERAL CONSTITUTION. 
 
 INTRODUCTORY. 
 
 1. By what body, and by what authority, was the Constitution of 
 the United States framed ? 
 
 2. For what objects is it declared to be established ? 
 
 3. To whose assent was it submitted, and by whom was it ratified V 
 
 4. Upon what fundamental principle is it grounded ? 
 
 5. Among what Departments are the powers of government . it 
 grants distributed ? 
 
 6. Upon what principle is the distribution made ? 
 
 7. To what extent is the principle of representation applied, and in 
 what manner modified or restricted ? 
 
 8. Under what modifications does the Constitution adopt or recog- 
 nize the English Common Law ? 
 
 9. Whence are its principles immediately derived by the Constitu- 
 tion, and in what cases are they applicable under it ? 
 
 10. What natural rights are secured by the Constitution to the 
 citizens of the United States ? 
 
 11. To what extent are those rights surrendered, and for what 
 objects ? 
 
 12. What are the civil rights and privileges secured by the Con- 
 stitution to the People and the States in lieu of the security and 
 advantages afforded by the Federal Government ? 
 
 13. What character does the Constitution impart to the States, 
 and what relation does it establish between them and the Federal 
 Government ? 
 
 14. What does it declare to be the supreme law of the land? 
 
 15. What are the principal points of view under which the Federal 
 Constitution is to be considered ?
 
 428 QUESTIONS ON 
 
 I. WITH REGARD TO THE ORGANIZATION OF THE GOVERNMENT. 
 
 1. What is the first general point of view in which the Constitution 
 is to be considered ? 
 
 2. Among what separate Departments are the powers of the Fed- 
 eral Government distributed ? 
 
 1st. The Legislative Power. 
 
 1. In whom is the Legislative Power vested ? 
 
 2. Of what separate bodies does Congress consist ? 
 
 3. Upon what principle or rule of representation, is each of them 
 respectively founded ? 
 
 4. At what times, and place, and how often is Congress required to 
 assemble ? 
 
 5. When and how may it adjourn ? 
 
 6. For how long a time can one house adjourn without the other ? 
 
 7. In cases of disagreement between them, by whom may they be 
 adjourned ? 
 
 8. When must Congress of necessity adjourn. 
 
 9. What peculiar benefit is secured by the Constitution in regard 
 to the assembling and adjournment of Congress ? 
 
 10. Of whom are the members of the House of representatives 
 composed ? 
 
 11. What qualifications are required in the electors of members of 
 the House of Representatives ? 
 
 12. What are the qualifications requisite in its members ? 
 
 13. In what manner, and by what rule are Representatives appor- 
 tioned among the States ? 
 
 J4. What is the provision in case the States neglect or refuse to 
 pass laws for holding elections of Representatives ? 
 
 15. What powers are separately vested in the House of Represen- 
 tatives ? 
 
 16. How is the Senate organized ? 
 
 1 7. Whom do the Senators represent ? 
 
 18. Do they vote, by States or individually ? 
 
 19. Into how many classes are the Senators divided, in what man- 
 ner, and for what purpose ? 
 
 20. What separate powers are vested in the Senate ? 
 
 21. In what manner is the Court of Impeachment organized ?
 
 THE FEDERAL CONSTITUTION. 429 
 
 22. Of whom does it consist besides the Senators ? 
 
 23. What is required of the members of the Court before proceed- 
 ing to the trial of an Impeachment ? 
 
 24. Who presides when the President of the United States is to be 
 tried ? 
 
 25. The concurrence of what proportion of the members of the 
 Court is requisite to a conviction upon an impeachment ? 
 
 2d. The Executive Power. 
 
 1. In whom is the Executive Power vested by the Constitution? 
 
 2. What are the qualifications required in the President ? 
 
 3. By whom, and in what manner, is he chosen ? 
 
 4. By whom, and in what manner, are the Electors chosen ? 
 
 5. What qualifications are required in the Electors ? 
 
 6. When and where are they directed to meet ? 
 
 7. How are they to be organized, and proceed to vote ? 
 
 8. How are vacancies in their number to be supplied ? 
 
 9. What duties are they to perform after giving their votes ? 
 
 10. When, where, and by whom is the general result to be declared V 
 
 11. What proportion of Electoral votes is necessary to a choice ? 
 
 12. How and when is the election to be determined when no per- 
 son has such majority ? 
 
 13. In what manner are the votes of the Representatives taken in 
 that case ? 
 
 14. What number of Representatives, from what proportion of 
 States, constitute a quorum for the purpose of such election ? 
 
 15. In cases where no choice is made before the time to which the 
 action of the House is limited, who is to act as President ? 
 
 16. How is the Vice-President chosen ? 
 
 17. How is he chosen in case of not receiving a majority of the 
 Electoral votes ? 
 
 18. What proportion of Senators constitute a quorum for the 
 purpose ? 
 
 19. What qualifications are required in the Vice-President ? 
 
 20. What were the reasons for creating the office ? 
 
 21. For what term are the President and Vice-President elected ? 
 
 22. What is the effect of the law declaring the day on which that 
 term shall commence ? 
 
 23. In what cases, and for what period is the Vice-President to 
 execute the office of President?
 
 430 QUESTIONS ON 
 
 24. Enumerate the powers and duties of the President. 
 
 25. In what cases, and in what form, is the qualified negative of the 
 President upon the Acts and Resolutions of Congress to be exercised ? 
 
 26. What is its effect when interposed ? 
 
 27. What proportion of each House is requisite to pass such Act or 
 Resolution, notwithstanding the objections of the President ? 
 
 28. What was the primary inducement for conferring this power 
 upon the President ? 
 
 29. What the secondary ? 
 
 30. Whence the propriety of investing him with his military powers? 
 
 31. Why is he invested with the power of granting reprieves and 
 pardons ? 
 
 32. Under whose authority and direction are international affairs 
 and negotiations with foreign powers conducted ? 
 
 33. What number of the Senators is necessary to concur in advis- 
 ing and consenting to Treaties ? 
 
 34. What number is required to advise and consent to nominations 
 to office made by the President ? 
 
 35. What duties are required of him in relation to Congress ? 
 
 36. What powers and duties has he in relation to foreign ambassa- 
 dors and other public ministers ? 
 
 37. What in reference to officers of the United States? 
 
 38. What provision is made for executing the office of President, 
 in cases of vacancies in the offices of both President and Vice- 
 President ? 
 
 Sd. The Judicial Power. 
 
 1. How is the Judicial Power of the United States vested by the 
 Constitution ? 
 
 2. How are the Judges appointed ? 
 
 3. Upon what tenure do they hold their offices ? 
 
 4. What provision does the Constitution make for their support ? 
 
 5. What precautions does it adopt to secure their responsibility ? 
 
 6. To what cases does the Judicial Power of the United States 
 extend ? 
 
 7. Whence the propriety of vesting this jurisdiction in the Courts 
 of the United States ? 
 
 8. What was the design of the Constitution in separating the 
 Judicial Power from the other Departments, and of the precautions 
 for maintaining its independence ?
 
 THE FEDERAL CONSTITUTION. 431 
 
 9. Among what Courts has the Federal jurisdiction been dis- 
 tributed ? 
 
 10. By what power was the SUPREME COURT created, and how is 
 it organized ? 
 
 11. From what authority is its organization derived ? 
 
 12. In what cases has it exclusive jurisdiction ? 
 
 13. In what cases has it original, but not exclusive jurisdiction ? 
 
 14. In what cases has it appellate jurisdiction ? 
 
 15. What authority has it over the subordinate Courts of the United 
 States ? 
 
 1G. What subordinate Courts have been established by law ? 
 
 1 7. In what manner are the CIRCUIT COURTS of the United States 
 organized ? 
 
 18. In what cases have they original and exclusive jurisdiction ? 
 
 19. In what cases is their jurisdiction concurrent, and with what 
 other Courts ? 
 
 20. In what cases have they appellate jurisdiction ? 
 
 21. How far, and in what sense, are they Inferior Courts ? 
 
 22. From what power is the organization and authority of the 
 DISTRICT COURTS derived ? 
 
 23. How are they organized ? 
 
 24. In what cases is their jurisdiction original and exclusive ? 
 
 25. In what cases is it concurrent, and with what Courts ? 
 
 26. What power has a District Judge in cases where parties have 
 not reasonable time to apply to the Circuit Court ? 
 
 27. By what authority were the COURTS OF THE TERRITORIES 
 OF THE UNITED STATES created ? 
 
 28. How are they organized in the respective Territories ? 
 
 29. What jurisdiction is vested in them respectively ? 
 
 30. In what cases arising under the laws of the United States have 
 the State Courts and Magistrates jurisdiction, vested in them, by 
 Congress ? 
 
 II. POWERS VESTED IN THE FEDERAL GOVERNMENT, AND RE- 
 STRAINTS IMPOSED UPON THE STATES. 
 
 1. To what classes may the powers conferred on the Federal Gov- 
 ernment be reduced ? 
 
 2. Enumerate the powers relating to.
 
 432 QUESTIONS ON 
 
 1st. Security from foreign danger. 
 
 3. In whom is The power of declaring war vested by the Constitu- 
 tion? 
 
 4. Is this power exclusive or concurrent ? 
 
 5. In whom is the power of agreeing to truces and treaties of peace 
 vested by the Constitution ? 
 
 6. What powers derived from, involved in, or subservient to that 
 of declaring war, are vested in Congress ? 
 
 7. Why is the power of raising money by taxation or loans included 
 in this class ? 
 
 8. How is this power limited ? 
 
 9. What taxes are included under this general term ? 
 
 10. What are direct taxes ? 
 
 11. How do they operate and take effect ? 
 
 1 2. How are direct taxes to be levied ? 
 
 13. What is affected by indirect taxes ? 
 
 14. How are they to be levied ? 
 
 2d. Powers for regulating intercourse with foreign nations. 
 
 1. Enumerate the powers vested in the Federal Government for 
 regulating foreign intercourse. 
 
 2. In whom are the powers to make treaties, and to send and receive 
 ambassadors and other public ministers, vested ? 
 
 3. What is the nature of a treaty ? 
 
 4. When are treaties to be regarded by the Courts of Justice as 
 equivalent to laws ? 
 
 5. What is the effect of a treaty upon the Acts of Congress ? 
 
 6. From what other power does that of sending and receiving 
 ambassadors, and other public ministers, and consuls result as a 
 necessary incident ? 
 
 7. What other power does the latter include by implication ? 
 
 8. Why is the power to define and punish piracies and felonies com- 
 mitted on the high seas, and offences against the law of nations, vested 
 in Congress ? 
 
 9. Define Piracy. 
 
 10. What does Felony, when committed on the high seas, in effect 
 amount to ? 
 
 11. Is this power exclusively vested in Congress V
 
 THE FEDERAL CONSTITUTION. 433 
 
 12. What other offences besides piracy fall more immediately under 
 the cognizance of the law of nations ? 
 
 13. Why was the power to regulate foreign commerce submitted to 
 the Federal Government V 
 
 14. What is its nature and extent V 
 
 15. What else does it comprehend ? 
 
 16. What was temporarily excepted from its exercise ? 
 
 1 7. When did that exception cease to operate ? 
 
 3d. Powers for maintaining harmony among the States. 
 
 1. Besides the particular restraints upon the States, and certain 
 powers vested in the Judiciary, enumerate the remaining powers 
 comprehended under this head. 
 
 2. How far does the power to regulate commerce among the States 
 extend ? 
 
 3. What particular objects does it comprehend ? 
 
 4. What interpretation has been given to the power with respect to 
 commerce with the Indian tribes ? 
 
 5. In what character and relation are they regarded by the Consti- 
 tution and laws of the United States ? 
 
 6. With what is the power to establish Post-offices and Post-roads 
 necessarily connected ? 
 
 7. Mention some of the benefits derived from it. 
 
 8. How far is it exclusive 1 
 
 9. What implied powers have been exercised as incidental to it ? 
 
 10. What rule has been laid dowu in relation to the exercise of 
 incidental and implied powers ? 
 
 1 1 . What is the extent or limitations of the powers to coin money, 
 to regulate its value, and that of foreign coins ? 
 
 12. W T hat is the extent or limitation of the power to fix the standard 
 of weights and measures ? 
 
 13. To what other powers is that of providing for the punishment of 
 counterfeiting the public securities, and current coin of the United 
 States, incidental ? 
 
 14. How far is it exclusive f 
 
 15. What is the nature and advantage of the power to prescribe by 
 general laws the manner in which the public acts, records, and judicial 
 proceedings of each State shall be proved, and the effect they shall have 
 in other States ? 
 
 37
 
 434 QUESTIONS ON 
 
 16. What faith and credit are those of each State entitled to in 
 the Courts of the United States ? 
 
 1 7. What effect have they as evidence in different cases ? 
 
 18. Under what circumstances are they admitted as prima facie 
 evidence ? 
 
 19. Under what circumstances, as conclusive evidence ? 
 
 20. What is meant by prima facie evidence ? 
 
 21. What is the nature and extent of the power to establish a uni- 
 form- system of naturalization f 
 
 22. To what rights are the citizens of each State entitled in all the 
 others ? 
 
 23. Upon what ground is the power of naturalization held to be 
 exclusive in the Federal Government ? 
 
 24. Who were entitled to the privileges of citizens of the United 
 States, at the time of the Declaration of Independence ? 
 
 25. What difference is there in the rules upon this subject in the 
 United States and Great Britain ? 
 
 26. What is the difference between the two Governments as to the 
 doctrine of allegiance ? 
 
 27. What is the term applied to persons born out of the United 
 States ? 
 
 28. What exceptions are they in the application of the term ? 
 
 29. What is the existing law of the United States relative to natu- 
 ralization ? 
 
 30. What inducements have aliens coming to reside in this country 
 to become citizens ? 
 
 31. What reasons were they for investing Congress with the power 
 to establish uniform laws on the subject of bankruptcies ? 
 
 32. Define the term " bankruptcy." 
 
 33. How far is this power exclusive ? 
 
 4th. Miscellaneous objects of general utility. 
 
 1. What is the object of the power to promote the progress of science 
 and the useful arts ? 
 
 2. What construction is given to the Constitution to effect that 
 object ? 
 
 3. What reasons were they for vesting in Congress exclusive legis- 
 lation over the seat of Government, forts, magazines, arsenals, dock- 
 yards, and other needful buildings of the United States ? 
 
 4. Where was the seat of the Federal Government established ?
 
 THE FEDERAL CONSTITUTION. 435 
 
 5. What extent of territory was granted for that purpose, and by 
 which of the States ? 
 
 6. In what body is the power of legislation over that District 
 vested ? 
 
 7. What cities are comprehended within it ? 
 
 8. How are those cities organized and governed ? 
 
 9. Upon what ground is the power to declare the punishment of 
 treason against the United States vested in Congress ? 
 
 1 0. In what does treason against the United States consist ? 
 
 11. What testimony is requisite to a conviction of treason ? 
 
 12. What restriction is there upon the power of Congress with 
 respect to the punishment of treason ? 
 
 13. What power has Congress as to admitting new States into the 
 Union, and how is it restricted ? 
 
 14. What new States have been admitted since the adoption of 
 the Constitution ? 
 
 15. Of what territory were they severally composed ? 
 
 16. From what considerations was the power to dispose of and make 
 all needful regulations respecting the territory or other property belong- 
 ing to the United States vested in Congress ? 
 
 1 7. How is this power restricted ? 
 
 18. What do the United States guarantee to the several States V 
 
 19. What power or duties result from this provision ? 
 
 20. In what cases may the power be exercised ? 
 
 21. What power has Congress with respect to amendments to the 
 Constitution ? 
 
 22. In what modes may this power be exercised ? 
 
 23. What are the restrictions upon this power? 
 
 24. What is the general character of the amendments proposed by 
 some of the States as conditions of their accession to the Constitution ? 
 
 25. Which of them only may be regarded as necessary ? 
 
 26. What is the effect of these amendments, or of any of them ? 
 
 27. What were their chief objects ? 
 
 5th. Restrictions upon the States. 
 
 1. How may the restrictions upon the powers of the several States be 
 distinguished by their character. 
 
 2. Specify those which are absolute, and the grounds and policy of 
 each in succession.
 
 436 QUESTIONS ON THE FEDERAL CONSTITUTION. 
 
 3. In what manner are the other restrictions on the State powers 
 qualified ? 
 
 4. Enumerate them, with the grounds on which they respectively 
 rest. 
 
 6th. Provisions for giving efficacy to the Federal powers. 
 
 1. What provisions are contained in the Constitution, for giving 
 efficacy to the Federal powers ? 
 
 2. Whence the necessity of vesting Congress with authority to 
 make all laws necessary and proper for carrying those powers into exe- 
 cution f 
 
 5. What construction has been given to the terms " necessary and 
 proper ? " 
 
 4. Whence the necessity or propriety of requiring the Legislative, 
 Executive, and Judicial officers, both of the United States, and of 
 the several States to be bound by oath to support the Constitution of the 
 United States ? 
 
 5. What other provisions already considered may be included 
 among those already specified upon this subject ? 
 
 6. Whence the necessity and effect of declaring and specifying 
 what shall be considered the Supreme Law of the land, and enumerat- 
 ing the persons bound thereby f 
 
 7. Why was the ratification of the Constitution by the People of 
 the several States required ? 
 
 8. In what manner was the Constitution adopted ? 
 
 9. What number of States was required for carrying it into opera- 
 tion, and by how many was it ratified previously to its going into 
 effect ? 
 
 10. What were the reasons for requiring it so to be ratified, adopted, 
 and carried into effect ?
 
 APPENDIX. 
 
 A, p. 11. 
 
 DECLARATION OF INDEPENDENCE. 
 In Congress, July 4, 1776. 
 
 WHEN, in the course of human events, it becomes necessary 
 for one people to dissolve the political bands which have con- 
 nected them with another, and to assume, among the powers of 
 the earth, the separate and equal station to which the laws of 
 nature and of nature^ God entitle them, a decent respect to the 
 opinions of mankind requires that they should declare the 
 causes which impel them to the separation. 
 
 We hold these truths to be self-evident: that all men are 
 created equal ; that they are endowed by their Creator with 
 certain unalienable rights ; that among these are life, liberty, 
 and the pursuit of happiness ; that to secure these rights, gov- 
 ernments are instituted among men, deriving their just powers 
 from the consent of the governed ; that whenever any form of 
 government becomes destructive of these ends, it is the right of 
 the people to alter or to abolish it, and to institute a new govern- 
 ment, laying its foundation on such principles, and organizing 
 its powers in such form, as to them shall seem most likely to 
 effect their safety and happiness. Prudence, indeed, will dic- 
 tate that governments long established should not be changed 
 37*
 
 438 APPENDIX. 
 
 for light and transient causes ; and, accordingly, all experience 
 hath shown that mankind are more disposed to suffer, while 
 evils are sufferable, than to right themselves by abolishing the 
 forms to which they are accustomed. But when a long train of 
 abuses and usurpations, pursuing invariably the same object, 
 evinces a design to reduce them under absolute despotism, it is 
 their right, it is their duty, to throw off such government, and 
 to provide new guards for their future security. Such has been 
 the patient sufferance of these colonies, and such is now the 
 necessity which constrains them to alter their former systems of 
 government The history of the present King of Great Britain 
 is a history of repeated injuries and usurpations, all having in 
 direct object the establishment of an absolute tyranny over 
 these States. To prove this, let facts be submitted to a candid 
 world. 
 
 He has refused his assent to laws the most wholesome and 
 necessary for the public good. 
 
 He has forbidden his governors to pass laws of immediate 
 and pressing importance, unless suspended in their operation till 
 his assent should be obtained ; and when so suspended, he has 
 utterly neglected to attend to them. 
 
 He has refused to pass other laws for the accommodation of 
 large districts of people, unless those people would relinquish 
 the right of representation in the Legislature ; a right inestima- 
 ble to them, and formidable to tyrants only. 
 
 He has called together legislative bodies at places unusual, 
 uncomfortable, and distant from the depository of their public 
 records, for the sole purpose of fatiguing them into compliance 
 with his measures. 
 
 He has dissolved representative houses repeatedly, for oppos- 
 ing, with manly firmness, his invasions on the rights of the 
 people. 
 
 He has refused for a long time, after such dissolutions, to 
 cause others to be elected ; whereby the legislative powers, 
 incapable of annihilation, have returned to the people at large
 
 APPENDIX. 439 
 
 for their exercise ; the state remaining, in the mean time, ex- 
 posed to all the dangers of invasion from without, and convul- 
 sions within. 
 
 He has endeavored to prevent the population of these States ; 
 for that purpose obstructing the laws for naturalization of for- 
 eigners ; refusing to pass others to encourage their migrations 
 hither, and raising the conditions of new appropriations of 
 lands. 
 
 He has obstructed the administration of justice, by refusing 
 his assent to laws for establishing judiciary powers. 
 
 He has made judges dependent on his will alone for the 
 tenure of their offices, and the amount and payment of their 
 salaries. 
 
 He has erected a multitude of new offices, and sent hither 
 swarms of officers, to harass our people and eat out their 
 substance. 
 
 He has kept among us, in times of peace, standing armies, 
 without the consent of our legislatures. 
 
 He has affected to render the military independent of, and 
 superior to, the civil power. 
 
 He has combined with others to subject us to a jurisdiction 
 foreign to our Constitution, and unacknowledged by our laws ; 
 giving his assent to their acts of pretended legislation : 
 
 For quartering large bodies of armed troops among us : 
 
 For protecting them, by a mock trial, from punishment for 
 any murders which they should commit on the inhabitants of 
 these States : 
 
 For cutting off our trade with all parts of the world : 
 
 For imposing taxes on us without our consent : 
 
 For depriving us, in many cases, of the benefits of trial by 
 jury: 
 
 For transporting us beyond seas to be tried for pretended 
 offences : 
 
 For abolishing the free system of English laws in a neighbor- 
 ing province, establishing therein an arbitrary government, and
 
 440 APPENDIX. 
 
 enlarging its boundaries, so as to render it at once an example 
 and fit instrument for introducing the same absolute rule into 
 these colonies : 
 
 For taking away our charters, abolishing our most valuable 
 laws, and altering fundamentally the forms of our governments : 
 
 For suspending our own legislatures, and declaring them- 
 selves invested with power to legislate for us in all cases what- 
 soever. 
 
 He has abdicated government here, by declaring us out of 
 his protection, and waging war against us. 
 
 He has plundered our seas, ravaged our coasts, burned our 
 towns, and destroyed the lives of our people. 
 
 He is, at this time, transporting large armies of foreign 
 mercenaries to complete the works of death, desolation, and 
 tyranny, already begun with circumstances of cruelty and per- 
 fidy scarcely paralleled in the most barbarous ages, and totally 
 unworthy the head of a civilized nation. 
 
 He has constrained our fellow-citizens, taken captive on the 
 high seas, to bear arms against their country, to become the 
 executioners of their friends and brethren, or to fall themselves 
 by their hands. 
 
 He has excited domestic insurrections among us, and has 
 endeavored to bring on the inhabitants of our frontiers the 
 merciless Indian savages, whose known rule of warfare is an 
 undistinguished destruction of all ages, sexes, and conditions. 
 
 In every stage of these oppressions, we have petitioned for 
 redress in the most humble terms : our repeated petitions have 
 been answered only by repeated injury. A prince whose char- 
 acter is thus marked by every act which may define a tyrant, is 
 unfit to be the ruler of a free people. 
 
 Nor have we been wanting in attentions to our British 
 brethren. We have warned them, from time to time, of attempts 
 by their Legislature to extend an unwarrantable jurisdiction 
 over us. We have reminded them of the circumstances of our 
 emigration and settlement here. We have appealed to their
 
 APPENDIX. 441 
 
 native justice and magnanimity, and we have conjured them, 
 by the ties of our common kindred, to disavow these usurpa- 
 tions, which would inevitably interrupt our connections and 
 correspondence. They, too, have been deaf to the voice of jus- 
 tice and of consanguinity. We must, therefore, acquiesce in the 
 necessity which denounces our separation, and hold them, as 
 we hold the rest of mankind, enemies in war, in peace friends. 
 
 WE, therefore, the representatives of the United States of 
 America, in General Congress assembled, appealing to the 
 Supreme Judge of the world for the rectitude of our intentions, 
 do, in the name, and by authority of the good people of these 
 colonies, solemnly publish and declare, that these United Col- 
 onies are, and of right ought to be, FREE and INDEPENDENT 
 STATES ; that they are absolved from all allegiance to the 
 British crown, and that all political connection between them 
 and the State of Great Britain is, and ought to be, totally dis- 
 solved ; and that, as free and independent States, they have full 
 power to levy war, conclude peace, contract alliances, establish 
 commerce, and to do all other acts and things which independent 
 States may of right do. And for the support of this declaration, 
 with a firm reliance on the protection of Divine Providence, we 
 mutually pledge to each other our lives, our fortunes, and our 
 
 sacred honor. 
 
 JOHN HANCOCK. 
 ( Josiah Bartlett, 
 
 New Hampshire, -c William Whipple, 
 ( Matthew Thornton. 
 [ Samuel Adams, 
 
 ,,- j John Adams, 
 
 Massachusetts Bay.<| Robert Trea ; p^ 
 
 [ Elbridge Gerry. 
 
 -DI, j T i j t> \ Stephen Hopkins, 
 Rhode Island, &c. -j W[ ^ m E11 ry _ 
 
 f Roger Sherman, 
 
 ~ .. 1 Samuel Huntingdon, 
 
 Connecticut. j William Williams, 
 
 [ Oliver Wolcott.
 
 442 
 
 APPENDIX. 
 
 New York. 
 
 New Jersey. 
 
 Pennsylvania. 
 
 Delaware. 
 
 Maryland. 
 
 Virginia. 
 
 North Carolina. 
 
 South Carolina. 
 
 Georgia. 
 
 William Floyd, 
 
 Philip Livingston, 
 
 Francis Lewis, 
 
 Lewis Morris. 
 
 Richard Stockton, 
 
 John Witherspoon, 
 
 Francis Hopkinson, 
 
 John Hart, 
 
 Abraham Clark. 
 
 Robert Morris, 
 
 Benjamin Rush, 
 
 Benjamin Franklin, 
 
 John Morton, 
 
 George Clymer, 
 
 James Smith, 
 
 George Taylor, 
 
 James Wilson, 
 
 George Ross, 
 f Csesar Rodney, 
 < George Read, 
 ( Thomas M'Kean. 
 ' Samuel Chase, 
 
 William Paca, 
 
 Thomas Stone, 
 
 Charles Carroll, of Carrollton. 
 
 George Wythe, 
 
 Richard Henry Lee, 
 
 Thomas Jefferson, 
 
 Benjamin Harrison, 
 
 Thomas Nelson, Jun., 
 
 Francis Lightfoot Lee, 
 
 Carter Braxton. 
 
 William Hooper, 
 
 Joseph Hewes, 
 
 John Penn. 
 
 Edward Rutledge, 
 
 Thomas Heyward, Jun., 
 
 Thomas Lynch, Jun., 
 
 Arthur Middleton. 
 
 Button Gwinnett, 
 
 Lyman Hall, 
 
 George Walton.
 
 APPENDIX. 443 
 
 B, p. 13. 
 
 ARTICLES OF CONFEDERATION AND PERPETUAL UNION 
 
 Between the States of New Hampshire, Massachusetts Bay, Rhode 
 Island and Providence Plantations, Connecticut, New York, New 
 Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, 
 South Carolina, and Georgia. 
 
 In Congress, July 8, 1778. 
 
 Article I. THE style of this Confederacy shall be, " The 
 United States of America" 
 
 Art. II. Each State retains its sovereignty, freedom, and 
 independence, and every power, jurisdiction, and right which is 
 not by this confederation expressly delegated to the United 
 States in Congress assembled. 
 
 Art. III. The said States hereby severally enter into a firm 
 league of friendship with each other, for their common defence, 
 the security of their liberties, and their mutual and general wel- 
 fare, binding themselves to assist each other against all force 
 offered to, or attacks made upon them, or any of them, on account 
 of religion, sovereignty, trade, or any other pretence whatever. 
 
 Art. IV. 1. The better to secure and perpetuate mutual 
 friendship and intercourse among the people of the different 
 States in this Union, the free inhabitants of each of these States, 
 paupers, vagabonds, and fugitives from justice excepted, shall 
 be entitled to all privileges and immunities of free citizens in 
 the several States ; and the people of each State shall have free 
 ingress and regress to and from any other State, and shall enjoy 
 therein all the privileges of trade and commerce, subject to the 
 same duties, impositions, and restrictions as the inhabitants 
 thereof respectively ; provided that such restrictions shall not 
 extend so far as to prevent the removal of property imported 
 into any State to any other State of which the owner is an 
 inhabitant ; provided, also, that no imposition, duties, or restric- 
 tion shall be laid by any State on the property of the United 
 States, or either of them.
 
 444 APPENDIX. 
 
 2. If any person guilty of or charged with treason, felony, 
 or other high misdemeanor in any State, shall flee from justice, 
 and be found in any of the United States, he shall, upon the 
 demand of the Governor or Executive power of the State from 
 which he fled, be delivered up and removed to the State having 
 jurisdiction of his offence. 
 
 3. Full faith and credit shall be given in each of these 
 States to the records, acts, and Judicial proceedings of the 
 courts and magistrates of every other State. 
 
 Art. V. 1. For the more convenient management of the 
 general interests of the United States, delegates shall be an- 
 nually appointed, in such manner as the Legislature of each 
 State shall direct, to meet in Congress on the first Monday in 
 November in every year, with a power reserved to .each State 
 to recall its delegates, or any of them, at any time within the 
 year, and to send others in their stead for the remainder of the 
 year. 
 
 2. No State shall be represented in Congress by less than 
 two, nor by more than seven members ; and no person shall be 
 capable of being a delegate for more than three years, in any 
 term of six years ; nor shall any person, being a delegate, be 
 capable of holding any office under the United States, for which 
 he, or another for his benefit, receives any salary, fees, or 
 emolument of any kind. 
 
 3. Each State shall maintain its own delegates in a meeting 
 of the States, and while they act as members of the committee 
 of these States. 
 
 4. In determining questions in the United States in Con- 
 gress assembled, each State shall have one vote. 
 
 5. Freedom of speech and debate in Congress shall not be 
 impeached or questioned in any Court or place out of Congress, 
 and the members of Congress shall be protected in their persons 
 from arrests and imprisonments during the time of their going 
 to and from, and attendance on Congress, except for treason, 
 felony, or breach of the peace.
 
 APPENDIX. 445 
 
 Art. VI. 1. No State, without the consent of the United 
 States in Congress assembled, shall send any embassy to or 
 receive any embassy from, or enter into any conference, agree- 
 ment, alliance, or treaty with any king, prince, or State, nor 
 shall any person holding any office of profit or trust under the 
 United States, or any of them, accept of any present, emolu- 
 ment, office, or title of any kind whatever, from any king, prince, 
 or foreign State ; nor shall the United States in Congress assem- 
 bled, or any of them, grant any title of nobility. 
 
 2. No two or more States shall enter into any treaty, con- 
 federation, or alliance whatever between them, without the 
 consent of the United States in Congress assembled, specifying 
 accurately the purposes for which the same is to be entered into, 
 and how long it shall continue. 
 
 3. No State shall lay any imposts or duties which may 
 interfere with any stipulations in treaties, entered into by the 
 United States in Congress assembled, with any king, prince, or 
 State, in pursuance of any treaties already proposed by Con- 
 gress to the courts of France and Spain. 
 
 4. No vessels of war shall be kept up in time of peace by 
 any State, except such number only as shall be deemed neces- 
 sary by the United States, in Congress assembled, for the de- 
 fence of such State, or its trade ; nor shall any body of forces 
 be kept up by any State in time of peace, except such number 
 only as, in the judgment of the United States in Congress 
 assembled, shall be deemed requisite to garrison the forts neces- 
 sary for the defence of such State ; but every State shall always 
 keep up a well-regulated and disciplined militia, sufficiently 
 armed and accoutred, and shall provide, and constantly have 
 ready for use, in public stores, a due number of fieldpieces and 
 tents, and a proper quantity of arms, ammunition, and camp 
 equipage. 
 
 5. No State shall engage in any war, without the consent 
 of the United States in Congress assembled, unless such State 
 be actually invaded by enemies, or shall have received certain 
 38
 
 446 APPENDIX. 
 
 advice of a resolution being formed by some nation of Indians 
 to invade such State, and the danger is so imminent as not to 
 admit of delay till the United States in Congress assembled can 
 be consulted ; nor shall any State grant commissions to any 
 ships or vessels of war, nor letters of marque or reprisal, ex- 
 cept it be after a declaration of war by the United States in 
 Congress assembled ; and then only against the kingdom or 
 State, and the subjects thereof, against which war has been so 
 declared, and under such regulations as shall be established by 
 the United States in Congress assembled, unless such State be 
 infested by pirates ; in which case vessels of war may be fitted 
 out for that occasion, and kept so long as the danger shall con- 
 tinue, or until the United States in Congress assembled shall 
 determine otherwise. 
 
 Art. VII. When land-forces are raised by any State for the 
 common defence, all officers of or under the rank of colonel 
 shall be appointed by the Legislature of each State respectively 
 by whom such forces shall be raised, or in such manner as such 
 State shall direct, and all vacancies shall be filled up by the 
 State which first made the appointment. 
 
 Art. VIII. All charges of war, and all other expenses that 
 shall be incurred for the common defence or general welfare, 
 and allowed by the United States in Congress assembled, shall 
 be defrayed out of a common treasury, which shall be supplied 
 by the several States, in proportion to the value of all land 
 within each State, granted to or surveyed for any person, as 
 such land, and the buildings and improvements thereon, shall 
 be estimated, according to such mode as the United States in 
 Congress assembled shall, from time to time, direct and appoint. 
 The taxes for paying that proportion shall be laid and levied by 
 the authority and direction of the Legislatures of the several 
 States within the time agreed upon by the United States in 
 Congress assembled. 
 
 Art. IX. 1. The United States in Congress assembled shall 
 have the sole and exclusive right and power of determining on
 
 APPENDIX. 447 
 
 peace and war, except in the cases mentioned in the sixth 
 article ; of sending and receiving ambassadors ; entering into 
 treaties and alliances, provided that no treaty of commerce 
 shall be made whereby the Legislative power of the respective 
 States shall be restrained from imposing such imposts and 
 duties on foreigners as their own people are subjected to, or 
 from prohibiting the exportation or importation of any species 
 of goods or commodities whatsoever; of establishing rules for 
 deciding in all cases what captures on land or water shall be 
 legal, and in what manner prizes taken by land or naval forces 
 in the service of the United States shall be divided or appro- 
 priated ; of granting letters of marque and reprisal in times of 
 peace ; appointing courts for the trial of piracies and felonies 
 committed on the high seas ; and establishing courts for receiv- 
 ing and determining finally appeals in all cases of capture : 
 provided that no member of Congress shall be appointed a 
 judge of any of the said courts. 
 
 2. The United States in Congress assembled shall also be 
 the last resort on appeal in all disputes and differences now 
 subsisting, or that hereafter may arise between two or more 
 States concerning boundary, jurisdiction, or any other cause 
 whatever ; which authority shall always be exercised in the 
 manner following : Whenever the Legislative or Executive 
 authority, or lawful agent of any State in controversy with 
 another, shall present a petition to Congress, stating the matter 
 in question, and praying for a hearing, notice thereof shall be 
 given by order of Congress to the Legislative or Executive 
 authority of the other State in controversy, and a day assigned 
 for the appearance of the parties by their lawful agents, who 
 shall then be directed to appoint by joint consent commissioners 
 or judges to constitute a Court for hearing and determining the 
 matter in question ; but if they cannot agree, Congress shall 
 name three persons out of each of the United States, and from 
 the list of such persons each party shall alternately strike out 
 one, the petitioners beginning, until the number shall be reduced
 
 448 APPENDIX. 
 
 to thirteen ; and from that number not less than seven, nor more 
 than nine names, as Congress shall direct, shall, in the pres- 
 ence of Congress, be drawn out by lot ; and the persons whose 
 names shall be so drawn, or any five of them, shall be commis- 
 sioners or judges, to hear and finally determine the controversy, 
 so always as that a major part of the judges who shall hear the 
 cause shall agree in the determination ; and if either party shall 
 neglect to attend at the day appointed, without showing reasons 
 which Congress shall judge sufficient, or, being present, shall 
 refuse to strike, the Congress shall proceed to nominate three 
 persons out of each State, and the secretary of Congress shall 
 strike in behalf of such party absent or refusing; and the judg- 
 ment and sentence of the court, to be appointed in the manner 
 before prescribed, shall be final and conclusive ; and if any of 
 the parties shall refuse to submit to the authority of such court, 
 or to appear or defend their claim or cause, the court shall, 
 nevertheless, proceed to pronounce sentence or judgment, which 
 shall in like manner be final and decisive ; the judgment or 
 sentence and other proceedings being in either case transmitted 
 to Congress, and lodged among the Acts of Congress, for the 
 security of the parties concerned : provided that every com- 
 missioner, before he sits in judgment, shall take an oath, to be 
 administered by one of the judges of the Supreme or Superior 
 Court of the State where the cause shall be tried, " well and 
 truly to hear and determine the matter in question, according to 
 the best of his judgment, without favor, affection, or hope of 
 reward." Provided, also, that no State shall be deprived of 
 territory for the benefit of the United States. 
 
 3. All controversies concerning the private right of soil 
 claimed under different grants of two or more States, whose 
 jurisdictions, as they may respect such lands, and the States 
 which passed such grants, are adjusted, the said grants, or either 
 of them, being, at the same time, claimed to have originated 
 antecedent to such settlement of jurisdiction, shall, on the pe- 
 tition of either party to the Congress of the United States, be
 
 APPENDIX. 449 
 
 finally determined, as near as may be, in the same manner as is 
 before prescribed for deciding disputes respecting territorial 
 jurisdiction between different States. 
 
 4. The United States in Congress assembled shall also 
 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 ; fixing the standard of weights 
 and measures throughout the United States ; regulating the 
 trade and managing all affairs with the Indians, not members 
 of any of the States ; provided that the Legislative right of 
 any State within its own limits be not infringed or violated ; 
 establishing and regulating post-offices from one State to an- 
 other, throughout all the United States, and exacting such 
 postage on the papers passing through the same as may be 
 requisite to defray the expenses of the said office ; appointing 
 all officers of the land-forces in the service of the United States, 
 excepting regimental officers ; appointing all the officers of the 
 naval forces, and commissioning all officers whatever in the 
 service of the United States ; making rules for the government 
 and regulation of the said land and naval forces, and directing 
 their operations. 
 
 5. The United States in Congress assembled shall have 
 authority to appoint a committee, to sit in the recess of Con- 
 gress, to be denominated A Committee of the States, and to 
 consist of one delegate from each State ; and to appoint such 
 other committees and civil officers as may be necessary for 
 managing the general affairs of the United States under their 
 direction ; to appoint one of their number to preside, provided 
 that no person be allowed to serve in the office of President 
 more than one year in any term of three years ; to ascertain 
 the necessary sums of money to be raised for the service of the 
 United States, and to appropriate and apply the same for de- 
 fraying the public expenses ; to borrow money or emit bills on 
 the credit of the United States, transmitting every half year to 
 the respective States an account of the sums of money so bor- 
 
 38*
 
 450 APPENDIX. 
 
 rowed or emitted ; to build and equip a navy ; to agree upon 
 the number of land-forces, and to make requisitions from each 
 State for its quota, in proportion to the number of white in- 
 habitants in such State, which requisition shall be binding ; and 
 thereupon the Legislature of each State shall appoint the regi- 
 mental officers, raise the men, and clothe, arm, and equip them 
 in a soldierlike manner, at the expense of the United States ; 
 and the officers and men so clothed, armed, and equipped, shall 
 march to the place appointed, and within the time agreed on 
 by the United States in Congress assembled ; but if the United 
 States in Congress assembled shall, on consideration of circum- 
 stances, judge proper that any State should not raise men, or 
 should raise a smaller number than its quota, and that any other 
 State should raise a greater number of men than the quota 
 thereof, such extra number shall be raised, officered, clothed, 
 armed, and equipped in the same manner as the quota of such 
 State, unless the Legislature of such State shall judge that such 
 extra number cannot be safely spared out of the same, in which 
 case they shall raise, officer, clothe, arm, and equip as many 
 of such extra number as they judge can be safely spared ; and 
 the officers and men so clothed, armed, and equipped, shall 
 march to the place appointed, and within the time agreed on by 
 the United States in Congress assembled. 
 
 6. The United States in Congress assembled shall never 
 engage in a war, nor grant letters of marque and reprisal in 
 time of peace, nor enter into any treaties or alliances, nor coin 
 money, nor regulate the .value thereof, nor ascertain the sums 
 and expenses necessary for the defence and welfare of the 
 United States, or any of them, nor emit bills, nor borrow 
 money on the credit of the United States, nor appropriate 
 money, nor agree upon the number of vessels of war to be 
 built or purchased, or the number of land or sea forces to be 
 raised, nor appoint a commander-in-chief of the army or navy, 
 unless nine States assent to the same ; nor shall a question on 
 any other point, except for adjourning from day to day, be
 
 APPENDIX. 451 
 
 determined, unless by the votes of a majority of the United 
 States in Congress assembled. 
 
 7. The Congress of the United States shall have power to 
 adjourn to any time within the year, and to any place within 
 the United States, so that no period of adjournment be for a 
 longer duration than the space of six months, and shall publish 
 the journal of their proceedings monthly, except such parts 
 thereof relating to treaties, alliances, or military operations, as 
 in their judgment require secrecy ; and the yeas and nays of 
 the delegates of each State on any question shall be entered on 
 the journal, when it is desired by any delegate ; and the dele- 
 gates of a State, or any of them, at his or their request, shall 
 be furnished with a transcript of the said journal, except such 
 parts as are above excepted, to lay before the Legislatures of 
 the several States. 
 
 Art. X. The Committee of the States, or any nine of them, 
 shall be 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, shall 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, is 
 requisite. 
 
 Art. XI. Canada, acceding to this Confederation, and joining 
 in the measures of the United States, shall be admitted into, 
 and entitled to all the advantages of this Union ; but no other 
 colony shall be admitted into the same, unless such admission 
 be agreed to by nine States. 
 
 Art. XII. All bills of credit emitted, moneys borrowed, and 
 debts contracted by, or under the authority of Congress, before 
 the assembling of the United States, in pursuance of the pres- 
 ent confederation, shall be deemed and considered as a charge 
 against the United States, for payment and satisfaction whereof 
 the said United States and the public faith are hereby solemnly 
 pledged.
 
 452 APPENDIX. 
 
 Art. XIII. Every State shall abide by the determinations of 
 the United States in Congress assembled, on all questions which 
 by this confederation are submitted to them. And the articles 
 of this confederation shall be inviolably observed by every 
 State, and the Union shall be perpetual ; nor shall any altera- 
 tion 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 afterward confirmed by the Legislatures of every State. 
 
 AND WHEREAS it hath pleased the great Governor of the 
 world to incline the hearts of the Legislatures we respectively 
 represent in Congress to approve of, and to authorize us to 
 ratify the said Articles of Confederation and perpetual Union, 
 KNOW TE, that we, the undersigned delegates, by virtue of the 
 power and authority to us given for that purpose, do, by these 
 presents, in the name and in behalf of our respective constitu- 
 ents, fully and entirely ratify and confirm each and every of the 
 said Articles of Confederation and perpetual Union, and all 
 and singular the matters and things therein contained. And 
 we do further solemnly plight and engage the faith of our 
 respective constituents, that they shall abide by the determina- 
 tions of the United States in Congress assembled, on all ques- 
 tions which by the said Confederation are submitted to them ; 
 and that the articles thereof shall be inviolably observed by 
 the States we respectively represent, and that the Union shall 
 be perpetual. IN WITNESS whereof, we have hereunto set our 
 hands in Congress. 
 Done at Philadelphia, in the State of Pennsylvania, the 9th 
 
 day of July, in the year of our Lord 1778, and in the third 
 
 year of the Independence of America. 
 
 New Hampshire \ Josiah Bartlett 
 
 ( John Wentworth, Jun. 
 
 John Hancock, 
 Samuel Adams, 
 
 Massachusetts Bay. 
 
 Elbridge Gerry, 
 Francis Dana, 
 James Lovell, 
 Samuel Holten.
 
 APPENDIX. 
 
 453 
 
 Rhode Island, &c. 
 Connecticut. 
 
 New York. 
 New Jersey. 
 
 Pennsylvania. 
 
 Delaware. 
 Maryland. 
 
 Virginia. 
 North Carolina. 
 South Carolina. 
 Georgia. 
 
 William Ellery, 
 
 Henry Marchant, 
 
 John Collins. 
 
 Roger Sherman, 
 
 Samuel Huntington, 
 
 Oliver Wolcott, 
 
 Titus Hosmer, 
 
 Andrew Adams. 
 
 James Duane, 
 
 Francis Lewis, 
 
 William Duer, 
 
 Gouverneur Morris. 
 
 John Witherspoon, 
 
 Nathaniel Scudder. 
 
 Robert Morris, 
 
 Daniel Roberdeau, 
 
 Jonathan Bayard Smith, 
 
 William Clingan, 
 
 Joseph Reed. 
 / Thomas M'Kean, 
 < John Dickinson, 
 ( Nicholas Vandyke. 
 
 John Hanson, 
 
 Daniel Carrol. 
 
 Richard Henry Lee, 
 
 John Banister, 
 
 Thomas Adams, 
 
 John Harvey, 
 
 Francis Lightfoot Lee. 
 
 John Penn, 
 
 Cornelius Harnett, 
 
 John Williams. 
 
 Henry Lauren s, 
 
 William Henry Drayton, 
 
 John Matthews, 
 
 Richard Hutson, 
 
 Thomas Heyward, Jun. 
 
 John Walton, 
 
 Edward Telfair, 
 
 Edward Longworthy.
 
 454 APPENDIX. 
 
 C, p. 21. 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 The Constitution framed for the United States of America, by a Con- 
 vention of Deputies from the States of New Hampshire, Massachusetts, 
 Connecticut, New York, New Jersey, Pennsylvania, Delaware, Mary- 
 land, Virginia, North Carolina, South Carolina, and Georgia, at a 
 Session begun May 25, and ended September 17, 1787. 
 
 WE, the people of the United States, in order to form a more 
 perfect Union, establish justice, insure domestic tranquillity, 
 provide for the common defence, promote the general welfare, 
 and secure the blessings of liberty to ourselves and our pos- 
 terity, do ordain and establish this Constitution for the United 
 States of America. 
 
 ARTICLE I. 
 
 SECTION I. 
 
 All Legislative powers herein granted shall be vested hi a 
 Congress of the United States, which shall consist of a Senate 
 and House of Representatives. 
 
 SECTION II. 
 
 1. The House of Representatives shall be composed of mem- 
 bers chosen every second year, by the people of the several 
 States ; and the electors in each State shall have the qualifica- 
 tions requisite for electors of the most numerous branch of the 
 State Legislature. 
 
 2. No person shall be a Representative who shall not have 
 attained to the age of twenty-five years, and been seven years 
 a citizen of the United States, and who shall not, when elected, 
 be an inhabitant of that State in which he shall be chosen. 
 
 3. Representatives and direct taxes shall be apportioned 
 among the several States which may be included within this 
 Union, according to their respective numbers, which shall be 
 determined by adding to the whole number of free persons, 
 including those bound to service for a term of years, and ex-
 
 APPENDIX. 455 
 
 eluding Indians not taxed, three fifths of all other persons. 
 The actual enumeration shall be made within three years after 
 the first meeting of the Congress of the United States ; and, 
 within every subsequent term of ten years, in such manner as 
 they shall by law direct. The number of Representatives shall 
 not exceed one for every thirty thousand ; but each State shall 
 have at least one Representative ; and, until such enumeration 
 shall be made, the State of New Hampshire shall be entitled to 
 choose three ; Massachusetts, eight ; Rhode Island and Provi- 
 dence Plantations, one ; Connecticut, five ; New York, six ; New 
 Jersey, four ; Pennsylvania, eight ; Delaware, one ; Maryland, 
 six ; Virginia, ten ; North Carolina, five ; South Carolina, five ; 
 and Georgia, three. 
 
 4. When vacancies happen in the representation from any 
 State, the executive authority thereof shall issue writs of elec- 
 tion to fill such vacancies. 
 
 5. The House of Representatives shall choose their speaker 
 and other officers, and shall have the sole power of impeach- 
 ment. 
 
 SECTION III. 
 
 1. The Senate of the United States shall be composed of two 
 Senators from each State, chosen by the Legislature thereof, 
 for six years ; and each Senator shall have one vote. 
 
 2. Immediately after they shah 1 be assembled, in consequence 
 of the first election, they shall be divided, as equally as may 
 be, into three classes. The seats of the Senators of the first 
 class shall be vacated at the expiration of the second year ; of 
 the second class, at the expiration of the fourth year ; and of 
 the third class, at the expiration of the sixth year ; so that one 
 third may be chosen every second year. And if vacancies 
 happen, by resignation or otherwise, during the recess of the 
 Legislature of any State, the Executive thereof may make 
 temporary appointments until the next meeting of the Legisla- 
 ture, which shall then fill such vacancies. 
 
 3. No person shall be a Senator who shall not have attained
 
 456 APPENDIX. 
 
 to the age of thirty years, and been nine years a citizen of the 
 United States, and who shall not, when elected, be an inhabitant 
 of that State for which he shall be chosen. 
 
 4. The Vice-President of the United States shall be Presi- 
 dent of the Senate, but shall have no vote unless they be 
 equally divided. 
 
 5. The Senate shall choose their other officers, and also a 
 President pro-tempore in the absence of the Vice-President, or 
 when he shall exercise the office of President of the United 
 States. 
 
 6. The Senate shall have the sole power to try all impeach- 
 ments. When sitting for that purpose, they shall be on oath or 
 affirmation. When the President of the United States is tried, 
 the Chief Justice shall preside ; and no person shall be con- 
 victed without the concurrence of two thirds of the members 
 present. 
 
 7. Judgment, in cases of impeachment, shall not extend 
 further than to removal from office, and disqualification to hold 
 and enjoy any office of honor, trust, or profit under the United 
 States. But the party convicted shall, nevertheless, be liable 
 and subject to indictment, trial, judgment, and punishment, 
 according to law. 
 
 SECTION IV. 
 
 1. The times, places, and manner of holding elections for 
 Senators and Representatives shall be prescribed in each State 
 by the Legislature thereof; but the Congress may, at any 
 time, by law, make or alter such regulations, except as to the 
 places of choosing Senators. 
 
 2. The Congress shall assemble at least once in every year ; 
 and such meeting shall be on the first Monday in December, 
 unless they shall, by law, appoint a different day. 
 
 SECTION v. 
 
 1. Each House shall be the judge of the elections, returns, 
 and qualifications of its own members ; and a majority of each
 
 APPENDIX. 457 
 
 shall constitute a quorum to do business ; but a smaller number 
 may adjourn from day to day, and may be authorized to com- 
 pel the attendance of absent members, in such manner and 
 under such penalties as each House may provide. 
 
 2. Each House may determine the rules of its proceedings ; 
 punish its members for disorderly behaviour ; and, with the con- 
 currence of two thirds, expel a member. 
 
 3. Each House shall keep a journal of its proceedings, and 
 from time to time publish the same, excepting such parts as 
 may in their judgment require secrecy ; and 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. 
 
 4. Neither House, during the session of Congress, shall, with- 
 out the 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. 
 
 SECTION VI. 
 
 1. The Senators and Representatives shall receive a compen- 
 sation for their services, to be ascertained by law, and paid out 
 of the treasury of the United States. They shall, in all cases 
 except treason, felony, and breach of the peace, be privileged 
 from arrest during their attendance at the session of their re- 
 spective Houses, and in going to and returning from the same : 
 for any speech or debate in either House, they shall not be 
 questioned in any other place. 
 
 2. No Senator or Representative 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 whereof shall have been increased, during 
 such time ; and no person holding any office under the United 
 States shall be a member of either house during his continuance 
 in office. 
 
 SECTION VII. 
 
 1. All bills for raising revenue shall originate in the House 
 39
 
 458 APPENDIX. 
 
 of Representatives ; but the Senate may propose or concur 
 with amendments, as on other bills. 
 
 2. Every bill which shall have passed the House of Repre- 
 sentatives and the Senate shall, before it become a law, be pre- 
 sented to the President of the United States. If he approve 
 it, he shall sign it ; but if not, he shall return it, with his objec- 
 tions, 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 shall agree to pass the bill, 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, it 
 shall become a law. But in all such cases the votes of both 
 Houses shall be determined by yeas and nays ; and the names 
 of the persons voting for and against the bill shall be entered 
 on the journal of each House respectively. If any bill shall 
 not be returned by the President within ten days (Sundays 
 excepted) after it shall have been presented to him, the same 
 shall be a law, in like manner as if he had signed it, unless the 
 Congress, by their adjournment, prevent its return ; in which 
 case it shall not be a law. 
 
 3. Every 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 
 the President of the United States, and, before the same shall 
 take effect, shall be approved by him, or being disapproved by 
 him, shall be re-passed by two thirds of the Senate and House of 
 Representatives, according to the rules and limitations prescribed 
 in the case of a bill. 
 
 SECTION VIII. 
 
 The Congress shall have power, 
 
 1. To lay and collect taxes, duties, imposts, and excises to 
 pay the debts and provide for the common defence and general 
 welfare of the United States ; but all duties, imposts, and ex- 
 cises shall be uniform throughout the United States :
 
 APPENDIX. 459 
 
 2. To borrow money on the credit of the United States : 
 
 3. To regulate commerce with foreign nations, and among the 
 several States, and with the Indian tribes : 
 
 4. To establish a uniform rule of naturalization, and uniform 
 laws on the subject of bankruptcies throughout the United States : 
 
 5. To coin money, regulate the value thereof, and of foreign 
 coin, and fix the standard of weights and measures : 
 
 6. To provide for the punishment of counterfeiting the secu- 
 rities and current coin of the United States: 
 
 7. To establish post-offices and post-roads : 
 
 8. To promote the progress of science and useful arts, by 
 securing, for limited times, to authors and inventors, the exclu- 
 sive right to their respective writings and discoveries : 
 
 9. To constitute tribunals inferior to the Supreme Court : 
 
 10. To define and punish piracies and felonies committed on 
 the high seas, and offences against the law of nations : 
 
 11. To declare war, grant letters of marque and reprisal, 
 and make rules concerning captures on land and water : 
 
 12. To raise and support armies; but no appropriation of 
 money for that use shall be for a longer term than two years : 
 
 13. To provide and maintain a navy : 
 
 14. To make rules for the government and regulation of the 
 land and naval forces : 
 
 15. To provide for calling forth the militia to execute the 
 laws of the Union, suppress insurrections, and repel invasions : 
 
 16. To provide for organizing, arming, and disciplining the 
 militia, and for governing such part of them as may be em- 
 ployed in the service of the United States, reserving to the 
 States respectively the appointment of the officers, and thei 
 authority of training the militia according to the discipline 
 prescribed by Congress. 
 
 17. 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
 
 460 APPENDIX. 
 
 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, dockyards, and 
 other needful buildings ; and, 
 
 18. To make all laws which shall be necessary and proper 
 for carrying into execution the foregoing powers, and all other 
 powers vested by this Constitution in the Government of the 
 United States, or in any department or officer thereof. 
 
 SECTION IX. 
 
 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 the Congress prior to the year one thousand eight 
 hundred and eight ; but a tax or duty may be imposed on such 
 importation, not exceeding ten dollars for each person. 
 
 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. 
 
 3. No bill of attainder or ex post facto law shall be passed. 
 
 4. No capitation or other direct tax shall be laid, unless in 
 proportion to the census or enumeration hereinbefore directed 
 to be taken. 
 
 5. No tax or duty shall be laid on articles exported from any 
 State. 
 
 6. No preference shall be given by any regulation of com- 
 merce or revenue to the ports of one State over those of an- 
 other ; nor shall vessels bound to, or from one State, be obliged 
 to enter, clear, or .pay duties in another. 
 
 7. No money shall be drawn frotn the treasury but in conse- 
 quence of appropriations made by law ; and a regular state- 
 ment and account of the receipts and expenditures of all public 
 money shall be published from time to time. 
 
 8. No title of nobility shall be granted by the United States ; 
 and no person holding any office of profit or trust under them 
 shall, without the consent of the Congress, accept of any pres-
 
 APPENDIX. 461 
 
 ent emolument, office, or title of any kind whatever, from any 
 king, prince, or foreign State. 
 
 SECTION x. 
 
 1. No State shall enter into any treaty, alliance, or confed- 
 eration ; grant letters of marque and reprisal ; coin money ; 
 emit bills of credit ; make any thing but gold and silver coin a 
 tender in payment of debts ; pass any bill of attainder, ex post 
 facto law, or law impairing the obligation of contracts ; or grant 
 any title of nobility. 
 
 2. No State shall, without the consent of the 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 the Congress. 
 
 3. No State shall, without the consent of Congress, lay any 
 duty of tonnage, keep troops or ships of war in time of peace, 
 enter into any agreement or compact with another State, or 
 with a foreign power, or engage in war, unless actually invaded 
 or in such imminent danger as will not admit of delay. 
 
 ARTICLE II. 
 
 SECTION I. 
 
 1. The Executive power shall be vested in a President of 
 the United States of America. He shall hold his office during 
 the term of four years, and together with the Vice-President, 
 chosen for the same term, be elected as follows : 
 
 2. Each State shall appoint, in such manner as the Legisla- 
 ture thereof may direct, a number of Electors, equal to the 
 whole number of Senators and Representatives to which the 
 State may be entitled in the Congress ; but no Senator or Rep- 
 resentative, or person holding any office of trust or profit under 
 the United States, shall be appointed an elector. 
 
 39*
 
 462 APPENDIX. 
 
 3. The Electors shall meet in their respective States, and 
 vote by ballot for two persons, of whom one at least shall not 
 be an inhabitant of the same State with themselves. And they 
 shall make a list of all the persons voted for, and of the number 
 of votes for each ; which list they shall sign and certify, and 
 transmit sealed to the seat of the Government of the United 
 States, directed to the President of the Senate. The President 
 of the Senate shall, in the presence of the Senate and House of 
 Representatives, open all the certificates, and the votes shall 
 then be counted. The person having the greatest number of 
 votes shall be the President, if such number be a majority of 
 the whole number of Electors appointed ; and if there be more 
 than one who have such majority, and have an equal number of 
 votes, then the House of Representatives shall immediately 
 choose by ballot one of them for President; and if no person 
 have a majority, then from the five highest on the list the said 
 House shall in like manner choose the President. But in 
 choosing the President, the votes shall be taken by States, the 
 representation from 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 shall be 
 necessary to a choice. In every case, after the choice of the 
 President, the person having the greatest number of votes of 
 the Electors shall be the Vice-President. But if there should 
 remain two or more who have equal votes, the Senate shall 
 choose from them by ballot, the Vice-President. 
 
 4. The Congress may determine the time of choosing the 
 Electors, and the day on which they shall give their votes ; 
 which day shall be the same throughout the United States. 
 
 5. No person, except a natural-born citizen, or a citizen of 
 the United States at the time of the adoption of this Constitu- 
 tion, shall be eligible to the office of President ; neither shall 
 any person be eligible to that office who shall not have attained 
 to the age of thirty-five years, and been fourteen years a resi- 
 dent within the United States.
 
 APPENDIX. 463 
 
 6. In case of the removal of the President from office, or of 
 his death, resignation, or inability to discharge the powers and 
 duties of the said office, the same shall devolve on the Vice- 
 President ; and the Congress may by law provide for the case 
 of removal, death, resignation, or inability, both of the Presi- 
 dent 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. 
 
 7. The President shall, at stated times, receive for his ser- 
 vices a compensation, which shall neither be increased nor 
 diminished during the period for which he shall have been 
 elected, and he shall not receive within that period any other 
 emolument from the United States, or any of them. 
 
 8. Before he enter on the execution of his office, he shall 
 take the following oath or affirmation: 
 
 " I do solemnly swear (or affirm) that I will faithfully execute 
 the office of President of the United States; and will, to the 
 best of my ability, preserve, protect, and defend the Constitu- 
 tion of the United States." 
 
 SECTION n. 
 
 1. The President 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 actual service of the United States; 
 he may require the opinion, in writing, of the principal officer 
 in each of the Executive departments, upon any subject relating 
 to the duties of their respective offices, and he shall have power 
 to grant reprieves and pardons for offences against the United 
 States, except in cases of impeachment. 
 
 2. He shall have power, by and with the advice and consent 
 of the Senate, to make treaties, provided two thirds of the 
 Senators present concur; and he shall nominate, and by and 
 with the advice and consent of the Senate, shall appoint am- 
 bassadors, other public ministers, and consuls, judges of the 
 Supreme Court, and all other officers of the United States
 
 464 APPENDIX. 
 
 whose appointments are not herein otherwise provided for, and 
 which shall be established by law ; but the 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. 
 
 3. The President shall have power to fill up all vacancies 
 that may happen during the recess of the Senate, by grant- 
 ing commissions which shall expire at the end of their next 
 session. 
 
 SECTION III. 
 
 He shall, from time to time, give to the Congress information 
 of the State of the Union, and recommend to their considera- 
 tion such measures as he shall judge necessary and expedient ; 
 he may, 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 ; he shall receive ambassadors 
 and other public ministers ; he shall take care that the laws be 
 faithfully executed, and shall commission all the officers of the 
 United States. 
 
 SECTION IV. 
 
 The President, Vice-President, and all civil officers of the 
 United States, shall be removed from office on impeachment for, 
 and conviction of treason, bribery, or other high crimes and 
 misdemeanors. 
 
 ARTICLE III. 
 
 SECTION I. 
 
 The Judicial power of the United States shall be vested in 
 one Supreme Court, and in such inferior courts as the Congress 
 may, from time to time, ordain and establish. The judges, 
 both of the supreme and inferior courts, shall hold their offices 
 during good behaviour, and shall, at stated times, receive for 
 their services a compensation which shall not be diminished 
 during their continuance in office.
 
 APPENDIX. 465 
 
 SECTION II. 
 
 1. The Judicial power shall extend to all cases in law and 
 equity arising under this Constitution, the laws of the United 
 States, and treaties made, or which shall be made, under then- 
 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 ; to controversies between two or more States ; be- 
 tween 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. 
 
 2. In all cases affecting ambassadors, other public ministers, 
 and consuls, and those in which a State shall be a party, the 
 Supreme Court shall have original jurisdiction. In all the 
 other cases before mentioned, the Supreme Court shall have 
 appellate jurisdiction, both as to law and fact, with such excep- 
 tions, and under such regulations, as the Congress shall make. 
 
 3. The trial of all crimes, except in cases of impeachment, 
 shall be by jury, and such trial shall be held in the State where 
 the said crimes shall have been committed ; but when not 
 committed within any State, the trial shall be at such place or 
 places as the Congress may by law have directed. 
 
 SECTION III. 
 
 1. Treason against the United States shall consist only in 
 levying war against them, or in adhering to their enemies, giv- 
 ing them aid and comfort. 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. 
 
 2. The Congress shall have power to declare the punishment 
 of treason ; but no attainder of treason shall work corruption of 
 blood or forfeiture, except during the life of the person attainted.
 
 466 APPENDIX. 
 
 ARTICLE IV. 
 
 SECTION I. 
 
 Full faith and credit shall be given, in each State, to the 
 public acts, records, and judicial proceedings of every other 
 State. And the Congress may, by general laws, prescribe the 
 manner in which such acts, records, and proceedings shall be 
 proved, and the effect thereof. 
 
 SECTION II. 
 
 1. The citizens of each State shall be entitled to all priv- 
 ileges and immunities of citizens in the several States. 
 
 2. 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. 
 
 3. No person, held to service or labor in one State under the 
 laws thereof, escaping into another, 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 or labor may be due. 
 
 4 SECTION III. 
 
 1. New States may be admitted by the Congress into this 
 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 the Congress. 
 
 2. The Congress shall 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 
 this Constitution shall be so construed as to prejudice any 
 claims of the United States, or of any particular State.
 
 APPENDIX. 467 
 
 SECTION IV. 
 
 The United States shall guarantee to every State in this 
 Union a republican form of government, and shall protect each 
 of them against invasion ; and on application of the Legisla- 
 ture, or of the Executive, (when the Legislature cannot be 
 convened,) against domestic violence. 
 
 ARTICLE V. 
 
 The Congress, whenever two thirds of both Houses shall deem 
 it necessary, shall propose amendments to this Constitution, or, 
 on the application of the Legislatures of two thirds of the 
 several States, shall call a convention for proposing amend- 
 ments; which, in either case, shall be valid to all intents and 
 purposes, as part of this Constitution, when ratified by the 
 Legislatures of three fourths of the several States, or by con- 
 ventions in three fourths thereof, as the one or the other mode 
 of ratification may be proposed by the Congress : Provided 
 that no amendment which may be made prior to the year one 
 thousand eight hundred and eight, shall in any manner affect 
 the first and fourth clauses in the ninth section of the first 
 article ; and that no State, without its consent, shall be deprived 
 of its equal suffrage in the Senate. 
 
 ARTICLE VI. 
 
 1. All debts contracted, and engagements entered into before 
 the adoption of this Constitution, shall be as valid against the 
 United States under this Constitution as under the Confed- 
 eration. 
 
 2. This Constitution, and the laws of the United States 
 which shall be made in pursuance thereof, and all treaties 
 made, or which shall be made, under the authority of the 
 United States, shall be the supreme law of the land, and the 
 judges in every State shall be bound thereby, anything in the 
 Constitution or laws of any State to the contrary notwithstand- 
 ing.
 
 468 
 
 APPENDIX. 
 
 3. The Senators and Representatives before mentioned, and 
 the members of the several State Legislatures, and all Execu- 
 tive and Judicial officers, both of the United States and of the 
 several States, shall be bound, by oath or affirmation, to support 
 this Constitution ; but no religious test shall ever be required 
 as a qualification to any office or public trust under the United 
 States. 
 
 ARTICLE VH. 
 
 The ratification of the conventions of nine States shall be 
 sufficient for the establishment of this Constitution between the 
 States so ratifying the same. 
 
 Done in Convention by the unanimous consent of the States 
 present, the seventeenth day of September, in the year of 
 our Lord one thousand seven hundred and eighty-seven, and 
 of the independence of the United States of America the 
 twelfth. In witness whereof, we have hereunto subscribed 
 our names. 
 
 GEORGE WASHINGTON, President, 
 
 and Deputy from Virginia. 
 
 XT u i ( John Langdon. 
 New Hampshire.-^ XT . , ,., 
 
 I .Nicholas (jilma 
 
 Massachusetts. 
 
 Connecticut. 
 New York. 
 
 New Jersey. 
 
 Pennsylvania. 
 
 Gilman. 
 
 J Nathaniel Gorham, 
 ( Rufus King. 
 ( William Samuel Johnson, 
 ) Roger Sherman. 
 
 Alexander Hamilton. 
 
 William Livingston, 
 
 David Brearley. 
 
 William Paterson, 
 
 Jonathan Dayton. 
 
 Benjamin Franklin, 
 
 Thomas Mifflin, 
 
 Robert Morris, 
 
 George Clymer, 
 
 Thomas Fitzsimnions, 
 
 Jared Ingersol, 
 
 Jameg Wilson, 
 
 Gouverneur Morris.
 
 APPENDIX. 
 
 469 
 
 Delaware. 
 
 Maryland. 
 Virginia. 
 North Carolina. 
 
 South Carolina. 
 
 Georgia. 
 Attest, 
 
 George Read, 
 
 Gunning Bedford, Jun., 
 
 John Dickinson, 
 
 Richard Bassett, 
 
 Jacob Broom. 
 
 James M' Henry, 
 
 Daniel of St. Thomas Jenifer, 
 
 Daniel Carroll, 
 j John Blair, 
 \ James Madison, Jun. 
 
 William Blount, 
 
 Richard Dobbs Spaight, 
 
 Hugh Williamson. 
 
 John Rutledge, 
 
 Charles Cotesworth Pinckney, 
 
 Charles Pinckney, 
 
 Pierce Butler. 
 
 William Few, 
 
 Abraham Baldwin. 
 WILLIAM JACKSON, Secretary. 
 
 AMENDMENTS. 
 
 The following Articles in addition to, and amendment of, the Constitu- 
 tion of the United States, having been ratified by the Legislatures of 
 nine States, are equally obligatory with the Constitution itself. 
 
 I. 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 peaceably to assemble, and to petition the Government 
 for a redress of grievances. 
 
 II. 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. 
 
 III. 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. 
 
 IV. The right of the people to be secure in their persons, 
 houses, papers, and effects, against unreasonable searches and 
 
 40
 
 470 APPENDIX. 
 
 seizures, shall not be violated ; and no warrants shall issue, but 
 upon probable cause, supported by oath or affirmation, and par- 
 ticularly describing the place to be searched, and the persons or 
 things to be seized. 
 
 V. No person shall be held to answer for a capital or other- 
 wise 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, when in actual service, in time of war, or 
 public danger ; nor shall any person be subject, for the same 
 offence, to be twice put in jeopardy of life or limb ; nor shall 
 be compelled, in any criminal case, to be witness against him- 
 self ; 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. 
 
 VI. 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 bylaw; 
 and to be informed of the nature and cause of the accusation ; 
 to be confronted with the witnesses against him ; to have com- 
 pulsory process for obtaining witnesses in his favor ; and to 
 have the assistance of counsel for his defence. 
 
 VII. 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 re- 
 examined in any court of the United States than according to 
 the rules of the common law. 
 
 VIII. Excessive bail shall not be required ; nor excessive 
 fines imposed ; nor cruel and unusual punishments inflicted. 
 
 IX. The enumeration in the Constitution of certain rights 
 shall not be construed to deny or disparage others retained by 
 the people. 
 
 X. 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.
 
 APPENDIX. 471 
 
 XL 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 citizens of an- 
 other State, or by citizens or subjects of any foreign State. 
 
 XII. 1. The Electors shall meet in their respective States, 
 and vote by ballot for President and Vice-President, one of 
 whom, at least, shalt not be an inhabitant of the same State with 
 themselves ; they shall name in their ballots the person voted 
 for as President, and in distinct ballots the person voted for as 
 Vice-President ; and they shall make distinct lists of all per- 
 sons voted for as President, and of all persons voted for as 
 Vice-President, and of the number of votes for each, which 
 list they shall sign and certify, and transmit sealed to the Gov- 
 ernment of the United States, directed to the President of the 
 Senate ; the President of the Senate shall, in the presence of 
 the Senate and House of Representatives, open all the certifi- 
 cates, and the votes shall then be counted ; the person having 
 the greatest number of votes for President shall be the Presi- 
 dent, if such number be a majority of the whole number of 
 Electors appointed; and if no person have such majority, then 
 from the persons having the highest numbers not exceeding 
 three on the list of those voted for as President, the House of 
 Representatives shall choose immediately, by ballot, the Presi- 
 dent. But, in choosing the President, the votes shall be taken 
 by States, the representation from each State having one vote ; 
 a quorum for this purpose shall consist of a member or mem- 
 bers from two thirds of the States, and a majority of all the 
 States shall be necessary to a choice. And if the House of 
 Representatives shall not choose a President whenever the 
 right of choice shall devolve upon them, before the fourth day 
 of March next following, then the Vice-President shall act as 
 President, as in the case of the death or other constitutional 
 disability of the President. 2. The person having the greatest 
 number of votes as Vice-President shalt be Vice-President, if 
 such number be a majority of the whole number of Electors
 
 472 APPENDIX. 
 
 appointed ; and if no person have a majority, then from the 
 two highest numbers on the list the Senate shall choose the 
 Vice-President ; a quorum for the purpose shall consist of two 
 thirds of the whole number of Senators, and a majority of the 
 whole number shall be necessary to a choice. 3. But no per- 
 son constitutionally ineligible to the office of President shall 
 be eligible to that of Vice-President of the United States. 
 
 D, p. v. 
 
 WILLIAM DUER 1 TO JAMES MADISON. 
 
 New York, June 23, 1788. 
 DEAR SIR, 
 
 As it is probable you may not hear by this post from our 
 mutual friend, Colonel Hamilton, I take the liberty of giving 
 you a short sketch of our political prospects in this quarter on 
 the great question of the Constitution. My information is from 
 Colonel Laurance, 2 who left Poughkeepsie on Saturday. 
 
 A considerable majority of the Convention are undoubtedly 
 Anti-Federal ; or, in other words, wish for amendments pre- 
 vious to the adoption of the Government. A few of the leaders 
 (among which I think I may, without scruple, class the Gov- 
 ernor) 8 would, if they could find support, go further, and hazard 
 every thing rather than agree to any system which tended to a 
 consolidation of our Government. Of this, however, I have at 
 present no apprehensions, many of their party having avowed 
 themselves friends to the Union. "With respect to amendments, 
 as far as I can understand the party in opposition, they cannot 
 agree among themselves. It is therefore possible that this 
 circumstance may create a division in favor of the Federalists. 
 
 1 Formerly a member of the Continental Congress, and then Secretary 
 to the Treasury-board of the United States. 
 
 2 John Laurance, Judge- Advocate General in the revolutionary army, 
 and afterwards a Senator in Congress from New York. 
 
 3 George Clinton.
 
 APPENDIX. 473 
 
 As to the rejection of the Constitution, there is not the least 
 probability of it. The great points of discussion will probably 
 be, whether they will adjourn without coming to any decision, 
 or whether they will adopt it conditionally, or follow the ex- 
 ample of Massachusetts and South Carolina. 
 
 The conduct of your Convention will influence, in a great 
 degree, ours. If you adjourn without doing any thing, we shall 
 do the same ; but, if you do not, there is still some hope that 
 we may adopt, with proposed amendments : for, as to the 
 second point, the inconsistency of it will, I think, be too ap- 
 parent after a decision to command a majority. While I am 
 writing, a gentleman has favored me with a copy of a letter 
 from an intelligent bystander, 1 who has attended the debates of 
 the Convention ; I therefore inclose it, as a more faithful his- 
 tory than I can give. 
 
 I am, with sentiments of the most profound esteem, 
 Your obedient, humble servant, 
 
 WILLIAM DUER. 
 
 JAMES KENT 2 TO ROBERT TROUP. 8 
 
 Poughkeepsie, Friday, June 20, 1788. 
 DEAR SIR, 
 
 I had the pleasure of receiving your letter by Mr. Hariabn, 4 
 and in compliance with your desire, I shall shortly state to you 
 the proceedings of the Convention hitherto. 
 
 They met on Tuesday in pretty full house, and elected Gov- 
 ernor Clinton president, and appointed by ballot Duane, Morris, 
 Lansing, 5 Jones, 6 and Hening, a committee for reporting rules for 
 
 1 James Kent. 
 
 2 The late Chancellor, who had lately commenced the practice of the law 
 at Poughkeepsie, where the State Convention was sitting. 
 
 8 Afterwards District Judge of the United States for New York. 
 * Afterwards United States District Attorney for New York. 
 8 Afterwards Chancellor of the State. 
 
 6 An eminent lawyer, afterwards Recorder of the city of New York, 
 and subsequently Comptroller of the State Treasury. 
 
 40*
 
 474 APPENDIX. 
 
 the regulation of the Convention. On Wednesday, the rules 
 were adopted, the Constitution read, and a motion made by 
 Mr. Lansing, and agreed to, that they would on the next day 
 resolve themselves into a committee of the whole for the pur- 
 pose of discussing the Constitution. On Thursday, which was 
 yesterday, the house resolved itself into a committee, Mr. Oouth- 
 out, of Albany, chairman. Chancellor Livingston 1 rose and 
 called our attention to a fine introductory speech of one hour's 
 length. He mentioned the importance of the occasion, and the 
 peculiar felicity of this country, which had it in its power to 
 originate and establish its government from reason and choice, 
 while on the Eastern Continent, their governments and the 
 reforms of them were the children of force. He then pointed 
 out the necessity of Union, particularly in this State, from its 
 local situation, which rendered it peculiarly vulnerable, not only 
 to foreigners, but to its neighbors. He stated that a Union was 
 to be expected only from the old Confederation, or from the 
 government now under their consideration. He then demon- 
 strated the radical defects of the Confederation ; that its prin- 
 ciple was bad, in legislating for States in their political capacity, 
 as its constitutional demands could only be coerced by arms ; 
 that it was equally defective in form, as the Congress was a 
 sin*gle body, too small and too liable to faction, from its being a 
 single body, to be intrusted with Legislative power, and too 
 numerous to be intrusted with Executive authority. The Chan- 
 cellor, on this head, only gave a summary of the arguments of 
 Publius 2 when treating on the defects of the Confederation ; 
 but the summary was neither so perfect nor so instructive, by a 
 vast difference, as the original. It was not, however, to be 
 expected in a short address. He concluded that survey by 
 entreating the House to divest themselves of prejudice and 
 warmth, to examine the plan submitted with the utmost coolness 
 and candor, to consider themselves as citizens assembled to 
 
 1 Robert K. Livingston, afterwards United States Minister to the French 
 Republic during the Presidency of Mr. Jefferson. 
 2 The signature adopted by the authors of " The Federalist."
 
 APPENDIX. 475 
 
 consult for the general good, and not as State officers, who 
 might be opposed, in that capacity, to every determination of 
 their authority. He concluded his speech by a motion which, 
 with some amendments, was agreed to by the House, that they 
 would discuss the Constitution by paragraphs, and any amend- 
 ments which might be proposed in the course of the debate, 
 without taking the question as to any paragraphs, or as to any 
 amendments which might be offered, until the whole Constitu- 
 tion was discussed. This, sir, is a sketch of the proceedings of 
 the Convention to this day. We expect they will this morning 
 enter on the subject by paragraphs. I imagine they will be 
 some time engaged in the discussion, probably three weeks. 
 As to the result, I can only say I look forward to it with anxious 
 uncertainty. I do not abandon hope. I think the opposition 
 discover great embarrassment. I believe they do not know 
 what to do. Some *of them, I am told, have said they will not 
 vote against it. The decision in New Hampshire and Virginia, 
 we are flattering ourselves, will be favorable ; and that they 
 will give energy to the debate on one side in our Convention, 
 and confusion, if not absolute despair, to the other side. I hope 
 you and our friends in New York will give us the earliest in- 
 formation from those States. 
 
 In giving you the heads of the Chancellor's speech, I believe 
 I am not mistaken. He spoke rather low, and there was so 
 much noise, and the bar so much crowded, that I confess I lost 
 at least one third of the speech, though I trust not the general 
 course of reasoning. What I regretted more, I lost some of 
 his figures, for which he is peculiarly eminent. I shall take the 
 liberty to trespass on your patience by every opportunity, as I 
 trust your curiosity will excuse me. 
 
 I am, &c., &c., JAMES KENT. 
 
 P. S. I am directed by Mr. Benson, 1 to request you will 
 communicate this information to Colonel Duer. 
 
 1 The late Judge Egbert Benson.
 
 476 APPENDIX. 
 
 WILLIAM DUER TO JAMES MADISON. 
 , r 1788. 
 
 MY BEAR SIR, 
 
 Our mutual friend, Hamilton, 1 has communicated to me, in 
 confidence, the substance of your letter on the political pros- 
 pects in Pennsylvania and Virginia. I learn with extreme 
 regret the division of the Federalists in the former State, and 
 the malignant perseverance of the opponents to the Constitution 
 in your own. I trust, however, that we shall have the benefit 
 of your counsels and exertions in the House of Representatives, 
 notwithstanding Mr. Henry's 2 manoeuvres to prevent it. 
 
 You may remember some conversation I once had with you 
 on the subject of electing Mr. John Adams as Vice-President. 
 I have ascertained, through General Knox, 8 that this gentleman, 
 if chosen, will be a strenuous opposer against calling a Con- 
 vention, which, in the present state of parties, I consider as a 
 vital stab to the Constitution ; and not only that, I have been 
 informed, in a mode perfectly satisfactory, that he and his old 
 coadjutor, R. H. Lee, will be altogether opposite in all meas- 
 ures relative to the establishment of the character and credit 
 of the Government. I am therefore anxious that the Fed- 
 eralists to the southward may join in supporting his nomination. 
 A greater knowledge of the world has cured him of his old 
 party prejudices, and I am satisfied nothing is to be feared 
 from that quarter ; on the contrary, should he be elected to that 
 station (which I am fully convinced is his wish), the weight of 
 his State would be cast into the Federal scale. 
 
 Interested as I know you are in the welfare of the Union, I 
 cannot omit giving you this information, on the authenticity of 
 which you may rely, that you may (without committing my 
 name) make such use of it as you think proper. 
 
 I am, with sentiments of great esteem, 
 
 Your obedient, humble servant, WILLIAM DUER. 
 
 P. S. I have no objection to Messrs. Robert and Gouverneur 
 Morris seeing this letter. 
 
 1 Alexander Hamilton. 2 Patrick Henry. 
 
 8 Henry Knox, Secretary at War, in Washington's administration.
 
 APPENDIX. 477 
 
 JAMES MADISON TO WILLIAM A. DUER. 
 
 Montpelier, May 5, 1835. 
 DEAR SIR, 
 
 I have received your letter of April 25, and, with the aid 
 of a friend, an amanuensis, have made out the following answer. 
 
 On the subject of Mr. Pinckney's proposed plan of a Consti- 
 tution, it is to be observed, that the plan printed in the journal 
 was not the document actually presented by him to the Con- 
 vention. That document was in no otherwise noticed in the 
 proceedings of the Convention than by a reference of it, with 
 Mr. Randolph's 1 plan, to a committee of the whole, and after- 
 ward to a committee of detail, with others ; and not being found 
 among the papers left with President Washington, and finally 
 deposited in the Department of State, Mr. Adams, 2 charged with 
 the publication of them, obtained from Mr. Pinckney 8 the docu- 
 ment in the printed journal as a copy supplying the place of the 
 missing one. In this there must be error ; there being sufficient 
 evidence, even on the surface of the journals, that the copy sent 
 to Mr. Adams could not be the same with the document laid 
 before the Convention. Take, for example, the article consti- 
 tuting the House of Representatives the corner-stone of the 
 fabric; the identity, even verbal, of which, with the adopted 
 Constitution, has attracted so much notice. In the first place, 
 the detail and phraseology of the Constitution appears to have 
 been the result of successive discussions, and are too minute 
 and exact to have been anticipated. In the next place, it ap- 
 pears that, within a few days after Mr. Pinckney presented his 
 plan to the Convention, he moved to strike out from the reso- 
 lution of Mr. Randolph the provision for the election of the 
 House of Representatives by the people, and refer the choice 
 of that House to the Legislatures of the States ; and to this 
 preference he appears to have adhered in the subsequent pro- 
 ceedings of the Convention. Other discrepancies might be 
 
 1 Edmund Randolph, afterwards Attorney- General of the United States. 
 
 2 John Quincy Adams. 
 
 8 Charles Pinckney, of South Carolina.
 
 478 APPENDIX. 
 
 found, in a source also within your reach, in a pamphlet pub- 
 lished by Mr. Pinckney soon after the close of the Convention, 
 in which he refers to parts of his plan which are at variance 
 with the document in the printed journal. 1 Further evidence 
 on this subject await a future, perhaps a posthumous disclosure. 
 One conjecture explaining the phenomena has been, that Mr. 
 Pinckney interwove with the draft sent to Mr. Adams passages 
 as agreed on in the Convention in the progress of the work, 
 and which, after a lapse of more than thirty years, were not 
 separated by his recollection. 
 
 The resolutions of Mr. Randolph, the basis on which the 
 deliberations of the committee proceeded, were the result of a 
 consultation among the Virginia deputies, who thought it possi- 
 ble that, as Virginia had taken so leading a part in reference to 
 the Federal Convention, some initiative propositions might be 
 expected from them. They were understood not to commit 
 any of the members, absolutely or definitively, on the tenor of 
 them. The resolutions will be seen to present the characteristic 
 provisions and features of a government as complete, in some 
 respects, perhaps more so, than the plan of Mr. Pinckney, 
 though without being thrown into a formal shape. The mo- 
 ment, indeed, a real Constitution was looked for as a substitute 
 for the Confederacy, the distribution of the government into 
 the usual departments became a matter of course with all who 
 speculated on the prospective change, and the form of general 
 resolutions was adopted, as most respectful to the Convention, 
 and as the most convenient for discussion. It may be observed 
 that, in reference to the powers to be given to the General 
 Government, the resolutions comprehended as well the powers 
 contained in the Articles of Confederation, without enumerating 
 them, as others not overlooked in the resolutions, but left to be 
 developed and defined by the Convention. 
 
 With regard to the plan proposed by Mr. Hamilton, I may 
 
 1 Observations on the Plan of Government submitted to the Federal Conven- 
 tion, on the 28th of May, 1787, by Charles Pinckney, &c., &c. Vide " Select 
 Facts," vol. ii., in the library of the Historical Society of New York.
 
 APPENDIX. 479 
 
 say to you, that a Constitution such as you describe was never 
 proposed in the Convention, but was communicated by him to 
 me, at the close of it. The original draft being in the posses- 
 sion of his family, and their property, I have considered any 
 publicity of it as lying with them. Mr. Yates's notes, as you 
 observe, are very inaccurate ; they are also, in some respects, 
 grossly erroneous. The desultory manner in which he took 
 them, catching sometimes but half the language, may in part 
 account for it. Though said to be a respectable and honorable 
 man, he brought with him to the Convention the strongest 
 prejudices against the existence and objects of that body, in 
 which he was strengthened by the course taken in its delibera- 
 tions. He left the Convention long before the opinions and 
 views of many members were finally developed into their prac- 
 tical application. The passion and prejudice of Mr. Luther 
 Martin, betrayed in his public letter, could not fail to discolor 
 his representations. He also left the Convention before the 
 completion of their work. I have heard, but will not vouclr 
 for the fact, that he became sensible of, and admitted his error ; 
 certain it is that he joined the party who favored the Constitu- 
 tion in its most liberal construction. 
 
 I had, as you may recollect, an acquaintance with your 
 father, 1 to which his talents and social accomplishments were 
 very attractive ; and there was an incidental correspondence 
 between us, interchanging information at a critical moment, 
 when the elections and State Conventions which were to decide 
 the fate of the new Constitution were taking place. You are, 
 I presume, not ignorant that your father was the author of 
 several papers auxiliary to the numbers of " The Federalist." 
 They appeared, I believe, in the Gazette of Mr. Childs. 2 
 With great respect and cordial salutations, yours, 
 
 JAMES MADISON. 
 
 1 Colonel William Duer. 
 
 2 Under the signature of PHILO-PUBLIDS, these papers treated of the 
 financial questions and benefits arising from the New Constitution, in the
 
 480 APPENDIX. 
 
 E, p. 25. 
 
 PEOCLAMATION BY ANDREW JACKSON, PRESIDENT OF THE 
 UNITED STATES. 
 
 WHEREAS a convention assembled in the State of South 
 Carolina have passed an ordinance, by which they declare 
 " that the several Acts and parts of Acts of the Congress of 
 the United States, purporting to be laws for the imposing of 
 duties and imposts on the importation of foreign commodities, 
 and now having actual operation and effect within the United 
 States, and more especially " two Acts, for the same purposes, 
 passed on the 29th of May, 1828, and on the 14th of July, 
 1832, "are unauthorized by the Constitution of the United 
 States, and violate the true meaning and intent thereof, and are 
 null and void, and no law," nor binding on the citizens of that 
 State or its officers ; and by the said ordinance it is further 
 declared to be unlawful for any of the constituted authorities 
 of the State, or of the United States, to enforce the payment 
 of the duties imposed by the said Acts within the same State, 
 and that it is the duty of the Legislature to pass such laws as 
 may be necessary to give full effect to the said ordinance : 
 
 And whereas, by the said ordinance it is further ordained 
 that, in no case of law or equity, decided in the courts of said 
 State, wherein shall be drawn in question the validity of the 
 said ordinance, or of the Acts of the Legislature that may be 
 passed to give it effect, or of the said laws of the United States, 
 no appeal shall be allowed to the Supreme Court of the United 
 States, nor shall any copy of the record be permitted or allowed 
 for that purpose ; and that any person attempting to take such 
 appeal shall be punished as for a contempt of court : 
 
 And, finally, the said ordinance declares that the people of 
 South Carolina will maintain the said ordinance at every hazard ; 
 
 organization of an adequate and permanent system of revenue for the 
 support of the Government, encouragement of domestic manufactures, and 
 the establishment of public credit.
 
 APPENDIX. 481 
 
 and that they will consider the passage of any Act by Congress 
 abolishing or closing the ports of the said State, or otherwise 
 obstructing the free ingress or egress of vessels to and from the 
 said ports, or any other Act of the Federal Government to 
 coerce the State, shut up her ports, destroy or. harass her 
 commerce, or to enforce the said Acts otherwise than through 
 the civil tribunals of the country, as inconsistent with the longer 
 continuance of South Carolina in the Union ; and that the 
 people of the said State will thenceforth hold themselves ab- 
 solved from all further obligation to maintain or preserve their 
 political connection with the people of the other States, and 
 will forthwith proceed to organize a separate Government, and 
 do all other acts and things which sovereign and independent 
 States may of right do : 
 
 And whereas, the said ordinance prescribes to the people of 
 South Carolina a course of conduct in direct violation of their 
 duty as citizens of the United States, contrary to the laws of 
 their country, subversive of its Constitution, and having for its 
 object the destruction of the Union that Union which, coeval 
 with our political existence, led our fathers, without any other 
 ties to unite them than those of patriotism and a common cause, 
 through a sanguinary struggle to a glorious independence 
 that sacred Union, hitherto inviolate, which, perfected by our 
 happy Constitution, has brought us, by the favor of Heaven,, 
 to a state of prosperity at home and high consideration abroad, 
 rarely, if ever, equalled in the history of nations. To preserve 
 this bond of our political existence from destruction, to maintain 
 inviolate this state of national honor and prosperity, and ta 
 justify the confidence my fellow-citizens have reposed in me, 
 I, ANDREW JACKSON, President of the United States, have 
 thought proper to issue this my PROCLAMATION, stating 
 my views of the Constitution and laws applicable to the meas- 
 ures adopted by the convention of South Carolina, and to the 
 reasons they have put forth to sustain them, declaring the 
 course which duty will require me to pursue, and, appealing to 
 41
 
 482 APPENDIX. 
 
 the understanding and patriotism of the people, warn them of 
 the consequences that must inevitably result from an observance 
 of the dictates of the convention. 
 
 Strict duty would require of me nothing more than the exer- 
 cise of those powers with which I am now, or may hereafter 
 be invested, for preserving the peace of the Union, and for the 
 execution of the laws. But the imposing aspect which oppo- 
 sition has assumed in this case, by clothing itself with State 
 authority, and the deep interest which the people of the United 
 States must all feel in preventing a resort to stronger measures, 
 while there is a hope that any thing will be yielded to reasoning 
 and remonstrance, perhaps demand, and will certainly justify a 
 full exposition to South Carolina, and the nation, of the views I 
 entertain of this important question, as well as a distinct enun- 
 ciation of the course which my sense of duty will require me 
 to pursue. 
 
 The ordinance is founded, not on the indefeasible right of 
 resisting Acts which are plainly unconstitutional, and too op- 
 pressive to be endured, but on the strange position that any one 
 State may not only declare an Act of Congress void, but pro- 
 hibit its execution ; that they may do this consistently with the 
 Constitution ; that the true construction of that instrument 
 permits a State to retain its place in the Union, and yet be 
 bound by no other of its laws than those it may choose to con- 
 sider as constitutional. It is true, they add, that, to justify this 
 abrogation of a law, it must be palpably contrary to the Consti- 
 tution ; but it is evident that, to give the right of resisting laws 
 of that description, coupled with the uncontrolled right to 
 decide what laws deserve that character, is to give the power 
 of resisting all laws. For as by the theory there is no appeal, 
 the reasons alleged by the State, good or bad, must prevail. 
 If it should be said that public opinion is a sufficient check 
 against the abuse of this power, it may be asked why it is not 
 deemed a sufficient guard against the passage of an unconsti- 
 tutional Act by Congress. There is, however, a restraint in
 
 APPENDIX. 483 
 
 this last case, which makes the assumed power of a State 
 more indefensible, and which does not exist in the other. There 
 are two appeals from an unconstitutional Act passed by Con- 
 gress one to the Judiciary, the other to the people and the 
 States. There is no appeal from the State decision in theory ; 
 and the practical illustration shows that the Courts are closed 
 against an application to review it, both judges and jurors being 
 sworn to decide in its favor. But reasoning on this subject is 
 superfluous, when our social compact, in express terms, declares 
 that the laws of the United States, its Constitution, and treaties 
 made under it, are the supreme law of the land ; and, for 
 greater caution, adds, " that the Judges in every State shall be 
 bound thereby, any thing in the Constitution or laws of any 
 State to the contrary notwithstanding." And it may be asserted, 
 without fear of refutation, that no Federative Government 
 could exist without a similar provision. Look for a moment to 
 the consequence. If South Carolina considers the revenue 
 laws unconstitutional, and has a right to prevent their execution 
 in the port of Charleston, there would be a clear constitutional 
 objection to their collection in every other port, and no revenue 
 could be collected anywhere ; for all imposts must be equal. It 
 is no answer to repeat that an unconstitutional law is no law, 
 so long as the question of its legality is to be decided by the 
 State itself; for every law operating injuriously upon any local 
 interest will be perhaps thought, and certainly represented, as 
 unconstitutional ; and, as has been shown, there is no appeal. 
 
 If this doctrine had been established at an earlier day, the 
 Union would have been dissolved in its infancy. The excise 
 law in Pennsylvania, the embargo and non-intercourse law in 
 the Eastern States, the carriage-tax in Virginia, were all deemed 
 unconstitutional, and were more unequal in their operation than 
 any of the laws now complained of; but, fortunately, none of 
 those States discovered that they had the right now claimed by 
 South Carolina. The war into which we were forced, to sup- 
 port the dignity of the nation and the rights of our citizens,
 
 484 APPENDIX. 
 
 might have ended in defeat and disgrace, instead of victory and 
 honor, if the States, who supposed it a ruinous and unconsti- 
 tutional measure, had thought they possessed the right of nulli- 
 fying the Act by which it was declared, and denying supplies 
 for its prosecution. Hardly and unequally as those measures 
 bore upon several members of the Union, to the Legislatures 
 of none did this efficient and peaceable remedy, as it is called, 
 suggest itself. The discovery of this important feature in our 
 Constitution was reserved to the present day. To the states- 
 men of South Carolina belongs the invention, and upon the 
 citizens of that State will, unfortunately, fall the evils of reduc- 
 ing it to practice. 
 
 If the doctrine of a State veto upon the laws of the Union 
 carries with it internal evidence of its impracticable absurdity, 
 our constitutional history will also afford abundant proof that 
 it would have been repudiated with indignation, had it been 
 proposed to form a feature in our government. 
 
 In our colonial state, although dependent on another power, 
 we very early considered ourselves as connected by common 
 interest with each other. Leagues were formed for common 
 defence, and before the Declaration of Independence, we were 
 known in our aggregate character as THE UNITED COLONIES 
 OF AMERICA. That decisive and important step was taken 
 jointly. We declared ourselves a nation by a joint, not by 
 several acts ; and when the terms of our confederation were 
 reduced to form, it was in that of a solemn league of several 
 States, by which they agreed that they would, collectively, form 
 one nation for the purpose of conducting some certain domestic 
 concerns, and all foreign relations. In the instrument forming 
 that union, is found an article which declares that " every State 
 shall abide by the determinations of Congress on all questions 
 which by that confederation should be submitted to them." 
 
 Under the Confederation, then, no State could legally annul 
 a decision of the Congress, or refuse to submit to its execution ; 
 but no provision was made to enforce these decisions. Con-
 
 APPENDIX. 485 
 
 gress made requisitions, but they were not complied with. 
 The Government could not operate on individuals. They had 
 no judiciary, no means of collecting revenue. 
 
 But the defects of the Confederation need not be detailed. 
 Under its operation, we could scarcely be called a nation. We 
 had neither prosperity at home nor consideration abroad. This 
 state of things could not be endured, and our present happy 
 Constitution was formed ; but formed in vain, if this fatal doc- 
 trine prevails. It was formed for important objects that are 
 announced in the preamble made in the name and by the 
 authority of the people of the United States, whose delegates 
 framed, and whose conventions approved it. The most im- 
 portant among these objects, that which is placed first in rank, 
 on which all the others rest, is, "to form a more perfect union" 
 Now, is it possible that, even if there were no express pro- 
 vision giving supremacy to the Constitution and laws of the 
 United States over those of the States, it can be conceived that 
 an instrument made for the purpose of "forming a more perfect 
 union " than that of the Confederation, could be so constructed 
 by the assembled wisdom of our country as to substitute for 
 that Confederation a form of government dependent for its 
 existence on the local interest, the party spirit of a State, or of 
 a prevailing faction in a State ? Every man of plain, unso- 
 phisticated understanding, who hears the question, will give 
 such an answer as will preserve the Union. Metaphysical 
 subtlety, in pursuit of an impracticable theory, could alone have 
 devised one that is calculated to destroy it. 
 
 I consider, then, the power to annul a law of the United 
 States, assumed by one State, INCOMPATIBLE WITH THE EXIST- 
 ENCE OF THE UNION, CONTRADICTED EXPRESSLY BY THE 
 LETTER OF THE CONSTITUTION, UNAUTHORIZED BY ITS SPIRIT, 
 INCONSISTENT WITH EVERY PRINCIPLE ON WHICH IT WAS 
 FOUNDED, AND DESTRUCTIVE OF THE GREAT OBJECT FOR 
 WHICH IT WAS FORMED. 
 
 After this general view of the leading principle, we must 
 41*
 
 486 APPENDIX. 
 
 examine the particular application of it which is made in the 
 ordinance. 
 
 The preamble rests its justification on these grounds : It 
 assumes as a fact, that the obnoxious laws, although they pur- 
 port to be laws for raising revenue, were, in reality, intended 
 for the protection of manufactures, which purpose it asserts to 
 be unconstitutional; that the operation of these laws is unequal; 
 that the amount raised by them is greater than is required by 
 the wants of the Government ; and, finally, that the proceeds 
 are to be applied to objects unauthorized by the Constitution. 
 These are the only causes alleged to justify an open opposition 
 to the laws of the country, and a threat of seceding from the 
 Union, if any attempt should be made to enforce them. The 
 first virtually acknowledges that the law in question was passed 
 under a power expressly given by the Constitution to lay and 
 collect imposts ; but its constitutionality was drawn in question 
 from the motives of those who passed it. However apparent 
 this purpose may be in the present case, nothing can be more 
 dangerous than to admit the position that an unconstitutional 
 purpose, entertained by the members who assent to a law 
 enacted under a constitutional power, shall make that law void ; 
 for how is that purpose to be ascertained ? Who is to make 
 the scrutiny ? How often may bad purposes be falsely imputed? 
 in how many cases are they concealed by false professions ? in 
 how many is no declaration of motive made ? Admit this doc- 
 trine, and you give to the States an uncontrolled right to decide, 
 and every law may be annulled under this pretext. If, there- 
 fore, the absurd and dangerous doctrine should be admitted that 
 a State may annul an unconstitutional law, or one that it deems 
 such, it will not apply to the present case. 
 
 The next objection is, that the laws in question operate un- 
 equally. This objection may be made with truth to every law 
 that has been or can be passed. The wisdom of man never yet 
 contrived a system of taxation that would operate with perfect 
 equality. If the unequal operation of a law makes it unconstitu-
 
 APPENDIX. 487 
 
 tional, and if all laws of that description may be abrogated by any 
 State for that cause, then, indeed, is the Federal Constitution 
 unworthy of the slightest effort for its preservation. We have 
 hitherto relied on it as the perpetual bond of our Union. We 
 have received it as the work of the assembled wisdom of the 
 nation. We have trusted to it as to the sheet-anchor of our 
 safety, in the stormy times of conflict with a foreign or domestic 
 foe. We have looked to it with sacred awe as the palladium 
 of our liberties, and, with all the solemnities of religion, have 
 pledged to each other our lives and fortunes here, and our hopes 
 of happiness hereafter, in its defence and support. Were we 
 mistaken, my countrymen, in attaching this importance to the 
 Constitution of our country ? Was our devotion paid to the 
 wretched, inefficient, clumsy contrivance which this new doctrine 
 would make it ? Did we pledge ourselves to the support of an 
 airy nothing a bubble that must be blown away by the first 
 breath of disaffection ? Was this self-destroying, visionary 
 theory, the work of the profound statesmen, the exalted patriots, 
 to whom the task of a constitutional reform was intrusted ? 
 Did the name of Washington sanction, did the States delib- 
 erately ratify, such an anomaly in the history of fundamental 
 legislation ? No. We were not mistaken ! The letter of this 
 great instrument is free from this radical fault ; its language 
 directly contradicts the imputation; its spirit its evident in- 
 tent contradicts it. No, we did not err ! Our Constitution does 
 not contain the absurdity of giving power to make laws, and 
 another power to resist them. The sages, whose memory will 
 always be reverenced, have given us a practical, and, as they 
 hoped, a permanent constitutional compact. The father of his 
 country did not affix his revered name to so palpable an ab- 
 surdity. Nor did the States, when they severally ratified it, 
 do so under the impression that a veto on the laws of the United 
 States was reserved to them, or that they could exercise it by 
 implication. Search the debates in all their conventions 
 examine the speeches of the most zealous opposers of Federal
 
 488 APPENDIX. 
 
 authority look at the amendments that were proposed. They 
 are all silent not a syllable uttered, not a vote given, not a 
 motion made, to correct the explicit supremacy given to the 
 laws of the Union over those of the States or to show that 
 implication, as is now contended, could defeat it. No, we have 
 not erred ! The Constitution is still the object of our rever- 
 ence, the bond of our Union, our defence in danger, the source 
 of our prosperity in peace. It shall descend, as we have re- 
 ceived it, uncorrupted by sophistical construction, to our pos- 
 terity ; and the sacrifices of local interest, of State prejudices, 
 of personal animosities, that were made to bring it into exist- 
 ence, will again be patriotically offered for its support. 
 
 The two remaining objections made by the ordinance to these 
 laws are, that the sums intended to be raised by them are 
 greater than are required, and that the proceeds will be uncon- 
 stitutionally employed. The Constitution has given expressly 
 to Congress the right of raising revenue, and of determining 
 the sum the public exigencies will require. The States have 
 no control over the exercise of this right, other than that which 
 results from the power of changing the representatives who 
 abuse it, and thus procure redress. Congress may undoubtedly 
 abuse this discretionary power, but the same may be said of 
 others with which they are vested. Yet the discretion must 
 exist somewhere. The Constitution has given it to the repre- 
 sentatives of all the people, checked by the representatives of 
 the States, and by the Executive power. The South Carolina 
 construction gives it to the Legislature or the convention of a 
 single State, where neither the people of the different States, 
 nor the States in their separate capacity, nor the Chief Magis- 
 trate elected by the people, have any representation. Which 
 is the most discreet disposition of the power? I do not ask 
 you, fellow-citizens, which is the constitutional disposition 
 that instrument speaks a language not to be misunderstood. 
 But if you were assembled in General Convention, which would 
 you think the safest depository of this discretionary power in
 
 APPENDIX. 489 
 
 the last resort ? Would you add a clause giving it to each of 
 the States, or would you sanction the wise provisions already 
 made by your Constitution ? If this should be the result of 
 your deliberations when providing for the future, are you can 
 you be ready to risk all that we hold dear, to establish, for a 
 temporary and a local purpose, that which you must acknowl- 
 edge to be destructive, and even absurd, as a general provision ? 
 Carry out the consequences of this right vested in the different 
 States, and you must perceive that the crisis your conduct pre- 
 sents at this day would recur whenever any law of the United 
 States displeased any of the States, and that we should soon 
 cease to be a nation. 
 
 The ordinance, with the same knowledge of the future that 
 characterizes a former objection, tells you that the proceeds of 
 the tax will be unconstitutionally applied. If this could be 
 ascertained with certainty, the objection would, with more pro- 
 priety, be reserved for the law so applying the proceeds, but 
 surely cannot be urged against the laws levying the duty. 
 
 These are the allegations contained in the ordinance. Ex- 
 amine them seriously, my fellow-citizens judge for yourselves. 
 I appeal to you to determine whether they are so clear, so con- 
 vincing, as to leave no doubt of their correctness ; and even if 
 you should come to this conclusion, how far they justify the 
 reckless, destructive course, which you are directed to pursue. 
 Review these objections, and the conclusions drawn from them, 
 once more. What are they ? Every law, then, for raising 
 revenue, according to the South Carolina ordinance, may be 
 rightfully annulled, unless it be so framed as no law ever will 
 or can be framed. Congress have a right to pass laws for 
 raising revenue, and each State has a right to oppose their 
 execution two rights directly opposed to each other ; and yet 
 is this absurdity supposed to be contained in an instrument 
 drawn for the. express purpose of avoiding collisions between 
 the States and the General Government, by an assembly of 
 the most enlightened statesmen and purest patriots ever em- 
 bodied for a similar purpose.
 
 490 APPENDIX. 
 
 In vain have these sages declared that Congress shall have 
 power to lay and collect taxes, duties, imposts, and excises ; in 
 vain have they provided that they shall have power to pass 
 laws which shall be necessary and proper to carry those powers 
 into execution ; that those laws and that Constitution shall be 
 the "supreme law of the land ; and that the judges in every 
 State shall be bound thereby, any thing in the Constitution or 
 laws of any State to the contrary notwithstanding." In vain 
 have the people of the several States solemnly sanctioned these 
 provisions, made them their paramount law, and individually 
 sworn to support them whenever they were called on to execute 
 any office. Vain provisions ! ineffectual restrictions ! vile pro- 
 fanation of oaths ! miserable mockery of legislation ! if a bare 
 majority of the voters in any one State may, on a real or sup- 
 posed knowledge of the intent with which a law has been 
 passed, declare themselves free from its operations say here 
 it gives too little, there too much, and operates unequally 
 here it suffers articles to be free that ought to be taxed, there it 
 taxes those that ought to be free -i- in this case the proceeds are 
 intended to be applied to purposes which we do not approve, in 
 that the amount raised is more than is wanted. Congress, it is 
 true, are invested by the Constitution with the right of deciding 
 these questions according to their sound discretion. Congress 
 is composed of the Representatives of all the States, and of all 
 the people of all the States ; but WE, part of the people of one 
 State, to whom the Constitution has given no power on the 
 subject, from whom it has expressly taken it away we, who 
 have solemnly agreed that this Constitution shall be our law 
 we, most of whom have sworn to support it we now abrogate 
 this law, and swear, and force others to swear, that it shall not 
 be obeyed ; and we do this, not because Congress have no right 
 to pass such laws this we do not allege but because they 
 have passed them with improper views. They are unconstitu- 
 tional from the motives of those who passed them, which we 
 can never with certainty know, from their unequal operation ;
 
 APPENDIX. 491 
 
 although it is impossible, from the nature of things, that they 
 should be equal ; and from the disposition which we presume 
 may be made of their proceeds, although that disposition has 
 not been declared. This is the plain meaning of the ordinance 
 in relation to laws which it abrogates for alleged unconstitution- 
 ally. But it does not stop there. It repeals, in express terms, 
 an important part of the Constitution itself, and of laws passed 
 to give it effect, which have never been alleged to be unconsti- 
 tutional. The Constitution declares that the Judicial powers of 
 the United States extend to cases arising under the laws of the 
 United States, and that such laws, the Constitution, and" treaties, 
 shall be paramount to the State Constitutions and laws. The 
 Judiciary Act prescribes the mode by which the case may be 
 brought before a court of the United States, by appeal, when 
 a State tribunal shall decide against this provision of the Con- 
 stitution. The ordinance declares there shall be no appeal; 
 makes the State law paramount to the Constitution and laws of 
 the United States ; forces judges and jurors to swear that they 
 will disregard their provisions ; and even makes it penal in a 
 suitor to attempt relief by appeal. It further declares that it 
 shall not be lawful for the authorities of the United States, or 
 of that State, to enforce the payment of duties imposed by the 
 revenue laws within its limits. 
 
 Here is a law of the United States, not even pretended to be 
 unconstitutional, repealed by the authority of a small majority 
 of the voters of a single State. Here is a provision of the 
 Constitution which is solemnly abrogated by the same authority. 
 
 On such expositions and reasonings the ordinance grounds, 
 not only an assertion of the right to annul the laws of which it 
 complains, but to enforce it by a threat of seceding from the 
 Union, if any attempt is made to execute them. 
 
 This right to secede is deduced from the nature of the Con- 
 stitution, which, they say, is a compact between sovereign 
 States, who have preserved their whole sovereignty, and, there- 
 fore, are subject to no superior ; that, because they made the
 
 492 APPENDIX. 
 
 compact, they can break it when, in their opinion, it has been 
 departed from by the other States. Fallacious as this course of 
 reasoning is, it enlists State pride, and finds advocates in the 
 honest prejudices of those who have not studied the nature of 
 our Government sufficiently to see the radical error on which it 
 rests. 
 
 The people of the United States formed the Constitution, 
 acting through the State Legislatures in making the compact, 
 to meet and discuss its provisions, and acting in separate con- 
 ventions when they ratified those provisions ; but the terms 
 used in its construction show it to be a government in which 
 the people of all the States collectively are represented. We 
 are ONE PEOPLE in the choice of the President and Vice- 
 President. Here the States have no other agency than to 
 direct the mode in which the votes shall be given. The candi- 
 dates having the majority of all the votes are chosen. The 
 electors of a majority of States may have given their votes for 
 one candidate, and yet another may be chosen. The people, 
 then, and not the States, are represented in the Executive 
 branch. 
 
 In the House of Representatives there is this difference, that 
 the people of one State do not, as in the case of President and 
 Vice-President, all vote for the same officers. The people of 
 all the States do not vote for all the members, each State elect- 
 ing only its own Representatives. But this creates no material 
 distinction. When chosen, they are all Representatives of the 
 United States, not Representatives of the particular State from 
 which they come. They are paid by the United States, not by 
 the State ; nor are they accountable to it for any act done in 
 the performance of their Legislative functions ; and, however 
 they may in practice, as it is their duty to do, consult and pre- 
 fer the interests of their particular constituents when they come 
 in conflict with any other partial or local interest, yet it is their 
 first and highest duty, as Representatives of the United States, 
 to promote the general good.
 
 APPENDIX. 493 
 
 The Constitution of the United States, then, forms a govern- 
 ment, not a league ; and whether it be formed by compact 
 between the States, or in any other manner, its character is the 
 same. It is a Government in which all the people are repre- 
 sented, which operates directly on the people individually, not 
 upon the States ; they retained all the power they did not grant. 
 But each State having expressly parted with so many powers 
 as to constitute, jointly with the other States, a single nation, 
 cannot from that period possess any right to secede, because 
 such secession does not break a league, but destroys the unity 
 of a nation ; and any injury to that unity is not only a breach 
 which would result from the contravention of a compact, but it 
 is an offence against the whole Union. To say that any State 
 may at pleasure secede from the Union, is to say that the 
 United States are not a nation ; because it would be a solecism 
 to contend that any part of a nation might dissolve its connec- 
 tion with the other parts, to their injury or ruin, without com- 
 mitting any offence. Secession, like any other revolutionary 
 act, may be morally justified by the extremity of oppression ; 
 but to call it a constitutional right is confounding the meaning 
 of terms, and can only be done through gross error, or to de- 
 ceive those who are willing to assert a right, but would pause 
 before they make a revolution, or incur the penalties consequent 
 on a failure. 
 
 Because the Union was formed by compact, it is said the 
 parties to that compact may, when they feel themselves ag- 
 grieved, depart from it ; but it is precisely because it is a 
 compact that they cannot. A compact is an agreement or 
 binding obligation. It may, by its terms, have a sanction or 
 penalty for its breach, or it may not. If it contains no sanc- 
 tion, it may be broken with no other consequence than moral 
 guilt ; if it have a sanction, then the breach incurs the desig- 
 nated or implied penalty. A league between independent 
 nations, generally, has no sanction other than a moral one ; or, 
 if it should contain a penalty, as there is no common superior, 
 42
 
 494 APPENDIX. 
 
 it cannot be enforced. A Government, on the contrary, always 
 has a sanction, expressed or implied ; and in our case, it is 
 both necessarily implied and expressly given. An attempt by 
 force of arms to destroy a Government, is an offence, by what- 
 ever means the constitutional compact may have been formed ; 
 and such Government has the right, by the law of self-defence, 
 to pass Acts for punishing the offender, unless that right is 
 modified, restrained, or resumed by the constitutional Act. In 
 our system, although it is modified in the case of treason, yet 
 authority is expressly given to pass all laws necessary to carry 
 its powers into effect, and under this grant provision has been 
 made for punishing acts which obstruct the due administration 
 of the laws. 
 
 It would seem superfluous to add any thing to show the nature 
 of that union which connects us ; but, as erroneous opinions on 
 this subject are the foundation of doctrines the most destructive 
 to our peace, I must give some further development to my 
 views on this subject. No one, fellow-citizens, has a higher 
 reverence for the reserved rights of the States than the magis- 
 trate who now addresses you. No one would make greater 
 personal sacrifices, or official exertions, to defend them from 
 violation ; but equal care must be taken to prevent, on their 
 part, an improper interference with, or resumption of, the rights 
 they have vested in the nation. The line has not been so 
 distinctly drawn as to avoid doubts in some cases, of the exer- 
 cise of power. Men of the best intentions and soundest views, 
 may differ in their construction of some parts of the Constitu- 
 tion, but there are others on which dispassionate reflection can 
 leave no doubt. Of this nature appears to be the assumed 
 right of secession. It rests, as we have seen, on the alleged 
 undivided sovereignty of the States, and on their having formed 
 in this sovereign capacity a compact which is called the Consti- 
 tution, from which, because they made it, they have the right to 
 secede. Both of these positions are erroneous, and some of 
 the arguments to prove them so have been anticipated.
 
 APPENDIX. 495 
 
 The States severally have not retained their entire sov- 
 ereignty. It has been shown that, in becoming parts of a 
 nation, not members of a league, they surrendered many of 
 their essential parts of sovereignty. The right to make trea- 
 ties, declare war, levy taxes, exercise exclusive Judicial and 
 Legislative powers, were all of them functions of sovereign 
 power. The States, then, for all these important purposes, 
 were no longer sovereign. The allegiance of their citizens was 
 transferred, in the first instance, to the Government of the 
 United States ; they became American citizens, and owed 
 obedience to the Constitution of the United States, and to laws 
 made in conformity with the powers it vested in Congress. 
 This last position has not been and cannot be denied. How, 
 then, can that State be said to be sovereign and independent, 
 whose citizens owe obedience to laws not made by it, and whose 
 magistrates are sworn to disregard those laws when they come 
 in conflict with those passed by another? What shows con- 
 clusively that the States cannot be said to have reserved an 
 undivided sovereignty is, that they expressly ceded the right to 
 punish treason not treason against their separate power 
 but treason against the United States. Treason is an offence 
 against sovereignty, and sovereignty must reside with the power 
 to punish it But the reserved rights of the States are not 
 less sacred because they have for their common interest made 
 the General Government the depository of these powers. The 
 unity of our political character (as has been shown for another 
 purpose) commenced with its very existence. Under the royal 
 government we had no separate character our opposition to 
 its oppressions began as UNITED COLONIES. We were the 
 UNITED STATES under the Confederation, and the name was 
 perpetuated, and the Union rendered more perfect by the 
 Federal Constitution. In none of these stages did we consider 
 ourselves in any other light than as forming one nation. Trea- 
 ties and alliances were made in the name of all. Troops were 
 raised for the joint defence. How, then, with all these proofs
 
 496 APPENDIX. 
 
 that, under all changes of our position, we had, for designated 
 purposes and with defined powers, created national govern- 
 ments how is it, that the most perfect of those several modes 
 of union should now be considered as a mere league, that may 
 be dissolved at pleasure ? It is from an abuse of terms. Com- 
 pact is used as synonymous with league, although the true term 
 is not employed, because it would at once show the fallacy of 
 the reasoning. It would not do to say that our Constitution 
 was only a league ; but it is labored to prove it a compact, 
 (which in one sense it is,) and then to argue that, as a league 
 is a compact, every compact between nations must of course be 
 a league, and that from such an engagement every sovereign 
 power has a right to recede. But it has been shown that in 
 this sense the States are not sovereign, and that even if they 
 were, and the National Constitution had been formed by com- 
 pact, there would be no right in any one State to exonerate 
 itself from its obligations. 
 
 So obvious are the reasons which forbid this secession, that 
 it is necessary only to allude to them. The Union was formed 
 for the benefit of all. It was produced by mutual sacrifices of 
 interests and opinions. Can those sacrifices be recalled ? Can 
 the States who magnanimously surrendered their title to the 
 territories of the "West recall the grant? Will the inhabitants 
 of the inland States agree to pay the duties that may be im- 
 posed without their assent by those on the Atlantic or the Gulf, 
 for their own benefit ? Shall there be a free port in one State, 
 and onerous duties in another ? No one believes that any right 
 exists in a single State to involve all the others in these and 
 countless other evils, contrary to the engagements solemnly 
 made. Every one must see that the other States, in self-defence, 
 must oppose, at all hazards. 
 
 These are the alternatives that are presented by the conven- 
 tion : a repeal of all the Acts for raising revenue, leaving the 
 Government without the means of support ; or an acquiescence 
 in the dissolution of the Union by the secession of one of its
 
 APPENDIX. 497 
 
 members. - When the first was proposed, it was known that it 
 could not be listened to for a moment. It was known that, if 
 force was applied to oppose the execution of the laws, that it must 
 be repelled by force ; that Congress could not, without involving 
 itself in disgrace, and the country in ruin, accede to the propo- 
 sition ; and yet, if this is not done in a given day, or if any 
 attempt is made to execute the laws, the State is, by the ordi- 
 nance, declared to be out of the Union. The majority of a 
 convention assembled for the purpose have dictated these terms, 
 or rather this rejection of all terms, in the name of the people 
 of South Carolina. It is true that the Governor of the State 
 speaks of the submission of their grievances to a convention of 
 all the States, which, he says, they u sincerely and anxiously 
 seek and desire." Yet this obvious and constitutional mode of 
 obtaining the sense of the other States on the construction of 
 the Federal compact, and amending it, if necessary, has never 
 been attempted by those who have urged the State on this 
 destructive measure. The State might have proposed the call 
 for a general convention to the other States ; and Congress, if 
 a sufficient number of them concurred, must have called it. 
 But the first magistrate of South Carolina, when he expressed 
 a hope that, " on a review by Congress and the functionaries of 
 the General Government of the merits of the controversy," 
 such a convention will be accorded to them, must have known 
 that neither Congress nor any functionary of the General Gov- 
 ernment has authority to call such a convention, unless it be 
 demanded by two thirds of the States. This suggestion, then, 
 is another instance of the reckless inattention to the provisions 
 of the Constitution with which this crisis has been madly 
 hurried on, or of the attempt to persuade the people that a 
 constitutional remedy has been sought and refused. If the 
 Legislature of South Carolina " anxiously desire " a General 
 Convention to consider their complaints, why have they not 
 made application for it in the way the Constitution points out ? 
 42*
 
 498 APPENDIX. 
 
 The assertion that they " earnestly seek " it is completely nega- 
 tived by the omission. 
 
 This, then, is the position in which we stand. A small 
 majority of the citizens of one State in the Union have elected 
 delegates to a State Convention : that Convention has ordained 
 that all the revenue laws of the United States must be repealed, 
 or that they are no longer a member of the Union. The Gov- 
 ernor of that State has recommended to the Legislature the 
 raising of an army to carry the secession into effect, and that 
 he may be empowered to give clearances to vessels in the name 
 of the State. No act of violent opposition to the laws has yet 
 been committed, but such a state of things is hourly appre- 
 hended ; and it is the intent of this instrument to PROCLAIM, 
 not only that the duty imposed on me by the Constitution " to 
 take care that the laws be faithfully executed," shall be per- 
 formed to the extent of the powers already vested in me by 
 law, or of such other as the wisdom of Congress shall devise 
 and intrust to me for that purpose, but to warn the citizens of 
 South Carolina, who have been deluded into an opposition to 
 the laws, of the danger they will incur by obedience to the 
 illegal and disorganizing ordinance of the convention ; to ex- 
 hort those who have refused to support it to persevere in their 
 determination to uphold the Constitution and laws of their 
 country, and to point out to all the perilous situation into which 
 the good people of that State have been led ; and that the course 
 they are urged to pursue is one of ruin and disgrace to the very 
 State whose rights they affect to support. 
 
 Fellow-citizens of my native State ! let me not only admonish 
 you, as the first magistrate of our common country, not to incur 
 the penalty of its laws, but use the influence that a father would 
 over his children whom he saw rushing to certain ruin. In that 
 paternal language, with that paternal feeling, let me tell you, 
 my countrymen, that you are deluded by men who are either 
 deceived themselves or wish to deceive you. Mark under what 
 pretences you have been led on to the brink of insurrection and
 
 APPENDIX. 499 
 
 treason, on which you stand ! First, a diminution of the value 
 of your staple commodity, lowered by over-production in other 
 quarters, and the consequent diminution in the value of your 
 lands, were the sole effect of the tariff laws. The effect of 
 those laws are confessedly injurious, but the evil was greatly 
 exaggerated, by the unfounded theory you were taught to be- 
 lieve, that its burdens were in proportion to your exports, not to 
 your consumption of imported articles. Your pride was roused 
 by the assertion that a submission to those laws was a state of 
 vassalage, and that resistance to them was equal, in patriotic 
 merit, to the opposition our fathers offered to the oppressive laws 
 of Great Britain. You were told that this opposition might 
 be peaceably might be constitutionally made ; that you might 
 enjoy all the ^advantages of the Union, and bear none of its 
 burdens. 
 
 Eloquent appeals to your passions, to your State pride, to your 
 native courage, to your sense of real injury, were used to 
 prepare you for the period when the mask, which concealed the 
 hideous features of DISUNION, should be taken off. It fell, and 
 you were made to look with complacency on objects which, not 
 long since, you would have regarded with horror. Look back 
 at the arts which have brought you to this state look forward 
 to the consequences to which it must inevitably lead ! Look 
 back to what was first told you as an inducement to enter into 
 this dangerous course. The great political truth was repeated 
 to you, that you had the revolutionary right of resisting all 
 laws that were palpably unconstitutional and intolerably oppres- 
 sive : it was added that the right to nullify a law rested on the 
 same principle, but that it was a peaceable remedy ! This 
 character which was given to it, made you receive, with too 
 much confidence, the assertions that were made of the uncon- 
 stitutionality of the law, and its oppressive effects. Mark, my 
 fellow-citizens, that by the admission of your leaders, the un- 
 constitutionality must be palpable, or it will not justify either 
 resistance or nullification ! What is the meaning of the word
 
 500 APPENDIX. 
 
 palpable, in the sense in which it is here used ? that which is 
 apparent to every one ; that which no man of ordinary intellect 
 will fail to perceive. Is the unconstitutionality of these laws 
 of that description ? Let those among your leaders who once 
 approved and advocated the principle of protective duties, 
 answer the question ; and let them choose whether they will be 
 considered as incapable then of perceiving that which must 
 have been apparent to every man of common understanding, or 
 as imposing upon your confidence, and endeavoring to mislead 
 you now. In either case, they are unsafe guides in the peril- 
 ous path they urge you to tread. Ponder well on this circum- 
 stance, and you will know how to appreciate the exaggerated 
 language they address to you. They are not champions of 
 liberty, emulating the fame of our revolutionary fathers ; nor 
 are you an oppressed people, contending, as they repeat to you, 
 against worse than colonial vassalage. You are free members 
 of a flourishing and happy Union. There is no settled design 
 to oppress you. You have, indeed, felt the unequal operation 
 of laws which may have been unwisely, not unconstitutionally 
 passed ; but that inequality must necessarily be removed. At 
 the very moment when you were madly urged on the unfortu- 
 nate course you have begun, a change in public opinion had 
 commenced. The nearly approaching payment of the public 
 debt, and the consequent necessity of a diminution of duties, 
 had already produced a considerable reduction, and that, too, on 
 some articles of general consumption in your State. The im- 
 portance of this change was understood, and you were authori- 
 tatively told that no further alleviation of your burdens was to 
 be expected, at the very time when the condition of the country 
 imperiously demanded such a modification of the duties as 
 should reduce them to a just and equitable scale. But, as if 
 apprehensive of the effect of this change in allaying your 
 discontents, you were precipitated into the fearful state in 
 which you now find yourselves. 
 
 I have urged you to look back to the means that were used
 
 APPENDIX. 501 
 
 to hurry you on to the position you have now assumed, and 
 forward to the consequences it will produce. Something more 
 is necessary. Contemplate the condition of that country of 
 which you still form an important part ? Consider its Govern- 
 ment, uniting in one bond of common interests and general 
 protection so many different States, giving to all their inhabi- 
 tants the proud title of AMERICAN CITIZENS, protecting their 
 commerce, securing their literature and their arts, facilitating 
 their intercommunication, defending their frontiers, and making 
 their name respected in the remotest parts of the earth ! Con- 
 sider the extent of its territory, its increasing and happy 
 population, its advance in arts, which render life agreeable, and 
 the sciences, which elevate the mind ! See education spreading 
 the lights of religion, humanity, and general information into 
 every cottage in this wide extent of our Territories and States ! 
 Behold it as the asylum where the wretched and the oppressed 
 find a refuge and support ! Look on this picture of happiness 
 and honor, and say, WE, TOO, ARE CITIZENS OF AMERICA ; 
 Carolina is one of these proud States ; her arms have defended, 
 her best blood has cemented this happy Union ! And then add, 
 if you can, without horror and remorse, this happy Union we 
 will dissolve ; this picture of peace and prosperity we will 
 deface ; this free intercourse we will interrupt ; these fertile 
 fields we will deluge with blood ; the protection of that glorious 
 flag we renounce ; the very names of Americans we discard. 
 And for what, mistaken men ! for what do you throw away 
 these inestimable blessings for what would you exchange 
 your share in the advantages and honor of the Union ? For 
 the dream of a separate independence a dream interrupted 
 by bloody conflicts with your neighbors, and a vile dependence 
 on a foreign power. If your leaders could succeed in establish- 
 ing a separation, what would be your situation ? Are you 
 united at home are you free from the apprehension of civil 
 discord, with all its fearful consequences ? Do our neighboring 
 republics, every day suffering some new revolution, or contend-
 
 502 APPENDIX. 
 
 ing with some new insurrection do they excite your envy ? 
 But the dictates of a high duty oblige me solemnly to announce 
 that you cannot succeed. 
 
 The laws of the United States must be executed. I have 
 no discretionary power on the subject my duty is emphati- 
 cally pronounced in the Constitution. Those who told you that 
 you might peaceably prevent their execution, deceived you 
 they could not have been deceived themselves. They know 
 that a forcible opposition could alone prevent the execution of 
 the laws, and they know that such opposition must be repelled. 
 Their object is disunion ; but be not deceived by names ; dis- 
 union, by armed force, is TREASON. Are you really ready to 
 incur its guilt? If you are, on the heads of the instigators of 
 the act be the dreadful consequences on their heads be the 
 dishonor, but on yours may fall the punishment on your 
 unhappy State will inevitably fall all the evils of the conflict 
 you force upon the Government of your country. It cannot 
 accede to the mad project of disunion of which you would be 
 the first victims its first magistrate cannot, if he would, avoid 
 the performance of his duty the consequence must be fearful 
 for you, distressing to your fellow-citizens here, and to the 
 friends of good government throughout the world. Its enemies 
 have beheld our prosperity with a vexation they could not 
 conceal : it was a standing refutation of their slavish doctrines, 
 and they will point to our discord with the triumph of malig- 
 nant joy. It is yet in your power to disappoint them. There 
 is yet time to show that the descendants of the Pinckneys, the 
 Sumpters, the Rutledges, and of the thousand other names 
 which adorn the pages of your revolutionary history, will not 
 abandon that Union to support which so many of them fought, 
 and bled, and died. I adjure you, as you honor their memory 
 as you love the cause of freedom, to which they dedicated their 
 lives as you prize the peace of your country, the lives of its 
 best citizens, and your own fair fame, to retrace your steps. 
 Snatch from the archives of your State the disorganizing edict
 
 APPENDIX. 503 
 
 of its convention ; bid its members to reassemble and promul- 
 gate the decided expressions of your will to remain in the path 
 which alone can conduct you to safety, prosperity, and honor ; 
 tell them that, compared to disunion, all other evils are light, 
 because that brings with it an accumulation of all; declare that 
 you will never take the field unless the star-spangled banner of 
 your country shall float over you ; that you will not be stigma- 
 tized when dead, and dishonored and scorned while you live, 
 as the authors of the first attack on the Constitution of your 
 country ! Its destroyers you cannot be. You may disturb its 
 peace you may interrupt the course of its prosperity you 
 may cloud its reputation for stability but its tranquillity will 
 be restored, its prosperity will return, and the stain upon its 
 national character will be transferred, and remain an eternal 
 blot on the memory of those who caused the disorder. 
 
 Fellow-citizens of the United States ! The threat of unhal- 
 lowed disunion the names of those, once respected, by whom 
 it is uttered the array of military force to support it denote 
 the approach of a crisis in our affairs on which the continuance 
 of our unexampled prosperity, our political existence, and per- 
 haps that of all free governments, may depend. The conjunc- 
 tion demanded a free, a full, and explicit enunciation, not only 
 of my intentions, but of my principles of action ; and as the 
 claim was asserted of a right by a State to annul the laws of 
 the Union, and even to secede from it at pleasure, a frank ex- 
 position of my opinions in relation to the origin and form of our 
 Government, and the construction I give to the instrument by 
 which it was created, seemed to be proper. Having the fullest 
 confidence in the justness of the legal and constitutional opinion 
 of my duties which has been expressed, I rely with equal confi- 
 dence on your undivided support in my determination to execute 
 the laws to preserve the Union by all constitutional means 
 to arrest, if possible, by moderate but firm measures, the neces- 
 sity of a recourse to force ; and, if it be the will of Heaven that 
 the recurrence of its primeval curse on man for the shedding of
 
 504 APPENDIX. 
 
 a brother's blood should fall upon our land, that it be not called 
 down by any offensive act on the part of the United States. 
 
 Fellow-citizens ! The momentous case is before you. On 
 your undivided support of your Government depends the de- 
 cision of the great question it involves, whether your sacred 
 Union will be preserved, and the blessings it secures to us as 
 one people shall be perpetuated. No one can doubt that the 
 unanimity with which that decision will be expressed, will be 
 such as to inspire new confidence in Republican institutions ; 
 and that the prudence, the wisdom, and the courage which it 
 will bring to their defence, will transmit them, unimpaired and 
 invigorated, to our children. 
 
 May the great Ruler of nations grant that the signal blessings 
 with which He has favored ours may not, by the madness of 
 party or personal ambition, be disregarded and lost ; and may 
 His wise providence bring those who have produced this crisis 
 to see the folly, before they feel the misery of civil strife ; and 
 inspire a returning veneration for that Union which, if we may 
 dare to penetrate His designs, He has chosen as the only 
 means of attaining the high destinies to which we may reasona- 
 bly aspire. 
 
 In testimony whereof, I have caused the seal of the United 
 
 States to be hereunto affixed, having signed the same with 
 
 my hand. 
 Done at the city of Washington this 10th day of December, 
 
 in the year of our Lord one thousand eight hundred and 
 
 thirty-two, and of the Independence of the United States 
 
 the fifty-seventh. 
 
 ANDREW JACKSON. 
 By the President : 
 
 EDW. LIVINGSTON, Secretary of State.
 
 APPENDIX. 505 
 
 F. p. 465. 
 
 OPINION AS TO THE CONSTITUTIONAL VALIDITY OF THE 
 LAWS OF NEW YORK GRANTING EXCLUSIVE PRIVILEGES 
 OF STEAM NAVIGATION. 
 
 ON considering the case submitted to me on behalf of Mr. 
 Gibbons, I am of opinion that he has a perfect right founded 
 on the documents, of which copies are appended to the case, to 
 navigate his steamboats on all the waters of this State, which it 
 enjoys in common with New Jersey, and which communicate 
 either with a port or place in the State of New York, or empty 
 into the Atlantic Ocean ; and that such right is not taken away, 
 affected, or impaired by the Legislative grant to Messrs. Liv- 
 ingston and Fulton. I should, therefore, advise Mr. Gibbons, 
 instead of making the application he contemplates to the Legis- 
 lature, to bring the questions at issue between him and its 
 grantees, to trial in the courts of the United States. The 
 reasons that govern my opinion I shall briefly state. 
 
 The case of Livingston and Fulton v. Van Ingen and others? 
 (9 Johns. Rep. 507,) furnishes, as I humbly conceive, no infer- 
 ences hostile to the claim of Mr. Gibbons ; but, properly con- 
 sidered, strengthens the arguments which occur to me in support 
 of this right. The great question in that cause was twofold, 
 viz : Whether the grant to Livingston and Fulton was abso- 
 lutely void, as made in contravention of the constitutional powers 
 of Congress, Jtrst, " To promote the progress of science and the 
 useful arts ; " and, secondly, whether it were repugnant to the 
 power vested in Congress " to regulate commerce." 
 
 I. On the first point, the Court decided that the grant was 
 not absolutely void, on two grounds : first, that,, considering 
 Messrs. Livingston and Fulton as inventors, the State had a 
 concurrent right with Congress to reward them as inventors, by 
 the grant of exclusive privileges ; secondly, that, considering 
 them not as inventors, but as possessors and importers of a 
 foreign invention, the State had an independent power to re- 
 43
 
 506 APPENDIX. 
 
 ward them as such ; which power had not been ceded to Con- 
 gress at all. 
 
 It must be borne in mind, that Van Ingen and his associates 
 showed no right or title whatever ; and. for aught that appears, 
 their mode of applying the steam-engine in the navigation of 
 their boats was the same that had already been introduced by 
 Livingston and Fulton. Throughout the whole discussion, the 
 powers of the State were assimilated to the powers of Congress ; 
 and two of the learned judges, by whom opinions were deliv- 
 ered, Mr. Justice Thompson and Mr. Justice Yates, explicitly 
 admit that the State powers can only be legitimately exer- 
 cised in harmony with, and in subordination to, the superior 
 power of Congress. In strict reasoning, therefore, no more can 
 be inferred from the decision of the Court of Errors than that 
 the grant to Livingston and Fulton is so far valid as to secure 
 to them, and their representatives, an exclusive right to that 
 peculiar mode of navigating vessels by steam or fire which they 
 introduced into practice, and of which the Act of March, 1798, 
 states Mr* Livingston to be in possession. Such is the extent of 
 the constitutional power of Congress, to which the State powers 
 are resembled ; and it is only by this limited construction of 
 the grant that the reasoning of the learned judges can be ren- 
 dered applicable and consistent, as it is, then, only that a 
 "collision" between this exercise of the State sovereignty and 
 the constitutional power of Congress can possibly be prevented. 
 Certainly the Court of Errors has not said, nor is there any 
 ground for supposing that it meant to say, that the State, by 
 virtue, either of its concurrent power to reward inventors, or 
 its independent power to reward the importers of foreign inven- 
 tions, can prohibit the introduction and use, within its jurisdic- 
 tion, of all future inventions, although secured by patent, in 
 relation to the same object ; or, by a still more violent stretch 
 of authority, transfer the exclusive right to such inventions 
 from the patentee to the Legislative favorite. Yet, if the terms 
 of the original grant to Messrs. Livingston and Fulton, and of
 
 APPENDIX. 507 
 
 the various laws passed to enlarge and secure that grant, are to 
 be taken in their literal extent, such was to be their operation. 
 
 By the Act of March, 1798, all the privileges granted before 
 to John Fitch and his representatives were transferred to Mr. 
 Livingston. These privileges were " the sole and exclusive 
 right of constructing, making, using, employing, or navigating 
 all, and every species or kind of boats or water-craft, which 
 might be urged or propelled through the waters of this State, 
 by force of fire or steam, in all creeks, rivers, &c., within the 
 territory and jurisdiction of this State." It must be remem- 
 bered, that the grant to Fitch was made previously to the adop- 
 tion of the present Federal Constitution, and before the State 
 had surrendered this portion of its sovereignty to the General 
 Government ; while it remained in full and acknowledged pos- 
 session of the powers to reward genius and skill, and to en- 
 courage and foster navigation and commerce, by the means 
 resorted to in favor of John Fitch. But she had ceded those 
 powers, which, to be effectual, must be exclusive, to the United 
 States, before the monopoly for this is the proper, though 
 odious term, by which such grants should be designated was 
 attempted to be vested in Messrs. Livingston and Fulton. The 
 only limitation of this monopoly of navigation is, that steam or 
 fire be made use of as the propelling force ; and the general 
 terms of the grant comprehend every possible mode of produc- 
 ing and applying that force, which human ingenuity has dis- 
 covered or can invent. 
 
 By the Act of 1808, creating the forfeiture, it is declared 
 that " no person or persons, without the license of the persons 
 entitled to the exclusive right, shall navigate on the waters of 
 this State, or within the jurisdiction thereof, any boat or vessel 
 moved by steam or fire." Thus the introduction into this State 
 of any future invention, however original or valuable, in navi- 
 gating vessels by steam or fire, is in terms prohibited without 
 the sanction of the individuals in whom the right to employ all 
 such inventions is exclusively vested. The very ground on
 
 508 APPENDIX. 
 
 which invention is to work is seized upon and preoccupied, and 
 an exclusive privilege given, which not only prevents the future 
 reward of security to inventors, but, in one important region, 
 would stop the progress of discovery itself. The very elements 
 by which improvements can be made is monopolized, and the 
 occasion snatched from Congress of exercising the power given 
 to it by the Constitution. Now, if this can be done in one 
 State in relation to any one subject, why may it not be done in 
 all, and in relation to all ? Where are we to fix the limit of 
 State power? Why may not the States, respectively, grant 
 monopolies embracing all the possible elements and materials, 
 of which inventions can be framed, and every possible subject 
 upon which ingenuity can operate, and thus anticipate and 
 frustrate, in toto, the exercise of the constitutional power of 
 Congress, to secure an exclusive right to inventors ? 
 
 It may be said that this is an extreme and improbable sup- 
 position. I admit it to be improbable that the States will 
 attempt such an exercise of power ; but it is by extreme cases, 
 or, to speak with more propriety, it is by pursuing a doctrine to 
 its legitimate consequences, that we are frequently best enabled 
 to detect or illustrate its absurdity. If the constitutional power 
 of Congress can be taken away by the grant of a State monop- 
 oly in any case, I am at a loss to conceive why it may not, by 
 similar means, be taken away in all cases. The principle once 
 admitted, the consequence, of necessity, follows. It was affirmed 
 in argument, by one of the learned counsel * by whom the 
 claim of Messrs. Livingston and Fulton was so ably vindicated 
 in the Court of Errors, that the only effect of a patent is to 
 confer on the inventor an exclusive right of property in his dis- 
 covery ; that, at common law, an invention or discovery is 
 convei'ted into a chattel, a subject to which a right of property 
 can attach. The exercise, however, of this right of property 
 is, as it was said, still liable to be controlled and regulated by 
 
 1 The late Thomas Addis Emmet.
 
 APPENDIX. 509 
 
 the municipal laws of the several States, who may prohibit the 
 use of any particular invention, as noxious to the health, inju- 
 rious to the morals, or in any other respect prejudicial to the 
 welfare of its citizens. When I declare that I cannot help 
 entertaining the strongest doubts of the truth and soundness of 
 this doctrine, I must be understood to speak with the utmost 
 diffidence in my own judgment, and with the highest respect for 
 the authority of those by whom the doctrine has been advanced 
 or adopted. It seems to me that Congress possesses exclusively 
 the power to determine whether an invention for which a patent 
 is sought be useful or pernicious ; in other words, whether it 
 be one for which a patent ought or ought not to be granted. 
 The object of the constitutional power of Congress to secure 
 an exclusive right to inventions, is the promotion of the " useful 
 arts." An invention useless or pernicious, it is evident, would 
 not be a proper object for its exercise. Should a patent for 
 such an invention unadvisedly have issued, there can -be no 
 doubt that Congress might repeal the patent, and interdict the 
 use of the noxious discovery. 
 
 The grant of the power in question to Congress wouid, as it 
 appears to me, be completely nugatory, by the admission that 
 the States, in the exercise of an absolute discretion, may pro- 
 hibit the introduction or use of any particular invention, for 
 which a patent has been regularly obtained. Were this con- 
 struction of the Constitution to prevail, the States, it seems to 
 me, would retain, substantially, the very power they nominally 
 have parted with. What is the Constitution ? It is the instru- 
 ment by which the States have severally ceded to the Federal 
 Government a certain portion of their own sovereignty, to be 
 exercised for the common good. The power of securing the 
 exclusive right of inventors is thus given. But if the States 
 not only possess a concurrent power of granting exclusive priv- 
 ileges within their respective limits, but may, in effect, repeal 
 and annul, ad libitum, any and all patents which Congress may 
 have issued, what power, I may ask, in relation to this subject, 
 43*
 
 510 APPENDIX. 
 
 have they parted with ? What portion of their sovereignty, 
 quoad hoc, have they ceded ? The whole value of a patent 
 consists, I apprehend, in the exclusive privilege of using the 
 invention, which it is meant to ascertain and secure. To strip 
 the inventor of this, in order to confer upon him a barren 
 metaphysical right, is not to reward, but to mock and insult 
 him. It may be a good scholastic distinction, but it is very 
 contradictory to common sense to say that a man's right of 
 property is not invaded when his use and enjoyment of it are 
 interdicted. Suppose a State Legislature, jealous of the over- 
 grown and accumulating wealth of some unpopular landlord, 
 should, on the common pretext of the public good, release his 
 tenants, in perpeluum, from the payment of rents, would the 
 lord of the manor of Clermont * consider this no invasion of the 
 right of property, because the fee-simple, technically speaking, 
 would still remain vested in the obnoxious proprietor ? 
 
 It is admitted by those who urge the doctrine against which 
 I am contending, that the States cannot, in direct terms, divest 
 or take away an exclusive right secured by patent. But to 
 prohibit the exercise of such a right within the jurisdiction of 
 a State, and during the whole period for which the patent has 
 =been granted, is, in effect, so far as the power of the State 
 extends, to take away the right itself. There may be a differ- 
 ence in the terms employed, but the injury to the patentee is in 
 both cases precisely the same. Nor can I believe that the 
 Federal Courts would listen to the verbal distinction by which 
 such a usurpation of power is attempted to be justified. It is 
 not iny intention to deny that the States may, by their own 
 Jaws, define and modify the rights of property within their 
 (respective jurisdictions, when such rights have their origin in 
 tTie State or municipal law. I am free to allow, that not only 
 the exercise of those rights may, by the same law, be controlled 
 and regulated, but even that the rights themselves may be 
 
 1 The property of Chancellor Livingston.
 
 APPENDIX. 511 
 
 annulled and destroyed. But it seems to have been forgotten 
 that the right of a patentee is not derived from State authority, 
 but has its foundation in the Constitution and laws of the 
 United States. As the State prohibition of its exercise, in 
 whatever terms expressed, under whatsoever pretext made, 
 however colored and disguised, would, in truth, be a violation 
 of the right itself, I am forced to the conclusion that such a 
 Legislative act would be wholly void, as repugnant to that law 
 which is confessed by all to be supreme and paramount. 
 
 II. I consider the grant to Messrs. Livingston and Fulton as 
 repugnant, also, to that clause of the Constitution of the United 
 States which vests in Congress the power "to regulate com- 
 merce with foreign nations and among the several States ; " 
 which power I regard also as necessarily exclusive. It has 
 been so treated by every department of the Government, and 
 by all classes of citizens, in every quarter of the Union, ever 
 since the adoption of the Federal Constitution. It was to effect 
 this transfer of power that the Constitution owes its origin. 
 This was the express motive for assembling the Federal Con- 
 vention. The exclusive grant of this power was essentially 
 requisite to give to our shipping its nationality and protection ; 
 and the surrender of this power was, in this State, the most 
 formidable obstacle to the ratification of the new Constitution. 
 It possessed the best harbor upon the Atlantic coast ; the fer- 
 tility of its western territory was known ; the rapid increase of 
 its population was confidently anticipated ; the tide of immigra- 
 tion had begun to flow in upon it ; and the consequent accession 
 of wealth and power promised from these sources afforded the 
 most seductive objects to the ambition of its statesmen and 
 politicians. These were the causes, indeed, which combined to 
 delay and resist the adoption of the Constitution in this State, 
 until it became certain that, by the assent of " nine States," it 
 would go into immediate operation among them, while this 
 State and the other recusant members of the old Confederacy 
 would thus be deprived of the benefits both of the former 
 compact, and of the Government by which it was superseded.
 
 512 APPENDIX. 
 
 It remains only to consider in what manner Mr. Gibbons may 
 best avail himself of the rights conferred by his patents and 
 coasting license under the Constitution and laws of the United 
 States. My advice is, that he send his boat into those waters 
 between this State and New Jersey which are claimed as lying 
 within the territorial boundary, as well as the jurisdiction of 
 the former, without confining her navigation to those waters 
 which, though admitted to be within the limits of the latter, 
 yet over which New York claims, nevertheless, exclusive juris- 
 diction. Nor need he be deterred by fear of having his boats 
 seized under the Act of 1811, authorizing Messrs. Livingston 
 and Fulton immediately to seize and keep possession of his 
 property before condemnation, and without trial ; thus giving 
 them the benefit of an execution before the verdict of a jury or 
 the judgment of a Court, and without the intervention of the 
 sheriff; for I hold this monstrous provision to be so clearly 
 repugnant to that fundamental law which man derives from his 
 Creator, and which is paramount to all human authority, that 
 no judge on earth will venture to execute it. 1 
 
 W. A. DUER. 
 
 Albany, July 14, 1816. 
 
 G. p. 176. 
 
 AN ORDINANCE FOR, THE GOVERNMENT OF THE TERRITORY 
 OF THE UNITED STATES NORTHWEST OF THE RIVER 
 OHIO. 
 
 BE it ordained by the United States in Congress assembled, 
 that the said territory, for the purposes of temporary Govern- 
 ment, be one District ; subject, however, to be divided into two 
 Districts, as future circumstances may, in the opinion of Con- 
 gress, make it expedient. 
 
 1 The application of the State Grantees to Chancellor Kent for an 
 order of seizure of Mr. Gibbons's boat, under this statute, was denied, 
 and the Common Law Injunction only was granted. See the case of 
 Gibbons v. Ogden, 10 Wheat. 446.
 
 APPENDIX. 513 
 
 Be it ordained by the authority aforesaid, that the estates 
 both of resident and non-resident proprietors in the said Terri- 
 tory dying intestate, shall descend to, and be distributed among 
 their children, and the descendants of a deceased child, in equal 
 parts ; the descendants of a deceased child or grandchild to 
 take the share of their deceased parent in equal parts among 
 them ; and where there shall be no children or descendants, 
 then in equal parts to the next of kin in equal degree ; and 
 among collaterals, the children of a deceased brother or sister 
 of the intestate shall have in equal parts among them their 
 deceased parents' share ; and there shall in no case be a dis- 
 tinction between kindred of the whole and half blood ; saving 
 in all cases to the widow of the intestate her third part of the 
 real estate for life, and one third part of the personal estate ; 
 and this law relative to descents and dower shall remain in full 
 force until altered by the Legislature of the District. And 
 until the Governor and judges shall adopt laws as hereinafter 
 mentioned, estates in the said territory may be devised or be- 
 queathed by wills in writing, signed and sealed by him or her 
 in whom the estate may be (being of full age) and attested by 
 three witnesses ; and real estates may be conveyed by lease and 
 release, or bargain and sale, signed, sealed, and delivered by 
 the person, being of full age, in whom the estate may be, and 
 attested by two witnesses, provided such wills be duly proved, 
 and such conveyances be acknowledged, or the execution thereof 
 duly proved, and be recorded within one year after proper 
 magistrates, courts, and registers shall be appointed for that 
 purpose ; and personal property may be transferred by de- 
 livery ; saving, however to the French and Canadian inhabi- 
 tants, and other settlers, of the Kaskaskies, St. Vincent's, and 
 the neighboring villages, who have heretofore professed them- 
 selves citizens of Virginia, their laws and customs now in force 
 among them, relative to the descent and conveyance of property. 
 
 Be it ordained by the authority aforesaid, that there shall be 
 appointed from time to time, by Congress, a Governor, whose
 
 514 APPENDIX. 
 
 commission shall continue in force for the term of three years, 
 unless sooner revoked by Congress : he shall reside in the 
 district, and have a freehold estate therein in one thousand 
 acres of land, while in the exercise of his office. 
 
 There shall be appointed from time to time, by Congress, a 
 Secretary, whose commission shall continue in force for four 
 years, unless sooner revoked ; he shall reside in the District, 
 and have a freehold estate therein in five hundred acres of 
 land, while in the exercise of his office ; it shall be his duty to 
 keep and preserve the Acts and laws passed by the Legislature, 
 and the public records of the District, and the proceedings of 
 the Governor in his Executive Department; and transmit au- 
 thentic copies of such Acts and proceedings, every six months, 
 to the Secretary of Congress ; there shall also be appointed a 
 Court, to consist of three judges, any two of whom to form a 
 Court, who shall have a Common Law jurisdiction, and reside 
 in the District, and have each therein a freehold estate in fire 
 hundred acres of land, while in the exercise of their offices ; 
 and their commissions shall continue in force during good be- 
 haviour. 
 
 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 in the District until 
 the organization of the General Assembly therein, unless dis- 
 approved of by Congress ; but afterward the Legislature shall 
 have authority to alter them as they shall think fit. 
 
 The Governor for the time being shall be Coramander-in- 
 Chief of the militia, appoint and commission all officers in the 
 same below the rank of General officers ; all General officers 
 shall be appointed and commissioned by Congress. 
 
 Previous to the organization of the General Assembly, the 
 Governor shall appoint such magistrates and other civil officers, 
 in each county or township, as he shall find necessary for the
 
 APPENDIX. 515 
 
 preservation of the peace and good order in the same ; after 
 the General Assembly shall be organized, the powers and 
 duties of magistrates and other civil officers shall be regulated 
 and defined by the said Assembly ; but all magistrates and 
 other civil officers not herein otherwise directed shall, during 
 the continuance of this temporary Government, be appointed 
 by the Governor. 
 
 For the prevention of crimes and injuries, the laws to be 
 adopted or made shall have force in all parts of the District, 
 and for the execution of process, criminal and civil, the Gover- 
 nor shall make proper divisions thereof; and he shall proceed 
 from time to time, as circumstances may require, to lay out the 
 parts of the District in which the Indian titles shall have been 
 extinguished into counties and townships, subject, however, to 
 such alterations as may thereafter be made by the Legislature. 
 
 So soon as there shall be five thousand free male inhabitants, 
 of full age, in the District, upon giving proof thereof to the 
 Governor, they shall receive authority, with time and place to 
 elect Representatives from their counties or townships to repre- 
 sent them in the General Assembly ; provided that for every 
 five hundred free male inhabitants, there shall be one Represen- 
 tative, and so on progressively with the number of free male 
 inhabitants shall the right of representation increase, until the 
 number of Representatives shall amount to twenty-five ; after 
 which the number and proportion of Representatives shall be 
 regulated by the Legislature : provided that no person be 
 eligible or qualified to act as a Representative unless he shall 
 have been a citizen of one of the United States three years, 
 and be a resident in the District, or unless he shall have resided 
 in the District three years ; and in either case, shall likewise 
 hold in his own right, in fee-simple, two hundred acres of land 
 within the same : provided, also, that a freehold in fifty acres of 
 land in the District, having been a citizen of one of the States, 
 and being resident in the District, or the like freehold, and two 
 years' residence in the District, shall be necessary to qualify a 
 man as an elector of a Representative.
 
 516 APPENDIX. 
 
 The Representatives thus elected shall serve for the term of 
 two years ; and in case of the death of a Representative, or 
 removal from office, the Governor shall issue a writ to the 
 county or township for which he was a member to elect another 
 in his stead, to serve for the residue of the term. 
 
 The General Assembly, or Legislature, shall consist of the 
 Governor, Legislative Council, and a House of Representatives. 
 The Legislative Council shall consist of five members, to con- 
 tinue in office five years, unless sooner removed by Congress, 
 any three of whom to be a quorum ; and the members of the 
 Council shall be nominated and appointed in the following 
 manner, to wit : As soon as Representatives shall be elected, 
 the Governor shall appoint a time and place for them to meet 
 together, and when met, they shall nominate ten persons, resi- 
 dents in the District, and each possessed of a freehold in five 
 hundred acres of land, and return their names to Congress ; 
 five of whom Congress shall appoint and commission to serve 
 as aforesaid ; and whenever a vacancy shall happen in the 
 Council, by death or removal from office, the House of Repre- 
 sentatives shall nominate two persons, qualified as aforesaid for 
 each vacancy, and return their names to Congress, one of whom 
 Congress shall appoint and commission for the residue of the 
 term. And every five years, four months at least before the 
 expiration of the time of service of the members of Council, 
 the said House shall nominate ten persons, qualified as afore- 
 said, and return their names to Congress ; five of whom Con- 
 gress shall appoint and commission to serve as members of the 
 Council five years, unless sooner removed. And the Governor, 
 Legislative Council, and House of Representatives shall have 
 authority to make laws, in all cases, for the good government 
 of the District, not repugnant to the principles and articles in 
 this ordinance established and declared. And all bills having 
 passed by a majority in the House, and by a majority in the 
 Council, shall be referred to the Governor for his assent ; but 
 no bill or Legislative Act whatever shall be of any force with-
 
 APPENDIX. 517 
 
 out his assent. The Governor shall have power to convene, 
 prorogue, and dissolve the General Assembly, when in his 
 opinion it shall be expedient. 
 
 The Governor, Judges, Legislative Council, Secretary, and 
 such other officers as Congress shall appoint in the District, 
 shall take an oath or affirmation of fidelity, and of office ; the 
 Governor before the President of Congress, and all other offi- 
 cers before the Governor. As soon as a Legislature shall be 
 formed in the District, the Council and House, assembled in 
 one room, shall have authority, by joint ballot, to elect a dele- 
 gate to Congress, who shall have a seat in Congress, with a 
 right of debating, but not of voting, during this temporary Gov- 
 ernment. 
 
 And for extending the fundamental principles of civil and 
 religious liberty, which form the basis whereon these republics, 
 their laws and constitutions are erected ; to fix and establish 
 those principles as the basis of all laws, constitutions, and gov- 
 ernments, which forever hereafter shall be formed in the said 
 Territory ; to provide also for the establishment of States, and 
 permanent Government therein, and for their admission to a 
 share in the Federal Councils, on an equal footing with the 
 original States, at as early periods as may be consistent with 
 the general interest : 
 
 It is hereby ordained and declared, by the authority aforesaid, 
 that the following Articles shall be considered as Articles of 
 compact between the original States, and the people and States 
 in the said Territory, and forever remain unalterable, unless by 
 common consent, to wit : 
 
 Article I. No person demeaning himself in a peaceable and 
 orderly manner, shall ever be molested on account of his mode 
 of worship or religious sentiments in the said Territory. 
 
 Art. II. The inhabitants of the said Territory shall always 
 
 be entitled to the benefits of the writ of habeas corpus, and of a 
 
 trial by Jury ; of a proportionate representation of the people 
 
 in the Legislature, and of Judicial proceedings according to the 
 
 44
 
 518 APPENDIX. 
 
 course of the Common Law. All persons shall be bailable, 
 unless for capital offences, where the proof shall be evident, or 
 the presumption great. All fines shall be moderate, and no 
 cruel or unusual punishments shall be inflicted. No man shall 
 be deprived of his liberty or property but by the judgment of 
 his peers or the law of the land ; and should the public exigen- 
 cies make it necessary for the common preservation, to take any 
 person's property, or to demand his particular services, full 
 compensation shall be made for the same. And in the just 
 preservation of rights and property, it is understood and de- 
 clared that no law ought ever to be made, or have force in the 
 said Territory, that shall in any manner whatever interfere 
 with, or affect private contracts or engagements, bond Jide, and 
 without fraud previously formed. 
 
 Art. III. Religion, morality, and knowledge being necessary 
 to good government and the happiness of mankind, schools and 
 the means of education shall forever be encouraged. The 
 utmost good faith shall always be observed towards the Indians ; 
 their lands and property shall never be taken from them with- 
 out their consent ; and in their property, rights, and liberty, 
 they never shall be invaded or disturbed, unless in just and 
 lawful wars authorized by Congress ; but laws founded in 
 justice and humanity shall from time to time be made, for pre- 
 venting wrongs being done to them, and for preserving peace 
 and friendship with them. 
 
 Art. IV. The said Territory, and the States which may be 
 formed therein, shall forever remain a part of this Confederacy 
 of the. United States of America, subject to the Articles of 
 Confederation, and to such alterations therein as shall be con- 
 stitutionally made, and to all the Acts and ordinances of the 
 United States in Congress assembled conformable thereto. The 
 inhabitants and settlers in the said Territory shall be subject to 
 pay a part of the Federal debts, contracted or to be contracted, 
 and a proportional part of the expenses of Government, to be 
 apportioned on them by Congress, according to the same com-
 
 APPENDIX. 519 
 
 mon rule and measure by which apportionments thereof shall 
 be made on the other States ; and the taxes for paying their 
 proportion shall be laid and levied by the authority and direc- 
 tion of the Legislatures of the District or Districts or new 
 States, as in the original States, within the time agreed upon 
 by the United States in Congress assembled. The Legislatures 
 of those Districts or new States shall never interfere with the 
 primary disposal of the soil by the United States in Congress 
 assembled, nor with any regulations Congress may find neces- 
 sary for securing the title in such soil to the bond fide pur- 
 chasers. No tax shall be imposed on lands the property of the 
 United States ; and in no case shall non-resident proprietors be 
 taxed higher than residents. The navigable waters leading 
 into the Mississippi and St. Lawrence, and the carrying places 
 between the same, shall be common highways, and forever free, 
 as well to the inhabitants of the said Territory as to the citizens 
 of the United States, and those of any other States that may 
 be admitted into the Confederacy, without any tax, impost, or 
 duty therefor. 
 
 Art. V. There shall be formed in the said Territory not less 
 than three, nor more than five States ; and the boundaries of 
 the States, as soon as Virginia shall alter her Act of cession, 
 and consent to the same, shall become fixed and established as 
 follows, to wit : The western State in the said Territory shall 
 be bounded by the Mississippi, the Ohio, and Wabash rivers ; 
 a direct line drawn from the Wabash and Post Vincent's due 
 north to the territorial line between the United States and 
 Canada ; and by the said territorial line to the Lake of the 
 Woods and Mississippi. The middle State shall be bounded 
 by the said direct line, the Wabash from Post Vincent's to 
 the Ohio ; by the Ohio, by a direct line drawn due north from 
 the mouth of the Great Miami to the said territorial line, and 
 by the said territorial line. The eastern State shall be bounded 
 by the last-mentioned District line, the Ohio, Pennsylvania, and 
 the said territorial line : Provided, however, and it is further
 
 520 APPENDIX. 
 
 understood and declared, that the boundaries of these three 
 States shall be subject so far to be altered, that if Congress 
 shall hereafter find it expedient, they shall have authority to 
 form one or two States in that part of the said Territory which 
 lies north of an east and west line drawn through the southerly 
 bend or extreme of Lake Michigan. And whenever any of 
 the said States shall have sixty thousand free inhabitants therein, 
 such State shall be admitted, by its delegates, into the Congress 
 of the United States, on an equal footing with the original 
 States, in all respects whatever, and shall be at liberty to form 
 a permanent Constitution and State Government : Provided 
 the Constitution and Government so to be formed shall be 
 republican, and in conformity to the principles contained in 
 these Articles ; and so far as it can be consistent with the 
 general interest of the Confederacy, such admission shall be 
 allowed at an earlier period, and when there may be a less 
 number of free inhabitants in the State than sixty thousand. 
 
 Art. VI. There shall be neither slavery nor involuntary 
 servitude in the said Territory, otherwise than in punishment 
 of crimes, whereof the party shall have been duly convicted : 
 Provided, always, that any person escaping into the same, from 
 whom labor or service is lawfully claimed in any one of the 
 original States, such fugitive may be lawfully reclaimed, and 
 conveyed to the person claiming his or her labor or service as 
 aforesaid. 
 
 Done by the United States, in Congress assembled, the 
 thirteenth day of July, in the year of our Lord one thou- 
 sand seven hundred and eighty-seven, and of their sov- 
 ereignty and independence the twelfth. 
 
 WILLIAM GRAYSON, Chairman. 
 CHARLES THOMSON, Secretary.
 
 APPENDIX. 521 
 
 H. 
 VIRGINIA RESOLUTIONS OF 1798, 
 
 Pronouncing the Alien and Sedition Laws unconstitutional, and defin- 
 ing the rights of the States. Drawn by James Madison. 
 
 In the Virginia House of Delegates, Friday, Dec. 21, 1798. 
 
 Resolved, That the General Assembly of Virginia, doth un- 
 equivocally express a firm resolution to maintain and defend the 
 Constitution of the United States, and the Constitution of this 
 State against every aggression, either foreign or domestic ; and 
 that they will support the Government of the United States in 
 all measures warranted by the former. 
 
 That this Assembly most solemnly declares a warm attach- 
 ment to the Union of the States, to maintain which it pledges 
 its powers ; and that, for this end, it is their duty to watch over 
 and oppose every infraction of those principles which constitute 
 the only basis of that union, because a faithful observance of 
 them can alone secure its existence and the public happiness. 
 
 That this Assembly doth explicitly and peremptorily declare, 
 that it views the powers of the Federal Government, as result- 
 ing from the compact to which the States are parties, as limited 
 by the plain sense and intention of the instrument constituting 
 that compact, as no further valid than they are authorized by 
 the grants enumerated in that compact ; and that in case of a 
 deliberate, palpable, and dangerous exercise of other powers, 
 not granted by the said 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 apper- 
 taining to them. 
 
 That the General Assembly deth also express its deep regret, 
 that a spirit has, in sundry instances, been manifested by the 
 Federal Government, to enlarge its powers by forced construc- 
 tions of the constitutional charter which defines them ; and, that 
 44*
 
 522 APPENDIX. 
 
 indications have appeared of a design to expound certain gen- 
 eral phrases, (which, having been copied from the very limited 
 grant of powers in the former Articles of Confederation, were 
 the less liable to be misconstrued,) so as to destroy the meaning 
 and effect of the particular enumeration which necessarily ex- 
 plains, and limits the general phrases, and so as to consolidate 
 the States by degrees, into one sovereignty, the obvious tendency 
 and inevitable result of which would be, to transform the pres- 
 ent republican system of the United States into an absolute or 
 at best a mixed monarchy. 
 
 That the General Assembly doth particularly protest against 
 the palpable and alarming infractions of the Constitution in the 
 two late cases of the " Alien and Sedition Acts," passed at the 
 last session of Congress ; the first of which exercises a power 
 nowhere delegated to the Federal Government, and which, by 
 uniting Legislative and Judicial powers to those of Executive, 
 subverts the general principles of free government, as well as 
 the particular organization and positive provisions of the Fed- 
 eral Constitution ; and the other of which Acts exercises, in 
 like manner, a power not delegated by the Constitution, but on 
 the contrary, expressly and positively forbidden by one of the 
 amendments thereto ; a power which, more than any other, 
 ought to produce universal alarm, because it is levelled against 
 the right of freely examining public characters and measures, 
 and of free communication among the people thereon, which has 
 ever been justly deemed the only effectual guardian of every 
 other right. 
 
 That this State having by its convention, which ratified the 
 Federal Constitution, expressly declared, that among other 
 essential rights, " the liberty of conscience and the press cannot 
 be cancelled, abridged, restrained, or modified by any authority 
 of the United States," and from its extreme anxiety to guard 
 these rights from every possible attack of sophistry and am- 
 bition, having, with other States, recommended an amendment 
 for that purpose, which amendment was in due time annexed
 
 APPENDIX. 523 
 
 to the Constitution, it would mai'k a reproachful inconsistency 
 and criminal degeneracy, if an indifference were now shown 
 to the most palpable violation of one of the rights thus declared 
 and secured, and to the establishment of a precedent which 
 may be fatal to the other. 
 
 That the good people of this Commonwealth, having ever felt, 
 and continuing to feel the most sincere affection for their brethren 
 of the other States ; the truest anxiety for establishing and 
 perpetuating the union of all ; and the most scrupulous fidelity 
 to that Constitution, which is the pledge of mutual friendship, 
 and the instrument of mutual happiness ; the General Assembly 
 doth solemnly appeal to the like dispositions in the other States, 
 in confidence, that they will concur with this Commonwealth in 
 declaring, as it does hereby declare, that the Acts aforesaid are 
 unconstitutional, and that the necessary and proper measures 
 will be taken by each for cooperating with this State, in main- 
 taining unimpaired the authorities, rights, and liberties, re- 
 served to the States respectively, or to the people. 
 
 That the Governor be desired to transmit a copy of the 
 foregoing resolutions to the Executive authority of each of the 
 other States, with a request that the same may be communicated 
 to the Legislature thereof; and that a copy be furnished to each 
 of the Senators and Representatives representing this State in 
 the Congress of the United States. 
 
 Attest, JOHN STEWART. 
 
 1798, December 24 Agreed to by the Senate. 
 
 H. BROOKE. 
 
 A true copy from the original deposited in the office of the 
 General Assembly. JOHN STEWART, 
 
 Keeper of Rolls.
 
 524 APPENDIX. 
 
 KENTUCKY RESOLUTIONS OF 1798 AND 1799. 
 THE ORIGINAL DRAFT PREPARED BY THOMAS JEFFERSON. 
 
 The following Resolutions passed the House of Representatives of Ken- 
 tucky Nov. 10,1798. On the passage of the first Resolution, one 
 dissentient; 2d, 3d, 4th, 5th, 6th, 7th, 8th, two dissentients ; 9th, three 
 dissentients. 
 
 I. Resolved, That the several States composing the United 
 States of America, are not united on the principle of unlimited 
 submission to their General Government ; but that by compact 
 under the style and title of a Constitution for the United States, 
 and of amendments thereto, they constituted a General Govern- 
 ment for special purposes, delegated to that Government certain 
 definite powers, reserving, each State to itself, the residuary 
 mass of right to their own self-government ; and that, whensoever 
 the General Government assumes undelegated powers, its acts 
 are unauthoritative, void, and of no force ; that to this compact 
 each State acceded as a State, and is an integral party ; that 
 this Government, created by this compact, was not made the 
 exclusive or final judge of the extent of the powers delegated to 
 itself; since that would have made its discretion, and not the 
 Constitution, the measure of its powers ; but that as in all other 
 cases of compact, among parties having no common judge, each 
 party has an equal right to judge for itself, as well of infractions 
 as of the mode and measure of redress. 
 
 II. Resolved, That the Constitution of the United States 
 having delegated to Congress a power to punish treason, coun- 
 terfeiting the securities and current coin of the United States, 
 piracies and felonies committed on the high seas, and offences 
 against the laws of nations, and no other crimes whatever, and 
 it being true, as a general principle, and one of the amendments 
 to the Constitution having also declared, " that the powers not 
 delegated to the United States by the Constitution, nor prohib- 
 ited by it to the States, are reserved to the States respectively, 
 or to the people," therefore, also, the same Act of Congress,
 
 APPENDIX. 525 
 
 passed on the 14th day of July, 1798, and entitled, " An Act in 
 addition to the Act entitled an Act for the punishment of cer- 
 tain crimes against the United States," as also the Act passed 
 by them on the 27th day of June, 1798, entitled " An Act to 
 punish frauds committed on the Bank of the United States," 
 (and all other their Acts which assume to create, define, or 
 punish crimes other than those enumerated in the Constitution,) 
 are altogether void and of no force, and that the power to create, 
 define, and punish such other crimes is reserved, and of right 
 appertains solely and exclusively to the respective States, each 
 within its own territory. 
 
 III. Resolved, That it is true, as a general principle, and is 
 also expressly declared by one of the amendments to the Con- 
 stitution, that " the powers not delegated to the United States 
 by the Constitution, nor prohibited by it to the States, are re- 
 served to the States respectively or to the people ; " and, that 
 no power over the freedom of religion, freedom of speech, or 
 freedom of the press, being delegated to the United States by 
 the Constitution, nor prohibited by it to the States, all lawful 
 powers respecting the same did of right remain, and were 
 reserved to the States or to the people ; that thus was manifested 
 their determination to retain to themselves the right of judging 
 how far the licentiousness of speech and of the press may be 
 abridged without lessening their useful freedom, and how far 
 those abuses which cannot be separated from their use, should 
 be tolerated rather than the use be destroyed ; and thus also 
 they guarded against all abridgment by the United States of 
 the freedom of religious principles and exercises, and retained 
 to themselves the right of protecting the same, as this, stated by 
 a law passed on the general demand of its citizens, had already 
 protected them from all human restraint or interference ; and 
 that, in addition to this general principle and express declara- 
 tion, another and more special provision has been made by one 
 of the amendments to the Constitution, which expressly declares 
 that " Congress shall make no laws respecting an establishment
 
 526 APPENDIX. 
 
 of religion, or prohibiting the free exercise thereof, or abridging 
 the freedom of speech, or of the press," thereby guarding in 
 the same sentence, and under the same words, the freedom of 
 religion, of speech, and of the press, insomuch that whatever 
 violates either, throws down the sanctuary which covers the 
 others, and that libels, falsehood, and defamation, equally with 
 heresy and false religion, are withheld from the cognizance of 
 Federal tribunals. That therefore the Act of the Congress of 
 the United States, passed on the 14th of July, 1798, entitled 
 " An Act in addition to the Act entitled an Act for the punish- 
 ment of certain crimes against the United States," which does 
 abridge the freedom of the press, is not law, but is altogether 
 void and of no force. 
 
 IV. Resolved, That alien friends are under the jurisdiction 
 and protection of the laws of the State wherein they are ; that 
 no power over them has been delegated to the United States, 
 nor prohibited to the individual States distinct from their power 
 over citizens ; and it being true, as a general principle, and one 
 of the amendments to the Constitution having also declared, 
 that " the powers not delegated to the United States by the 
 Constitution, nor prohibited to the States, are reserved to the 
 States respectively, or to the people," the Act of the Congress 
 of the United States, passed the 22d day of June, 1798, enti- 
 tled, "An Act concerning aliens," which assumes power over 
 alien friends not delegated by the Constitution, is not law, but is 
 altogether void and of no force. 
 
 V. Resolved, That in addition to the general principle as 
 well as the express declaration, that powers not delegated are 
 reserved, another and more special provision inferred in the 
 Constitution, from abundant caution has declared, " that the 
 migration or importation of such persons as any of the States 
 now existing shall think proper to admit, shall not be prohibited 
 by the Congress prior to the year 1808." That this Common- 
 wealth does admit the migration of alien friends described as 
 the subject of the said Act concerning aliens ; that a provision
 
 APPENDIX. 527 
 
 against prohibiting their migration is a provision against all acts 
 equivalent thereto, or it would be nugatory ; that to remove 
 them when migrated is equivalent to a prohibition of their 
 migration, and is, therefore, contrary to the said provision of 
 the Constitution and void. 
 
 VI. Resolved, That the imprisonment of a person under the 
 protection of the laws of this Commonwealth on his failure to 
 obey the simple order of the President, to depart out of the 
 United States, as is undertaken by the said Act, entitled " An 
 Act concerning Aliens," is contrary to the Constitution, one 
 amendment in which has provided, that "no person shall be 
 deprived of liberty without due process of law," and, that an- 
 other having provided, " that in all criminal prosecutions, the 
 accused shall enjoy the right to a public trial by an impartial 
 jury, to be informed as to the nature and cause of the accusa- 
 tion, to be confronted with the witnesses against him, to have 
 compulsory process for obtaining witnesses in his favor, and to 
 have assistance of counsel for his defence," the same Act under- 
 taking to authorize the President to remove a person out of 
 the United States who is under the protection of the law, on 
 his own suspicion, without jury, without public trial ; without 
 confrontation of the witnesses against him, without having 
 witnesses in his favor, without defence, without counsel, is con- 
 trary to these provisions also of the Constitution, is therefore 
 not law, but utterly void and of no force. 
 
 That transferring the power of judging any person who is 
 under the protection of the laws, from the Courts to the Presi- 
 dent of the United States, as is undertaken by the same Act 
 concerning aliens, is against the article of the Constitution 
 which provides that " the Judicial power of the United States 
 shall be vested in the Courts, the judges of which shall hold 
 their office during good behavior," and that the said Act is void 
 for that reason also ; and it is further to be noted that this 
 transfer of Judiciary power is to that magistrate of the General 
 Government who already possesses all the Executive, and a 
 qualified negative in all the Legislative powers.
 
 528 APPENDIX. 
 
 VII. Resolved, That the construction applied by the General 
 Government (as is evident by sundry of their proceedings) to 
 those parts of the Constitution of the United States which 
 delegate to Congress power to lay and collect taxes, duties, 
 imposts, excises ; to pay the debts and provide for the common 
 defence and general welfare of the United States, and to make 
 all laws which shall be necessary and proper for carrying into 
 execution the powers vested by the Constitution in the Govern- 
 ment of the United States, or any department thereof, goes to 
 the destruction of all the limits prescribed to their power by the 
 Constitution That words meant by that instrument to be 
 subsidiary only to the execution of the limited powers, ought 
 not to be so construed as themselves to give unlimited powers, 
 nor a part so to be taken as to destroy the whole residue of 
 the instrument : That the proceedings of the General Govern- 
 ment under color of those articles, will be a fit and necessary 
 subject for revisal and correction at a time of greater tran- 
 quillity, while those specified in the preceding resolutions call 
 for immediate redress. 
 
 VIII. Resolved, That the preceding resolutions be trans- 
 mitted to the Senators and Representatives in Congress from 
 this Commonwealth, who are enjoined to present the same to 
 their respective Houses, and to use their best endeavors to pro- 
 cure at the next session of Congress, a repeal of the aforesaid 
 unconstitutional and obnoxious Acts. 
 
 IX. Resolved, lastly^ That the Governor of this Common- 
 wealth be, and is hereby authorized and requested to commu- 
 nicate the preceding resolutions to the Legislatures of the several 
 States, to assure them that this Commonwealth considers union 
 for special national purposes, and particularly for those specified 
 in their late Federal compact, to be friendly to the peace, hap- 
 piness, and prosperity of all the States that faithful to that 
 compact, according to the plain intent and meaning in which it 
 was understood and acceded to by the several parties, it is 
 sincerely anxious for its preservation ; that it does also believe 
 that, to take from the States all the powers of self-government,
 
 APPENDIX. 529 
 
 and transfer them to a general and consolidated Government, 
 without regard to the special delegations and reservations 
 solemnly agreed to in that compact, is not for the peace, happi- 
 ness, or prosperity of these States : And that, therefore, this 
 Commonwealth is determined, as it doubts not its co-States are, 
 to submit to undelegated and consequently unlimited powers in 
 no man or body of men on earth ; that if the Acts before 
 specified should stand, these conclusions would flow from them ; 
 that the General Government may place any act they think 
 proper on the list of crimes and punish it themselves whether 
 enumerated or not enumerated by the Constitution as cogniz- 
 able by them ; that they may transfer its cognizance to the 
 President or any other person, who may himself be the accuser, 
 counsel, judge, and jury, whose suspicions may be the evidence, 
 his order the sentence, his officer the executioner, and his breast 
 the sole record of the transaction ; that a very numerous and 
 valuable description of the inhabitants of these States, being 
 by this precedent reduced as outlaws to the absolute dominion 
 of one man, and the barriers of the Constitution thus swept 
 from us all ; no rampart now remains against the passions and 
 the power of a majority of Congress, to protect from a like 
 exportation or other grievous punishment the minority of the 
 same body, the Legislatures, Judges, Governors, and Counsel- 
 lors of the States, nor their other peaceable inhabitants who 
 may venture to reclaim the constitutional rights and liberties of 
 the States and people, or who, for other causes, good or bad, 
 may be obnoxious to the view or marked by the suspicions of 
 the President, or to be thought dangerous to his or their elec- 
 tions or other interests, public or personal ; that the friendless 
 alien has been selected as the safest subject of a first experi- 
 ment ; but the citizen will soon follow, or rather has already 
 followed, for already has a sedition Act marked him as a prey : 
 That these and successive Acts of the same character, unless 
 arrested on the threshold, may tend to drive these States into 
 revolution and blood, and will furnish new calumnies against 
 45
 
 530 APPENDIX. 
 
 republican governments, and new pretexts for those who wish 
 it to be believed that man cannot be governed but by a rod of 
 iron ; that it would be a dangerous delusion were a confidence 
 in the men of our choice to silence our fears for the safety of 
 our rights ; that confidence is everywhere the parent of despot- 
 ism : free government is founded in jealousy and not in confi- 
 dence ; it is jealousy and not confidence which prescribes limited 
 Constitutions to bind down those whom we are obliged to trust 
 with power ; that our Constitution has accordingly fixed the 
 limits to which and no further our confidence may go ; and let 
 the honest advocate of confidence read the alien and sedition 
 Acts, and say if the Constitution has not been wise in fixing 
 limits to the Government it created, and whether we should be 
 wise in destroying those limits ? Let him say what the Gov- 
 ernment is, if it be not a tyranny which the men of our choice 
 have conferred on the President, and the President of our 
 choice has assented to and accepted over the friendly strangers, 
 to whom the mild spirit of our country and its laws bad pledged 
 hospitality and protection ; that the men of our choice have 
 more respected the bare suspicions of the President than the 
 solid rights of innocence, the claims of justification, the sacred 
 force of truth, and the forms and substance of law and justice. 
 In questions of power, then, let no more be said of confidence 
 in man, but bind him down from mischief by the chains of the 
 Constitution. That this Commonwealth does therefore call on 
 its co-States for an expression of their sentiments on the Acts 
 concerning aliens, and for the punishment of certain crimes 
 hereinbefore specified, plainly declaring whether these Acts are 
 or are not authorized by the Federal compact. And it doubts 
 not that their sense will be so announced as to prove their 
 attachment to limited government, whether general or particular, 
 and that the rights and liberties of their co-estates will be ex- 
 posed to no dangers by remaining embarked on a common 
 bottom with their own : But they will concur with this Com- 
 monwealth in considering the said Acts as so palpably against
 
 APPENDIX. 531 
 
 the Constitution as to amount to an undisguised declaration, that 
 the compact is not meant to be the measure of the powers of 
 the General Government, but that it will proceed in the exer- 
 cise over these States of all powers whatsoever. That they 
 will view this as seizing the rights of the States and consolidat- 
 ing them in the hands of the General Government, with a 
 power assumed to bind the States (not merely in cases made 
 Federal) but in all cases whatsoever, by laws made, not with 
 their consent, but by others against their consent ; that this 
 would be to surrender the form of government we have chosen, 
 and live under one deriving its powers from its own will, and 
 not from our authority ; and that the co-States recurring to their 
 natural rights in cases not made Federal, will concur in declar- 
 ing these void and of no force, and will each unite with this 
 Commonwealth in requesting their repeal at the next session of 
 Congress. 
 
 EDMUND BULLOCK, S. H. R. 
 JOHN CAMPBELL, S. S. P. T. 
 
 Passed the House of Representatives, Nov. 10, 1798. 
 
 Attest, THOS. TODD, C. H. R. 
 
 In Senate, Nov. 13, 1798 Unanimously concurred in. 
 Attest, B. THURSTON, C. S. 
 
 Approved, Nov. 19th, 1798. 
 
 JAMES GARRARD, Governor of Kentucky. 
 By the Governor : HARRY TOULMAN, Sec'y of State.
 
 INDEX. 
 
 Page 
 ADMIRALTY JURISDICTION. 
 
 See DISTRICT COURTS, JUDI- 
 CIAL POWER, &c. 
 
 ADMISSION OP STATES. 
 Power of admitting new States 336 
 Construction given to it . . 344 
 
 ALIENS. 
 
 Who so termed . . . 303 
 Inducements for them to be- 
 come citizens . . . 304 
 Mode prescribed . . . 304 
 Rights acquired thereby . . 305 
 See NATURALIZATION. 
 
 ALLEGIANCE. 
 
 Nature of that due by citizens 
 of the United States . . 302 
 
 AMBASSADORS. 
 
 By whom appointed . .101 
 In what courts they may sue and 
 
 be sued .... 136 
 Power of sending and receiving 227 
 Infringements on their rights, 
 
 how punishable . . . 245 
 
 AMENDMENT OF CONSTITUTION. 
 Necessity of such power . . 342 
 Mode of exercising it . . 343 
 Restrictions upon it . . . 343 
 Amendments adopted . . 343 
 Their nature and design . . 344 
 
 45* 
 
 Page 
 Effect and construction of one 345 
 
 APPEALS. 
 
 See JUDICIAL POWER, SU- 
 PREME COURT, &c. 
 
 APPOINTMENTS. 
 
 Power of, where vested . .101 
 
 Vacancies, how supplied . .103 
 
 What vacancies intended . .103 
 
 ARBITER. 
 
 See JUDICIAL POWER, SU- 
 PREME COURT, &c. 
 
 ARMY AND NAVY. 
 Commander-in-chief of .98 
 Power of raising and equipping 196 
 Necessity and extent of power 197 
 Restrictions on the States re- 
 lating to them . . .197 
 upon Congress . 200 
 
 ARSENALS AND FORTS. 
 See LOCAL JURISDICTION. 
 
 ARTS (USEFUL). 
 See SCIENCE. 
 
 ATTAINDER. 
 
 See BILLS OF ATTAINDER. 
 
 AUTHORS AND INVENTORS. 
 
 See SCIENCE.
 
 INDEX. 
 
 AUXILIARY POWERS. 
 Power to make laws " necessary 
 and proper " to execute other 
 
 powers 389 
 
 Foundation and meaning of it 389 
 Judicial construction of it . 396 
 Implied powers, how delegated 398 
 See POWERS OF GOVERNMENT. 
 
 BANK. 
 
 See CORPORATIONS. 
 
 BANKRUPTCY. 
 
 Power to establish uniform sys- 
 tem 306 
 
 Why vested in National Gov- 
 ernment .... 307 
 Object of bankrupt laws . . 307 
 How distinguished from insol- 
 vent laws .... 307 
 Bankruptcy defined . . . 307 
 To what persons confined . 307 
 Nature of power relative to it . 308 
 Power retained by States . . 309 
 State laws cannot discharge 
 from contracts, except in cer- 
 tain cases . . . .310 
 "Why no uniform system now in 
 force 311 
 
 BILLS OF ATTAINDER. 
 Prohibited to States . 353 
 Definitions of . . . . 354 
 To what cases confined . . 354 
 
 BILLS OF CREDIT. 
 Their issue prohibited to States 349 
 Reasons therefor . . . 349 
 Judicial construction of the 
 power of Congress in relation 
 to them . . . .351 
 
 BORROWING MONEY. 
 Power of, where vested . . 225 
 How conferred .... 225 
 Extent and construction . . 226 
 
 CAPTURES. 
 
 Rules concerning . . .194 
 Power of Congress to make 
 
 them 194 
 
 Nature and extent of the power 194 
 Judicial construction of it .195 
 
 CIRCUIT COURTS. 
 Organization and sessions . 160 
 Legislative regulations of their 
 
 proceedings . . . .161 
 Original and exclusive jurisdic- 
 tion 162 
 
 In regard to crimes and offences 162 
 Original and concurrent juris- 
 diction 163 
 
 In civil suits . . . .163 
 Jurisdiction as to copyrights and 
 
 patents 164 
 
 In cases where United States 
 
 are parties . . . .165 
 Appellate jurisdiction . . 165 
 In what sense "Inferior Courts" 167 
 Proceedings, how to be inter- 
 preted 167 
 
 CITIZENS. 
 
 Who are citizens of the United 
 
 States 300 
 
 Who native citizens . . . 301 
 Persons born within the United 
 
 States, who are not citizens . 301 
 Persons born abroad, who are . 304 
 See ALIENS, ALLEGIANCE, 
 NATURALIZATION, &c. 
 
 ' COASTING LICENSE. 
 See COMMERCE. 
 
 COIN AND COINING. 
 See MONEY, POWERS OF GOV- 
 ERNMENT, &c. 
 
 COMMERCE. 
 
 Power of regulating it with for- 
 eign nations .... 245 
 Where and how vested . . 246 
 Its nature and necessity . . 246 
 To what it extends . . . 247 
 With what exception . . 247 
 Judicial construction of it . 247 
 How far it comprehends navi- 
 gation within a State . . 248 
 To what vessels it extends . 253 
 How far it authorizes sale of 
 
 imported articles . . . 257 
 States, how far restricted from 
 
 preventing such sale . . 257 
 Extends incidentally to other 
 and what objects . . . 258
 
 INDEX. 
 
 535 
 
 Page 
 
 Applied to protection of domes- 
 tic industry .... 258 
 To prohibition of slave-trade . 264 
 Power of regulating commerce 
 
 among the States . . . 276 
 Its general objects and extent . 276 
 How far restricted . . . 277 
 What commerce reserved to 
 
 States . . . 277 
 
 When power of Congress may 
 
 be exercised within a State . 277 
 Judicial construction of this 
 
 power 279 
 
 Applied to incidental objects . 280 
 Restrictions on States . . 280 
 Power of regulating Indian 
 
 trade 281 
 
 How vested and interpreted . 285 
 Extent of its operation . . 285 
 Trade and intercourse with In- 
 dians by individuals, how re- 
 strained .... 285 
 See INDIAN TRIBES. 
 
 COMMON AEBITEK. 
 See JUDICIAL POWER, SU- 
 PREME COURT, &c. 
 
 COMMON LAW. 
 
 How far established in the col- 
 onies 35 
 
 Benefit of, claimed by Congress 35 
 Protects absolute rights . . 36 
 Regulated relative rights of col- 
 onists 37 
 
 Punished offences against pub- 
 lic justice . . . .35 
 How far adopted by States . 38 
 Basis of their laws . . .38 
 State Constitutions made in ref- 
 erence to its validity . . 38 
 Its existence presupposed by 
 
 Constitution of United States 38 
 Referred to for explanation of 
 
 its powers and provisions . 39 
 How far Common Law in force 
 under the Constitution of 
 United States . .42 
 
 CONGRESS. 
 
 How constituted . . .50 
 
 Disabilities of members . . 54 
 
 Their privileges and powers . 54 
 
 Page 
 
 Elections, returns, and qualifi- 
 cations 54 
 
 In what manner these powers 
 
 are exercised . . .60 
 Quorum of each House . . 60 
 Adjournments and journals . 69 
 Freedom of debate . . .69 
 Time and manner of assem- 
 bling 74 
 
 Time and manner of adjourning 74 
 Period of dissolution . . 74 
 See LEGISLATIVE POWER, 
 HOUSE OF REPRESENTA- 
 TIVES, SENATE, &c. 
 
 CONSTITUTION. 
 
 Definition of one . . .26 
 Origin of them . . . .26 
 Where they may exist . . 27 
 When derived from act of the 
 
 Government . . . .27 
 When from written compact . 28 
 Different modes of framing one 28 
 Which most practicable . . 28 
 Which preferable . . .28 
 How obtained . . . .28 
 Theory of a Republican Consti- 
 tution 29 
 
 Advantages of a written one . 30 
 Evils of a traditionary one . 30 
 Reasons for preferring one writ- 
 ten ...... 30 
 
 CONSTITUTION OF UNITED STATES. 
 On what foundation erected . 31 
 On what principles formed . 31 
 From what materials . . 32 
 In what manner adopted . . 32 
 For what objects designed . 43 
 Effect of its adoption on the 
 
 States 43 
 
 Effect of its adoption on the 
 
 former Confederation . . 43 
 Principle of representation, how 
 
 applied in it . . . .43 
 Powers of Government, how 
 
 delegated by it . . .43 
 How to be examined . . 44 
 CONSTITUTIONAL LAW defined 26 
 
 CONSTITUTIONS (STATE). 
 Foundations, how laid . . 31 
 Source of their authority . . 32
 
 536 
 
 INDEX. 
 
 On what principle founded . 33 
 
 Powers of Government, how 
 vested and distributed by them 34 
 
 Former civil and municipal in- 
 stitutions, how far retained . 35 
 
 Natural and moral rights se- 
 cured 36 
 
 See STATE GOVERNMENTS, 
 STATES, &c. 
 
 CONSULS AND VICE-CONSULS. 
 
 By whom appointed . .101 
 In what Courts they may sue 
 
 and be sued or prosecuted . 136 
 See JUDICIAL POWER. 
 
 CONTRACTS. 
 See LAWS IMPAIRING CONTRACTS. 
 
 COPYRIGHT. 
 See SCIENCE. 
 
 CORPORATIONS. 
 
 Grants of, irrevocable . 356 
 Are Contracts within the mean- 
 ing and protection of the Con- 
 stitution .... 366 
 Creation of, incident to sov- 
 ereignty .... 400 
 Nature and extent of power . 400 
 See AUXILIARY POWERS, LAWS 
 IMPAIRING CONTRACTS, &c. 
 
 COUNTERFEITING. 
 
 Power of punishing . . . 293 
 To what objects it extends . 293 
 Nature and necessity of power 294 
 See POWERS OP GOVERNMENT. 
 
 COURTS. 
 
 See IMPEACHMENTS, 
 JUDICIAL POWER, 
 CIRCUIT COURTS, 
 DISTRICT COURTS, 
 STATE COURTS, and 
 MAGISTRATES, and 
 SUPREME COURT. 
 
 DEBTS. 
 See TENDER LAWS. 
 
 DECLARATION OF INDEPENDENCE. 
 See INDEPENDENCE. 
 
 DISTRICT COURTS. 
 
 with 
 
 168 
 168 
 168 
 168 
 168 
 
 169 
 
 How organized 
 Stated and special terms 
 Exclusive jurisdiction 
 Original jurisdiction 
 Admiralty jurisdiction 
 Concurrent jurisdiction 
 
 Circuit Courts 
 Jurisdiction exclusive in certain 
 
 cases of State Courts . .169 
 With respect to patents . .169 
 Power of judge at chambers . 175 
 See JUDICIAL POWER. 
 
 DISTRICT OF COLUMBIA. 
 
 Seat of Government . . 332 
 
 Courts organized therein . . 332 
 
 Privileges of its inhabitants . 333 
 
 Their disabilities . . . 333 
 See LOCAL JURISDICTION. 
 
 DOCK YARDS. 
 See LOCAL JURISDICTION. 
 
 DOMESTIC INDUSTRY. 
 
 Encouraged by protecting du- 
 ties 218 
 
 Upon what construction . . 218 
 
 By whom question of Constitu- 
 tionality must be decided . 222 
 
 Commercial restrictions applied 
 to the purpose . . . 247 
 
 To what extent, and upon what 
 ground of construction . . 247 
 
 How point must be decided . 248 
 
 See COMMERCE, POWERS OF 
 GOVERNMENT, and TAXA- 
 TION and TAXES. 
 
 DUTIES. 
 
 See IMPOSTS AND DUTIES, 
 TAXATION AND TAXES, &c.
 
 INDEX. 
 
 537 
 
 Page 
 
 ELECTORS (OF PRESIDENT AND 
 VICE-PRESIDENT). 
 
 How chosen . . . .86 
 
 Number in each State . . 86 
 
 Requisite qualifications . . 86 
 
 At what time to be chosen . 86 
 
 Time for their assembling . 87 
 Mode of their proceeding to 
 
 election . . . .87 
 Duties subsequent to election . 87 
 See PRESIDENT OP U. S. 
 
 EXECUTIVE POWER. 
 
 General functions . . .28 
 Objects of this department . 76 
 Extent of discretionary power . 76 
 Obligation to obey and enforce 
 
 laws .... .76 
 Requisite qualities . . .78 
 Power apportioned to it . . 78 
 Advantage of its unity . . 80 
 Evils of its division or plurality 80 
 How vested by Constitution of 
 
 United States . . . 80 
 See PRESIDENT OF U. S. 
 
 EXPATRIATION. 
 
 Right of, denied by English 
 law 302 
 
 How regarded by writers on 
 public law . " . . . 303 
 
 How far admitted by State Con- 
 stitutions .... 303 
 
 How far settled in Courts of 
 United States . . . 305 
 
 See NATURALIZATION, &c. 
 
 Ex POST FACTO LAWS. 
 
 Prohibited to States . . . 354 
 Definition and meaning , . 355 
 
 FELONIES (ON THE SEA). 
 
 Power to define and punish . 240 
 To what they amount in effect 243 
 To what extent declared piracy, 
 
 and punished as such . . 243 
 Power, how far exclusive . 243 
 See PIRACY. 
 
 FLEETS. 
 See ARMY AND NAVY. 
 
 FORTS. 
 See LOCAL JURISDICTION. 
 
 Page 
 
 FUGITIVES FROM LABOR. 
 Acts of 1793 and 1850 . 270 
 
 GOVERNMENT. 
 
 Different forms of . . .26 
 Powers of, how divided . . 29 
 How far distinct . . .30 
 Separate Departments . . 32 
 Provincial Governments . . 32 
 How organized . . . 33 
 See CONSTITUTION OF U. S., 
 CONSTITUTIONS (STATE), 
 POWERS OF GOVERNMENT, 
 STATE GOVERNMENTS. 
 
 GUARANTEES. 
 
 Nature, terms, and effect of the 
 
 guarantees to the States . 339 
 Their necessity and extent . 340 
 Republican form of Govern- 
 ment 340 
 
 Protection from invasion . . 341 
 from domestic vio- 
 lence 341 
 
 When to be enforced . . 342 
 
 HABEAS CORPUS. 
 
 Benefit of writ secured 
 By whom to be allowed . 
 
 36 
 153 
 
 HOUSE OF REPRESENTATIVES. 
 
 How constituted . . .53 
 On what principle of represen- 
 tation 53 
 
 Members, how chosen . . 54 
 For what term . . . .54 
 Qualifications of electors . . 54 
 
 of members . 55 
 
 How apportioned among the 
 
 States 55 
 
 Number of Representatives . 56 
 Ratio of representation . . 56 
 Exclusive powers of House of 
 
 Representatives . . .63 
 Money bills . . . .63
 
 538 
 
 INDEX. 
 
 When to choose President of 
 
 United States . . .89 
 Mode of conducting election . 89 
 See CONGRESS, LEGISLATIVE 
 POWER, &c. 
 
 IMPEACHMENTS. 
 
 Nature of power, and where 
 
 vested 63 
 
 Court of Impeachments . . 64 
 
 Impeachments, whence derived 64 
 
 Senate, why selected as court . 65 
 
 Objects of the jurisdiction . 65 
 
 Causes of impeachment . . 65 
 
 Persons liable thereto . . 66 
 Construction of Constitution in 
 
 relation to them . . .66 
 
 Quorum of the Court . . 67 
 
 President of the Court . . 67 
 
 When Chief Justice presides . 67 
 
 Power of presiding officer . 67 
 See JUDICIAL POWER, SENATE, 
 &c. 
 
 IMPLIED POWERS. 
 
 See AUXILIARY POWERS, POW- 
 ERS OF GOVERNMENT, &c. 
 
 IMPOSTS AND DUTIES. 
 
 How far prohibited to States, 
 
 reason and necessity of it .381 
 Judicial construction . . 382 
 See POWERS or GOVERNMENT, 
 TAXATION AND TAXES. 
 
 INDEPENDENCE. 
 
 Effect of its declaration . . 32 
 
 As to persons born previously . 300 
 
 As to citizenship . . . 300 
 
 As to British subjects . . 302 
 
 INDIAN TRIBES. 
 
 Intercourse with, regulated . 281 
 What relations acknowledged . 281 
 Those residing within limits of 
 
 U. S., how considered . . 282 
 How distinguished from " for- 
 eign nations'' . . . 283 
 Relations with European dis- 
 coverers, how determined . 284 
 How far same principle adopted 
 by United States . . .284 
 
 Page 
 
 Practical results . . . 285 
 How considered in treaties and 
 
 laws 285 
 
 Their territory, how regarded . 285 
 See COMMERCE, JUDICIAL 
 
 POWER, &c. 
 
 INTERNAL IMPROVEMENTS. 
 
 Eight of appropriating money 
 
 for, claimed under what power 287 
 How far admitted . . .421 
 See COMMERCE, POST-OFFICES, 
 AND POST-ROADS, &c. 
 
 INTERPRETATION OF CONSTITU- 
 TION. 
 
 Eight of interpreting Constitu- 
 tion, where vested . .127 
 Final interpreter provided . 422 
 See JUDICIAL POWER, 
 
 SUPREME COURT, 
 
 SUPREME LAW. 
 
 JUDICIAL POWER. 
 
 General functions and objects . 28 
 Nature of the power . .111 
 Effect of its omission . .112 
 How far auxiliary to Executive 112 
 How far it partakes of Legisla- 
 tive power . . . .112 
 
 Objects of this department . 112 
 Coextensive with Legislative 
 power . . ... . 112 
 
 How recognized in Constitution 112 
 How vested . . . .113 
 
 In what manner constituted . 113 
 Appointment of judges . . 113 
 Tenure of their offices . .114 
 Advantages of such tenure . 114 
 Provision for their support . 116 
 Necessity of their independence 117 
 Eesponsible for misconduct . 118 
 Objects of jurisdiction . .119 
 Necessity and advantages of it 121 
 As to cases arising under Con- 
 stitution . . . .123 
 
 As to cases arising under the 
 
 laws of the United States . 124 
 As to treaties . . . .125 
 
 As to interpreting Constitution 125 
 Objects of separating judicial 
 from other departments . 130
 
 INDEX. 
 
 539 
 
 Power over Constitutions and 
 
 laws of the States . . .130 
 Power of final interpretation . 130 
 Distribution of jurisdiction . 132 
 Supreme Court . . . 135 
 Appellate jurisdiction . . 135 
 In what cases extended to de- 
 cisions of State Courts . 144 
 Power of United States Courts 
 
 to issue process, &c. . . 145 
 Of judges to relieve by Habeas 
 
 Corpus . . . . .153 
 Circuit Courts . . . .162 
 Judicial Districts . . . 162 
 District Courts . . .168 
 Territorial Courts . . .175 
 State Courts and magistrates . 179 
 See COURTS, POWERS OF GOV- 
 ERNMENT, &c. 
 
 JURISDICTION. 
 
 See COURTS, LOCAL JURISDIC- 
 TION, JUDICIAL POWER, &c. 
 
 LAW. 
 
 See COMMON LAW, SUPREME 
 LAW, &c. 
 
 LAW or NATIONS. 
 
 Power to punish offences against 240 
 How far exclusive . . . 243 
 Part of Common Law of States 243 
 Offences against, what . .245 
 How punishable . . . 245 
 Policy of the law . . .245 
 See JUDICIAL POWER. 
 
 LAWS IMPAIRING CONTRACTS. 
 
 Prohibited to the States . . 355 
 Policy of the restriction . . 356 
 To what contracts it extends . 357 
 Obligation of contracts . . 357 
 Judicial construction of . . 358 
 See POWERS OF GOVERNMENT. 
 
 LEGISLATIVE POWER. 
 
 General functions . . .28 
 How organized in colonies . 31 
 
 in the States . 32 
 
 How vested by Constitution of 
 United States . . .50 
 
 Page 
 
 Constituent parts . . .50 
 Objects of its division . . 50 
 Evils of a single legislative body 51 
 Examples of . . .51 
 
 Further reason for division in 
 Government of the United 
 
 States 52 
 
 Upon what principle effected . 53 
 Objects to which the legislative 
 power of the United States 
 extends . . . .53 
 See CONGRESS, HOUSE OF REP- 
 RESENTATIVES, SENATE, &c. 
 
 LETTERS OF MARQUE. 
 See MARQUE AND REPRISAL. 
 
 LOANS. 
 See BORROWING MONEY. 
 
 LOCAL, JURISDICTION. 
 
 Power of exclusive legislation 330 
 To what places it extends . 331 
 Necessity of such power . .331 
 In what mode executed . .331 
 See DISTRICT OF COLUMBIA, &c. 
 
 MANUFACTURES. 
 See DOMESTIC INDUSTRY. 
 
 MARQUE AND REPRISAL. 
 
 Signification of . . .193 
 
 By what authority granted . 193 
 
 Effect of the grant . . .193 
 
 In what cases granted . .193 
 Nature and necessity of power 194 
 
 Prohibited to States . . 348 
 
 Upon what grounds . . 348 
 
 MILITIA. 
 
 Power of regulating and calling 
 
 forth 201 
 
 Objects of the power . . 202 
 Extent, and cases for its exer- 
 cise 202 
 
 Effect of its exercise on militia 206 
 Mode of their organization, &c. 207 
 By whom " called forth " . 208 
 Who to judge of exigencies . 209 
 Obligation of the States . . 207 
 Duty of State officers . . 207
 
 540 
 
 INDEX. 
 
 Page 
 
 When concurrent power of 
 
 States over militia ceases . 208 
 When militia become National 208 
 
 MINISTERS (PUBLIC). 
 See AMBASSADORS. 
 
 MONET. 
 
 292 
 292 
 293 
 293 
 
 Power of coining 
 
 Regulating value of coins 
 
 How rendered exclusive . 
 
 Its necessity and advantage 
 
 Objects of rendering power ex- 
 clusive 293 
 
 Why prohibited to the States . 348 
 
 See BORROWING MONEY, COINS 
 AND COINING, &c. 
 
 NATURALIZATION. 
 
 Power to establish uniform sys- 
 tem 296 
 
 Necessarily exclusive . . 296 
 Who may be naturalized . . 302 
 Mode of proceeding . . 304 
 Effect of naturalization . . 304 
 See ALIEN CITIZENS, &c. 
 
 NATURAL RIGHTS. 
 
 In what they consist . . 35 
 
 Privileges subordinate thereto . 35 
 
 How secured in colonies . . 36 
 
 in the States . 36 
 
 Additional securities . . 37 
 How recognized and secured 
 by Constitution of United 
 
 States 42 
 
 NAVIGATION. 
 See COMMERCE. 
 
 NAVY. 
 See ARMY AND NAVY. 
 
 NOBILITY. 
 See TITLES OF NOBILITY. 
 
 OATH TO SUPPORT CONSTITUTION. 
 
 By whom to be taken 
 Intention and effect . 
 
 401 
 401 
 
 States cannot discharge from . 403 
 See POWERS OF GOVERNMENT, 
 STATES, &c. 
 
 OBLIGATION OF CONTRACTS. 
 See LAWS IMPAIRING CONTRACTS. 
 
 PASSPORTS. 
 
 See LAW OF NATIONS, POWERS 
 OF GOVERNMENT, &c. 
 
 PATENTS. 
 
 See SCIENCE. 
 
 PIRACY. 
 
 Power to define and punish . 240 
 Exclusive in its nature . . 240 
 Definition of piracy . . . 240 
 Mode of defining it . . . 240 
 Who are deemed pirates by law 
 
 of nations .... 241 
 Jurisdiction exercised over them 241 
 How punished . . . .241 
 Where they may be tried . 242 
 Acts declared piracy by Con- 
 gress 242 
 
 Jurisdiction in such cases . 243 
 Particular acts declared piracy 243 
 How punished .... 243 
 
 POST-OFFICES AND POST-ROADS. 
 
 Power to establish them . . 286 
 How far exclusive . . . 286 
 What power claimed as incident 287 
 How far admitted . . . 287 
 See INTERNAL IMPROVEMENTS. 
 
 POWERS OF GOVERNMENT. 
 
 How distinguished . . .29 
 How to be organized . . 30 
 Consequences of uniting them . 30 
 How distributed in the colonies 31 
 How organized in the States . 32 
 How vested by Constitution of 
 
 United States . . .34 
 Extent of their separation . 37 
 Object of their partial union . 37 
 End thus effected in Govern- 
 ment of United States . . 42 
 Legislative power . . .47 
 Executive power . . .76
 
 INDEX. 
 
 541 
 
 Page 
 
 Judicial power . . . .111 
 Nature of powers vested in Gov- 
 ernment of United States .191 
 Reduced to different classes . 191 
 Powers relative to security from 
 
 foreign danger . . .191 
 Relative to war . . .192 
 
 taxation . .210 
 
 : borrowing money . 225 
 
 foreign intercourse 227 
 
 treaties . . . 227 
 
 ambassadors, &c. . 227 
 
 piracy . . . 240 
 
 felonies at sea . 243 
 
 offences against law 
 
 of nations .... 245 
 
 foreign commerce . 245 
 
 slave-trade . . 264 
 
 intercourse between 
 
 the States . . . .275 
 
 commerce among 
 
 the States . . . .276 
 
 with the Indians . 281 
 
 postofficesand post- 
 roads ..... 286 
 
 coining money, &c. 292 
 
 weights and meas- 
 ures 292 
 
 punishment of coun- 
 terfeiting . . . .293 
 
 State records . . 294 
 
 naturalization . 296 
 
 bankruptcy . . 306 
 
 miscellaneous ob- 
 jects 314 
 
 science and useful 
 
 arts 314 
 
 local jurisdiction . 329 
 
 punishment of trea- 
 son 333 
 
 admission of new 
 
 States 336 
 
 territory and prop- 
 erty . > 338 
 
 ~- guarantees to the 
 
 States 339 
 
 amendment of Con- 
 stitution .... 342 
 Implied and reserved powers . 346 
 Restrictions on the States . 347 
 
 absolute against . 347 
 
 treaties, &c. . . 347 
 
 letters of marque 
 
 and reprisal .... 348 
 
 46 
 
 Page 
 Restrictions on coining money . 348 
 
 bills of credit . .349 
 
 tender laws . .351 
 
 bills of attainder . 353 
 
 Ex post facto laws . 353 
 
 laws impairing con- 
 tracts 353 
 
 Qualified restrictions . . 381 
 upon duties on im- 
 ports, &c 381 
 
 relative to troops 
 
 and ships of war . . . 381 
 compact and agree- 
 ments 381 
 
 engaging in war . 385 
 
 Auxiliary powers . . . 389 
 
 laws " necessary and 
 
 proper" for executing powers 389 
 oath to support Con- 
 stitution of United States . 401 
 declaration of su- 
 preme law .... 405 
 right of final interpre- 
 tation 414 
 
 its ratification by the 
 
 people . . . . .416 
 
 PRESIDENT OF UNITED STATES. 
 
 Qualifications for election . 80 
 Mode of election . . .86 
 For what term elected . . 90 
 Provision for his support . . 106 
 When to be declared elected by 
 
 electors 87 
 
 How appointed when no choice 
 
 by electors . . . .87 
 Commander-in-chief . . 98 
 Reprieves and pardons . . 98 
 Power as to treaties . . .99 
 Nominates to what offices . 101 
 Power of filling vacancies . 103 
 
 as to removal from office 103 
 
 as to convening and ad- 
 journing Congress . .103 
 Duty with respect to ambassa- 
 dors, &c 103 
 
 General duties .... 103 
 Powers and duties . . .103 
 Negative upon laws, &c. . .103 
 Evidence of his refusal to ac- 
 cept, or of his resignation . 108 
 How vacancies in office sup- 
 plied 108
 
 542 
 
 INDEX. 
 
 Liability to impeachment . 
 See EXECUTIVE POWER. 
 
 109 
 
 RATIFICATION OF CONSTITUTION. 
 
 Provision for ratifying Consti- 
 tution 416 
 
 Its nature and effects . . 416 
 Mode of ratification adopted ,418 
 How ratified by people . . 419 
 Assent of States, how implied . 419 
 Consequences of such ratifica- 
 tion 420 
 
 See SECESSION. 
 
 REPRESENTATION. 
 
 On what principle founded in 
 
 government ... 29 
 
 How to be applied . . 29 
 
 In reference to powers of gov 
 
 ernment ... 29 
 
 As to parties delegating them 30 
 Practical exception . . 30 
 
 How far principle prevailed in 
 
 colonial governments . . 31 
 How extended in State Const*- 
 
 tions . . . . .32 
 How applied in Constitution of 
 
 United States .... .42 
 
 REPRESENTATIVES. 
 See HOUSE OF REPRESENTA- 
 
 RESTRICTIONS ON STATES. 
 
 See POWERS OF GOVERNMENT, 
 
 STATES, &c. 
 
 REVENUE. 
 See TAXATION, &c. 
 
 Rl-GHTS. 
 
 See NATURAL RIGHTS. 
 
 SAFE CONDUCTS. 
 
 See LAW OF NATIONS. POWERS 
 OF GOVERNMENT, &c. 
 
 SENATE. 
 
 How constituted . . .60 
 On what principle of represen- 
 tation 60 
 
 Number of Senators . . 60 
 In what manner they vote . 60 
 By whom chosen . . .60 
 Manner of their election . .61 
 For what term elected . . 60 
 Qualifications of Senators . 62 
 Powers exclusive of House of 
 
 Representatives . . .64 
 Why consent of Senate required 
 
 to treaties . . . .67 
 Why associated with President 
 
 in appointing power . . 67 
 When to choose Vice-President 
 
 of United States . .69 
 See CONGRESS, LEGISLATIVE 
 
 POWER, &c. 
 
 SCIENCE. 
 
 Power to promote its progress . 314 
 Foundation, origin, and policy 314 
 Mode in which executed . .317 
 Objects of the power . .317 
 By what construction effected . 318 
 Former State laws . . .319 
 Nature and extent of power 
 
 vested in Congress . . 322 
 Distinction between property of 
 
 authors and that of inventors 326 
 Privileges secured to both . 327 
 Extent and limitation of State 
 
 power in regard to them . 327 
 See POWERS OF GOVERNMENT. 
 
 SECESSION. 
 
 Whether States may secede 
 
 from the Union . . .418 
 Consequences of secession . 423 
 See POWERS OF GOVERNMENT, 
 STATES, &c. 
 
 SLAVE-TRADE. 
 
 Power of prohibiting . . 264 
 How executed by Congress . 265 
 See POWERS OF GOVERNMENT. 
 
 STATE COURTS AND MAGISTRATES. 
 See JUDICIAL POWER. 
 
 STATE GOVERNMENTS. 
 
 Power over militia . . . 208 
 Jurisdiction of offences against 
 
 laws of nations 
 
 242
 
 INDEX. 
 
 543 
 
 Powers reserved to them . . 255 
 Subordinate to Union . . 256 
 Restricted as to imposts, &c. . 258 
 
 commerce . 258 
 
 Concurrent power of legislation 
 
 in certain cases with Congress 258 
 Restrictions as to preventing 
 
 sale of imported articles . 258 
 Restrictions as to protecting 
 
 duties 258 
 
 Regulation of internal com- 
 merce 275 
 
 Effect of their collision with 
 
 powers of Union . . .277 
 Power in cases of bankruptcy 
 and insolvency . . . 306 
 
 to promote science, &c. 314 
 
 of punishing treason . 333 
 
 Guarantee of Republican Gov- 
 ernment .... 339 
 Power as to amendment of Con- 
 stitution of United States . 342 
 Restrictions on their powers . 347 
 Restricted as to war . . 381 
 Cannot discharge individuals 
 from their allegiance to the 
 United States . . .403 
 Assent of State Governments to 
 
 Constitution of United States 405 
 States cannot annul or abrogate 
 
 the Federal powers . .411 
 See CONSTITUTIONS (STATE), 
 POWERS OF GOVERNMENT, 
 STATES, &c. 
 
 STATE RECORDS. 
 
 Power of Congress in relation 
 
 to them . . . .294 
 Their effect in other States . 295 
 Effect of judgments of State 
 Courts as evidence in other 
 States 295 
 
 STATES. 
 
 Powers reserved to them . . 255 
 Their jurisdiction, how far su- 
 perseded in maritime cases . 274 
 Preservation of harmony among 275 
 Commerce among them regu- 
 lated 277 
 
 Internal concerns, how far af- 
 fected by Constitution of 
 United States . . .279 
 Internal commerce of . 280 
 
 Page 
 
 Proof and effect of their records 294 
 Their powers, how affected by 
 collision with those of Con- 
 gress 294 
 
 Citizens of the several States . 297 
 Treason against a State . . 333 
 Admission of new States . 336 
 Guarantees to the States . . 339 
 Reserved rights . . . 345 
 Restrictions on their power _ 347 
 Bound by whose construction 
 of the Constitution of United 
 
 States 410 
 
 No discretion as to organizing 
 Government of the United 
 
 States 415 
 
 Cannot secede from Union . 417 
 See CONSTITUTIONS (STATE), 
 POWERS OF GOVERNMENT, 
 STATE GOVERNMENTS. 
 
 SUPREME COURT. 
 
 Judges recognized in Constitu- 
 tion, &c 113 
 
 Tenure of their offices . .114 
 Court created by Constitution 135 
 
 organized by law . . 135 
 
 Number of judges . .. .135 
 Number to form quotum . .135 
 Terms of the Court . .135 
 
 Jurisdiction, original . .135 
 
 appellate . .136 
 
 exclusive . .138 
 
 In cases against ambassadors, 
 
 &c 136 
 
 where a State is a party 139 
 
 In suits by a State . . .139 
 Concurrent jurisdiction . .139 
 In suits by ambassadors . . 143 
 Where a State is a party . . 143 
 Whether original jurisdiction is 
 
 in all cases exclusive . . 143 
 Jurisdiction as to Indians . 141 
 Mode of exercising appellate 
 
 jurisdiction .... 142 
 Writs of error and appeals . 144 
 In what cases allowed . .144 
 From judgments of what Courts 148 
 Restrictions on the right . . 148 
 Proceedings in case of reversal 148 
 Regulations respecting writs of 
 
 errors and appeals . .151 
 Judicial construction in regard 
 
 to them . . . 152
 
 544 
 
 INDEX. 
 
 Page 
 
 Exceptions from appellate juris- 
 diction 149 
 
 Appeals from State Courts . 150 
 Superintending power over in- 
 ferior courts . . . .152 
 See JUDICIAL POWER. 
 
 SUPREME LAW. 
 
 Declared by Constitution . 405 
 Effect of conflict between Fed- 
 eral and State powers . . 406 
 Duty of Courts in such cases . 410 
 States bound by interpretation 
 of Constitution by Supreme 
 Court of the United States . 410 
 
 TAXATION AND TAXES. 
 
 Power of levying taxes . .210 
 Its objects and purposes . .211 
 Its necessity and extent . .211 
 Where vested, and in what 
 
 terms 211 
 
 How qualified in its exercise . 212 
 Subjects of taxation . .212 
 In what sense term " Taxes" 
 
 used ..... 213 
 Different kind of taxes . .213 
 Importance of distinguishing 
 
 them 213 
 
 Judicial construction of power 215 
 Restrictions on States respect- 
 ing it 381 
 
 Judicial construction thereof . 382 
 See LEGISLATIVE POWER, POW- 
 ERS OF GOVERNMENT, &c. 
 
 TENDER LAWS. 
 
 How far prohibited to States . 347 
 What allowed as legal tender in 
 
 payment of debts . . . 347 
 See POWERS OF GOVERNMENT. 
 
 TERRITORIAL COURTS. 
 
 Where established . . .175 
 Tenure of judges . . .176 
 Courts there, how organized . 176 
 -Jurisdiction vested in the sev- 
 eral Courts . . . .177 
 Special jurisdiction of certain 
 Territorial Courts . 177 
 
 TERRITORIAL REGULATIONS. 
 
 Power of disposing of and reg- 
 ulating territory and other 
 property of the Union . . 338 
 Condition annexed to it . . 338 
 Construction of power . . 338 
 See POWERS OF GOVERNMENT. 
 
 TITLES OF NOBILITY. 
 
 Power of granting, prohibited 
 to the States . . .347 
 
 TREASON. 
 
 Power to declare its punish- 
 ment 333 
 
 Treason against United States 
 
 defined 334 
 
 Evidence requisite to convict . 335 
 Judicial constructions . . 335 
 Treason against a State . . 335 
 Effect of a confession . . 335 
 Punishment of treason against 
 United States . . . 336 
 
 TREATIES. 
 
 Nature of power to make . . 227 
 To what extent declared su- 
 preme law .... 230 
 How and where the power is 
 
 vested 230 
 
 How treaties are to be con- 
 strued 235 
 
 How defined by law of nations 235 
 How regarded by Courts of 
 
 United States . . .235 
 Their effect and operation . 235 
 Power of Congress over them 238 
 Obligation of treaties . . 235 
 Extent of the power . . 235 
 Interpretation of treaties . 236 
 Consequences of their violation 237 
 Effect of partial violations . 237 
 How such effect prevented . 237 
 Power of annulling treaties . 230 
 Effect of its exercise . . 230 
 States restricted in regard to 
 
 them 347 
 
 See POWERS OF GOVERNMENT, 
 PRESIDENT OF U. S.. SEN- 
 ATE, &c.
 
 INDEX. 
 
 545 
 
 VICE-PRESIDENT OF U. S. 
 
 His powers in cases of impeach- 
 ment 67 
 
 How chosen, and qualifications 89 
 For what term elected . . 90 
 How appointed in case of no 
 
 choice by electors . . .87 
 His duties as President of Senate 87 
 When to act as President of 
 
 United States . . .90 
 Evidence of his refusal to ac- 
 cept 108 
 
 How long he continues to act 
 as President of United States 109 
 
 WAR. 
 
 Whence right of declaring it 
 derived 191 
 
 Page 
 
 Causes of war . . . .192 
 Forms of declaring it . . 192 
 Power of declaring it, where 
 
 vested 192 
 
 In what mode declared . .193 
 Effect of declaration . .193 
 " Levying war " what . . 334 
 
 WEIGHTS AND MEASURES. 
 
 Power to fix standards . . 292 
 How far exclusive . . . 292 
 
 WRITS OF ERROR. 
 See SUPREME COURT. 
 
 ERRATA. 
 
 Page Line 
 
 ii, 13, for "judicial," read juridical, 
 viii, 31, for " amorphy," read atrophy, 
 xii, note 2, for " this," read the. 
 xiv, 13, between " the " and " work," insert original. 
 
 41, 12, for " authorize," read authorizes. 
 
 80, 15, for " costs," read evils. 
 
 96, 5, for " departments," read department. 
 171, note, for " Act," read Art. 
 182, 9, for " it," read they. 
 219, 31, dele " awkward." 
 247, note, for " 19," read 10. 
 267, 4, for " repeated," read repealed. 
 279, , dele 1st note. 
 
 297, 5, between " to " and " another," insert those of. 
 308, 2, before " or," insert N. 
 375, 29, between " that " and " the," insert if. 
 380, note 24, dele " not." 
 389, note dele " to xviii," and insert 18.
 
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