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A COURSE OF LECTURES 
 
 CONSTITUTIONAL 
 
 JURISPRUDENCE 
 
 UNITED STATES, 
 
 !>«»-* IVERED ANNUALLY IN COLUMBIA COLLEGE, 
 NEW-YORK. 
 
 V^iLLIAM ALEXANDER DUER, LL.D., 
 
 LATE PRESIDENT OF THAT INSTITUTION. 
 
 mir' 
 
 HARPER & BROTHERS, PUBLISHERS, 
 
 329 ± 331 PEAUL STREET, 
 FRANKLIN SQUARE. 
 
 1S74. 
 
r^ 
 
 
 Entered, according to Act of Congress, in the year 1843, by 
 
 Harper & Brothers, 
 In the Clerk's Office of the Southern District c f New-Yoju. 
 
JAMES KE 
 
 
 My dear Sir, 
 Relying for forgiveness upon " an uninterrupted pos* 
 session''^ of your friendship " of more than twenty/ years, 
 under colour,'" 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 exprj^ss 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 Feder- 
 alist," 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 source. And although 
 the responses of that great oracle of the Constitution 
 have ceased, yet may we hope that the inspiration 
 will not be withdrawn while your corresponding ad- 
 judications and opinions shall be quoted as authority 
 in the court wherein he so long and auspiciously pre- 
 sided. 
 
iV DEDICATION. 
 
 That you may continue, my dear sir, lo enjoy to 
 the last the same vigour 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 your faithful, constant, and 
 hereditary* friend, 
 
 W. A DuERo 
 
 Morristown, N. /., May 1, 1843. 
 
 * See Appendix Ik 
 
PREFACE. 
 
 In submitting the following work to the public, 
 there seems a necessity, as well as a propriety, in of- 
 fering 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 pub- 
 lication consists substantially of the course of Lec- 
 tures on the Constitutional Jurisprudence of the Uni 
 ted States, delivered annually to the Senior Class in 
 Columbia College, while he had the honour of pre- 
 siding in that venerable and noble institution. The 
 " Outlines" of those Lectures were published some 
 years ago, at the request of " The American Lyce- 
 um," an association consisting principally of persons 
 engaged in the practical duties of instruction, who 
 conceived that the study of our national Constitu- 
 tion 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 prepara- 
 tion ; which were, fitness as a text-book for lectu- 
 rers, a class-book for academies and common schools, 
 and a manual for popular use. Except, therefore, 
 * as to method and arrangement," as was observed 
 
VI PREFACE. 
 
 in issuing it from the press, " there could be little 
 scope for originality in a work of which the essen- 
 tial value must depend on the fidelity with which the 
 provisions of the Constitution, the legislative enact- 
 ments for giving it effect, and the judicial construc- 
 tion which both have received, are stated and ex- 
 plained." The same remark may be repeated in ref- 
 erence to the present publication, and a similar dis- 
 claimer made as to its pretensions to originality. On 
 the present occasion the author has again " implicit- 
 ly followed those guides, whose decisions are obli- 
 gatory 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 nei- 
 ther been presented for judicial determination, nor re- 
 ceived an approved practical construction from the 
 other branches of the government, he has had re- 
 course to those elementary writers whose opinions 
 are acknowledged to possess the greatest weight, ei- 
 ther from their intrinsic value, or their conformity 
 with the general doctrines of the authoritative ex- 
 pounders of the Constitution ; and in the absence ol 
 both authority and disquisition, he has ventured to 
 rely on his own reasonings, and has advanced his 
 own opinions so far only as he conceives them to be 
 confirmed by undeniable principles, or established by 
 analogous cases." 
 
 The remaining sources drawn from on that occa- 
 uion, have been resorted to again ; and he now re^ 
 
PREFACE. Vi: 
 
 peats llie acknowledgment of his obligations, not onlv 
 to the illustrious triumvirate whose combined labours 
 were bestowed on the " Federalist," to Chief-jus- 
 tice Marshall, 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 Sto- 
 ry. The same observation may be 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 per- 
 petual obligation of the Federal Constitution. On 
 both these important points the author still adheres 
 to principles more favourable, 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 par- 
 ties — by the author of the celebrated Proclamation of 
 President Jackson against the anti-federal proceed- 
 ings in South Carolina, and the speeches of Mr. 
 Webster 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, and virtually upon the other, by his affirm- 
 ance of principles which it involves, and by which 
 Its decision must eventually be governed. 
 
 In again referring to the venerated name of Chief- 
 
Vm PREFACE. 
 
 justice Marshall, the author can but rei««,rate 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 reasonings 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 * Thf, Federalist,' so it may be regarded as 
 one of the most signal advantages attending its ca- 
 reer, that its principles should have been developed 
 and reduced to practice under a judicial administra- 
 tion so admirably qualified, in every respect, to ex- 
 pound 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, which was the exemplar of his own ad- 
 ministration ; and to obtain, as we may hope, from 
 the favour of his God, the reward due to his public 
 services and private worth. There needs no monu- 
 iient 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 ornttment and the boast. But if 
 to designate the spot of earth consecrated to his re- 
 mains a tablet be required, let it be as simple and 
 
PREFACE. IX 
 
 massive as was his mind^ and let it be inscribed, 
 *'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 tlic 
 Constitution, and sole remaining luminary of thai 
 bright constellation of genius and talent, which, in 
 vindicating that instrument from the objections of its 
 first assailants, succeeded in recommending it to the 
 adoption of the people ; he who, in discharging the 
 highest duties of its administration, proved the sta 
 bility and excellence of the Constitution in war as 
 well as in peace, and determined the experiment in 
 favour of Republican institutions and the right of self- 
 government ; and, in his retirement, raised a warning 
 voice against heresies in the construction of the na- 
 tional compact, which, for a moment, threatened to 
 overthrow it — has also disappeared from among us, 
 full of years and honours. The enumeration of such 
 services recalls the name of Madison ; and great as 
 were those services, honoured as was that name, the 
 brightest glory that attends them both springs from 
 the association of his genius, his learning, and his 
 labours, with those of his once kindred spirits, Ham- 
 ilton and Jay. *'Vita enim mortuorum, vi unitafor- 
 tioTy in memoria vivonim est posita,''^ 
 
 Morristown, N. J. Ist May, 1843. 
 
 B 
 
ANALYSIS. 
 
 kntrodtiction. 
 { Detmhion aM 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, ap- 
 plied, 
 
 1. To the powers of Government; which are, 
 
 1. The Legislative. 
 
 2. The Executive. 
 
 3. The Judicial. 
 
 2. To the persons represented in the Govern- 
 ment. 
 
 I) Foundations of representative Governments were laid, 
 
 1. Partially, in the British Colonies, in which were es- 
 tablished, 
 
 1. Royal Governments. 
 
 2. Proprietary Governments. 
 
 2. Universally, in the American States, upon the estab- 
 lishment 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 equiva- 
 lents for, natural rights. 
 
 III. The same fundamental principles were recognised 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 Govern- 
 ment, as the Constitution of the United States contains, 
 
XU ANALYSIS. 
 
 1. A general delegation of the Legislative, Execu- 
 tive, and Judicial powers to distinct departments; 
 and, 
 
 2. Defines the powers and duties of each department 
 respectively. 
 
 OUTLINES of that branch of Jurisprudence which treats of 
 the principles, powers, and construction of the Constitution, 
 are therefore to be traced. 
 First. With regard to the particular structure and or- 
 ganization of the Government. 
 Second. In relation to the powers vested in it, and the 
 restraints imposed on the States. 
 T. Of the structure and organization of the Govern- 
 ment, and the distribution of its powers among 
 its several departments. 
 i. 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 dur-ation of 
 his appointment, and the provision for his sup- 
 port. 
 
 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. 
 
 3. The manner in which its jurisdiction is distrib- 
 uted. 
 
 L 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 Ma- 
 gistrates by laws of the United States. 
 
 II. Of the nature, extent, and limitation of the power's 
 vested in the National Government, and the re- 
 straints imposed on the States, reduced to diflerent 
 classes^ as they relate, 
 1. To scciffity from Ibreign danger; which class com- 
 preheiids the powers, 
 
ANALYSIS. XUI 
 
 1. Of declaring war, and granting letters of marque 
 
 and reprisal. 
 •2. Of naaking 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. 
 
 , To intercourse with foreign nations ; comprising the 
 powers, 
 
 1. To make treaties, and to send and receive am- 
 bassadors and other public ministers and con- 
 suls. 
 
 2. To regulate foreign commerce, including the 
 power to prohibit the importation of slaves. 
 
 3. To define and punish piracies and felonies com- 
 mitted on the high seas, and offences against the 
 laws of nations. 
 
 To the maintenance of harmony and proper inter- 
 course among the States, including the pow- 
 ers, 
 
 1. To regulate commerce among the several 
 States, and with the Indian tribes. 
 
 2. To establish postoffices and postroads, 
 
 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 U. States. 
 
 t». To establish a uniform rule of naturalization. 
 
 6. To establish uniform laws on the subject of 
 bankruptcies. 
 
 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. 
 
 To certain miscellaneous objects of genera] utility ; 
 comprehending the powers, 
 
 1. To promote the progress cf science and the 
 useful arts. 
 
 2. To exercise exclusive legislation over the dis- 
 trict within which the seat of government should 
 be permanently 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. 
 
XIV ANALYSIS. 
 
 4. To admit new States into the Union. 
 
 5. To dispose of, and make all needful rules and 
 regulations respecting, the -territory and other 
 property of the United States. 
 
 6. To guaranty to every State in the Union a re- 
 publican form of government, and to protect 
 each of them from invasion and domestic vio- 
 lence. 
 
 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 
 confederation. 
 
 2. Granting letters of marque and reprisal. 
 
 3. Coining money, emitting bills of credit, 
 or making anything but gold or silver coin 
 a lawful tender in payment of debts. 
 
 4. Passing any bill of attainder, expostfacU 
 law, or law impairing the obligation of con- 
 tracts. 
 
 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, oi 
 duties on tonnage. 
 
 2. Keeping troops or ships of war in time ol 
 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 ad- 
 mit delay. 
 
 i\ To the provisions for giving efficacy to the powers 
 vested in the Government of the United States; 
 consisting of, 
 
 1. The power of making aL laws necessary and 
 proper for carrying into execution the othei 
 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 
 
ANALYSIS. XV 
 
 and Judicial departments, and particulaiy the 
 provision extending the jurisdiction of the latter 
 *o all cases arising under the Constitution, 
 
 4. The requisition upon the Senators and Repre- 
 sentatives in Congress; the members of the 
 State Legislatures; and all Executive and 
 Judicial officers of the United States and of the 
 several States, to be bound by oath or affirma- 
 tion to support the Constitution of the United 
 States. 
 
 5. The provision that the ratifications of the Con- 
 ventions of nine States should be sufficient for 
 the establishment of the Constitution between 
 the States ratifying the san' e. 
 
 Conclusion. 
 
CONTENTS. 
 
 Fag« 
 
 Dedication , lii 
 
 Preface v 
 
 Analysis ... . . , xi 
 
 LECTURE I. 
 Introductory .19 
 
 LECTURE IL 
 Fundamental Principles of the Constitution ... 41 
 
 LECTURE m. 
 On the Legislative Power 59 
 
 LECTURE IV. 
 On the Executive Power 81 
 
 LECTURE V. 
 On the Judicial Power 110 
 
 LECTURE VL 
 
 On the Distribution of the Judicial Power among the several 
 Courts . . 125 
 
 LECTURE VII. 
 On the Powers vested in the Federal Go\ernment relative to 
 Security from Foreign Danger 150 
 
 LECTURE VIIL 
 On the Powers vested in the Federal Government for regula- 
 ting Intercourse with Foreign Nations . . . .180 
 
 LECTURE IX. 
 
 On the Powers vested in the Federal Government for mamte- 
 nance of Harmony and proper Intercourse among the States 210 
 
 LECTURE X. 
 
 On the Powers vested in the Federal Government relative t« 
 certain Miscellaneous Objects of general Utility . . 241 
 
XVIU CONTENTS. 
 
 LECTURE XI. Pag. 
 On the Constitutional Restrictions on the Powers of the sever- 
 al States 271 
 
 LECTURE XII. 
 On the Provisions for giving Efficacy to the Powers vested in 
 the Federal Government 305 
 
 Appendix A. — Declaration of Independence .... 337 
 " B. — Articles of Confederation .... 342 
 " C. — Constitution of the United States . . . 351 
 " D.— Correspondence with James Madison . . 367 
 " E. — Proclamation of the President of the United 
 
 States of the 10th of December, 1833 . . .373 
 ** F. — Opinion as to the Constitutional Validity of the 
 Laws of New-York, granting exclusive Privile- 
 ges of Steam Navigation 394 
 
 •• G. — Ordinance for the Government of the Territo- 
 ry of the United States Northwest of the River 
 Ohio 400 
 
r^^^., 
 
 // Xv- or THE , 
 
 LEtrimEC&c. 
 
 LECTURE T. 
 
 INTRODUCTORY. 
 
 A KNOWLEDGE of the history, organization, and 
 principles 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, and may be regarded as pe- 
 culiarly advantageous in free states, where every 
 citizen must possess an influence more or less pow- 
 erful in the administration of public affairs. It is 
 obviously indispensable where the political rights of 
 all are equal, and where the obscurest individual has 
 a voice in the election of his rulers, and is himself 
 eligible to the highest stations in the government. 
 
 It was, therefore, with reason, considered a de- 
 fect 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 par- 
 ticipate in the active duties of society, or that it 
 should have been regarded only as necessary to law- 
 yers and politicians. For, however essential as is 
 a profound knowledge of the Constitution to states- 
 men and jurists, some acquaintance with its prin- 
 ciples and details must, in the opinion of all who 
 entertain liberal views of public education, and cor- 
 rectly estimate their privileges as citizens, be re- 
 quisite for those whose ambition rises no higher 
 than the mere exercise of those privileges at elec- 
 
20 LECTURES ON 
 
 tions of their representcatives in the government, 
 without a wish themselves for political influence 
 or public station. It is gratifying to find, however, 
 that of late years a greater interest has been man- 
 ifested among the more intelligent portion of the 
 community with regard to the origin, structure, and 
 principles of our political institutions. This certain 
 ly evinces that one class, at least, of our citizens ap- 
 preciates the value of our political system, and that 
 so far, therefore, it is better understood. But reason 
 and common sense suggest that such information 
 cannot be acquired too soon, and experience teaches 
 us that it cannot be too widely diffused. The public 
 interest and welfare, if not the stability of our polit- 
 ical system, not less than the safety and happiness of 
 individuals, and the security of their persons and 
 property, require that, in common with other impor- 
 tant branches of public 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 our 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 funda- 
 mental laws of their own country. To remedy this 
 evil, it was proposed to ingraft this new branch of 
 study upon the general course pursued in this insti- 
 tution ; but in preparing my lectures I shall not lose 
 sight of their possible usefulness to foreigners ; for 
 it will hardly be denied that more accurate informa- 
 tion in regard to the organization and powers of 
 the Federal Government 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 vexa- 
 tious difficulty and fruitless negotiation would douDi- 
 
CONSTITUTIONAL JURISPRUDENCE. 21 
 
 less have been prevented, had the public men of 
 Great Britain and France been better informed in 
 regard to them. 
 
 By way of introducing the subject to your notice, 
 I shall present you w^ith 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 Federal Constitution ; and this histor- 
 ical review will, I trust, prove the more useful, as it 
 will serve not only to exhibit the genius and practi- 
 cal excellence of the government, but also to facili- 
 tate the study 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 emergencies, long before their permanent 
 union to resist the claims and aggressions of the 
 mother-country, a measure which produced the Rev- 
 olution, and ended in the acknowledgment of the col- 
 onies 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 
 connexion among themselves, and induced, 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 war- 
 like and formidable tribes of Indians by which they 
 were surrounded, entered into an offensive and de- 
 fensive league, which they declared should be firm 
 and perpetual, as well as that they should thenceforth 
 be distinguished as " The United Colonies of New- 
 England " III this transaction, the provincial gov- 
 
22 LECTURES ON 
 
 ernmeiits, who were parties to it, acted, in fact, as 
 independent sovereignties ; and circumstances ena- 
 bled 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 re- 
 spective forms of government, and settled its funda- 
 mental principles, the people of those colonies were 
 authorized, by the suffrages of the freemen of the 
 several towns, to elect, not only their immediate rep- 
 resentatives in the popular branch of their legisla- 
 tures, but also the chief executive magistrate, or 
 governor, and his assistants, or councillors, who 
 formed a second and co-ordinate branch of those 
 provincial assemblies. The supremacy, therefore, 
 of the British crown or Parliament over the colonies 
 in question had, at all times, been little more than 
 nominal, in comparison with the authority exercised 
 over those provinces, where the governors and coun- 
 cillors 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 sub- 
 jection. The civil war in which Great Britain was 
 at that time plunged occupied, moreover, her whole 
 attention ; and this measure of her colonies, tending 
 80 directly to future independence, was suffered to 
 pass without much notice, and without any animad- 
 version. 
 
 From the terms of this association, it may justly 
 be regarded as the first step towards the establish- 
 ment of independent government in A^merica ; with 
 some occasional 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 prov- 
 inces were, in effect, annulled by James the Second. 
 
CONSTITUTIONAL JURISPRUDENCE. 23 
 
 Subsequently, however, to that arbitrary procedure, 
 congresses of governors 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 convention 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 Mary- 
 land. 
 
 This Congress was called at the instance of the 
 government in England ; and although the object of 
 the ministry in proposing it was merely to promote 
 and facilitate the negotiation of treaties with the In- 
 dians, the colonial legislatures, who promptly acce- 
 ded to the proposal, evidently entertained more ex- 
 tensive views with respect to the proceeding. Two 
 of the provinces expressly instructed their delegates 
 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 
 commissioners, when they assembled, was a unani- 
 mous resolution that a union of the colonies was ab- 
 solutely necessary for their preservation. After re- 
 jecting several proposals for the division of the colo- 
 nies into separate confederacies, they agreed to a 
 plan of federal government for the whole, consisting 
 of a president-general, to be appointed by the crown, 
 and a general legislative council, to meet once in ev- 
 ery year, and to be composed of delegates chosen tri- 
 ennially, by the provincial assemblies. 
 
 This celebrated plan of union was draw up by 
 Doctor Franklin, who attended as a delegate from 
 Pennsylvania, and is to be found in the more recent 
 
24 LECTURES OJN 
 
 editions of his works, together with an exposition of 
 the reasons and motives which guided him in form- 
 ing it. The confederacy was to embrace all the then 
 existing colonies ; and the rights of war and peace, 
 in respect to the Indian nations, were vested in the 
 general council of the confederates, subject to the 
 immediate negative of the pr^^-ident-general, and the 
 ultimate approval of the crown. It was to possess 
 the farther power " to raise troops and build forts 
 for the defence of the colonies, and to equip vessels 
 of war to guard the coasts and protect commerce ;" 
 and for these purposes 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 others of the greatest distinction in our colonial 
 history. In the course of their proceedings, these en- 
 lightened men asserted and promulgated those prin- 
 ciples, the reception of which, in the minds of the 
 people of this country, prepared them for future inde- 
 pendence, and laid the foundations of our present na- 
 tional government. But the times were not yet pro- 
 pitious — the season had not yet arrived, nor were 
 public sentiment and intelligence sufficiently ma- 
 tured for so comprehensive and liberal a proposition. 
 The master-minds who governed that assembly had 
 gone before their age ; and their bold project of con- 
 tinental union had tiie singular fate of being rejected, 
 not only in England, but by every provincial legisla- 
 ture. By the mother-country, it was probably sup- 
 posed that union would soon reveal to her colonies 
 the secret of their strength, and afford them the op- 
 ()ortunity and the means of giving it effect ; while on 
 the part of the colonies, a dread of the prepondera- 
 iirig influence of the loyal prerogative, in the opcra» 
 
CONSTITUTIONAL JURISPRUDENCE- 2b 
 
 tion of the proposed system, condemned them to re- 
 main for some y»ars longer separate and insignifi- 
 cant communities, emulous in their obedience to the 
 parent state, and in devotion to her interests, but jeal- 
 ous 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 the dissimilarity of their institutions and 
 manners. The necessity of union had, nevertheless, 
 been felt ; its advantages perceived ; its principles 
 explained, and the way to it clearly pointed out ; and 
 at length, the sense of common danger and oppres- 
 sion brought the colonies once more together, and led 
 them to adopt the same measures of defence and se- 
 curity, not, indeed, against 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 inherent rights as subjects of the English law, 
 by the celebrated Stamp Act of 1763, a congress 
 of deputies from all the colonial assemblies was rec- 
 ommended by the popular branch of the Massachu- 
 setts Legislature ; and in the month of October, in 
 that year, delegates from most of the provinces as- 
 sembled at New- York. Without delay or hesitation, 
 they jmblished a declaration of the rights and grie\ 
 nnces of the colonists, in which they asserted their 
 title to the enjoyment of all the rights and privileges 
 of British subjects, and especially 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. re- 
 C 
 
26 LECTURES ON 
 
 peal was accompanied by a declaratory assertion of 
 the power of Parliament to tax the polonies in all ca- 
 ses whatever. 
 
 This reservation, however, of the abstract right 
 gave little umbrage to the colonists, who regarded it 
 merely as an emollient for the offended pride — a 
 salvo for the wounded honour of Great Britain, and 
 verily believed that no new attempt would be made 
 to reduce the principle to practice. But it was soon 
 discovered that they had reposed too much faith i^* 
 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 objectionable in principle, though less 
 odious in its features and oppressive in its operation ; 
 ^ and this bill became a law, almost without opposition. 
 \ After a long course of patient remonstrance and con- 
 stitutional resistance to the execution of this act, a 
 general congress was proposed at town meetings in 
 New- York and Boston, and more formally recom- 
 mended by a majority of the Virginia Assembly, 
 upon the dissolution of that body in consequence of 
 its opposition to the claims of Parliament. The 
 committees of correspondence established in the sev- 
 eral 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 Con- 
 gress. 
 
 The members of that illustrious body were in 
 general elected by the colonial legislatures ; but 
 in some instances 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 coun- 
 ties for that purpose ; and in New- York, where the 
 
CONSTITUTIONAL JUniSPRUDENCE. 27 
 
 royal party being the stronger, it was improbable 
 that a legislative act authorizing the election of rep- 
 resentatives in Congress could be obtained, the peo- 
 ple themselves assembled in those places where 
 the spirit of opposition prevailed, and elected dele- 
 gates, who were readily received as members of the 
 Congress. The powers with which the deputies 
 of the several colonies were invested were of vari- 
 ous extent ; although the recommendations for their 
 appointment had been expressed in the most gen- 
 eral and comprehensive terms, and requested that 
 they should be clothed with *' authority and discre- 
 tion to meet and consult together for the common loel- 
 farc^ Most generally they were empowered to con- 
 sult and advise on the means most proper to secure 
 ^he liberties of the colonies, and restore the harmony 
 »brinerly subsisting between them and the parent 
 ^tate. In some instances, the powers conferred 
 seemed to contemplate only such measures as would 
 operate on the commercial connexion between the 
 two countries ; in others, the discretion of the dele- 
 i>"ates 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 colo- 
 nies which had been foremost and most active in re- 
 sistance 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 pre- 
 meditated against them ; and enjoined them, by their 
 regard to honour, and their love of country, to re- 
 
28 LECTURES ON 
 
 nounce 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 claimed from the bounty of their Creator, 
 and as an inheritance from their fathers. 
 
 This requisition received prompt and universal 
 obedience ; and the Union thus formed, and con- 
 firmed by these resolutions, was continued by suc- 
 cessive elections of delegates to the General Con- 
 gress, and was maintained through every period of the 
 Revolution which immediately 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 prosperity, and the only 
 solid foundation of our national independence. 
 
 In the month of May, 1775, a new Congress, con- 
 sisting of delegates from twelve provinces, clothed 
 with ample discretionary powers, met at Philadel- 
 phia ; and soon after it assembled, the accession of 
 Georgia completed 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 grievances ;" 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, sus- 
 tained by the confidence, and animated by the zeal 
 of their constituents. They published a declaration 
 3f 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 cur- 
 rency, pledging the faith of the Union for its redemp- 
 tion; and gradually assuming all the powers of na- 
 
CONSTITUTIONAL JURISPRUDENCE. 29 
 
 tional sovereignty, this Congress at length declared 
 the United Colonies free and independent states.* 
 
 Preparatory to this momentous and uncompromi- 
 sing measure, by which our Revohition may he said 
 to have been consummated, an important preUminary 
 step had been taken by Congress, which in itself was 
 considered decisive of the question of independence. 
 It had previously recommended to particular colo- 
 nies to establish temporary institutions for conduct- 
 ing their affairs during the contest with the mother- 
 country ; but when independence was perceived to 
 be the inevitable result, it was proposed by Congress, 
 to the respective assemblies and conventions of the 
 provinces where no government adapted to the exi- 
 gencies of the crisis had already been formed, to 
 adopt such constitutions as should be most conducive 
 to the happiness and safety of their immediate con- 
 stituents, as well as of the nation at large. The pro- 
 vincial assemblies acted on this recommendation ; 
 and the several colonies, already contemplating them- 
 selves as independent states, adopted the principle, 
 then considered visionary in Europe, of limiting the 
 constituted authorities by a written fundamental in- 
 strument; and thus the doctrine of the " Social Con- 
 tract," hitherto advanced merely as an ingenious the- 
 ory, or regarded as. a bold and fanciful speculation, 
 was first actually exemplified, and successfully ro 
 duced to practice. 
 
 To secure and perpetuate these state institutions ^ 
 it was deemed expedient, while these measures were 
 maturing, to explain more fully, and by a formal in- 
 strument, the nature of the federative compact, and 
 to define both the powers vested in the General 
 Government, and the residuary sovereignty of the 
 
 * Vide Appendix A. 
 
30 LECTURES ON 
 
 Stales. But the measure was attended with so much 
 embarrassment and delay, that notwithstanding they 
 were surrounded by the same common danger, and 
 were together contending for the same inestimable 
 principles and objects, it was not until late in the 
 ibllowing autumn that the discordant interests and 
 prejudices of these thirteen distinct commonwealths 
 could be so far blended and compromised as to in- 
 duce 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 impending 
 necessity, consented to, not for its intrinsic excel- 
 lence, 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. 
 
 The " 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 confed- 
 eracy, and, to that end, of the duty of exercising a 
 liberal spirit of accommodation. But some of the 
 states withheld their assent for several years after 
 the declaration of independence ; and one, in partic- 
 ular, persisted so long in its refusal, as to injure the 
 common cause, afford encouidgement to the enemies, 
 and depress the hopes of every friend of .America. 
 Tbe perception of these consequences at icnglh in- 
 duced the state in question to abandon its objec- 
 tions ; and on the first of March, 1781, these arti- 
 cles of Union received, upon the accession of Mary> 
 land, the unanimous approbation of the states.* 
 
 * Vide Appendix B. 
 
CONSTITUTIONAL JURISPRUDENCE. 31 
 
 By the terms of this compact, cognizance and ju- 
 risdiction of foreign affairs ; the power of declaring 
 war and concluding peace ; and authority to make 
 unlimited requisitions of men and money, were ex- 
 clusively vested in Congress ; and a compliance with 
 these powers, when exercised by that body, was rcn 
 dered obligarory upon the several states. But these 
 rights of political supremacy, extensive as they were, 
 had been conferred in a very imperfect manner, and 
 under a most imperfect organization. The articles, 
 indeed, were but a written digest, and even a limita^ 
 tion of the discretionary powers which had been del- 
 egated to Congress in 1775, and which had always 
 been freely exercised, and implicitly obeyed. The 
 powers themselves, now formally enumerated and de- 
 fined, 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 legis- 
 lative authority. Congress, as then constituted, was, 
 in fact, an improper and unsafe depository of politi- 
 cal 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 confedejacies of independent sovereign- 
 ties, the decrees of ux^ federal council affected the 
 states only in their corporate capacity, as contradis- 
 tinguished from the individuals of whom they arc 
 composed. This was considered by the ablest states- 
 men of that day as the radical defect of the first con- 
 federation ; " 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 
 
32 LECTURES ON 
 
 of the rest depended." Except as to the rule of ap 
 portionraeiit, Congress had an hidefinite discretion tc 
 make requisitions for men and money ; but they had 
 no authority to raise either the one or the other by 
 regulations extending to the individual citizens of the 
 American Republic, Like the warrior-magician ot 
 the great dramatic poet, they could " call up spirits 
 from the yeasty deep," but none would " come when 
 they did call." The consequence was, that though 
 in theory the resolutions of Congress were equiva- 
 lent 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 pleas- 
 ure. 
 
 The next most palpable defect, therefore, in the 
 system 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 delinquent 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 restricted from any as- 
 sumption of implied powers, however essential to 
 the complete exercise of those which were express- 
 ly 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 
 members possessed less wisdom and integrity, and 
 stretched their authority under the plea of an impe- 
 rious necessity, which might often have been alleged 
 on stronger and more plausible grounds than at any 
 subsequent period, it would have been usurpation ; 
 and had they been clothed with the power of enfor. 
 
CONSTITUTIONAL JURISPRUDENCE. 33 
 
 cing 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 con- 
 federates 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 com- 
 merce ; the right of equal suffrage possessed by the 
 states in Congress, as well as the omission of dis- 
 tinct and independent executive and judicial de- 
 partments, were also regarded as fundamental errors 
 in the confederation. In these leading particulars, 
 and in some others of inferior 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, in- 
 stances of neglect and disobedience became more 
 gross and frequent ; and, " by the time peace was 
 concluded," it was observed by one of our constitu- 
 tional jurists* that " the disease of the government 
 had displayed itself with alarming rapidity." The 
 inequality in the application of the principle of con- 
 tributions produced delinquencies in many of the 
 states ; and the delinquencies of one state became 
 the pretext or apology for those of another, until the 
 project of supplying the pecuniary exigencies of the 
 
 * Chancellor Kent. 
 
84 LECTURES ON 
 
 nation by requisitions upon the individual states waa 
 discovered to be altogether delusive in its concep- 
 tion, and hopeless in its execution. 
 
 The Continental government, destitute, as we have 
 seen, of power to adopt regulations of commerce 
 binding on the states, each state established its sep- 
 arate 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 commer- 
 cial integrity and stability, and the mutual harmony 
 and freedom of intercourse among the states them- 
 selves, were impaired, if not destroyed. The na- 
 tional engagements, indeed, seem, in most cases, to 
 have been abandoned ; and, in the indignant lan- 
 guage of the " Federalist," " each state, yielding to the 
 voice of immediate interest or convenience, success- 
 ively 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 endeavoured to obtain from the states 
 the right of levying, for a limited time, a general im- 
 post on goods imported from abroad, for the exclu 
 sive 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 for the safety and honour of the confedera- 
 cy. Disastrous, how^ever, as their refusal appeared 
 at the time, and deeply regretted as it was by every 
 intelligent friend of the Union, it may 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 referred, that " the subse- 
 quent efl^ort to amend the system of federal govern- 
 ment would never, probably, have been made, an^^ 
 
CONSTITUTIONAL JURISPKUDENC. 35 
 
 the people of this country might have continued to 
 this day the victims of a feeble and incompetent con- 
 federacy." The necessary tendency of affairs at that 
 period was either to an entire annihilation of the na- 
 tional authority, or to a civil war in order to maintain 
 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 in- 
 flame the minds of the people, and cast odium upon 
 -hose who laboured 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 respec- 
 tability and undoubted patriotism, who still adhered 
 to the old confederation ; and, from their preference 
 or their possession of state authority, and their jeal- 
 ousy of federal power, could see nothing in the pro- 
 posed 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 insti- 
 tjitions, and determined to resist the contemplated 
 change. But a large majority of those who had con- 
 ducted the country in safety through the Revolution, 
 united their influence taput an end to the public ca- 
 lamities, by establishing a political system which 
 should be adequate to the exigencies of nationa/ 
 union, and act as an efficient and permanent govern 
 ment on the several states. The foremost among 
 these patriots was General Washington. At the close 
 of the Revolutionary 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 
 
36 LECTURES ON 
 
 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 meas- 
 ure. At his seat at Mount Vernon, in the year 1785 
 it was agreed by certain commissioners from Vir- 
 ginia and Maryland, whose visit had reference to 
 far inferior objects, to propose to their respective 
 governments the appointment of new commissioners, 
 with more extensive powers in regard to the com- 
 mercial arrangements between these states. This 
 proposal was not only adopted by the Virginia Legis- 
 lature, but was so enlarged as to recommend to all 
 the other states to unite in the appointment of com- 
 missioners from each, to meet and consult on tht 
 general subject of the commercial interests and rela- 
 tions of the confederacy. And this measure, thus 
 casual and limited in its commencement, terminated 
 in a formal proposition 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 farther than at first expressed by those who 
 perceived and deplored the complicated and increas- 
 ing evils flowing from the inefficiency of the exist- 
 ing confederation. Representatives from New- York, 
 New-Jersey, Pennsylvania, and Delaware were all 
 that assembled 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 perceived that a more general represen- 
 tation of the states, and powers more extensive than 
 had been confided to the delegates actually attending, 
 would be requisite to efl'ect the great purposes in con- 
 templation. This first convention, therefore, broke 
 up without coming to any specific resolution on the 
 p'lrticular matters referred to them ; but, previously 
 
CONSTITUTIONAL JURISPRUDENCE. 37 
 
 » adjoiirniDg, they agreed to a report to be made to 
 their respective states, and transmitted to Congress, 
 representing the necessity of extending the revision 
 of the federal system to all its defects, and recom- 
 mending to the several legislatures to appoint depu- 
 nes to meet for that purpose, in convention, at Phila- 
 delphia, on the second of the ensuing May. 
 
 On receiving this report, the Legislature of Vir- 
 ginia immediately appointed delegates for the ob- 
 ject specified in the recommendation ; and within 
 the year every state except Rhode Island had ac- 
 ceded to the proposal, and elected delegates with 
 power to carry that object into full effect. The Gen- 
 eral Convention, thus constituted and empowered, 
 met at Philadelphia on the day appointed ; and hav. 
 ing 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 extensive subjects 
 submitted to their consideration. The crisis was 
 most important in respect to the welfare and prosper- 
 ity of America, if not of the whole civilized world. 
 The fruits of our glorious Revolution, and, perhaps, 
 the final destiny of Republicanism itself, were involv' 
 ed in the issue of this experiment to reform the sys- 
 tem 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 theii 
 
38 LECTURES ON 
 
 various forms and intricate modifications, an equal de- 
 gree of harmony was not to have been expected. 
 Eventually, however, the high importance attached 
 to the preservation of the Union triumphed over local 
 interests and personal feelings ; and after several 
 months of arduous deliberation, the Convention final- 
 ly agreed, with unexpected and unexampled unanimi- 
 ty, on that plan of government which is contained 
 in the Constitution of the United States.* 
 
 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, more- 
 over, provided 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 pre- 
 scribed by a separate act of the Federal Convention ; 
 and in their letter transmitting it to Congress, they 
 declared the Constitution to be " the result of a spirit 
 of amity, and of that mutual deference and conces- 
 sion 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 deci- 
 ding on the national constitution. Besides the sol- 
 emn and authoritative examination of the subject in 
 those assemblies, the new scheme of government 
 was subjected to severe scrutiny and animated dis- 
 cussion, 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 
 * Vide Appendix C. 
 
CONSTITUTIONAL JURISPRUDENCE. 39 
 
 eo its advocates that it would be eventually accepted. 
 It contained provisions for the preservation of the 
 public faith and the support of private credit which 
 interfered with the views, and counteracted the in- 
 terests and designs, of those by whom public and pri- 
 vate 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 convic- 
 tion of its justice and policy, were desirous of retain- 
 ing unimpaired the sovereignty of the states, and re- 
 ducing the Union to a mere alliance between kindred 
 nations. Others supposed that an irreconcilable op- 
 position of interests existed between different parts 
 of the Continent, and that the claims of that portion 
 to which they themselves belonged had been surren- 
 dered without an equivalent: while a more numer- 
 ous class, who felt themselves identified with the 
 state institutions, and thought their ambition restrain- 
 ed to state objects, considered 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 con- 
 fer authority on agents neither chosen by themselves 
 nor accountable to them for its exercise. 
 
 The friends and opponents of the Federal Consti- 
 tution were therefore stimulated in their exertions 
 by motives equally powerful ; and during the inter- 
 val between its publication and adoption, every fac- 
 ulty of the superior minds of both the parties was 
 
40 LECTURES ON 
 
 Strained to secure the acceptance or rejection of the 
 new system. The result was for some time ex- 
 tremely doubtful. The amendments 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 dismemberment, 
 rather than sincere approbation of the Constitution, 
 had in many instances induced its adoption. Never- 
 .neless, the cause of political wisdom and justice at 
 length prevailed. Within one year from its promul- 
 gation 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 Constitution would be carried into effect by the 
 states which had already adopted it. The important 
 states of Virginia and New- York, in each of whicli 
 its fate remained uncertain, were probably deter- 
 mined in its favour by the previous ratification of 
 New-Hampshire:* so that, by the spring of 1780, 
 the Federal Government was duly organized under 
 the new Constitution, and went immediately into full 
 and successful operation, without the concurrence of 
 Rhode Island or North Carolina, who were after- 
 ward admitted, in succession, to the Union. 
 
 The final establishment of this admirable system 
 of government, so well adapted to the genius, charac- 
 ter, and circumstances of the people, and to the situ- 
 ation and extent of the country ; so skilfully ingrafted 
 upon the pre-existing institutions, amid all the diffi- 
 culties and impediments which have been exhibhed, 
 aflfords a signal example of the benignant influence 
 of peaceful deliberation and calm decision, combined 
 with a spirit of moderation and mutual conciliation, 
 not only oeyond all precedent, but, when we reflect 
 * Vide Appendix D. 
 
CONSTITUTIONAL JURISPRUDENCE 41 
 
 ou the fate of similar attempts in other countries, be- 
 yond the hope of imitation. And while the felici- 
 tous issue of this experiment, and the universal ac- 
 knowledgment of its hitherto successful results, con- 
 stitute lasting proofs of the wisdom and patriotism 
 of the founders of our government, we must ever 
 venerate their names, adhere to their principles, and 
 cherish their remembrances of services, which are 
 entitled equally to the gratitude and admiration of 
 their posterity. We shall never, I trust, disregard 
 or undervalue the blessings which, under Providence, 
 they secured to us, nor forget the dangers and evils 
 w:'iv'h were averted by their persevering and devoted 
 plTo»*ts — dangers and evils to which the people of 
 t.i.*e states would again be exposed, in every de- 
 gree 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, we shall, I trust, 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 liberties which the Constitution was intended to 
 perpetuate, " The Union ml'st be preserved."* 
 
 LECTURE II. 
 
 FUNDAMENTAL PRIXCIPLES 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- 
 t:m Constitution, I now propose to treat more partic- 
 
 * Vide Appendix E. 
 
 u 
 
42 LECTURES ON 
 
 ularly o/ the fundamental principles on which th* 
 Federal Government was formed, and exhibit a gen- 
 eral view of its organization and powers. This 
 statement of the subjects of discussion comprises a 
 definition of the terms by which they are designa- 
 ted ; for by a constitution 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 construction to be 
 given to them in such their application — has beer* 
 denominated by jurists " Constitutional Law.'' 
 
 It has been justly observed by a writer on this 
 subject,* that " the origin of political constitutions is 
 as various as their forms. In a pure and unmixed 
 monarchy, we seldom hear," he remarks, " of a con- 
 stitution ; in a despotism, never." The subjects oi 
 the slaves of such governments may nevertheless be 
 roused or driven to the vindication of their natural 
 rights ; and the absolute king or the obdurate tyrant 
 may be compelled to adopt fixed, if not liberal princi- 
 ples of administration, or they may voluntarily con- 
 cede them in favour of their subjects. So, too, a 
 successful conqueror may, from motives of policy^ 
 establish certain forms and principles for the govern- 
 ment 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 ex- 
 pressed or fairly to be implied, such nation or peo- 
 ple may be said to possess a constitution. The 
 same may be affirmed of an aristocracy^ if the peo- 
 ple at large agree to deposite all the powers of gov- 
 ernment in a select fsw ; as it may also be said of a 
 democracy, in which the people retain, under such 
 * Mr. llawle 
 
CONSTITUTIONAL JURISPRUDENCE. 43 
 
 modifications as they conceive most conducive to 
 their own safety and liberty, all sovereignty within 
 iheir 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 propor- 
 tion 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 co-operate. 
 
 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 ex- 
 emplification of this idea is affi)rded by the late re- 
 form of the Parliament in England, where, although 
 the elective branch has been rendered a more per- 
 fect representative of the Commons, the members of 
 the upper house continue to sit in their individual 
 right, and still constitute an hereditary and perma- 
 nent body. We Americans may be pardoned for 
 considering that the best mode of forming a political 
 community is the voluntary association 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 prin- 
 ciple, whether of monarchy, aristocracy, or democ- 
 racy, is undoubtedly the most practical and easy, 
 from its greater simplicity. But a constitution may 
 
44 LECTURES ON 
 
 embrace any two of those principles, as that of an 
 cient Rome and those of some of the Grecian States, 
 and, in more modern times, those of Genoa and some 
 of the smaller communities 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 bal- 
 anced, the most perfect. Modern times and our 
 own country have shown that all the power con- 
 ceded to an hereditary monarch may be safely vest- 
 ed 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 neces- 
 sarily incurring the evils of an hereditary succes- 
 sion. These ends are effected by the application of 
 that great discovery of modern politics, the principle 
 of representation. By the proper distribution of the 
 powers of government among several distinct branch- 
 es, according to this fundamentaf principle, each of 
 them becomes, in its respective sphere, the immedi- 
 ate and equal representative of the people, as the di- 
 rect source of its authority, and sole ultimate deposi- 
 tary of the sovereign power. 
 
 By the powers of government, I mean those dis- 
 tinguished from each other, as appertaining to the 
 legislative, executive, and judicial departments ; 
 which division, founded as it is on moral order, can- 
 not be too carefully preserved. In the wise distri- 
 bution of these powers, and the application of proper 
 aids and checks to each, consists the optima consii' 
 tuta Respuhlica, contemplated by the Roman oratoi 
 as an object of desire and admiration rather than of 
 hope. 
 
 Should these three powers be injudiciously blend* 
 ed — for insrtance, should the legislative and execu 
 
CONSTITUTIONAL JURISPRUDENCE. 45 
 
 live, or the legislative, and judicial branches be uni* 
 ted in the same hands, the combination would be 
 dangerous to public liberty, and the evils to be appre- 
 hended would be the same, whether the powers in 
 question were devolved on a single magistrate, or 
 vested in a numerous body. If, moreover, the prin- 
 ciple of representation be applied only to a part uf 
 the government, where other parts exist independ- 
 ently of that principle, with an equal or superior 
 weight to that constituted in conformity to it, the ben- 
 efits 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 number of those excluded from representation, 
 or from the exercise of a f ^e and intelligent voice 
 in the choice of their rulers. In some countries pos- 
 sessing constitutions, the right or power of election is 
 variously limited. In Venice, it was formerly, and in 
 some of the aristocratical republics of Switzerland, it 
 still is, the exclusive privilege of a few families, in 
 the limited or mixed monarchies of England, France, 
 Holland, and Belgium, it is confined to persons pos- 
 sessing property of a certain description or amount. 
 With us, the rights of representation and suflfrage aie, 
 according to the theory of the Constitution, univei- 
 sal ; but in practice they are both qualified — Avithout, 
 however, impairing the general principle. 
 
 It is in defining the limits of the three great de- 
 partments of government, and, by proper checks and 
 securities, preserving the principle of representation 
 in regard both to the exercise of the power, and the 
 enjoyment of the right, that a written constitution 
 
46 LECTURES OM 
 
 possesses great and manifest advantages over those 
 which rest on traditionary information, or which are 
 to be collected from the acts of the government it- 
 self. 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 Con- 
 stitution. The powers of the representative and of 
 the constituent are inverted ; and the Legislature is, 
 from its omnipotence, enabled to alter the Constitu- 
 tion at its pleasure. Nor can such laws be question- 
 ed 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 appealed to by the people, and construed and en- 
 forced by the judicial power, is most conducive to 
 the happiness 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 appre- 
 ciate and soundly to apply the great principle of popu- 
 lar representation, and to afford the first practical ex- 
 ample of a " Social Contract." In England, one 
 only of the co-ordinate branches of government is sup- 
 posed, by the Constitution, to represent the people ; 
 and the provincial constitutions of the American Col- 
 onies (with but few exceptions) had, at the period 
 of our Revolution, been modelled in conformity with 
 the same theory. Their charters were originally 
 flamed, or subsequently modified, so as to exclude 
 the principle of representation from the executive 
 department, of which, as in England, the judicial 
 was considered as a subordinate branch. The solid 
 foundations of popular government had, nevertheless, 
 been laid ; and the institutions received from the 
 mother-countrv were admirably adapted to prepare 
 
CONSTITUTIONAL JURISPRUDENCE. 47 
 
 the way for a temperate and rational Democratical 
 Republic. 
 
 As the discoveries which had been made in Amer- 
 ica by European navigators were deemed to confer 
 the exclusive right of occupancy upon their respect- 
 ive sovereigns, those parts of the Continent which 
 had been claimed as the reward of English enter- 
 prise, were appropriated as British colonies, either 
 by extensive grants of territory and jurisdiction to fa- 
 voured individuals, or by encouraging settlers at large 
 by limited territorial grants, reserving the general 
 domain of the province to the crown, and providing 
 for the exercise of the whole jurisdiction, under its 
 authority. Hence two sorts of provincial govern- 
 ments had arisen : first, those denominated royal gov- 
 ernments, in which the general domain continued in 
 the crown ; and, secondly, proprietary governments, 
 in which both the territory and jurisdiction were 
 granted by the king to one or more of his subjects. 
 In the former case, the chief executive magistrate was 
 appointed by the crown : in the latter, by the propri- 
 etaries : 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, and 
 in the other, to that of the proprietary. In some few 
 of the colonies, indeed, the power of legislation was 
 uncontrolled, as we have seen, by the parent-state ; 
 so that, previously to the Revolution, the colonists 
 liad long been accustomed to elect representatives to 
 compose the more numerous branch of their Legisla- 
 ture, and in some instances the second, or less nu- 
 merous branch, and even their chief executive ma- 
 gistrate. No hereditary powers had ever existed in 
 die colonial governments, and all political power ex 
 ercised in them was derived either from the people 
 &a from the king. 
 
48 LECTURES ON 
 
 The powers of the crown being abrogated by th** 
 successful assertion of our independence, the peopI<3 
 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 sub- 
 jects, were peculiarly favourable to governments rep- 
 resentative in all the three departments ; and, accord- 
 ingly, such governments were universally adopted. 
 Under various modifications and forms, produced ir 
 a great degree by ancient habits, the same general 
 principles were established in every state. In gen- 
 eral, the legislative, executive, and judicial powers 
 were kept distinct, with the manifest intention of 
 rendering them essentially independent of each oth- 
 er. The Legislature was, for the most part, divided 
 into two branches, and all persons holding offices 
 of trust or profit were excluded from it. The su- 
 preme executive magistrate was also rendered elect- 
 ive, and a strong jealousy of his power was every- 
 where apparent. The superior judges received their 
 appointments from the Legislature or the executive, 
 and in most instances the tenure of their offices was 
 during good behaviour. 
 
 These principles formed the common and original 
 basis of the American Republics, and were adhered 
 to in the Federal Constitution, v/hich, while it unites 
 ihcm as one nation, guaranties their separate and 
 residuary sovereignty. The same fundamental prin- 
 ciples have also been recognised and adopted in the 
 new states since erected from the territory ceded 
 by individual states for the common benefit, or ac- 
 quired by negotiation oi purchase, and subsequent- 
 ly admitted into the Union. There were, how- 
 ever, several departures (run) this genera] outline, 
 
CONSTITUTIONAL JURISPRUDENCE. iU 
 
 which in some instances have been superseded by 
 subsequent amendments, and in others retained in 
 the original Constitution, and imitated in some of 
 I hose which have been more recently established. 
 In some cases the Legislature consisted of a single 
 Dody ; but this peculiarity was soon very generally 
 ib'ii.Joned, and, except in Vermont, no longer exists, 
 [n some of the slates the tenure of judicial office is 
 for a term of years ; and in Connecticut, until the 
 adoption of a new Constitution in 1818, the judges 
 were elected annually, and formed one branch of 
 die Legislature ; as is still 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."*^ 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 frequently 
 differently constituted in different states. On some, 
 a sfreater — on others, a less effect is discernible, to 
 render it 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 
 equal variety. It is now, however, uniformly vested, 
 either wholly or restrictively, in a single person. In 
 some states he is eligible for longer, and in others 
 for shorter periods. In some he is invested with a 
 qualified negative upon the laws, which in others is 
 withheld from him. In some few of the states he is 
 intrusted with power to make appointments to office, 
 either absolutely, or subject to the approval of a coun- 
 
 * Since this work was sent to the press, a new Constitution 
 hao been estabhshed in that state, by which the usuaJ division i» 
 de of the Legislature into two branches. 
 
 E 
 
50 LECTURES ON 
 
 cil, or of the second branch of" the Legislature ; while 
 in most states that power is exercised exclusively by 
 both branches of the latter. In some instances the 
 executive magistrate is enabled to pursue the dictates 
 of his own unbiased judgment ; and in others he is 
 divested of all actual responsibility — either directly, 
 by being placed under the control of a council, or in- 
 directly, from his being chosen by the legislative body, 
 or its more numerous branch. In general, however, 
 the ancient institutions, which the provinces Jiad de- 
 rived by charter from the crown of England, were, at 
 the change of government, so far preserved as was 
 compatible with the abolition of royal authority and 
 colonial dependance. 
 
 Among the most valuable of the institutions retain- 
 ed by the states on the change of government, was 
 that system of jurisprudence by which the absolute 
 and inalienable rights of the people were recognised 
 and secured, their relative rights or civil privileges 
 regulated and maintained, and offences against pub- 
 lic 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, and of such parts of the statute 
 law of Great Britain as were applicable to their sit- 
 uation. This system of jurisprudence prevailed in 
 all the colonies. It was brought from England by 
 the original settlers, in those planted under her au- 
 thority, and had been gradually and silently extended 
 to those provinces which had been conquered by her 
 arms ; so that before the Kevolution 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 tf wiiiph 
 the respective colonies were entitled." 
 
CONSTITUTIONAL JURISPRLDENCE. 61 
 
 The most essential of these privileges were those 
 natural rights, which are, indeed, common to all man- 
 kind, but which, in virtue of Magna Charta, and oth- 
 er fundamental laws of the mother- country, were 
 deemed to be the peculiar birthright and inherit- 
 ance of British subjects. They comprise, according 
 to Sir William Blackstone, 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 priviles^es which society engages to provide 
 in lieu of those natural liberties so given up by indi- 
 viduals. In the first class, the learned commentator 
 comprehends, 1st. The right of personal security; 
 2d. 'fhe right of personal liberty ; and, 3d. The right 
 of private property. The other privileges of the same 
 character, but subordinate in degree, to which, as 
 English subjects, the colonists were entitled, were, 
 1st. The Constitution, powers, and privileges of their 
 provincial legislatures ; 2d. The limitation of the 
 king's prerogative by certain and notorious bounds ; 
 3d. The right of applying to the courts of justice for 
 the redress of injuries ; the most Taluable incidents 
 to which privilege, were the right of trial by -ury 
 and the benefit of the writ of Habeas Corpus ; 4th. 
 The right of petitioning the king, or either branch 
 of the imperial or provincial Legislature, for the re- 
 dress of grievances ; and, 5th. That of keeping arms 
 for their defence ; which was, indeed, a public al- 
 lowance, under certain restrictions, of the natural 
 right of resistance and self-preservation. 
 
 In these several articles are contained what are 
 emphatically termed *' the liberties of Englishmen." 
 To their enjoyment, the colonists were entitled by 
 birthright as British subjects ; and, to vindicate that 
 right, they first took up arms against the parent-state, 
 and ultimately withdrew from her dominion. Upon 
 that separation, and th^ sul)sequent establishment of 
 
52 LECTURES ON 
 
 new governments of their own choice, they were 
 careful to provide for the secure and permanent en- 
 joyment of these their natural rights, and of the civil 
 privileges designed for their maintenance, or substi- 
 tuted as their equivalents. As additional safeguards 
 for their protection, they established, moreover, those 
 great engines of modern opinions, freedom of speech 
 and the liberty of the press, uncontrolled by any but 
 proper moral restraints. But while some of the states 
 expressly recognised, and others tactily accepted, as 
 a part of their municipal code, those portions of the 
 common law which had been previously in force in 
 the colonies, and were now farther modified by the 
 change of government, they universally abolished, 
 either by their constitutions, or by statutes deemed 
 fundamental, that feature of the English system of 
 real property which, in its character of a mere civil 
 regulation, is, nevertheless, like most others of the 
 same feudal origin, powerfully and essentially politi- 
 cal in its eflects— I mean the right of Primogeni- 
 ture. This harsh and inequitable regulation, which, 
 indeed, is not peculiar to England, but prevails in 
 most of the feudal monarchies of Europe, was re- 
 jected in all the American States, and each state en- 
 acted its own law of descents, differing, indeed, in 
 their details, but agreeing in the general principle of 
 equal distribution. 
 
 The frequent violation of the natural and social 
 rights of the colonists by both king and Parliament, 
 and the repeated denials of redress, were set forth in 
 the Declaration of Independence as the cause and 
 justification of dissolving the mutual ties of sovereign- 
 ty and allegiance ; and upon forming the state con- 
 stitutions, these rights were in some form or others 
 and with a greater or loss degree of particularity and 
 precision, enumerated, and declared inalienable, and 
 reserved inviolably to every citizen. 
 
CONSTITUTIONAL JURISPRUDENCE. 53 
 
 Such were the institutions of the several states, 
 and such the rights of their individual citizens, when 
 they conjointly became parties to the federal com- 
 pact. The same great principle of representation^ 
 which had been imbodied in the state constitutions, 
 was adopted as the foundation of the new govern- 
 ment established for the Union ; and the same natu- 
 ral, political, and civil rights and privileges which 
 had been declared to be the inalienable inheritance 
 of the people, as citizens of the respective states, 
 were asserted to belong to them as citizens of the 
 Union ; among which, as we have seen, are included- 
 such provisions of the common law as were applica- 
 ble to their situation and circumstances. There are 
 besides, many recognitions of the existence, at least, 
 of the common law, both in the Constitution of the 
 United States, and in the articles by which it has 
 been amended ; and both contain frequent references 
 to the principles, provisions, and terms peculiar to 
 that system of jurisprudence. 
 
 It has, nevertheless, been a subject of much dis- 
 cussion, whether the United States, in their national 
 capacity, have actually adopted it ; and to what ex- 
 tent, if at all, it may be considered as forming a part 
 of the national jurisprudence. But whatever may be 
 the doubts — whether the common law, in its broadest 
 sense, and to the same extent, mutatis mutandis^ as 
 it prevails in England, was recognised as the com- 
 mon law of the Union — it cannot be denied that 
 it forms the substratum of the laws of all the original 
 members of the confederacy ; nor that the Constitu- 
 tion of the United States, as well as the constitutions 
 and laws of the several states, were made in refer- 
 ence to the pre-existing validity of the common law, 
 in the colonial and state governments. In many ca- 
 ses, the language of these public acts would be inex- 
 
54 LECTURES ON 
 
 plicable without recourse to the common law of Eng 
 /and ; and not only is the existence of that system 
 supposed by the Constitution of the United States, 
 but it is constantly appealed to for the construction 
 of powers granted to the Federal Government. The 
 general question, however, as to the application and 
 influence of the system, in reference to our national 
 institutions, has not been settled upon clear and defi- 
 nite principles, and may still be regarded, especially 
 in civil cases, as open for farther judicial investi- 
 gation. The prevailing opinion at present seems to 
 be, that, under the Federal Government, the common 
 law, considered as a source of jurisdiction, was never 
 in force, but considered merely as a means or instru- 
 ment of exercising the jurisdiction 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 hy the people of the United 
 States, in order to form a more perfect union, estab- 
 lish justice, ensure 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 ca- 
 pacities ; but, without destroying their previous or- 
 ganization, the people of the respective states united 
 with each other in founding a new government, 
 operating directly on themselves as individuals, for 
 the attainment of objects for which neither the states 
 separately, nor the former confederation had been 
 found competent. The principle of representation 
 is applied in it, not only to the individual citizens of 
 the respective states as citizens of the United States, 
 
CONSTITUTIONAL JURISPKUDENCE. 55 
 
 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- 
 < cutive, and judicial powers to distinct departments, 
 so far as necessary to effect the purposes of national 
 union, the Constitution specially defines the powers 
 and duties of each of those branches of the govern- 
 ment. This was essential to peace and safety, in a 
 government invested with specific powers for national 
 objects, and formed from the union of several inde- 
 pendent states, as well as of the individuals com- 
 posing them ; each of the former yielding for that 
 purpose the requisite portion only of its sovereignty, 
 while they retained the executive control of their lo- 
 cal concerns. 
 
 In analyzing the Federal Constitution, it may there- 
 fore be considered, as has already been indicated, un- 
 der 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 refei- 
 ence to which, the necessary provisions for their or- 
 ganization 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. Besides which, 
 it comprises the necessary regulations in respect, 
 
 Secondly, To the nature, extent, and limitation of 
 the powers conferred on the government of the Union, 
 and the restraints imposed on the state governments. 
 
 All the powers requisite to secure the objects of 
 national union are vested in the Federal Govern- 
 ment, while those powers only, which aie not essen- 
 
56 LECTURES OiN 
 
 tial to these objects are reserved to the state govern- 
 ments, or to the people. In all other respects, the 
 sovereignty of the individual states remains unaltei- 
 ed. The respective obligations of duty and allegi- 
 ance to them are unimpaired, except that, in all cases 
 within the range of its jurisdiction, the higher obh- 
 gations of duty and allegiance to the General d'ov- 
 ernment necessarily supersedes that which womd 
 otherwise have remained to the separate states. 
 From the nature of the case, the national and state 
 sovereignties cannot be coequal ; for two govern- 
 ments of concurrent right and authority in every 
 respect, cannot exist in the same society. The su- 
 premacy was, consequently, conferred on the Federal 
 Government, as the government of the whole, rather 
 than on the governments of the constituent parts ; 
 otherwise, the establishment of the former, instead 
 of " promoting domestic tranquillity," would have 
 produced perpetual discord and disorder. The Con 
 vention therefore declared, in the name of the people, 
 that the " Constitution, and the laws of the United 
 States made in pursuance thereof, and all treaties" 
 made under 'he authority of the Union, should be 
 the supreme law of the land. 
 
 The powers thus conferred on the government of 
 the United States may be reduced to difierent classes, 
 as they relate to different objects, each of which will 
 be the subject of distinct, full, and particular investi- 
 gation, under their appropriate heads and subdivis- 
 ions. But from the view already presented of the 
 fundamental principles of the Federal Government, 
 in connexion with the general outline exhibited of its 
 organization, it may be perceived that the Constitu 
 tion of the United States was erected on the founda 
 lion of those inalienable rights, which the people of 
 the several states derive, in common with all man 
 
CONSTITUTIONAL JURISPRUDENCE. 57 
 
 kind, from their Creator, and of those institutions and 
 privileges which they inherited from their ancestors 
 as subjects of the British crown, modiiied by their 
 situation and circumstances as colonists, and subse- 
 quently varied by their successful vindication of their 
 natural and political rights in the assertion of their 
 independence ; that it was formed on the Republican 
 {principle oi representation in all its branches, adopted 
 i)y the people themselves, and not by their state le- 
 gislatures, and establishes a government proper, 
 operating upon every individual residing under r.s 
 jurisdiction, and extending over the Union as one 
 national community or body politic — composed, not 
 only of the people of the several states, but to a cer- 
 tain degree of the states themselves, thus happily 
 combining the principles of federation and consoli- 
 dation, for the purpose of investing the states, as well 
 as the people, with one national character ; that, as 
 the Union thus formed constitutes the nation, so the 
 people of the several states have, for all the purposes 
 of the Constitution, become one people, owing local 
 allegiance to the states in which they reside, para- 
 mount allegiance to the National Government ; that all 
 the powers requisite to secure the objects of national 
 union are vested in the General Government, while 
 those only which are not essential to that purpose 
 are reserved to the states or the people ; that the 
 National Government, though united in its powers to 
 national objects, is supreme in the exercise of those 
 powers ; and that, whenever any of those powers, in 
 their exercise, come in collision with the powers re- 
 served to the states, the state authority, which is 
 suhordijiate, must yield to the national authority, 
 which is supreme. 
 
 Each state, nevertheless, although no longer pos- 
 sessing the absolute independence essential to it aa 
 
58 LECTURES ON 
 
 a separate national sovereignty, must slill be regard- 
 ed as sovereign in all matters not transferred to the 
 General Government. The supremacy of the Union 
 on all those points which are thus surrendered, and 
 the sovereignty of the states in those not ceded to 
 the nation, have been justly considered as two co- 
 ordinate qualities, in attempting to ascertain the real 
 meaning of the Constitution, in cases which, from 
 the uncertainty and imperfection of human language, 
 it is liable to dispute or doubt. As different views 
 and interests have prevailed, different theories for the 
 construction of the Constitution have been advanced. 
 It has sometimes been regarded as a mere confeder- 
 acy or alliance between the states, implying no sur- 
 render of their sovereign power or character ; but 
 this opinion is inconsistent with the nature of the 
 federal compact, as explained by judicial interpreta- 
 tion of conclusive authority. Some jurists and poli- 
 ticians, how^ever, who admit that it constitutes a 
 government, have yet contended that, inasmuch as it 
 establishes a government of limited powers, it should 
 be construed strictly ; while others have asserted 
 that, from the extensive and high objects to be ac- 
 complished by the exercise of these powers, the 
 most liberal interpretation 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 construction may, 
 from the possession or desire of power under it, be 
 carried to a pernicious extreme. Limitations and 
 restrictions may be conceived to exist, by some, 
 which would render nugatory the national authority, 
 and were, therefore, never meant to be imposed ; 
 while concessions of power may be imagined or as* 
 
CONSTITUTIONAL JURISPRUDENCE. 59 
 
 sumed by others, incompatible with the sovereignty 
 actually retained by the states, if not necessary 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, to deduce the meaning of the contract 
 from its known design and entire language ; to 
 reconcile, and, if possible, give effect, to every part 
 of the instrument, and, at the same time, preserve 
 the unity and harmony of the whole, in due regard 
 to the expressions as well as the intentions of the 
 parties. 
 
 On many questions which have already arisen, we 
 have the benefit of the learned elucidations of the 
 judicial departments of the General, and many of 
 the State Governments ; and wherever the supreme 
 federal tribunal has pronounced its solemn decision, 
 its authority must be deemed conclusive, because 
 that court, and that alone, possesses ultimate juris- 
 diction upon all points of controversy arising under 
 the Constitution of the United States. But where a 
 guide so certain and authoritative cannot be found, 1 
 must endeavour, with the aid of' inferior lights, to 
 discover the true, but latent meaning of a Constitution 
 which, in the language of that venerable and accom- 
 plished jurist, the late chancellor of this state, " must 
 always be more admired as it is more considered 
 And better understood." 
 
 LECTURE III. 
 
 OF THE LEGISLATIVE POWFPw. 
 
 The first general point of view in which it 
 was proposed to consider the Federal Constitu- 
 
60 LECTURES ON 
 
 tion was, " with regard to the particular structure 
 and organization of the government^ a?id the distri- 
 bution of its powers among its several branches,^'* 
 
 I have already had occasion to advert to 
 the rule inculcating the separation of the legis- 
 lative, executive, and judicial departments of 
 government, and to remark that it had been sub- 
 stantially adhered to in framing our National 
 Constitution. These different branches, how- 
 ever, have not, in all cases, been kept entirely dis- 
 tinct; and it therefore becomes necessary to as- 
 certain, in limine^ the meaning of a political ap- 
 othegm, of which none is of more intrinsic value, 
 or stamped with the approbation of more en- 
 lightened authority. 
 
 From the sense in which the maxim in question 
 was first applied by Montesquieu to the English 
 Constitution, as well as from the mode in which 
 it has been practically acknowledged in several 
 of 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," 
 that, unless they be so far connected and blend- 
 ed as to give to each a constitutional control over 
 the others, the degree of separation which the 
 rule requires cannot be maintained. It is obvi- 
 ous, indeed, that the powers properly belonging 
 to one of the departments ought not to be direct- 
 ly and completely administered by either of the 
 others. It is equally clear that, in reference to 
 each other, neither branch should possess, di- 
 rectly or indirectly, an overruling influence in 
 the execution of their respective powers. And 
 although in our governments each department 
 
CONSTITUTIONAL JURISPRUDENCE 61 
 
 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 neces- 
 sarily possess a greater preponderance in the 
 political system, and act with greater force upon 
 the public mind. In order, therefore, to main- 
 tain in practice the requisite partition of pow- 
 er, the internal structure of the government would 
 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. 
 The great security against a gradual concen- 
 tration of the several powers of government 
 in the same hands consists in giving to those 
 who administer them in one department the ne- 
 cessary constitutional means and personal mo- 
 tives to resist encroachments from the others. 
 A dependance on the people is, no doubt, the 
 primary control on the government j but experi- 
 ence had show^n the framers of our Constitution 
 the necessity of auxiliary precautions; and the 
 remedy they devised for the natural predomi- 
 nance of the legislative authority was the divis- 
 ion of the legislative body into two branches, 
 and rendering them, by different modes of elec- 
 tion and principles of action, as little connected 
 with each other as the nature of their common 
 functions and dependance on the people would 
 admit. The comparative weakness of the exec- 
 utive branch, on the other hand, was fortified, 
 by investing it with a qualified negative on the 
 acts of the Legislature, and connecting it w^tli the 
 weaker branch of that stronger power, by allow- 
 ing the latter to participate in certain executive 
 
62 LECTURES ON 
 
 duties ; while the judicial department was deem* 
 ed 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 goverment in each oth- 
 er's power, ^as rendered subservient to their 
 mutual independence, and the apparent violation 
 of a fundamental principle of the Constitution 
 converted into a security for its preservation. 
 
 1 now proceed to examine and explain the or- 
 ganization of these separate departments of gov- 
 ernment, as established by the Federal Constitu- 
 tion, in their order, and commence with a review 
 of the Legislative Power ; under which title 1 shall 
 consider. 
 
 First. The constituent parts of the Legislature, 
 with the mode of their appointment. 
 
 Secondly. Their joint and several powers and 
 privileges. 
 
 And, Thirdly. Their method of enacting laws, 
 with the times and modes of assembling and ad- 
 journing. 
 
 I. All legislative powers granted by the Con- 
 stitution are vested in a Congress of the United 
 States, consisting of a Senate and a House of 
 Representatives. These terms, conferring the 
 legislative authority, impart its limitation to the 
 objects specified in the Constitution. And, be- 
 sides the end already stated to have been pro- 
 posed by the division of the Legislature into two 
 separate and independent branches, another im- 
 portant object is accomplished by it, and that is, 
 preventing the evil effects of excitement and pre- 
 cipitation, which had been found, by sad experi« 
 
CONSTITUTIONAL JURISPRUDENCE. ()3 
 
 snce, to exert a powerful and dangerous sway in 
 single assemblies. 
 
 No portion of the political history of mankind, 
 according to the elder President Adams,* is more 
 full of instructive lessons on this subject, or con- 
 tains more striking proofs of the factious insta- 
 bility and turbulent misery of states under the 
 dominion of a single unchecked legislature, than 
 the annals of the Italian Eepublics of the Middle 
 Ages. They arose in great numbers, and with 
 dazzling but transient splendour, in the interval 
 between the falls of the Western and Eastern 
 Empires, and were 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 
 French Revolution, many of their speculative 
 writers, pseudo-philosophers, and visionary pol- 
 iticians, seem to have been struck with the sim- 
 plicity of a legislature consisting of a single cham- 
 ber, and concluded that more was useless and 
 expensive. This led the veteran statesman to 
 write and publish, during his residence in Eu- 
 rope, his great work, entitled, " ^ Defence of tlu 
 Constitutions of Government 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 distrib- 
 uting 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 
 ♦ Defence of the American Constitutions. 
 
64 LECTURES ON 
 
 balance, or a government with all authority col* 
 jected in one centre or department, were vio- 
 lent, intriguing, corrupt, and tyrajinical domina- 
 tions of majorities over minorities, uniformly and 
 rapidly terminating their career in profligate 
 despotism. 
 
 This visionary notion of a single assembly 
 was, nevertheless, imbodied in the constitution, 
 adopted by France in 1791 ; and the same false 
 and vicious principle continued for some time to 
 prevail with the sublimated theorists of that coun- 
 try. A single chamber was again established in 
 the plan> of government published by the Con- 
 vention in 1793. Their own suilerings, however, 
 It length taught the French people to listen to 
 :hat* oracle of wisdom, the experience of other 
 nations and other ages, which, amid the tumult 
 and violence of the passions which influenced 
 them, they had utterly disregarded, and which, 
 under any circumstances, their national vanity 
 would otherwise have led them to despise. " No 
 people," said Boissy (TJinglas^ one of their great- 
 est orators, " no people can testify to the world, 
 with more truth and sincerity than the French, 
 the dangers inherent in a single legislative assem- 
 bl}^, and the point to which faction may mislead 
 an assembly without check or counterpoise." 
 We accordingly find, that in the next of their 
 ephemeral constitutions, which appeared in 1797, 
 there was a division of the Legislature into twc 
 co-ordinate branches ; and the idea of two cham 
 hers was never abandoned, either under the mil 
 itary despotism of the empire, or in the charters 
 obtained upon the restoration of the monarchy, 
 or upon the subsequent revolution and change 
 wf dynasty. 
 
CONSTITUTIONAL JURISPRUDENCE. 65 
 
 Our country had, indeed, afforded more than 
 one instance in point, in which, fortunately, how- 
 ever, the evil consequences were by no means 
 so great as those experienced in France. The 
 legislatures of Pennsylvania and Georgia con- 
 sisted originally of a single house 5 but the in- 
 stability and passion Avhich marked their pro- 
 ceedings, far short as they 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 constitutions, the people of those states 
 were so sensible of this defect, and of the evils 
 they had suffered from it, that a Senate was in- 
 troduced into both of their amended constitu- 
 tions. There was a farther reason for the divis- 
 ion of the legislative powers in the government 
 of the United States, arising from its federative 
 character, but which, from its peculiar impor- 
 tance, deserves a fuller explanation. 
 
 On those just principles of public polity on 
 which our Constitution is founded, it is essential 
 that in communities, thoroughly incorporated 
 into one nation, the inhabitants of every geo 
 graphical district or territorial subdivision should 
 have their proportional share in the government j 
 while among independent sovereign states, bound 
 together by a simple league, the several parties, 
 however unequal in respect to territory and popu- 
 lation, should have an equal share in the public 
 councils. It was therefore reasonable and prop- 
 er, that in a republic partaking both of the na- 
 tional and federal characters, the government 
 should be founded on both those principles of 
 representation. Hence, in the constitution of the 
 legislative powers, the House of Representatives 
 F 
 
66 LECTURES ON 
 
 was constructed on the principle o^ proportional^ 
 and the Senate on that of equal, representation 5 
 and although this equality in the latter was evi- 
 dently the result of a compromise between the lar- 
 ger and smaller states, yet it afforded a convenient 
 and effectual mode of applying the rule of com- 
 bined representation to that co-ordinate branch, 
 and necessarily induced a separation of the two 
 bodies of which Congress is composed. 
 
 I. The House of Representatives was according- 
 ly founded on the principles of proportional rep- 
 resentation ; yet not purely and abstractedly so, 
 but with as much conformity to that principle as 
 was practicable. It is composed of representa- 
 tives of the people of the several states, not of the 
 people of the United States at large; and in this 
 respect it partakes of the federative quality. Nei- 
 ther are the qualifications of the electors uni- 
 form, as much variety of opinion and practice 
 exists concerning them in the several states. 
 The representatives in Congress are chosen ev- 
 ery second year, by the people of the several 
 states who are qualified to vote for the most nu- 
 merous branch of the State Legislature. No per- 
 son can be a representative until he has attained 
 the age of twenty-five years, and has been seven 
 years a citizen of the tJnited States ; nor unless 
 he is an inhabitar.t 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 election to fill them, either at a general or 
 special election. 
 
 The general qualifications of electors of the 
 most numerous branch of the state legislatures 
 nre, that they be past the age of twenty-one 
 
CONSTitUriONAL J U R I ^MlWf^i±f{^K>^^ (jl 
 
 years, free resident citizens jbi'thd -state, in wjji^'h 
 they vote, and have paid taifes. In seme ^of i}^ 
 states ihey are required to pWsess property of a^ \ 
 certain description or amoun\ and in others ;io ^ 
 be white as well as free citizens. These d'lRcr^i^ K» 
 qualifications are, in sonne instances, diffbYeatly "* 
 combined, or restricted and modified j^in^j^iii- 
 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 per- 
 form any of its duties, or bear any of its burdens : 
 so that the House of Representatives may be 
 said very fairly to represent the whole body of 
 the people. 
 
 Several of the state constitutions have pre- 
 scribed the same, if not higher, qualifications in 
 the elected than in the electors, and some of them 
 require a religious test. But the Constitution of 
 the United States requires no evidence of prop- 
 erty 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 dependance, by not holding any 
 office of trust or profit under the United States. 
 The term for \vhich he is elected to serve is not 
 so short as to prevent his obtaining a compre- 
 hensive acquaintance with his duties, nor so 
 long as to tempt him to forget his dependance 
 on the approbation of his constituents. Frequent 
 elections, moreover, have a tendency to dimin- 
 ish the importance of the office, and to render 
 the people indifferent to the exercise of their 
 right ; while, on the other hand, long intervals 
 between the elections are apt to produce too 
 great excitement, and, consequently, to render 
 the pe^'iods of their return a season of too se- 
 
68 LECTURES ON 
 
 vere competition and conflict for the public tran 
 quillity. The Constitution has certainly not de- 
 viated in this respect to the latter extreme, in 
 the establishment of biennial elections. Consid- 
 ering the situation and extent of the country, 
 the medium adopted combines as many advan- 
 tnges, and avoids as many inconveniences, as 
 any other term which might have been adopted. 
 
 The representatives are directed to be appor- 
 tioned among the states according to numbers, 
 which are determined in each state by adding 
 to the whole number of free persons, exclusive 
 of Indians not taxed, three fifths of all other per- 
 sons. This rule of apportionment is obnoxious 
 to the objection that three fifths of the slaves in 
 those states where slavery still exists are compu- 
 ted in settling the representation. But the pro- 
 vision which thus permits them to swell the pop- 
 ulation, and thereby increase the political weight 
 and influence of the states in which their mas- 
 ters reside, was the result of necessary compro- 
 mise j and the same rule that apportions the rep- 
 resentatives extends to direct taxes: so that 
 while their slaves give to the states in question 
 an increased number of representatives in Con- 
 gress, they contribute also, when that mode of 
 taxation is resorted to, to increase the measure 
 of their contributions. The mischief, however, 
 remains, that their preponderance in the public 
 councils, obtained by these very means, has hith- 
 erto prevented the imposition of direct taxes, ex- 
 cept during a part of the short periods in which 
 this country has been engaged in war. 
 
 The Constitution directed an actual enumera- 
 tion of the people to be made within three years 
 after the first meeting of the Congress it cro- 
 
CONSTITUTIONAL JURISPRUDENCE. 69 
 
 ated, and provides one to be taken, in virtue 
 of acts passed for that purpose, within every 
 subsequent period of ten years. The number of 
 representatives cannot exceed one for every 
 thirty thousand, but eacli state is entitled to at 
 least one representative. Upon the return of 
 the census^ it was conceived by Congress that, 
 without invading the Constitution, the principle 
 of apportionment might with advantage be so 
 moditied as to prevent the loss in the number 
 of representatives, arising from the fractional 
 parts produced by the application of the ratio of 
 representation, to the representative population 
 of the respective states. The aggregate numbers 
 of the population of the United States, as ascer- 
 tained by that census, was accordingly divided by 
 the ratio adopted in the bill, which was thirty thou- 
 sand, and the operation was found to produce the 
 quotient of one hundred and twenty ; whereupon 
 that number of representatives was apportioned 
 among the several states, until as many represent- 
 atives as it would give were assigned to each 
 state respectively j and then the residuary or sur- 
 plus number was distributed among the states hav- 
 ing the highest fractional numbers, until the whole 
 number of one hundred and tw^enty was exhausted. 
 After much debate and strong opposition, this bill 
 passed both houses of Congress ; but the correct 
 and independent mind of President Washingtou 
 could not reconcile its provisions with the Con- 
 stitution, and he returned the bill to the House 
 of Eepresentatives, in which it had originated, 
 with this objection, "that the Constitution had 
 provided that the number of representatives 
 should not exceed one for every thirty thousand, 
 which ra£io was to be applied to the respective 
 
70 LECTURES ON 
 
 numbers of the states ; whereas the bill allotted 
 to several of the states more than one represent- 
 ative for every thirty thousand of its popula- 
 tion." As there was not a constitutional major- 
 ity to pass the bill notwithstanding the objec- 
 tion, it was subsequently rejected, and a new 
 one immediately brought in and passed, adopt- 
 ing the raiio of thirty-three thousand, and apply- 
 ing it to the numbers of the states respectively, 
 without providing for the representation of the 
 fractional parts. This course has been pursued 
 on every subsequent occasion; although, on the 
 return of the fifth census, a proposal for the rep- 
 resentation of the fractional parts, similar irk 
 principle to the former, was made and adopted 
 in the Senate, but rejected in the House of Rep- 
 resentatives. In this case, indeed, the ratio adopt- 
 ed exceeded thirty thousand, and was fixed by 
 the amendment of the Senate at forty-seven thou- 
 sand seven hundred ; but this ratiOy as before, 
 was applied to the aggregate number of the 
 whole representative population, in order to ob- 
 tain the number of representatives, who were 
 then, in like manner, apportioned among the 
 several states, and the residuary members dis- 
 tributed among those having the highest frac- 
 tional numbers exceeding twenty-five thousand. 
 In this respect, therefore, the amendment in 
 question was liable to the objection of assigning 
 a representative to a less number than thirty 
 thousand. But had it even assigned the surplus 
 to the states having fractions equal to or exceed- 
 ing that number, it would still have contravened 
 the provision of the Constitution which directs 
 the ratio to be applied to the representative num- 
 bers of the several states without in any man- 
 
CONSTITUTIONAL JURISPRUDENCE. 71 
 
 ner noticing the fractional parts resulting from 
 the apportionment, or contemplating any other 
 computation than the one expressly directed. 
 
 To guard against a refractory disposition, 
 should it ever appear in any of the sister states, 
 in the neglect or refusal to exercise the right 
 vested in them by the Constitution, of prescri- 
 bing the time, places, and manner of holding elec- 
 tions of representatives, Congress is empowered, 
 at any time, to make or alter such regulations 3 
 and this power was, for the first time, partially 
 exercised by the present Congress. The act 
 referred to directs the state legislatures to di- 
 vide their respective states into as many dis- 
 tricts, for the election of their representatives in 
 Congress, as there are representatives to be elect- 
 ed in each ; and requiring that each district shall 
 consist of contiguous territory, and contain an 
 equal number of persons, as nearly as may be, 
 without dividing counties, or other similar subdi- 
 visions. Several of those states in which the 
 principles of anti-federalism and nullification pre- 
 vail, demurred in carrying this regulation into ef- 
 fect, and at last yielded only a reluctant consent ; 
 and the State of Missouri still holds out against 
 a provision, of which the expediency is as un- 
 doubted elsewhere as its constitutionality. By 
 the act apportioning the representatives among 
 the several states according to the last census, 
 the ratio of seventy-four thousand for a repre- 
 sentative was adopted, which gives a total num- 
 ber of two hundred and twenty-three members 
 in the next House of Representatives. 
 
 The House of Representatives possesses the 
 sole power of impeachment, or of presenting ac- 
 cusations *igainst public officers of the United 
 
72 LECTURES ON 
 
 States for malversation in their offices. It has 
 also the exclusive right of originating all bills 
 for raising revenue j and this is the only privi- 
 lege which that house possesses, in its legisla- 
 tive character, which is not equally shared with 
 the other ; and even these revenue bills are amend- 
 able by the Senate at its discretion : so tluii, 
 in all business appertaining to legislation, each 
 house is an entire and perfect check upon tiie 
 other. The proceedings in the House of Eepre- 
 seniatives are conducted with open doors, ex- 
 cept on very special occasions. This publicity 
 affords the people early and authentic informa- 
 tion of the progress, reason, and policy of meas- 
 ures pending befoie Congress, and is, moreover, 
 a powerful stimulus to industry and research, 
 and to the cultivation of talent and eloquence in 
 debate. These advantages, indeed, may be ac- 
 quired at the expense of much useless discussion 
 and much valuable time, yet the balance of util- 
 ity is greatly in favour of open deliberation ; and 
 it is very certain, from the opposition made to 
 the experiment of the first Senate to sit with 
 closed doors, that such a practice by any legis- 
 lative body in this country would not be endured. 
 If. 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. 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 re- 
 gard to disparity of population, wealth, or terri 
 
CONSTITUTIONAL JURISPRUDENCE. 73 
 
 tory. The number of two senators from each 
 state would, however, have been found inconve- 
 nient, if the votes in the Senate had been taken, 
 as in the old Congress, by states. There, if the 
 delegates from a state were divided, its vote was 
 lost, and this, of course, rendered an uneven 
 number preferable. But from the numerical vote 
 taken upon all questions in the Senate, a division 
 of opinion between the senators of a particular 
 state has no influence on the general result. 
 
 The election of senators in Congress by the 
 state legislatures has the double advantaofe of 
 favouring a select appointment, and of giving to 
 the state governments such an essential agency 
 in the formation of the General Government as 
 recognises and preserves their separate and in- 
 dependent existence, and renders them, in their 
 sovereign character, living and active members 
 of the federal body. Whether the choice of 
 senator should be made by the joint or concur- 
 rent vote of the two branches of the state legis- 
 latures, the Constitution does not direct. Diffi- 
 culties have hence arisen as to its meaning. 
 The legislatures are not only to elect the mem- 
 bers of this branch of the National Congress, 
 but to prescribe the times, places, and manner 
 of holding the election, and Congress is author- 
 ized to alter such regulations, except as to the 
 place. The difference between the two modes 
 of election is, that on a joint vote, the members 
 of both branches of the Legislature assemble to- 
 gether for the purpose, and vote niimericaUy ; 
 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 allu- 
 ded to have arisen in cases of their disaorr e- 
 
74 LECTURES ON 
 
 ment ; but as the legislatures may prescribe the 
 manner of choosing senators, it has been consid- 
 ered and settled, in the State of New- York and 
 several other states, that the Legislature may 
 direct them to be chosen by the joint vote, or 
 ballot, of both houses, in cases of non-concur- 
 rence ; and then, of course, the weight of the 
 least numerous branch is dissipated and over- 
 come by the heavier vote of the other. This 
 construction has been found the most conveni- 
 ent, and has been too long settled, by the recog- 
 nition of senators so elected, to be now disturb- 
 ed ; but were the question an open one, I think 
 it might be maintained that, when the Constitu- 
 tion 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 term, consisting of two branches, acting 
 in their separate and organized 'capacities, Avith 
 the ordinary constitutional negative on each oth- 
 er'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 safe- 
 guard against those paroxysms of heat and pas- 
 sion which prevail occasionally in more popular 
 assemblies. The characteristic qualities of the 
 Senate, in the intendment of the Constitution, 
 are wisdom and experience. The legal pre- 
 sumption, therefore, is, that it will entertain more 
 enlarged views of public policy, and feel a high- 
 er and juster sense of national character, and a 
 greater regard for stability and permanence in 
 the administration of the government, than a more 
 numerous and changeable body. These qualities, 
 indeed, may be found, too, in the other branch 
 
CONSTITUTIONAL JURISPRUDENCE. 7Jo 
 
 of the Legislature, but its constitutional struc- 
 ture is not so well calculated to produce them j 
 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 sensi- 
 bility, of the prevailing temper and irritable dis- 
 position of the times, and to be in much more 
 danger of adopting measures with precipitancy 
 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 en- 
 sure its safety at home and its character abroad, 
 it was necessary that another body of men, com- 
 ing likewise, though mediately, from the people, 
 and equally responsible to them for their con- 
 duct, but resting on a more permanent basis, 
 and constituted with stronger inducements to 
 moderation in debate and tenacity of purpose, 
 should be placed as a check upon the natural in- 
 temperance of the younger and more popular 
 branch. W 
 
 The Senate, at its first organization, was divi- 
 ded, in the mode pointed out in the Constitution, 
 into three classes. The rotation intended by 
 that division was originally determined by lot, 
 and the seats of one of the classes became va- 
 cant at the expiration of every second year; so 
 that one third of the Senate is regularly chosen 
 every two years. 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 the Senate renewed confidence and 
 
76 LECTURES ON 
 
 vigour, and, on the other, to retain a large por- 
 tion of experienced members, duly initiated into 
 the general principles of national policy, and the 
 forms and course of legislative business. 
 
 The Senate has the sole power of trying im- 
 peachments. The first recognition of a court 
 for that purpose is in the article of the Constitu- 
 tion we are now examining, which declares that 
 "the House of Representatives shall have the sole 
 power of impeachment," and that " the Senate 
 shall have the sole power to try all impeachments." 
 The term is thus introduced as of a known 
 and definite signification ; and a well-constituted 
 court for the trials of impeachments was consid- 
 ered by the authors of *' The Federalist" 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 deep- 
 ly concerns the political reputation and exist- 
 ence of every one engaged in the administration 
 of public affairs, may be readily perceived ; as 
 will also the difficulty of placing it rightly in a 
 government in which the most conspicuous per- 
 sons are the leaders, and too often the instru- 
 ments of party, and can, therefore, hardly be ex- 
 pected to possess the neutrality requisite in re- 
 gard to those whose conduct may be submitted 
 to their scrutiny. It would be improper, too, to 
 commit the cognizance of those ofl^ences which 
 are the objects of an impeachment to the ordina- 
 ry courts of justice, as the complexities and va- 
 riety of political delinquencies are too numerous 
 and artful to be anticipated by positive enact- 
 ments, and sometimes too subtile and mysteriou? 
 to be fully detected and exposed, in the limited 
 period of ordinary investigation. A peculiar tri- 
 
CONSTITUTIONAL JURISPRUDENCE. 77 
 
 bunal seems, thereiore, useful and necessary ; 
 an institution of a liberal and comprehensive 
 character; conhned as little as possible to strict 
 forms j enabled to continue its sessions as long 
 as the nature of the case before it may require j 
 qualified to view the charge in all its bearings and 
 dependances, and to appreciate, on sound princi- 
 ples of public policy, the defence of the accused. 
 To compose this court of persons wholly dis- 
 tinct 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 col- 
 lect temporary judges whenever an impeachment 
 may be determined on. The Convention who 
 formed the Constitution thought it most fit and 
 safe to make the Senate the depositary of this 
 important trust ; and, upon a review of all the 
 departments of the government, no other could 
 have been found so suitable for the exercise of 
 this important jurisdiction. The model from 
 which this institution was borrowed was the 
 British House of Peers, and it had been previ- 
 ously adopted in several of the state constitu- 
 . tions. Besides the reasons already suggested 
 against vesting it in the ordinary courts, there 
 remains this farther consideration, that the pun- 
 ishment consequent upon conviction is not the 
 only one to which the offence is liable. The 
 judgment, in cases of impeachment, extends no 
 farther than removal from office, and disqualifi- 
 cation to hold in future any office of trust or 
 profit under the United States. But the party 
 convicted is, nevertheless, subject to prosecu- 
 tion according to the usual course of administer- 
 ing the law; and it would be obviously i>nprop- 
 
78 LECTURES ON 
 
 er, if not in a high degree dangerous, that the 
 same tribunal who 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, we have seen, who are, or have been, 
 in public office. But a construction has been giv- 
 en to the Constitution, by which a member of the 
 Senate was held not to be liable to impeachment. 
 The deliberations of the court being held in se- 
 cret, we can only infer from the arguments urged 
 at the bar, that the term " officers" used in the 
 Constitution was held not to include senators; 
 and on the same principle, members of the House 
 of Representatives would also be exempt from 
 liabilitj^ to this jurisdiction. The grounds of the 
 distinction may probably have been that the 
 power of impeachment was considered merely 
 as a check given to the Legislature upon the 
 other two departments, and that, as each house 
 of Congress was the judge of its own members, 
 all the ends of punishment might be attained by 
 expelling a delinquent member. 
 
 When sitting as a court for the trial of im- 
 peachments, the senators are put under oath or 
 affirmation faithfully and impartially to discharge 
 their judicial functions. No person can be con- 
 victed but v/ith the concurrence of two thirds of 
 the members of the court ; the Vice-president of 
 tlie United States, as President of the Senate, 
 being a member of the court ^ with a constant in- 
 stead of a contingent vote, presides in it, excep; 
 uhen the President of the United Slates is tried j 
 :)]) which occasion tb« s'Hief-justice presides. 
 
CONSTITUTIONAL JURISPRUDENCE. 79 
 
 The Senate, moreover, in its exclusive con- 
 nexion with the executive department, has a neg- 
 ative upon the appointment of all officers of the 
 United States whose appointment is not other- 
 wise provici^d for in the Constitution; and the 
 advice and consent of two thirds of the senators 
 present are requisite to all treaties which are sub- 
 mitted by the consideration of the Senate alone. 
 The Senate, however, is not consulted in the first 
 instance ; but when a treaty is agreed on by the 
 agents employed for its negotiation, the Presi- 
 dent, 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 re- 
 quire. The Senate may wholly reject a treaty, 
 or they may ratify it in part, or recommend ad- 
 ditional or explanatory articles, which, if the Pres- 
 ident approve, again become the subject of ne- 
 gotiation with the foreign power ; when the 
 whole receives the sanction of the Senate, the 
 ratifications are exchanged, and the treaty be- 
 comes obligatory upon both nations. Although 
 not expressly 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 the contents of 
 the treaty, and the information connected 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 su- 
 perior weight and delicacy of the trusts thus con- 
 fided to the Senate, the Constitution requires that 
 a senator should be thirty years of age, nine years 
 a citizen, and, at the time of his election, an in- 
 habitant of the state for which he is chosen. 
 
60 LECTURES ON 
 
 The Constitution directs that Congress shall 
 assemble at least once in every year, and that 
 such meeting shall be on the first Monday in De- 
 cember, unless another day be appointed by law. 
 So that, until the time fixed, either bj^ the Consri- 
 tuiion or the law, the action of Congress cannot 
 commence, unless the President, in the exercise 
 of his constitutional power, shall, on an extraor- 
 dinary occasion, think proper to convene them 
 *ooner. Congress also, by a concurrent resolu- 
 tion, to which, in this case, the assent of the 
 President is not required, fixes the time of its 
 own adjournments. But during a session neither 
 house, without the consent of the other, can ad- 
 journ for more than three days, nor to any oth- 
 er place than that in which it is sitting. 
 
 Although Congress may be convened by the 
 President, and in cases of disagreement between 
 the two houses as to the time of their adjourn- 
 ment, he may adjourn them to such time as he 
 may think proper, yet our National Legislature 
 possesses this great advantage over all others, 
 which may in all cases be adjourned or dissolv- 
 ed at the pleasure of the executive authority, 
 that if, in the opinion of Congress itself, the pub- 
 lic good may require it, they may continue un 
 interruptedly in session until the expiration of 
 the term for which the House of Representatives 
 48 elected ; and it may appoint as early a day an 
 it thinks proper for the meeting of the next Con- 
 gress. 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 
 that fundamental law. 
 
CONSTITUTIONAL JURISPRUDENCE. 81 
 
 LECTURE IV. 
 
 OF THE EXECUTIVE POWER. 
 
 L\ 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 organi- 
 zed 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 consultation are implied as indis- 
 pensable duties. But when laws are duly made and 
 promulgat^.d, they only remain to be executed. No 
 discretion is vested in the executive officer in regard 
 to their wisdom and expediency. What has been 
 declared^ under the forms of deliberation prescribed 
 by the Constitution, to be the meaning and intention 
 of the Legislature, should be carried into prompt ex- 
 ecution, 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 ascer- 
 tained to be void, and neither public officers nor pri- 
 vate citizens are responsible for its neglect or viola- 
 tion . 
 
 But every individual is bound to obey a constitu- 
 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 unconstitutionality, does so at his peril ; for if the 
 question be judicially decided, by a competent tribu- 
 nal, in favour of its validity, he is liable to all the le- 
 G 
 
82 LECTURES ON 
 
 gal consequences of disobedience. The presiimp* 
 tion, moreover, is always in favour of a law^ passed 
 according to the forms of the Constitution ; and where 
 the chief executive magistrate has a negative upon 
 the acts of the Legislature, that presumption is, of 
 course, the stronger against him, especially as tc 
 laws passed under his own administration, and which 
 must, therefore, have received his official approval. 
 For in such a case, the existence alone of the law 
 is evidence of his admission of its constitutionality 
 if the negative he possesses be absolute ; and, if 
 qualified, it shows that his objections were overruled, 
 and the law subsequently passed on a reconsidera- 
 tion, as required on such occasions by the Constitu- 
 tion. 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 per- 
 emptory. For the negative vested in him is a legis- 
 lative, and not a judicial power, and to allow a con- 
 trary doctrine would be to admit the existence of a 
 right in the executive department to repeal laws with- 
 out the intervention of the Legislature. As, therefore, 
 the executive power is not only bound to obey, but 
 to carry into effect the law, the essential qualities re- 
 quired in that department are promptness, vigour, 
 and responsibility. 
 
 A prompt submission to the law, and an immediate 
 preparation to enforce it, are absolutely necessary in 
 respect to the authority from which it emanates. In 
 regard also to its effect — whenever the time of acting 
 on a law has arrived, its operation should be imme- 
 diate and decisive, otherwise the sense of its protec- 
 tion and control will be weakened, and its powei 
 unfelt and forgotten. On general principles, there- 
 fore, as delay is reprehensible, promptness is a duty, 
 the non-performance of which, in certain cases, ena- 
 
CONSTITUTIONAL JURISPRUDENCE. 83 
 
 tt2i>^ Ji<5 iransgresiior to escape punishment. Fot 
 ttiis veason, it is both wise and humane that the ex- 
 ecution 01 tne law should be speedy, and that no un- 
 necessary interval should oe allowed between its 
 idolaiion and ihe adoption of measures to enforce ii. 
 
 For this purpose, the executive magistrate should 
 be endowed witn sufhcient energy. A feeble execu- 
 tive department implies a leeblc execution of the 
 government, which is but another name for a bad ex- 
 ecution ; and a government in which the laws are 
 not faithfully executed, whatever it m>ay be in theory, 
 must in practice be a bad one. A vigour 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 exer- 
 cise should be as exact as possible ; for if the 
 power fall short, the evils already adverted to will en- 
 sue ; and if it exceed its true proportion, the liberties 
 of the people would be endangered. It is difficult, 
 however, in a written Constitution, to adopt general 
 expressions precisely descriptive of the proper ex- 
 tent and limitation of this power. To guard, there- 
 fore, against its abuse, as well as to ensure a faithful 
 execution of the general trust reposed in this de- 
 partment, it is requisite that it should be held respon- 
 sible to the people for official delinquencies. 
 
 These three qualities of promptness, vigour, and 
 rcsponsihility are certainly most likely to exist where 
 the executive authority is limited to a single person, 
 moving at the discretion of a single will. In some 
 republics, the fear of danger from such a head has 
 led to the introduction of councils, and other subdi- 
 visions of the executive power, and the consequent 
 imbecility and distractions of those governments 
 have probably contributed to the preference given in 
 
84 LECTURES ON 
 
 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 re- 
 public, or that a republic thus constituted could long 
 maintain its freedom against the ambitious views of 
 a single chief. But during the American Revolu- 
 lion, neither the fervour of Republican principles, 
 nor resentment towards the monarchy then arrayed 
 against us, overpowered the deliberate judgments ol 
 our statesmen, and, upon the establishment of inde- 
 pendent 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 and modern, constituted 
 upon the scheme of a compound executive authority, 
 has suffered from the evils of division, indecision, 
 and delay, while the public interests have been sac- 
 rificed, or have languished under a feeble and irregu- 
 lar management. In those states of our Union where 
 executive councils have been tried, this weakness 
 and inefficiency have been strikingly exemplified. 
 In most instances in which they were at first adopt* 
 ed, they were speedily abandoned, and a single per- 
 son substituted, in accordance with the lights afforded 
 to the states in question by their own experience, or 
 the institutions of their neighbours. 
 
 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 mo- 
 tives of public measures, where there are no associ* 
 
CONSTITlrnONAL JURISPRUDENCE. 85 
 
 ates to divide or mask responsibility. The eyes ot 
 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 ex- 
 ecutive power is more easily confined where it is 
 one and indivisible. " If the execution of the laws," 
 he observes, " be intrusted to a number of hands, the 
 true cause of public evils 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 in- 
 vincible, but because it is unknown." 
 
 In accordance with these principles, the Federal 
 Constitution vests the executive power in a single 
 person, who is styled *' The President of the Uni- 
 ted States ;" the qualifications and election, the 
 powers and duties of which high officer will now be 
 the subject of consideration. 
 
 I. The Constitution requires that the President 
 should be a natural-born citizen of the United States 
 at the time of its adoption ; have attained the age of 
 thirty-five years, and have been fourteen years a resi- 
 dent within them. Considering the magnitude of the 
 trust, and that the executive department is the ulti- 
 mately efficient power in the government, these re- 
 strictions will not appear useless nor unimportant. 
 The qualification required of citizenship was intend- 
 ed to prevent ambitious foreigners from intriguing 
 ibr the office, and to cut off all those inducements 
 from abroad to corruption, intervention, and war, 
 which have frequently and fatally harassed the elect- 
 ive monarchies of Europe. The age required in 
 the President is suflicient to have formed his public 
 and private character, and the previous term of do- 
 mestic residence is intended to afford his fellow-citi 
 zens the opportunity of gainino- a correct knowledge 
 
86 LECTURES ON 
 
 of his principles and capacity, and to enable him to 
 acquire habits of attachment and obedience to the 
 laws, and of practical devotion to the public welfare. 
 
 The mode of his appointm.ent presented one of 
 the most difficult questions that occupied the Con- 
 vention ; and if ever the tranquillity of this nation is 
 to be disturbed, and its peace jeoparded, by a strug- 
 gle for power among ourselves, it is the opinion of 
 some of our wisest statesmen that it will be on this 
 very subject of the choice of President. It is there- 
 fore the more remarkable, that this was almost the 
 only part of the federal system, of any importance, 
 which escaped without the severest censure, or re- 
 ceived the slightest mark of approbation from its oppo- 
 nents. By the authors of " The Federalist," the man- 
 ner of choosing the President was affirmed to be, 
 " if not perfect, at least excellent," and to unite, in 
 an eminent degree, all the advantages of which the 
 selection and association were to be desired. It is, 
 nevertheless, 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 continue to elect the chief ma- 
 gistrate of the Union, with discretion, moderation, 
 and integrity, we shall undoubtedly stamp the high- 
 est value on our national character, and recommend 
 our Republican institutions, if not to the imitation, yet 
 certainly to the esteem and admiration of the more 
 enlightened part of mankind." 
 
 The experience of ancient and modern Europe 
 has certainly, as this eminent jurist observes, been 
 unfavourable 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 mischiefs of foreign intrigue and domestic turbu- 
 lence, from violence or corruption ; and men have 
 
CONSTITUTIONAL JURISPRUDENCE. 87 
 
 generally sought refuge from the dangers of popular 
 elections in hereditary chief magistrates, as the lesser 
 evil of the two. Archdeacon Paley condemns all 
 elective monarchies, and thinks nothing gained by a 
 popular choice w^orth the dissensions, tumults, and 
 interruptions of regular industry with which it is in- 
 separably connected. But these consequences rare- 
 ly attend our elections, and no such evils as he de- 
 scribes have ever been experienced in our elections 
 of a President by the electors ; although on one mem- 
 orable occasion, of which I shall speak hereafter, 
 much riotous and violent conduct was exhibited in 
 the House of Representatives, when, upon an equali- 
 ty of electoral votes between Mr. Jefferson and Colo- 
 nel Burr, in ISOl, the choice between them devolved 
 on" that body. Nor can any serious danger be appre- 
 hended in future from such occurrences, when we 
 reflect on the nature of the precautions which have 
 been so happily concerted to prevent them — in the 
 manner of electing the President, and the limitations 
 in the nature, extent, and duration of his power. The 
 question, too, with us, was very different from the 
 wisdom 01 policy of preferring hereditary to elective 
 monarchies in Europe ; where the same restraints 
 on the executive authority do not exist to diminish 
 its value in the estimation of competitors — where 
 different orders and ranks are established in the com- 
 munity, and large masses of property are accumula- 
 ted in the hands ol individuals — where ignorance and 
 poverty are widely diffused, and standing armies are 
 requisite to preserve the stability of the government. 
 The state of society and property in this country, 
 and the moral and political habits of the people, have 
 enabled us to adopt the Republican principle in rela- 
 tion to the chief executive magistrate, and to main- 
 tain it hitherto with signal success. From the pe- 
 
88 LECTURES ON 
 
 cuLar character of our Federative Union, in whic^ 
 the concerns only of the nation, as such, are confided 
 to the General Government, and those of a local de- 
 scription to the states — from the nature of the civil 
 and municipal institutions of the states, which favoui 
 the exertions of industry by the certainty of adequate 
 rewards, and secure enjoyment, but discourage and 
 prevent the accumulation of overgrown estates — from 
 the spread of knowledge and the prevalence of mo- 
 rality and religious habits, we may reasonably hope 
 that the checks which the Constitution has provided 
 against the dangerous propensities of our system, al- 
 though sometiaies contemned by ambitious popular 
 leaders, will prove continually and ultimately suc- 
 cessful. The election, however, of a supreme ma 
 gistrate for a whole nation, aflects so many interests, 
 addresses itself so strongly to popular passions, and 
 holds forth such powerful temptations to ambition, 
 that even under the most favourable circumstances 
 and wisest regulations, it necessarily becomes a for- 
 midable trial to public virtue, and sometimes hazard- 
 ous to the public tranquillity. The framers of our 
 Constitution, from an enlightened view of all the dif- 
 ficulties of the case, did not think it safe or prudent 
 to refer the election of the President immediately to 
 the people, but confided that power to a small body 
 of fdectors appointed in each state, under the direc- 
 tion of the Legislature ; and in order to close the 
 door as eflfectually as possible against negotiation, 
 intrigue, and corruption, they declared that Congress 
 might determine ihe 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 im- 
 portant a trust was to be confided ; and this end is 
 
CONSTITUTIONAL JURISPRUDENCE. 89 
 
 answered b; 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 cir- 
 cumstances as would best ensure the freedom and 
 nurity 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 
 acting under circumstances favourable to delibera- 
 tion, and to a judicious combination and comparison 
 of all the reasons and inducements proper to govern 
 their choice ; and it was fairly and reasonably sup- 
 posed that a small number of persons, selected by 
 their fellow-citizens from the general mass, would be 
 most likely to possess the information and discern- 
 ment requisite to such an investigation. It was, 
 moreover, peculiarly desirable to afford as little op- 
 portunity 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 or violent emotions, than the choice of 
 one, who would himself be the first object of the pub- 
 lic 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 more was to be desired, and nothing was 
 more anxiously attempted, than that every practica- 
 ble obstacle should be opposed to cabal, intrigue 
 and corruption. These deadly foes to Republicanism 
 were naturally to be expected to make their ap- 
 proaches from more than one quarter ; but chiefly 
 from abroad — from the desire of foreign powers tc 
 gain an improper ascendency in our public councils ; 
 H 
 
90 LECTURES ON 
 
 and it was apprehended that they might effect this 
 by raising a creature of their own to the chief ma- 
 gistracy of the Union. The Convention, therefore, 
 guarded against all danger of this sortwhh 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 was also 
 designed to be secured by making, as we have seen, 
 his re-election depend upon a special body of repre- 
 sentatives, deputed by the nation for the single pur- 
 pose of his election, instead of permitting his contin- 
 uance in office to depend on the will of Congress ; 
 to whose favour he might, in that case, be tempted 
 to sacrifice his' duty and official consequence. 
 
 Such were the advantages intended to be combi- 
 ned and ensured by the plan devised by the Conven- 
 tion. Whether they have been altogether realized, 
 we shall hereafter have occasion to inquire ; for the 
 present, it is as well to suggest that the contest 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 such 
 violence for the future. It has, nevertheless, been 
 deemed expedient, by some of our ablest and most 
 experienced statesmen, to propose a farther amend- 
 ment, disqualifying the President from re-election. 
 
 The Constitution ordains that each state shall a]>- 
 point, in such manner as its Legislature may direct, a 
 number of electors equal to the whole number of sen- 
 ators and representatives which the state is entitled 
 to send to Congress ; and to prevent the President 
 in office at the time of the election from having an 
 improper influence on his re-election by his ordina- 
 ry agency in the government, it is declared that no 
 senator or representative in Congress, nor any per- 
 
CONSTITUTIONAL JURISPRUDENCE. 91 
 
 son holding an office of trust or profit under the Uni- 
 ted States, shall be appointed an elector. In no oth- 
 er respect has the Constitution defined the qualifica- 
 tions of the electors. In several of the states the 
 electors were formerly chosen by the Legislature it- 
 self, in a mode prescribed by law, and this method 
 still prevails in Delaware and South Carolina. But 
 it is to be presumed that there will be less opportu- 
 nity for dangerous coalitions, for ambitious, selfish, 
 or party purposes, where the choice of the electors 
 is referred, as, according to the clear sense of public 
 opinion, it now almost universally is, to the people 
 at large. The electors are directed by the Consti- 
 tution to meet in their respective states on the same 
 day 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 meeting rests in the discretion of the 
 state legislatures, and is usually at the seat of the 
 state government. When thus assembled, and fully 
 organized, by filling up vacancies 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 inhabitant of the same 
 state with themselves. According to the original 
 Constitution, they were not to designate which of the 
 two they vote for as President, and which as Vice- 
 president ; who was, nevertheless, to be elected at the 
 same time, in the same manner, and for the samt> 
 term as the President. It was merely provided thai 
 the person having the greatest number of votes should 
 be the President, if such number were a majority of 
 the whole number of electors chosen, and that the 
 person having the next greatest number of votes of 
 the electors should be the Vice-president. But the 
 
02 LRCTURES OM 
 
 difficulty already adiided to as having occurred ip 
 1801, in procuring a constitutional choice from an 
 equality in the electoral votes between two individ- 
 uals, which threatened the peace, if not the stability 
 of the Union, the Constitution w^as so amended as t(? 
 require the electors to name in distinct ballots the 
 persons voted for respectively as President and Vice- 
 president. They are, then, by this amendment di- 
 rected to make distinct lists of all voted for as Presi- 
 dent and Vice-president, and of the number of votes 
 given for each respectively. These lists they are to 
 sign, certify, and transmit sealed to the seat of gov- 
 ernment of the United States, directed to the Presi- 
 dent of the Senate, before the first Wednesday in 
 January next ensuing the election. An act of Con- 
 gress, passed in March, 1792, requires that body to be 
 in session on the second Wednesday in Februar-y, 
 when the President of the Senate, in the presence 
 of both houses of Congress, opens the certificates re- 
 ceived, and the votes are then counted. The Con- 
 stitution does not explicitly declare by whom the 
 votes are to be counted, and the result proclaimed ; 
 but the practice has been for the President of the 
 Senate to perform those duties., the two houses being 
 present as spectators, to witness the fairness and ac- 
 curacy of the proceeding, and to be ready to act in 
 case no choice be made by the electors. 
 
 The person having the greatest number of voles 
 for President is declared to be elected to that office, 
 if such number be a majority of the whole number 
 of electors appointed : but if no person have such ma- 
 jority, then from the persons having the highest num- 
 bers, not exceeding three on the list of those voted 
 for as President, the House of Representatives are im- 
 mediately, by ballot, to choose the President. Bui 
 on this occasion tlie votes are to be taken by states, 
 
CONSTITUTIONAL 3 ORISPRUDENCE. 93 
 
 ihe representation from each state having one vote. 
 A quorum for the purpose, of a member or members 
 from two thirds of the states, and a majority of all 
 ihe states, is necessary Jo a choice. Although the 
 Constitution directs that, when no person is found to 
 have a majority of the electoral votes, the choice 
 shall be immediately made by the House of Represent- 
 atives, yet it is not held obligatory upon that house to 
 proceed to the election directly upon the separation of 
 the two l/.ouses, but it may proceed to it either at that 
 time and place, or omit it until afterward. This con- 
 struction was adopted before the amendment of the 
 Constitution, and there can be no question since in 
 regard to its correctness, as the amendment express- 
 ly declares the choice of the house to be valid, if 
 made before the fourth of March following the day 
 on which the electoral votes are counted. Accord- 
 ingly, in 1825, when there was again no choice by 
 the electors, the House of Representatives retired to 
 their own chamber, and on both occasions the Sen- 
 ate were allowed to be present as spectators only of 
 the result. 
 
 In case no choice of President be made by the 
 House of Representatives before the time thus limited 
 for their action, it is declared that the Vice-president 
 shall act as President, as in the case of the death or 
 constitutional inability of the President. The amend- 
 ment in question provides, farther, that the person 
 having the greatest number of votes for that office 
 shall be Vice-president, if such votes be a majority 
 of the whole number of electors appointed ; and that 
 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 this purpose con- 
 sists of two thirds of the whole number of senators 
 and a majority of the whole is necessary to a choice 
 
94 LECTURES ON 
 
 But no person constitutionally ineligible as President 
 can be elected Vice-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 an- 
 alogy 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 elec- 
 tion is in both cases limited, it is to be remarked that 
 it was adopted in reference to a law existing previous- 
 ly to the amendment of the Constitution, which had 
 already declared that the term of four years for which 
 the President and Vice-president are elected, shoidd 
 commence on the fourth day of March next succeed- 
 ing the day on which the votes of the electors are 
 given. The effect of the amendment, therefore, is 
 to render the provisions of the act of Congress, rela- 
 tive to the specific times appointed for the several 
 duties enjoined by the Constitution, in regard to the 
 election of President and Vice-president, as perma- 
 nent as the original instrument itself. 
 
 Although the wisdom and policy of this amend- 
 ment of the Constitution has been doubted by some 
 of our ablest jurists and statesmen, there are others 
 who consider it an improvement, not only with re- 
 spect to voting separately for President and Vice- 
 president, in reducing the number of candidates 
 from which the congressional selection of a Presi- 
 dent is to be made, from five to three, while the Sen- 
 ate, 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 
 
CONSTITUTIONAL J UKlSiMlUDENCE. 95 
 
 until the bouse had made its selection of a President, 
 wliicb, if parties ran high, might be indefinitely de- 
 layed. By the amendment, the Senate may proceed 
 to choose a Vice-president immediately on the decla- 
 ring of the elect ral votes. 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, tbe Vice-president then in office 
 was to act as President for the next official term : 
 so that, notwithstanding the public confidence might 
 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 refer- 
 ence — not in form, but in fact — to the Vice-presiden- 
 cy, and that, too, for the preceding term ; whereas, 
 on the plan now in force, if no President be chosen 
 either by the electors or by the House of Representa- 
 tives, the Vice-president, then to fill the office of 
 President, will have recently received the siifTrages 
 of the electors as well as of the Senate. After all, 
 however, it may well 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. 
 
 From a review of these various provisions, the 
 mode of electing the supreme magistrate of the 
 Union appears to be well calculated to secure a dis- 
 creet choice, and to avoid those evils which the par- 
 tisans of monarchy have ascribed, and the experi- 
 ence of past ages have shown to belong, to popular 
 elections. It must, nevertheless, 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 re- 
 
96 LECTURES ON 
 
 fined theoretical reasoning I have adverted to, have 
 not been realized in its practical operation and ef- 
 fects. It was supposed, as I have mentioned, that 
 the election of the President would be committed to 
 men not likely to be swayed by party or personal 
 bias ; who would act unfettered by previous commit- 
 ments, uncontrolled by combinations or discipline, 
 and be subject neither to intimidation nor corruption ; 
 and it was thought that the choice of an intermedi- 
 ate body of electors, consisting of several members, 
 would be much less apt to agitate and convulse the 
 community than the election of a single person, who 
 was himself to be the first object of their wishes. 
 Perhaps those views and expectations were founded 
 on too exalted an estimate of human nature ; and 
 that, making all due allowances for human frailty 
 and imperfection, they have not been altogether frus- 
 trated. Experience, however, has proved that the 
 electors do not, in fact, assemble for a strictly free 
 exercise of their own judgments, but for the pur- 
 pose of sanctioning the choice of a particular candi- 
 date, previously designated by their party leaders. 
 In some instances, the principles on which they are 
 constituted have been so far forgotten, that the indi- 
 vidual opinion of the electors 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, been attained ; and in a govern- 
 ment in which parties must ever exist, that system 
 may be deemed salutary in its operation which re- 
 sults in the election of the most eminent, or even the 
 
CONSTITUTIONAL JURISPRUDENCE. 97 
 
 most popular statesman of the most numerous party 
 Had any other mode of election been adopted, it 
 would have been impossible, in a Republican gov- 
 ernment, to have excluded party considerations, in- 
 terests, and feelings. The great objects were to 
 preserve purity as well as harmony in the election, 
 and secure integrity 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 dependant on the immediate au- 
 thors of his elevation to comport with the requisite 
 energy of his department, Jind have tempted him to 
 indulge in intrigues and manoeuvres utterly subver- 
 sive of the fairness of the election and the purity of 
 his own character. He would then no longer con- 
 sider himself responsible to the people, but w^ould 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 pre 
 scribed ratio of representation, be conveniently prac 
 tised, remains, indeed, to be ascertained. It has beei^ 
 objected that such a measure would " lead to an en* 
 tire consolidation of the government, and the annihi- 
 fation of the state sovereignties, so far as concerns 
 the organization of the executive department." Bui 
 if the difference should consist merely in the form 
 and not in the objects of the election, nor in the au- 
 thority which orders and controls it — if, for instance, 
 the people, in their several states, instead of votiau 
 
9g lectures on 
 
 for electors, should in the same manner, at the same 
 times and places, and under the same regulations, 
 vote directly for the President, and the whole num- 
 ber of votes to which the state is entitled under the 
 present provisions of the Constitution, should be 
 computed as given to the person receiving the high- 
 est vote from the people, I must confess my inability 
 to discover why any greater danger should be appre- 
 hended to the sovereignty of the states than exists 
 under the present system. Nor can I conceive any 
 sound objection to such an amendment, if it should 
 include a provision superseding, by a secondary re- 
 sort to electors, the ultimate reference now made in 
 case of no choice by the electors to Congress. On 
 the contrary, upon mature consideration, I am con- 
 vinced that such an alteration would be found an es- 
 sential improvement. It has, indeed, been actually 
 proposed and urged in Congress with great force of 
 argument, especially the part which substitutes a 
 final election by electors, in place of the last resort 
 to the House of Representatives, in cases where no 
 choice is made by the people. 
 
 From the example of the illustrious individual 
 who first held the office of President, a practice has 
 arisen, and seems now to be permanently established, 
 for the President to decline a second re-election. 
 As this precedent has never as yet been, and proba- 
 bly never will be departed from, it has, in elfect, 
 limited the period of service to eight years, subject, 
 however, to an intermediate election. But to render 
 the President more independent, the administration 
 more stable, and the people more secure, it would 
 be better that this improvement should be sanctioned 
 and legalized by being incorporated in the system ; 
 and this amendment of the Constitution, in connexion 
 with that already suggested, has been actually brought 
 
CONSTITUTIONAL JURISPRUDENCE. 99 
 
 forward, and appears to be favoured by somcj of the 
 most intelligent and upright of our public men 
 
 Having fully explained the manner in which ihe 
 ;supreme executive office is constituted, and the 
 mode of electing the President, I proceed to con- 
 sider, 
 
 II. The powers with which he is invested. 
 
 1. The first of these which offers itself to obser 
 vation is one which has already been adverted to in 
 reviewing the legislative department, and the con- 
 nexion between it and the executive power, for the 
 preservation of their mutual independence — I mean 
 the qualified negative of the President upon the con- 
 current acts of Congress, or his right of returning 
 bills and resolutions, with his objections to them, to 
 the house in which they originated, for reconsider- 
 ation, 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 indubi-* 
 table principles, it has been shown that, without this 
 control over the proceedings of Congress, the ex- 
 ecutive department would be unable to sustain itself 
 aoainst the encroachments of the Legislature. The 
 President might be gradually stripped of his authority 
 by concurrent resolutions of Congress, or so weak- 
 ened as ultimately to be annihilated by a single vote 
 even 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 
 
100 LECTURES ON 
 
 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 to the mercy of the other, but 
 should, on the contrary, be endow^ed with a constitu- 
 tional and effectual power of self-defence. 
 
 But the power in question has a farther use. It 
 not only serves as a shield to the executive author- 
 ity, but affords an additional security against the en- 
 actment 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 a moment to influence 
 the majority of Congress. The propriety of resting 
 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 wis- 
 dom and virtue than a numerous assembly. The 
 question, however, does not depend upon the suppo- 
 sition of superior wisdom and virtue in .the Presi- 
 dent, but upon the presumption that the Legislature, 
 if possessed of those qualities in the highest degree, 
 would still be fallible ; that the love of power would 
 sometimes dispose them to acts injuHous lo the rights 
 of the other members of the government ; that a 
 spirit of faction might sometimes pervert their delib- 
 erations ; and that momentary impressions might 
 sometimes impel them to measures which, upon ma 
 ture reflection, they would themselves condemn. 
 Thus the primary inducement of conferring this 
 power on the President is to enable him to defend 
 himself; the secondary, to increase tha chances in 
 favour of the community against the passage of bad 
 laws by Congress, through haste, inadvertence, or 
 design. 
 
CONSTITUTIONAL JURISPRUDENCE. _ 101 
 
 2. The President is consliluted commander-iii- 
 «hief of the army and navy of the United States, and 
 of the militia of the several states when called into 
 the service of the Union. The command and direc- 
 tion of the public force, to execute the laws, maintain 
 peace and tranquillity at home, and resist invasion 
 Irom abroad, are powers so obviously of an executive 
 nature, and so peculiarly demand the exercise ol 
 qualities characteristic of that department — these 
 duties have been so uniformly appropriated to it in 
 every well-organized government, and are so con- 
 sonant to the precedents of the state constitutions, 
 that little is necessary to explain or enforce them. 
 Of all the cares or concerns of government, the 
 management of war, which implies the direction ol 
 the public force, demands most peculiarly the exer- 
 cise of power by a single hand ; and even those oi 
 our states which have, in other matters, coupled their 
 chief magistrate with a council, have, for the most 
 part, concentrated the military authority exclusively 
 in him. 
 
 3. The President has the sole power of granting 
 reprieves and pardons for offences against the Uni- 
 ted States, except in cases of impeachment. The 
 necessity of such an authority in every government 
 arises from the infirmities incident to the adminis . 
 tration 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 testi- 
 mony, and the mode of trial, so perfect as to pre- 
 clude every possibility of mistake or injustice ; even 
 then policy would sometimes require the remission 
 of a punishment strictly due for a crime clearly as- 
 certained. Both humanity and policy dictate that 
 this benign prerogative of mercy should be as little 
 as possible fettered and embarrassed, and suiiiiesi 
 
102 LECTURES ON 
 
 as plainly the expediency of vesting it in the Presi- 
 dent. 
 
 As the sense of responsibility is always stronger 
 in proportion as it is undivided, it may justly be in- 
 ferred that one man will be most ready to listen to 
 the force of motives and reasons for mitigating the 
 rigour of the law, and least apt to yield to induce- 
 ments calculated to shelter a fit object from its ex- 
 emplary visitation ; while, on the other hand, as 
 men generally derive confidence from their numbers, 
 it may, with equal justice, be apprehended 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, with- 
 out limitation. He is precluded, as we have seen, in 
 cases of impeachment, from screening public officers, 
 with whom he might possibly have formed a danger- 
 ous or corrupt coalition, or may frequently be his fa- 
 vourites and dependants. 
 
 4. The President has power, by and with the ad- 
 vice and consent of the Senate, to make treaties, pro- 
 vided two thirds of the senators present concur. 
 
 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 ex- 
 ecutive cognizance. As treaties are declared by the 
 (Jonstitution to be a part of the supreme law of the 
 land ; as by means of these national engagements 
 new relations are formed, and new obligations con- 
 tracted, it seems more consonant to the principles of 
 the government to consider the right of entering into 
 them as falling within the jurisdiction of the Legis- 
 lature. On the other hand, the preliminary negotia- 
 
CONSTITCTIONAL JURtSR^UD: 
 
 tions which may be require(|( and;^the secrecwAi 
 despatch proper to take advattagJe of a sudd^ al^ 
 favourable turn in public affairs, ^render it expedierU''^ \ 
 to place this power in the hand$ of tlie execiit^^e. ^^ 
 The framers of the Constitution were influence'd by 
 the latter more than the former consideration ;\ but 
 although the power in question, if we carefufly at- 
 tend 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. The 
 essence of the legislative 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 purpose, or for the 
 common defence, comprise all the proper functions 
 of the executive magistrate. The power of making 
 treaties relates neither to the execution 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 pre- 
 scribed by the supreme legislative power to the citi- 
 zens of the state, but agreements between sovereign 
 and independent states. This power, then, forms a 
 distinct department, and the Constitution has wisely 
 confided it to the President. 
 
 The qualities indispensable in 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 purpose, not only as the deposite of the power in 
 
104 LECTURES U^ 
 
 that body imparts additional strength and security to 
 it as the weaker branch of the Legislature, but be- 
 cause from its smaller number and greater perma- 
 nence, it may be more readily convened, and is gov- 
 erned by steadier and more systematic views of pub- 
 lic policy, and enabled to act with due promptitude 
 and firmness. 
 
 5. The President is invested with the power to 
 nominate, 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 ap- 
 pointments are not otherwise provided for, and which 
 shall be established by lav/. But Congress may 
 vest the appointment of such inferior office'-s as they 
 may think proper in the President alone, ir\ the courts 
 of law, or in the heads of departments. 
 
 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, favouritism, and corrupt cabals, besides 
 releasing the appointing power from all responsibility. 
 No plan, I think, could have been devised better cal- 
 culated, on the whole, to promote a judicious choice 
 of men to fill the public offices, than that which was 
 udopted. The power of selecting the heads of de- 
 partments (which, by-the-way, are not otherwise rec- 
 ognised in the Constitution) established by law, to 
 aid the President in the discharge of his executive du- 
 ties ; of nominating agents, to whom the immediate 
 conduct of our international affairs and the negotia- 
 tion of foreign treaties are confided ; and of selecting 
 the proper men for high judicial stations, is, with pe- 
 culiar propriety, vested in the President, who is held 
 
CONSTITUTIONAL JURISPRUDENCE. 105 
 
 responsible for those acts of his immediate assistants 
 and confideAtial advisers which receive his sanction, 
 who is charged with the management of foreign af- 
 fairs, and bound to see both treaties and the laws 
 faithfully executed. 
 
 But the association of the Senate with the Presi- 
 dent 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. 
 This power of nomination is, for all the useful pur- 
 poses of restraint, equivalent to the power of abso- 
 lute appointment, and imposes upon the President 
 the same vivid sense of responsibility, and the same 
 necessity of meeting the public approbation or cen- 
 sure ; while the advice and consent of the Senate, 
 which are necessary to render the nomination effect- 
 ual, can never be attended with any mischievous 
 consequences, and must at all times prove a check 
 upon the misinformation or errors of the President. 
 To prevent the inconvenience which would arise 
 from occasional vacancies in office when the Senate 
 is not in session, the President has power to fill up 
 those which happen during recess, by granting com- 
 missions which expire at the end of the next ses- 
 sion of Congress. 
 
 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 expe- 
 dient. He may, on extraordinary occasions, con- 
 vene both houses of Congress, or either of them, and 
 in case of disagreement between them, he may, as 
 we have seen, adjourn them to such time as he may 
 think proper. It is his duty to receive ambassadors 
 I 
 
106 LECTURES ON 
 
 and other public ministers, to commission all officers 
 of the United States, and generally and comprehen- 
 sively to take care that the laws be faithfully execu- 
 ted. 
 
 III. The supjjort of the President, which is the 
 next subject of examination, is secured by a provis- 
 ion in the Constitution, which declares that he shall, 
 at stated times, receive for his services a compensa- 
 tion, 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 them. 
 This provision was intended to strengthen and pre- 
 serve the proper independence and energy of the ex- 
 ecutive department. 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 ex- 
 ecutive magistrate and the judicial officers. This, 
 indeed, would be to disregard the voice of experi- 
 ence, and the operation of invariable principles of 
 human conduct. The Constitution of Virginia, for 
 instance, considers it a fundamental axiom of gov- 
 ernment, that the three great departments should be 
 kept distinct, so that neither of them should exercise 
 the powers properly belonging to another. But, with- 
 out taking any precautions to preserve this principle 
 in practice, it renders the governor dependant 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 direc- 
 tion of the executive by that body was habitual and 
 familiar." 
 
 The Constitution of Massachusetts discovered 
 more wisdom, and aflbrded the first example of a 
 constitutional provision for the support of the execu- 
 
COiNSTITUTiONAL JURISPRUDENCE. 107 
 
 tivc magistrate, by declaring that the governor should 
 have a salary of a fixed and permanent value, amply 
 sufficient, and established by standing laws. Those 
 state constitutions which have been made or amend- 
 ed since the adoption of the Constitution of the Uni- 
 ted States, have generally followed the example 
 which it happily set to them in this and many other 
 particulars ; and it has been well observed by one of 
 our 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." 
 
 The appointment of an extraordinary person as 
 Vice-president of the United States, and ex officio 
 President of the Senate, was originally objected to 
 as superfluous, if not mischievous. But it was jus- 
 tified principally on two considerations : the first was, 
 that, to secure at all times a definite resolution of the 
 Senate, it was necessary that the president of that 
 body should have a casting vote ; and to take a sena- 
 tor from his seat as senator, and place him in that of 
 the presiding officer, w^ould 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. 
 The powers and duties of President devolve on the 
 Vice-president, not only when no choice is made by 
 the electors or the House of Representatives, but 
 also in case of the President's removal from office, 
 or of his death, resignation, or inability to discharge 
 his duties j and Congress is authorized to provide by 
 
108 LECTURES ON 
 
 law for the case of vacancies in the offices of both 
 President and Vice-president. 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 oi' the 
 Senate, that the Speaker of the House of Represent- 
 atives for the time being, shall act as President of 
 I he 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 decla- 
 ration in writing, liled 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 de- 
 volve on the Speaker of the House of Representa- 
 tives, after the Congress for which the last speaker 
 was chosen had expired, and before the new Con- 
 gress meet, it is usual for the Vice-president to with- 
 draw from the Senate shortly before the adjourn- 
 ment of the session, in order to afford an opportunity 
 to that body to choose a president pro tempore ; and 
 if he should die or resign during the recess of Con- 
 gress, and a casual vacancy occur in the 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 succeeds to the office of President, he con- 
 tinues in it until the expiration of the term for which 
 the President was elected ; and 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, and that 
 amendment omitted, perhaps intentionally, to piovido 
 
CONSTlTUTId NAL JURISPRUDENCE. 109 
 
 for the case, a Vice-president cannot be elected, m 
 case of a vacancy, until the next regular period.* 
 
 In addition to all the other precautions to prevent 
 ibuse of the executive trust, in the mode of the Pres- 
 ident'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 has ren- 
 dered him amenable to justice for mal-administration. 
 The President, as well as all other officers of the 
 government, may be impeached, as we have seen, 
 for treason, bribery, and other high crimes and mis- 
 demeanours, and, upon conviction, removed from of- 
 fice. The inviolability of the supreme magistrate, 
 as maintained 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 se- 
 cure the faithful discharge of the executive office — if 
 the President of the United States will use the au- 
 thority 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 sta- 
 tion, it was difficult to constitute the office of Presi- 
 dent so as to render it equally safe and efficient, by 
 combining, in the structure of its power, a due pro- 
 {)ortion 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 abfe jurist I have so 
 frequently quoted, " appear to have surveyed these 
 
 * Mr, Justice Story, in his Commentaries, § 14, 77, hints a doubi 
 whether this act be constitutional 
 
no LECTURES ON 
 
 two objects w\th profound disceriiineiit, and have or- 
 ganized the executive department with consummate 
 skill." 
 
 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 ail the concerns of social 
 and private life. No government can be complete 
 in its form, or perfect in its principles of organiza- 
 tion, without this power. To make laws and exe- 
 cute them are the respective objects of the other two 
 departments, and are, indeed, the two principal oper 
 ations of government. But laws cannot be fully and 
 correctly executed unless there be a power in the 
 state to expound and apply them. This power be- 
 ing auxiliary to the executive 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 de- 
 clared to be unconstitutional or unlawful, are thereby 
 rendered inoperative and void. The judicial depart- 
 ment may also be said to participate in the legisla- 
 tive power, as its construction of legislative acts is 
 binding and conclnsive, although this does not prevent 
 the Legislature from repairing defects or explaining 
 ambiguities, by subsequent laws operating on subse- 
 quent cases. 
 
 A higher function, moreover, appertains to this de- 
 
CONSTITUTIONAL JURISPRUDENCE. Ill 
 
 partment, under a written constitution, founded upon 
 true principles of representation, and establishing a 
 just separation of the three varieties 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 impe- 
 rious and absolute necessity of securing, by funda- 
 mental provisions, the independence of the judicial 
 power. A constitution 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 dependant 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 law, the government, if it did not perish by its 
 own weakness, 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 le- 
 gislative power, for such excess would be inconsist- 
 ent with its nature ; and if, by express terms, it 
 should, on the other hand, be so restricted as to em- 
 brace a part only of the subjects of actual legislation, 
 'he integrity and efficiency of the whole system would 
 he materially impaired. The Constitution, therefore, 
 establishes the judicia power as a substantive, inte- 
 gral, and independent 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 
 
112 LECTURES ON 
 
 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." A chief-justice is recognised in the article 
 which provides that when the President shall be im- 
 peached, the chief-justice shall preside ; and the exist- 
 ence of other judges is contemplated by the provision 
 which prescribes the manner of their appointment. 
 The complete 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 in- 
 teresting and important branch of the Federal Gov- 
 ernment, I shall consider, Firsts the manner in which 
 it is constituted, and. Secondly^ the extent and distri- 
 bution of its authority. 
 
 The first point embraces these several objects, 
 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 re- 
 sponsihility . 
 
 \st. The mode of appointing public officers, by 
 the President and Senate, I have already spoken of 
 as generally advantageous, and it seems to me pe- 
 culiarly fit and proper with respect to the judicial de- 
 partment. The just and vigorous investigation and 
 punishment of every species of fraud and violence, 
 and compelling every man punctually to fulfil his con- 
 tracts, are duties not certainly of the most popular 
 character, although the faithful discharge of them 
 will always command the approbation of the candid 
 and judicious. The fittest men would probably pos- 
 sess too much reserve and too much severity of mor- 
 als to secure an election depending on universal 
 
CONSTITUTIONAL JURISPRUDENCE. 113 
 
 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 party prejudices, 
 and too much scope for the interference of local in- 
 terests, to permit such a body to act in such cases 
 with a sulliciently single and steady regard for the 
 public welfare. 
 
 2iZ. The jud.ges, voth of the supreme and inferior 
 courts, hold their offices during good behaviour. 
 This tenure, as a standard for the duration and 
 continuance in office of the judicial magistracy, is 
 considered by the authors of " The Federalist" 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 aigainst the encroachments 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 been the sub- 
 ject of so much deserved eulogy, is one of the many 
 benefits derived from the land of our forefathers, 
 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 
 influence this must have given to the king in the ad- 
 ministration 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 the First, the barons 
 of the exchequer, being the court in which jurisdic- 
 tion is taken of all matters relative to the revenues 
 and property of the crown, were created during good 
 behaviour ; and although the commissions of the oth» 
 
114 LECTURES ON 
 
 er judges also were made so to run at the restora* 
 tion of Charles the Second, it still remained at the 
 pleasure of the crown to prescribe the form of the 
 commission, until the statute of WilUam and Mary 
 established the commissions of all the common- 
 law judges to be quam diu bene se gesserint. The 
 excellence of this provision has recommended its 
 adoption by other nations of Europe, and it prevails 
 in most of our state constitutions, but in some of 
 them under modifications more or less extensive and 
 injurious. 
 
 Whoever attentively considers the different de- 
 partments of power, must perceive that, in a govern- 
 ment in which they are separated from each other, 
 the judiciary, from the nature of its functions, will al- 
 ways 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 execu- 
 tive power not only dispenses the honours, but wields 
 the sword of the community ; the Legislature not 
 only holds the public purse, but prescribes the rules 
 by which the rights and 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 emphatically said to have " nei- 
 ther force nor will, but merely judgment ;" and even 
 for the 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 comparison, 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 against attacks 
 from them. It also shows that, although individual 
 
CONSTITUTIONAL JURISPRUDENCE. 115 
 
 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 it shows, lastly, as a conse- 
 quence of these previous deductions, and bearing 
 immediately on the point we are considering, that no- 
 thing can contribute so much to the firmness and in- 
 dependence of the judicial power as permanency in 
 office. This quality, therefore, may justly be re- 
 garded as an indispensable ingredient in its consti- 
 tution, and as rendering it the great security of pub- 
 lic justice, liberty, and safety. 
 
 3d. In addition to the tenure by which the judges 
 hold their offices, the permanent provision for their 
 support is admirably adapted to secure their inde- 
 pendence. It tends, also, to secure a succession of 
 learned men for the bench, who, in consequence of a 
 certain fixed support, are induced to relinquish the lu- 
 crative pursuit of their practice at the bar for the duties 
 of a more important and honourable station — a seat on 
 the bench. The Constitution declares, on this sub- 
 ject, 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 continu- 
 ance in office ;" and this provision was deemed an 
 improvement upon the previously existing constitu- 
 tions of the states. It was ordained in the Consti- 
 tution of Massachusetts, that permanent and honour- 
 able salaries should be established by law for the 
 judges. But this was not sufficiently precise and 
 definite, and the more certain provision in the Fed- 
 eral Constitution has been wisely followed in the 
 subsequent constitutions of several of the individual 
 states. 
 
 The complete and perfect independence of the 
 
IIB J.ECTLUIES UN 
 
 judges is peculiarly requisite in a limited constitution, 
 which, like that of the United States, contains certain 
 specific restrictions upon legislative authority, both 
 of the Federal and State Governments ; such, for in- 
 stance, as that '• Congress shall pass no bills of at- 
 tainder or ex post f ado law," and that " no state shall 
 coin money, emit bills of credit, or pass laws im- 
 pairing 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 justice ; 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 interpretation 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 
 tenour. Without this power, not only all the limita- 
 tions 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 nugatory. 
 
 4//i. 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 ren- 
 dering them amenable for any corrupt violation of 
 iheir trust ; and the judges of the United States may 
 be held to answer upon an impeachment ; and, if con- 
 victed, they may be removed from the bench, and dis- 
 qualified from holding any office in the government. 
 This, perhaps, is the only provision consistent with 
 the necessary independence 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 rela- 
 tive to the subject, in the Constitution. 
 
CONSTITUTIONAL JURISPRUDENCE. 117 
 
 The want of a provision for removing tlie judges 
 ^n account of inability, or upon the address of the Le- 
 gislature, which exists not only in England, but in 
 some of the states of this Union, afforded ground of 
 objection when the Federal Constitution was under 
 discussion 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, be more liable to abuse 
 than productive of good consequences. A provision 
 similar to that in the Constitution of New-York, which 
 limits the duration of the highest judicial officers to 
 .he age of sixty years, was also complained of as an 
 amission in the Federal Constitution ; but it was ad- 
 aiirably replied by General Hamilton, one of the 
 ablest and most illustrious defenders of that instru- 
 ment, 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 re- 
 sort to any other occupation, should have some bet- 
 ter apology to humanity than is to be found in the 
 imaginary danger of a superannuated bench." 
 
 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 United State> 
 to all cases in law and equity arising under thi 
 Constitution and laws of the Union, and treaties mad* 
 under their authority ; to all cases affeciing amhas 
 sadors, other public ministers, and consuls ; to all ca 
 ses o{ admiralty and maritime jurisdiction ; to contrc 
 
lis LECTURES ON 
 
 versies ^o which the United States are. a party ; to 
 controversies between two or more states ; between a 
 state, when "plaintiff, and citizens of another state ; be- 
 tween citizens of the same state claiming land undei 
 grants from different states ; and to controversies be- 
 tween citizens of the United States and for eig7i states y 
 citizens, or subjects. As it stood originally, the judi- 
 cial 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 foreign state. The states, however, were not 
 willing to be arraigned as defendants before the Fed- 
 eral Courts at the instance of private persons ; and 
 it was subsequently declared, by an amendment to 
 the Constitution, that the judicial power should not 
 be construed to extend to any suit of law or equity 
 commenced or prosecuted against one of the United 
 States by citizens of another state, or by citizens or 
 subjects of any foreign state. 
 
 The propriety of vesting the jurisdiction, as it now 
 stands, in thejudicial 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 Government. It may be profitable, how- 
 ever, at the present moment, to view this branch of 
 our snbject somewhat in detail, in particular refer- 
 ence to questions arising under the Constitution and 
 laws of the United States. 
 
 The fitness of extending the jurisdiction of the 
 Federal Courts to cases arising under the Constitu- 
 tion, in contradistinction to those arising under the 
 laics passed in virtue of its authority, results from 
 the obvious necessity of a constitutional method of 
 giving efficacy to those provisions of the compact 
 which neither require nor admit of an act on the part 
 
CONSTITUTIONAL JURISPRUDENCE. 119 
 
 of the National Legislature to sanction or enforce 
 ihem. What, for instance, would avail the restric- 
 tions on the states, without some constitutional mode 
 of compelling their observance ? The individual 
 states are prohibited from the performance of a va- 
 riety 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 imported 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 confed- 
 eration, it will hardly be pretended that such prohi- 
 bitions would be scrupulously regarded without some 
 effectual power in the government to restrain or cor- 
 rect their violation. The power must either be a di- 
 rect negative on the state laws, vested in the execu- 
 tive power of the Union (which, indeed, was propo- 
 sed as the alternative in the General Convention), or 
 an authority in the Federal Courts to overrule such 
 laws of the several states as contravene the National 
 Constitution. The latter expedient was preferred 
 by the Convention, and was unquestionably most ac- 
 ceptable to their constituents ; and there is no third 
 course that can be imagined, short of the doctrine 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, though every other member of 
 the Union admit their validity and submit to theii 
 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 illustration, to render its propriety clearer than it 
 appears from the mere statement of the question. 
 
120 LECTURES ON 
 
 If there be such things as political axioms or truths 
 in the science of government too plain to be dis- 
 puted, the principle already stated, that " the judicial 
 power must be coextensive with the power of legis- 
 lation," must certainly be one of them ; and in gov- 
 f-rnments formed from the union of the people of so 
 many separate and independent states, as well as of 
 those states themselves, as one nation, organized un- 
 cjer a written compact of government, the mere ne- 
 (;essity of uniformity in the interpretation of the 
 national laws is suthcient to decide the question. 
 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 six-and-twenty inde- 
 pendent judicatures, with final jurisdiction over the 
 same kind of causes, arising under the same laws, 
 would present a monstrous anomaly in judicial or- 
 ganization and procedure, from which nothing but 
 contradiction and confusion could ensue. The peo- 
 ple of the United States have declared that the Con- 
 stitution and the laws, and all treaties made in pur- 
 suance of it, shall be the supreme law of the land ; 
 and that the judges in every state shall be bound by 
 it, '* anything in the constitution and laws of any state 
 to the contrary notivithstanding.^^ Congress, no more 
 than the state legislatures, have power to pass laws 
 repugnant to the Federal Constitution ; because that 
 (Constitution is not only the 2mramou7it, but also the 
 ffindamental 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 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 re^rard as a clear and setiled 
 
CONSTITUTIONAL JURISPRUDENCE. 121 
 
 principle of our national jurisprudence, unalterable 
 by any authority but that from which the national 
 compact is derived, and not liable to change even by 
 that authority, except in the mode prescribed by the 
 instrument itself. Now, as the judicial power of the 
 Union is declared to extend to all cases arising un- 
 der the Constitution, to that power it must neces- 
 sarily belong, in cases wherein the question is ju- 
 dicially presented for decision, to determine what is 
 the supreme law ; and the judgment of the Supreme 
 Court must be final and conclusive, because the Con- 
 stitution invests that tribunal with the power to de- 
 cide, and gives no appeal from its decision. But if 
 an act of Congress admit of two interpretations, one 
 of which brings it within, and t^e other presses it 
 beyond 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 uncon- 
 stitutional authority. 
 
 Some perplexity exists in regard to the right of 
 courts of justice to pronounce legislative acts void, on 
 the ground of their unconstitutionality, from apprehen- 
 sion that the doctrine would establish a superiority of 
 the judicial over the legislative power. As the sub- 
 ject is of great practical importance, a rapid survey 
 of the grounds on which it was defended by our most 
 eminent statesmen cannot be disadvantageous ; es- 
 pecially as it exhibits a contemporaneous construe 
 tion of the highest authority of that part of the Cou 
 stitution. " There is no position," say the illustri- 
 ous authors of " The Federalist," " which depends on 
 clearer principles, than that every act of a delegated 
 authority, contrary to the commission under which it 
 is exercised, is void." No legislative act, therefore 
 contrary to the Constitution, which is the comml* 
 K 
 
122 LECTURES ON 
 
 sion by which every department of the governniert 
 equally 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 representatives of the 
 people are greater than the people themselves ; and 
 that persons acting in virtue of a delegated authority 
 not only assume what their powers do not authorize, 
 but what they expressly forbid. If it be alleged that 
 legislative bodies are themselves the constitutional 
 judges of their own powers, and that their own con^ 
 struction of them is conclusive upon the other depart- 
 ments, 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 that the Constitution meant 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 only intended to represent the sov- 
 ereignty of the people, in a co-ordinate and independ- 
 ent department ; and, in that capacity, to act as an 
 intermediate body between the people and the Legis- 
 lature, in order, among other things, to keep the lat- 
 ter within the limits assigned to its authority. 
 
 The interpretation of the laws is the proper and 
 peculiar province of the courts ; and the Constitu- 
 tion is, in fact, and must be regarded by them, as a 
 fundamental 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 irreconcila- 
 ble 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 
 
CONSTITUTIONAL JURISPRUDENCE. 123 
 
 lO llie statute ; the intention of the people to the in- 
 tention 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 in the statute- 
 book, stands opposed to the will of the people, de- 
 clared in the Constitution, the judges are to be 
 governed by the latter rather than the former, and 
 ought to regulate their decisions by that fundament- 
 al law, over which the Legislature has no control, 
 rather than by those which it may at any time 
 alter or repeal, and which 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 repugnancy between a law and the 
 Constitution, may substitute their own pleasure in 
 the stead of the constitutional intentions of the Le- 
 gislature, for this supposition not only involves a pe- 
 tition of the question, but might as well happen in 
 the case of two contradictory statutes, or in 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 exerci^^e will in- 
 stead of judgment, the consequence in the one case, as 
 well as the other, would be the substitution of their 
 own pleasure in lieu of the pleasure of the Legis- 
 lature. 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 I 
 have shown, I think, that the object of their separa- 
 tion was not only to create a distinct and independ- 
 ent body to expound the laws, but also to erect a bul- 
 wark to defend a constitution, limited in its powers, 
 
124 LECTURES ON 
 
 against legislative encroachments or executi\e usur* 
 pation, while it was itself restrained within its proper 
 bounds by corresponding checks, in the hands of the 
 other departments, or arising from its own constitu- 
 tion. 
 
 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 in- 
 roads or influence of the state sovereignties ; and all 
 the requirements and illustrations adduced in support 
 of 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 repugnant to the Constitution, apply with equal, if 
 not greater force, to establish a more extensive pow- 
 er in regard to the acts and proceedings of the state 
 governments. We have seen that the people of the 
 several states, in their adoption of the Federal Con- 
 stitution, 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 para- 
 mount obligation to the constitutions , as well as 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 de- 
 claring that the judicial power of the Union should 
 extend to all cases arising under it, vested in tho 
 proper department authority to determine its con- 
 struction, in every case in which such a. question should 
 judicially arise, whether directly between the parties to 
 the suit, or collaterally between the parties to the "^o- 
 cial contract. ^^ 
 
CONSTITUTIONAL JURISPRt'DENCE. 125 
 
 LECTURE VI. 
 
 OF THE DISTRIBUTION OF THE JUDICIAL POWER AMONG 
 THE FEDERAL COURTS. 
 
 We now proceed to ascertain in what man- 
 ner the Federal jurisdiction has been distributed 
 among the several courts, either by the Constitu- 
 tion, or the acts of Congress, carrying the sys- 
 tem into complete effect : in reference to which 
 it may be observed, generally, that the disposition 
 of this power, except in a few specified cases, is 
 left to Congress; and the courts cannot exercise 
 jurisdiction in every case to which the judicial 
 power extends without the intervention of Con- 
 gress ; who, moreover, are not bound to enlarge 
 the jurisdiction of the respective tribunals to ev- 
 ery subject which the Constitution warrants, al- 
 though 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 pre-existing authority, or the juris- 
 diction which they had before the adoption of 
 the Constitution ; except where it was taken away 
 either by an exclusive authority granted in ex- 
 press terms to the Union, or in a case where a 
 particular authority is granted to the Union, and 
 the exercise of a like authority prohibited to the 
 states, or in the case where an authority is grant- 
 ed to the Union, with which a similar authority 
 in the states would be incompatible. A concur- 
 rent jurisdiction in the state courts was admitted 
 
126 LECTURES ON 
 
 h\ 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. Con- 
 gress, in the course of its legislation, may com- 
 mit the decision of cases arising under its own 
 laws to the Federal Courts exclusively ; but un- 
 less 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 Consti- 
 tution, it was asserted and maintained by its ablest 
 commentators, that in all cases of concurrent ju- 
 risdiction, an appeal would, when it was ratified, 
 lie to the Supreme Court of the United States ; and 
 that, Avithout such appeal, the concurrent jurisdic- 
 tion of the state courts in matters of national con- 
 cern would be inadmissible, because, in that case, 
 it would be inconsistent with the authority and ef- 
 ficiency 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 Congress are clearly distinguish- 
 ed and marked in correspondence with it. It is, 
 nevertheless, manifest that the judicial power of 
 the United States may in all cases which it com- 
 prehends be made exclusive of all state authority, 
 at the election of Congress. Hence the concur- 
 rent jurisdiction of the state tribunals depends 
 altogether upon its pleasure, and w^henever Con- 
 gress thinks proper,it may be revoked and extin- 
 guished in every case which can constitutionally 
 be made cognizable in the Federal Courts ; but 
 without an express provision to the contrary, the 
 
CONSTITUTIONAL JURISPRUDENCE. 127 
 
 state courts retain a concurrent jurisdiction in 
 all jases of which, previous to the Federal Con- 
 stitution, they possessed the jurisdiction. The 
 state courts, moreover, may, in the exercise of 
 their ordinary original jurisdiction, take cogni- 
 zsiuc e, incide7it ally , of cases arising under the Con- 
 stitution, laws, and treaties of the United States ; 
 yet to all these cases the judicial power of the 
 Union extends by means of its appellate jurisdic- 
 tion. In order to ascertain to what extent, and 
 in what manner, the Federal jurisdiction, both 
 original and appellate^ has been disposed of, ei- 
 ther by the Constitution itself, or by act of Con- 
 gress, we must review, as we proposed, the vari- 
 ous 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 organi- 
 zation from the Judiciary Act of 1789, and the 
 several supplementary laws which have at differ- 
 ent times subsequently been passed in addition 
 thereto. The Constitution had merely declared 
 that there should be a Supreme Court^ with cer- 
 tain original and appellate powers ; it is merely to 
 be implied from that instrument that the chief-jus- 
 tice should preside in it, with one or more judges 
 to be associated with him ; but by the existing 
 acts of Congress, it consists of the chief-}ustice 
 and eight associate judges, any five of whom con- 
 stitute a quorum. It holds one term annually at 
 the seat of the General Government, commen- 
 cing on the first Monday in January; and al- 
 though the presence of five judges is required 
 for the general business of the court, yet any 
 one or more of them may make all necessary or- 
 de^fs in a suit, preparatory tc* the hearing or tri- 
 
128 LECTURES ON 
 
 al ; and it is made the special duty of the chief 
 justice to attend at Washington on the first Mon 
 day in August annually for the same purpose. 
 
 The Supreme Court has, by the Constitution, 
 exclusive original jurisdiction of all controversies 
 of a civil nature, where a state can be made a 
 party, except in suits by a state agamst one or 
 more of its citizens, or against citizens of other 
 states, or against aliens ; in which cases it has ori- 
 ginal^ hut not exclusive jurisdiction. It has also, 
 exclusively^ such jurisdiction of suits or proceed- 
 ings against ambassadors, or other public minis- 
 ters, or their domestics, as a court of law can ex 
 ercise consistently with the law of nations, and 
 original^ but not exclusive jurisdiction of all suits 
 Z>rowgA^ 6y ambassadors, or other public ministers, 
 or in which a consul or vice-consul may be a 
 party. 
 
 The Constitution also confers on it an appellate 
 jurisdiction, under such exceptions or regulations as 
 Congress may prescribe ; and by the first judiciary 
 act 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, where 
 brought there by original process, or removed thither 
 from tlie state courts, or by appeal from the District 
 Courts of the United States, where the matter in dis- 
 pute exceeds a specified sum, may be re-examined, 
 and reversed or afllrmed, in the Supreme Court; 
 and final judgments and decrees of the Circuit 
 Courts, in cases of admiralty or maritime jurisdic- 
 tion, and in questions of prize or no prize, whore the 
 matter in dispute exceeds the same amount, may be 
 reviewed on appeal in the Supreme Court; and in 
 
CONSTITUTION-^L JURISPRUDENCE. 129 
 
 these cases, new evidence is admitted on the appeals 
 conformably with the general doctrines and usages 
 of appellate courts of admiralty. So, also, a final 
 judgment or decree of the highest court of law or 
 equity in a state may be brought up on the allega- 
 tion of error in point of law to the Supreme Court of 
 the United States ; if the validity of a treaty, 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 
 '.aw or authority was drawn in question, on the 
 ground of its being repugnant to the Constitution, 
 treaties, and laws of the United States, and the de- 
 cision was in facoiLV of its validity ; or if the con- 
 struction of any clause of the Constitution, or of a 
 treaty, or of a statute of the United States, or of a 
 commission held under them, Avas drawn in question, 
 and the decision was against the title, right, privilege, 
 or exemption specially claimed under the authority 
 of the Union. Upon these appeals from the decision 
 of a state court, however, no other error can be as- 
 signed or regarded in the Supreme Court, than such 
 as appears on the face of the record, and immediate- 
 ly respects the question of the validity or construc- 
 tion of the Constitution, treaties, statutes, commis- 
 sions, or authority in dispute. 
 
 The original jurisdiction of the Supreme Court, or 
 that cognizance which it takes of causes in their in- 
 itiatory proceedings, is, as you may have perceived, 
 of a very limited character. It is confined by the 
 Constitution to those cases which affect ambassadors, 
 and other public ministers and consuls, and those in 
 which a state is a party ; and it has been made a 
 question whether the original jurisdiction was in- 
 tended to be exclusive- of the inferior courts of the 
 I. 
 
13v) LECTURES ON 
 
 United States, or of the state tribunals. The act ol 
 1789 seems to have considered it competent for 
 Congress to vest concurrent jmisdiction in the above 
 specified cases in other courts ; for it gives a con- 
 current 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 cogni- 
 zance of the cases enumerated. But an opinion of 
 the Supreme Court, in another case, goes far towards 
 establishing the principle of exclusive jurisdiction in 
 that court in all these cases of original jurisdiction ; 
 although this last decision was subsequently consid- 
 ered as shaking the first, yet the question was after- 
 ward left in doubt by the Supreme Court, and a de- 
 cision upon it purposely waived.! 
 
 Admitting, then, that this original jurisdiction of the 
 Supreme Court can be shared by other courts in the 
 discretion of Congress, it has been decided that it can- 
 not be enlarged ; and that the Supreme Court cannot 
 be invested with an original jurisdiction, by act of Con- 
 gress, in cases other than those described by the Con- 
 stitution. Congress has no authority to give it ori- 
 ginal jurisdiction, where the Constitution has declared 
 that the jurisdiction shall be appellate ; nor appellate, 
 where Congress has declared that it shall be origi- 
 nal.J The Constitution gives to the Supreme Court 
 original 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 suhstmitially the party, and thai 
 it is not sufficient that the state may be consequen- 
 tially affected. And although the judicial power of 
 the Union extends to '* controversies between a state 
 
 * United States vs. Ravaree, 2 Dall., 297. 
 t Marbury vs. Madison, 1 Cranch, 137. 5 Sarjent and Rawle, 
 645 11 Wheaton, 4C7. % 1 Cranch, 137. ^ 3 Dal).. 411. 
 
CONSTITUTIONAL JURISPRUDENCE. 131 
 
 and ft>feign states, citizens, or subjects, and the Con- 
 stitution gives to the Supreme Court original juris- 
 diction in all cases in which a state shall bo a party, 
 yet it was held, in the celebrated case of the Chero- 
 kee Indians,* that theij were not a " foreign nation" 
 within the meaning of the Constitution. They were, 
 indeed, considered to be a political community or 
 .state, and had uniformly been treated as such since 
 the first settlement of the country. The numerous 
 treaties with them by the United States recognises 
 them as a people capable of maintaining the relations 
 of peace and war ; of being responsible in their po- 
 litical character for any violation of their engage- 
 ments, 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 recognised this nation of Indians as 
 a state. 
 
 The condition of the Indian tribes, in regard to 
 their connexion with the United States, bears little re- 
 semblance to the relations between any other two peo- 
 ple in the world. In general, nations not owing a com - 
 mon allegiance are foreign to each other. But the 
 relation of the Indians to the government of the Uni- 
 ted States is marked by peculiar and cardinal distinc- 
 tions. The Cherokees were acknowledged to have 
 an unquestionable, and, until that controversy arose, 
 an unquestioned right to the lands they occupied, until 
 that right were extinguished by a voluntary cession 
 to the Federal Government. 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 
 
 * 5 Peters, 1. 
 
13'-^ LECTURES ON 
 
 States. They may more correctly be called domes- 
 tic, dependant nations, occupying a territory over 
 which our government assert a right independent of 
 their will, and which must take effect in point of 
 possession when their right of possession 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 souglit 
 to restrain the State of Georgia (within whose terri- 
 torial limits their lands were situate) from the forci- 
 ble exercise of legislative power over them, claim- 
 ing their independence as a separate and neighbour- 
 ing people ; their right to which the state denied. 
 The court held its power to interpose for their pro- 
 tection 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 on 
 the title : it was called on to control the Legislature 
 of Georgia, and to restrain the exertion of its phys- 
 ical force ; and the propriety of such an interposition 
 might well be questioned, as it savoured too much of 
 the exercise of political power to be within the prov-. 
 ince of the judicial department ; and it refused to 
 interfere. Thus much for the original jurisdiction 
 of the Supreme Court. We now proceed to that 
 which is appellate. 
 
 It is the appellate power of the Supreme Court 
 which gives to it most of its dignity and efficacy, 
 and renders it a constant object of solicitude and at- 
 tention to the government and people of the several 
 states. We have seen that, by the act of Congress, 
 a fmal judgment or decree of the highest court of law 
 
CONSTITUTIONAL JURISPRUDENCE. 133 
 
 or equity in a state may, in certain cases, under various 
 circumstances, be reviewed, and reversed or affirmed, 
 in the Supreme Court of the United States. In cases 
 of reversal, the cause may be remanded to the State 
 Court for final judgment, to be rendered according to 
 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 decis- 
 ion and av^^ard execution. Under this authority, it has 
 been declared by the Supreme Court, that if the high- 
 est court in a state reverse the judgment of a subordi- 
 nate court, and on appeal the judgment of the highest 
 court be, in its turn, reversed by the Supreme Court or 
 the United States, it becomes a mere nullity ; and the 
 mandate for execution may issue xlirectly from the Su- 
 preme Court to the inferior state court.* 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 rendered on appeal 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 them, resolved that the 
 appellate power of the Supreme Court did not ex- 
 tend to the state courts ; that the act of Congress was 
 not warranted by the Constitution ; and that the 
 proceedings in the Supreme Court were invalid in 
 relation to the Court of Appeals ; which, consequent- 
 ]f^ declined obedience to the mandate of the former. f 
 
 * eiarke vs. Sherwood, 3 DalL, 341. 
 t Fairfax vs. Hunter 7 Cranch, C03. 
 
134 LECTURES ON 
 
 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 authori- 
 zing an appeal from a state court. 
 
 In the luminous opinion delivered on that occasion 
 by the venerable and learned Chief-justice Marshall, 
 he observed, that the judicial power of the United 
 States had been declared by the Constitution to ex- 
 tend to all cases arising under treaties made under 
 the authority of the United States, which was an ab- 
 solute grant of jurisdiction in that case ; and that it 
 was competent for 'the people to invest the General 
 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 judgment, were incompatible with the 
 objects of the general compact. Congress were 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 any 
 other than appellate cognizance. The whole judicial 
 power must at all times be vested, either in an origi- 
 nal or appellate form, in some courts created under 
 the authority of the United States. The grant of the 
 judicial power was thus declared to be absolute, and 
 it was held to be imperative upon Congress to pro- 
 vide for the appellate jurisdiction of the Federal 
 Courts in all cases in which the judicial power was 
 granted exclusively to the United States, by the Con- 
 stitution, and not already given, by way of original 
 jurisdiction, to the Supreme Court. This eminent 
 judge, in his examination of the judicial power, upon 
 which he then entered, took a distinction between 
 \he two classes of enumerated cases, and held that 
 
CONSTITUTIONAL J UlllSPKUDENCE. 135 
 
 the Constitution intended that the judicial power, 
 either in an original or appellate form, should extend 
 absohilely to all cases in law or equity arising under 
 the Constitution and laws of the United States, and 
 the treaties made under its authority, to all cases af- 
 f cting ambassadors, other public ministers, and con- 
 suls, and to all cases of admiralty and maritime ju- 
 risdiction, because those cases were of vital impor 
 tance 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 
 appellate jurisdiction ought, therefore, in these cases, 
 to be commensurate with the mischiefs and the poli- 
 cy in view. But in respect to another class of cases, 
 it was held that the Constitution had designedly 
 dropped the word all, so as not absolutely to extend 
 the jurisdiction of the Federal judiciary to all contro- 
 versies, but merely to controversies in which the 
 United States were a party, or between two or more 
 states, or between citizens of different states, &c., 
 leaving it to Congress to qualify the jurisdiction, 
 original or appellate, in such manner as public policy 
 might dictate. 
 
 But whatever weight is 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 may 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 
 oxtended. Congress might rightfully vest exclusive 
 jurisdiction in their own courts. The criminal and 
 the admiralty jurisdiction must be exclusive ; and it 
 is only in those cases where, previously to the Con- 
 stitution, the state tribunals possessed jurisdiction in- 
 dependently of national authority, that they can now 
 constitutionally exercise a concurrent jurisdiction 
 
136 LECTURES ON 
 
 The appellate jurisdiction was not considered as lim- 
 ited by the Constitution to the Supreme Court ; but 
 Congress may create a succession of inferior tribu- 
 nals, in each of which it may vest appellate as well 
 as original jurisdiction. The appellate jurisdiction 
 of the Supreme Court, in cases wherein it has not ori- 
 gmal jurisdiction, is declared by the Constitution to 
 be subject to such exceptions and regulations as Con- 
 gress may prescribe. It remained, therefore, entire- 
 ly in the discretion of Congress to provide for the 
 exercise of judicial power in all the various forms of 
 appeal. The right of removing a cause from a state 
 court by a defendant entitled to try his right, or as- 
 sert his privileges in the national /orwm, is, in fact, 
 the exercise of an appellate jurisdiction, as that pow- 
 er may exist as well before as after judgment, and is. 
 not limited to cases pending in the courts of the Uni- 
 ted States. Had it been so limited, it would neces- 
 sarily have followed that the jurisdiction of the Fed- 
 eral 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 
 compact, entertain any jurisdiction in them without 
 (he right of appeal to the Federal tribunals. For if 
 ^he state courts were allowed to exercise a concur- 
 rent jurisdiction in those cases free from such con- 
 trol, 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 Fed- 
 eral Constitution. 
 
 The appellate power of the Federal Courts must 
 continue to extend to the state courts, so long as the 
 latter entertain any concurrent jurisdiction over the 
 cases which the Constitution has decb.ired to fall 
 
CONSTITUTIONAL JURISPRUDENCE. 137 
 
 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 jurisdic- 
 tion, but that those tribunals would incidentally take 
 cognizance of questions of which the courts of the 
 United States have exclusive jurisdiction. Inas- 
 much, therefore, as the judicial power of the Union 
 extends to both the above specified classes of cases, 
 it follows, as a necessary consequence, that the appel- 
 late jurisdiction of the Federal Courts must and does 
 extend to the state tribunals, and attach to every case 
 within the Federal judicial power. All the enumer- 
 ated 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 attach- 
 ments, prejudices, jealousies, or interests might 
 sometimes obstruct or control the regular administra- 
 tion 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 deci- 
 ding 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 C'onstitution, laws, and treaties of the Union over 
 the constitution and laws of the respective states. 
 The existence ofsuch a power was, moreover, deemed 
 necessary to preserve uniformity of decision through- 
 out the United States upon all subjects within the 
 purview of the Constitution ; and to prevent the mis- 
 chiefs of opposite constructions and contradictory de* 
 cisions in the several states on these points of gen- 
 eral concern. 
 
13S LECTURES ON 
 
 The appellate powoi of the Federal judiciary ov^er 
 the atate 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 he 
 a party ; because that jurisdiction was given to the 
 Federal Courts m two classes of cases ; in the one, 
 it depends on the character of the cause, whosoevei 
 may be ihe 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,* where 
 the validity, or, at least, the construction of the trea- 
 ties made by the United States with the Cherokee 
 Indians, was drawn in question in the highest court 
 of that state, and the decision had been, if not 
 *' against their validity," against a " right, privilege, 
 and exemption claimed under them ;" and where 
 had also been drawn in question the validity of a 
 law of Georgia, on the ground of its being " repug- 
 naxit to the Constitution, treaties, and laws of the 
 United States," and the decision had been " in fa- 
 vour of its validity;" it was considered by the Su- 
 pr^.me Court too clear for controversy, that the judi- 
 ciary act of Congress had given it the power, and, 
 of course, imposed on it the duty, of exercising an 
 appellative jurisdiction in the case, notivithstanding 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 the chief-justice, who delivered the opinion of 
 the court, declared that its jurisdiction was no less 
 clear in that cose than in civil cases. He consider- 
 ed ihe parties not less interested iH the operation of 
 
 ♦ fi Peters's Rep., 515. 
 
CONSTITUTIONAL JURISPRUDENCE. 139 
 
 this unconstituiional law than if it had affected their 
 property ; nor less entitled to the protection of the 
 General Government, when the judgment of the 
 state court affected their personal liberty, and in 
 flicted a disgraceful punishment. The court, there 
 fore, ordered the proceedings against the mission 
 aries o be annulled, and that they should be released 
 from their imprisonment. The special mandate is 
 sued to fhe court below, to carry that judgment into 
 effect, was not obeyed, and compulsory proceedings 
 were in progress to enforce it, when the matter was 
 compromised by the discharge of the missionaries, 
 upon their withdrawing the suits they had com- 
 menced against the state officers for their deten- 
 tion. 
 
 In a more recent case, the Supreme Court observed 
 that if the state legislatures may 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 is deprived of the 
 means of enforcing its laws by its own tribunals : so 
 fatal a result must be deprecated by all ; and the peo- 
 ple of every state must feel a deep interest in resist- 
 ing principles so distructive to the Union, and in 
 averting consequences so fatal to themselves.*^ 
 
 The Supreme Court is also clothed with that su- 
 perintending authority over the subordinate courts 
 of the United States, which should 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 
 
 * 12 Peters Rep., 357. 
 
140 LECTURES ON 
 
 holding office under the 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 
 exercise of their respective jurisdictions, and con- 
 formable 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 colour of, the authority of the United States. 
 
 Under the power granted to Congress of erecting 
 tribunals subordinate to the Supreme Court, two de- 
 scriptions of inferior courts, differing materially in 
 the nature and extent of their respective jurisdic- 
 tions, have been established. For this purpose, the 
 United States have been divided into nine judicial 
 circuits ; and each circuit consists of three or more 
 districts ; each district, for the most part, comprises 
 an entire state ; but in some of the larger and more 
 populous states there are two districts. Some dis- 
 tricts are not embraced within any circuit, and have 
 only District Courts ; which, however, exercise the 
 powers of a Circuit Court within their respective 
 districts, except in cases of error and appeal. In 
 the District of Columbia, which comprises the terri- 
 tory ceded to the United States for the seat of the 
 Federal 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 de- 
 cisions writs of error and appeals lie to the Supreme 
 Court of the United States. The jurisdiction vested 
 m these courts respectively, corresponds with that 
 i^ested in the Circuit and District Courts established 
 or the Union at large. 
 
 II. The Circuit Coirts are held annually in each 
 
CONSTITUTIONAL JURISPRUDENCE. 141 
 
 judicial 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 in their judgment render it necessary, 
 assign two justices of the Supreme Court to attend 
 the Circuit Court. If a vacancy happen by the 
 death of the justice of the Supreme Court to whom 
 the circuit is allotted, the district judge may, under 
 the act of Congress, discharge all the duties of the 
 Circuit Court for his district, except that he cannot 
 sit upon a writ of error, or upon an appeal from 
 his own court; and where the district judge is ab- 
 sent, or has been of counsel, or is interested in the 
 cause, the Circuit Court may be holden by the jus- 
 tice of the Supreme Court alone. If an opposition 
 of opinions between the justice of the Supreme Court 
 and the district judge occurs, in a case in which the 
 Circuit Court has original jurisdiction, the point on 
 which they disagree is directed by law to be certi- 
 fied 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 therein. 
 
 . The Circuit Courts, thus organized, are invested 
 with original and exclusive jurisdiction, except in cer- 
 tain cases hereafter mentioned, of all crimes and of- 
 ences cogniiable under the authority of the United 
 States, exceeding the degree of ordinary misdemean- 
 ours ; and of those, they have concurrent jurisdiction 
 with the District Courts. They have original cog- 
 nizance, concurrently 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 
 
142 LECTURES ON 
 
 sum, and the United States are plaintiff? ; 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. 
 They have also original jurisdiction in equity, and 
 at law, of all suits arising under the acts of Congress 
 relative to copy-rights, and the rights growing out of 
 inventions and discoveries; and they likewise have 
 concurrent jurisdiction with the District Courts of 
 the United States, and with the courts and magis- 
 trates of the several states, of all suits at common 
 law, where the United States, or an officer thereof, 
 sues under the authority of an act of Congress, how 
 ever small the amount. 
 
 The Circuit Courts of the United States have 
 appellate jurisdiction in all final judgments and 
 decrees and judgments of the District Courts ; 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, on giving security, may remove the cause 
 to the Circuit Court for the Federal judicial district 
 'n which the suit is brought.* 
 
 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 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, are entitled to 
 liberal intendments in favour 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 Dallas. II. 2 ibid., 340. 5 Craiich, 185. 
 
CONSTITUTIONAL JURLaf|Eui)^p^?^V^43 
 
 a small proportion of the case^ whicn an unlimited \ 
 jurisdiction would embrace ; aiid. the legal presump*/^ 
 tion is, that a cause is without their jurisdiction until '^ 
 the contrary appears. ^ ^ 
 
 III. The District Courts are derived from tiie sam« i> 
 constitutional power of Congress as the Cir^it 
 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 Stat^, 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, navi- 
 gable from the ocean by vessels of ten or more tons' 
 burden ; and also of all other seizures made under 
 the laws of the United States ; and of all suits for 
 penalties or forfeitures incurred under those laws. 
 
 They have, moreover, cognizance, concurrent with 
 Circuit Courts and the state courts, of causes in 
 which an alien sues for the violation of a right accru. 
 ing 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, exclusive of the state courts, of 
 all suits against consuls or vice-consuls, except of of- 
 fences of a higher'degree than those which have been 
 mentioned. They have also exclusive cognizance 
 of proceedings to repeal patents, obtained surrepti- 
 
144 LECTURES ON 
 
 tiously, and upon false suggestions; and of com- 
 plaints, by whomsoever instituted, in cases of cap- 
 ture made within the waters of the United States, oi 
 within a marine league of their courts. 
 
 The judges of the District Courts have, in cases 
 where the party has not had reasonable time to apply 
 to the Circuit Courts, 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. Whe Courts of the Territories of the United 
 States have been created, from time to time, by the 
 several acts of Congress establishing Territorial gov- 
 ernments in those vast regions in the western parts 
 of the Continent which were either ceded by indi- 
 vidual 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 compri- 
 sing those obtained by treaty from foreign powers, 
 and never included within the boundaries of any of 
 the original members of the Union. These Territo- 
 ries (as they are politically, as well as geographical- 
 ly termed) are not in either case considered distinct 
 political societies, known to the Constitution as 
 states; but Congress has always assumed to exer- 
 cise over them supreme powers of sovereignty ; and 
 has generally adopted for that purpose the princi- 
 ples of an ordinance established under the confeder- 
 ation for governing the territory northwest of the 
 River Ohio, which now contains the States of Ohio, 
 Indiana, Illinois, and Michigan. This ordinance was 
 formed upon sound and enlightene(i principles of civil 
 jurisprudence, and the judges appointed in that tnr- 
 litory hold their ofiices during good behaviour, as 
 
CONSTITUTIONAL JURISPRUDENCE. 145 
 
 well as those in the territories which were succes 
 sively elected from the residuary parts of it. In the 
 existing territories of Florida, Wisconsin, and Iowa, 
 however, the governor and members of the legisla- 
 tive council, as well as- the judges, are appointed by 
 the President and Senate, but are all removable at 
 the pleasure of the President ; and the judges, subject 
 to such removal, hold for four, and the governor for 
 three years. In the first, the judicial power is 
 vested in two Superior Courts, and in such inferior 
 courts and magistrates as the legislative council may 
 establish. The legislative power in all these terri- 
 tories is vested in the governor, and a legislative 
 council consisting of nine members, appointed by the 
 President and Senate, to continue in office for five 
 years, and of a House of Representatives, chosen by 
 the inhabitants biennially. The Superior Courts 
 in those territories have exclusive cognizance of all 
 capital offences, and the trial by jury is secured, to- 
 gether with many other great fundamental principles 
 of civil liberty. The legislatures are prohibited 
 from interfering with the primary disposal of the soil, 
 or from taxing land belongmg to the United States, 
 or from imposing higher taxes on land belonging to 
 non-resident proprietors than on those of residents. 
 In the organization of the territorial governments of 
 East and West Florida, one of the Superior Courts, 
 consisting of a single judge, is assigned to each di- 
 vision respectively ; and has within its limits the 
 same jurisdiction, in all cases arising under the Con- 
 stitution and laws of the United States, which is vest- 
 ed 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 
 the decisions of these territorial courts, may be taken 
 Vo the Supreme Court of the United States, in the 
 M 
 
146 LECTURES ON 
 
 same cases, and under the same regulations, as from 
 the Circuit Courts of the Union. 
 
 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. Neither the District of Columbia 
 nor a territory is a state^ within the meaning of the 
 Constitution, or entitled to claim the privileges se- 
 cured to the members of the Union.* Nor will a writ 
 of error or an appeal lie from a territorial court to 
 the Supreme Court, unless there be a special statuto- 
 ry provision for the purpose.! 
 
 '.' If," observes Mr. Chancellor Kent, " the govern- 
 ment of the United States should carry into execu- 
 tion the project of colonizing the great valley of the 
 Oregon west of the Rocky Mountains, it would af- 
 ford a subject of grave consideration, what would be 
 the future civil and political destiny of that country. It 
 would be a long time," he continues, '• before it would 
 be populous enough to be created into one or more in- 
 dependent states ; and, in the mean time, upon the doc- 
 trine taught by the acts of Congress, and the judicial 
 decisions of the SupremS Court, the colonists would 
 be in a state of most complete subordination, and as 
 dependant upon 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 sus- 
 tained their claim to bind us, in all cases whatsoever. 
 Such a state of absolute sovereignty on the one hand, 
 and of absolute dependance 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 
 
 ♦ 2 Cranch, 445. 1 Wheaton, 91. 
 t 1 Grand), 212. 3 ib., 159. 
 
CONSTITUTIONAL JURISPRUDENCE. 147 
 
 proconsular governments have had, to abuse and op- 
 pression." 
 
 V. The State Courts ami Magistrates are in some 
 cases invested by Congress with cognizance of cases 
 arising under the laws of the United States. It 
 seems, indeed, that Congress, in the course of its le- 
 gislation upon the subjects intrusted to it, may com- 
 mit the decision 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 expressly excluded, they may take cogni- 
 zance of causes growing out of an act of Congress : 
 and although Congress cannot confer jurisdiction 
 upon any courts but such as exist under the Consti- 
 tution and its own laws, yet the state courts may ex- 
 ercise it in cases authorized by the laws of the state, 
 and not prohibited by the exclusive jurisdiction of the 
 Federal Courts.* 
 
 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 for- 
 feitures, accruing under the laws of the United States. 
 In civil suits, the state courts entertain such jurisdic- 
 tion ; but in criminal and penal cases they have in 
 several instances declined it. In what cases, and to 
 what extent, they will exercise criminal jurisdiction 
 under the laws of the Union ; and under what cir- 
 cumstances, 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 have never been definitively settled in th^ Su- 
 
 * 5 Wheaton, 1. 
 
148 LECTURES ON 
 
 preme Court 3f the United States, where the ultimate 
 right of determining them resides. The doctrine, 
 however, seems to be admitted, that Congress can- 
 not compel a state court to entertain jurisdiction in 
 pny case. It only permits such of those tribunals as 
 Hxe competent, and bave inherent jurisdiction ade- 
 ']uate to the case, to entertain such suits in given ca- 
 fes ; and they do not thereby become Superior Courts, 
 in the sense of the Federal Constitution, because they 
 are not ordained and established by Congress. 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 cognizable 
 under the authority of the United States, they do 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. 
 
 From the survey I have now completed of the or- 
 , ^uization of our Federal judicial establishment, you 
 will have perceived that the leading features of the 
 pystem are to be found in the act so often referred to, 
 passed in 1789, at the first session of the first Con- 
 gress under the present Constitution. It was under- 
 stood to have been drawn up by Mr. Oliver Ells- 
 worth, a senator from Connecticut, and has stood the 
 test of severe experience since that time, with very 
 little alteration or improvement ; a fact which affords 
 
 • 14 Johns. Reps., 95. 
 
CONSTITUTIONAL JURISPRUDENCE. i 49 
 
 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 rellection 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 Federal Courts 
 has been constantly rising in influence and reputa- 
 tion. In this review of the most important points 
 which have arisen with respect to the constitutional 
 powersof the judicial department, we have seen that 
 it is competent, not only to pronounce on the consti- 
 tutionality of laws of the United States, and on the 
 validity of the constitutions and laws of the several 
 states, and to declare either of them void, when re- 
 pugnant to the Federal Constitution, or to a law or 
 treaty of the Federal Government, but also to revise 
 the judgments of a state court, enforcing any uncon- 
 stitutional ordinance. We have seen, moreover, that 
 the Federal Courts must either possess exclusive ju- 
 risdiction in all cases affecting the Constitution, laws, 
 and treaties of the Union, or they must have power 
 to review the judgments rendered on all such ques- 
 tions by the state tribunals ; and that, 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. 
 
1 50 LECTURES ON 
 
 LECTURE VII. 
 
 OS THE POWERS VESTED Ix\ Tf E FEDERAL GOVERN* 
 MENT, RELATIVE TO SECURITY FROM FOREIGW 
 DANGER. 
 
 We are now to enter upon the second general di- 
 vision of our subject, which rehites to " the nature, 
 extent, and limitation of the powers vested in the 
 Federal Government, and the restraints imposed by 
 the Constitution on the states.^ 
 
 The powers conferred on the National Govern- 
 ment may be reduced, as I have already mentioned, 
 to different 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 pri- 
 mary objects of civil society, so it was an avowed 
 and essential purpose of the union of the states ; and, 
 accordingly, the powers requisite to attaining it were 
 effectually confided to the National Government, and 
 consist, 
 
 1^/. Of the powers of declaring war, and granting 
 letters of marque and reprisal. 
 
 2d. Of making rules concerning captures by land 
 and water. 
 
 3J. Of providing armies and fleets, and of regu* 
 
CONSTITUTIONAL JURISPRUDENCE. l51 
 
 (ating 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 fundamental 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 threat- 
 ened to the perfect rights of a nation, or any of its 
 members, and susceptible of no other redress, is jus: 
 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 ta- 
 ken, and every necessary preparation made, before 
 engaging in it. It was formerly usual to precede 
 hostilities by a public declaration communicated in 
 form to the enemy ; but in modern times this prac- 
 tice has been discontinued ; and the nation proclaim- 
 ing 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 Con- 
 stitution of the United States in Congress ; without 
 whose consent no state can engage in war, unless 
 actually invaded, or in such imminent danger of in- 
 vasion 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 conceive where else but in Congress 
 it could be properly and prudently deposited. Al- 
 though Congress alone, by its solemn act, passed, 
 like other laws, according to the forms of the Con- 
 stitution, can subject the nation to the hazardous 
 events of war, yet the interposition of a smaller por- 
 tion of the government has power to restore peace. 
 
152 LECTURES ON 
 
 Hostilities may be terminated by a truce^ which muy 
 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, with- 
 out the intervention of the House of Representatives. 
 As delay in making war may be sometimes detri- 
 mental to individuals who may have sufiered 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."* This power is, in all cases, plainly deri- 
 ved 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 grant- 
 ed whenever the subjects of one state are oppressed 
 and injured by those of another, and justice is denied 
 by the state to which the oppressor belongs. They 
 are in the nature of a commission granted by the gov- 
 ernment to particular citizens, authorizing them to 
 seize the bodies or goods of citizens of the offending 
 nation, wherever they may be found, until satisfac- 
 tion be made. And although this procedure seems 
 to be dictated by Nature herself, yet the necessity is 
 obvious, of calling on the sovereign power to deter- 
 mine when it may be resorted to ; as, otherwise, ev- 
 ery private individual might act as a judge in his own 
 
 '^ This is the literal meaning of the terms ; but the only practical 
 distinction seems to be the one given in the note to Mr. Dupon- 
 ceau's vahiable edition of Bynkcrshnck, 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." 
 
CONSTITUTIONAL JURISPRUDENCE. 153 
 
 cause, and. to avenge his private injury, involve the 
 nation to which he belongs in war. 
 
 II. The 'power of making ''''rules concerning cap- 
 tures on land and water ^^^ which is superadded to the 
 constitutional 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 express grant to Congress of the power of con- 
 fiscating such property, as an independent substan- 
 tive power, not included in the power of declaring 
 war; and when a v/ar breaks out, the question as to 
 the disposition of enemy-property in the country, is 
 a question of policy for the consideration of the Na- 
 tional Legislature, and not proper for the considera- 
 tion of the judicial power, which can only pursue 
 that course in regard to such property as Congress 
 may direct.* According to the best writers on the 
 law of nations a declaration of war by the sover- 
 eign power of one state against another, implies that 
 the whole nation declares war ; and that all the sub- 
 jects of the one are enemies to all the subjects 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, 
 produce any of those results which are usually ef- 
 fected 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 tax the persons arid 
 confiscate the property of its enemy, wherever found ; 
 and the mitigation of this rule which the policy of 
 
 * 8 Cranch, .09. 
 
154 LECTURES ON 
 
 modern times has introduced 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 judicial department must 
 give it effect. 
 
 Until the legislative will, however, is distinctly 
 declared, 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 sus- 
 tained 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 gov- 
 ernment 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.* 
 
 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 un- 
 der the confederation, would have inverted a primary 
 principle of the new Constitution, and, in practice, 
 transferred the case 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 obvious. They had been experi- 
 enced during the war of our Revolution, and had 
 proved that such a system was oppressive to some 
 states, and dangerous to all. Under our present 
 Constitution, sufficient reasons have appeared to in- 
 duce an apprehension that the state governmenta 
 
 * 8 Cranch, 109. 
 
CONSTITUTIONAL JURISPRUDENCE. 155 
 
 are naturally prone to rivalship with the government 
 of the Union ; and if, in addition to this, their am- 
 bition were stimulated by the separate and inde- 
 pendent 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 undei 
 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 institu- 
 lions ; but there can scarcely be ground for such ap- 
 prehension, from the nature of the Federal Govern- 
 ment ; while the impolicy of restraints on its discre- 
 tion 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 defence be limited by 
 those who have no power to limit the strength and 
 power of offence possess^ed by an enemy : nor, un- 
 less our government could set bounds to the ambition, 
 injustice, or exertions of other nations, could re- 
 straints be safely imposed upon its discretion, oi 
 limits prescribed to it for self-preservation. Besides 
 a readiness for war w time of peace, is not only no 
 
156 LECTURES ON 
 
 cessary 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 incapacitated by its constitution from pre- 
 paring for defence before it was actually invaded, but 
 would be altogether inconsistent with the public 
 safety, and the exigencies of self-protection, uidess 
 by its constitution it could in like manner prohibit 
 the preparations and establishments of every hostile 
 power. The means of security can only be regu- 
 lated by the means, probabilities, and dangers of at- 
 tack ; and it would be worse than useless to oppose 
 constitutional barriers to the impulse of self-preserva- 
 tion, because it would imbody in the Constitution the 
 temptation, if not the necessity of resorting to usur- 
 pations 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 coun- 
 try with a population and under a government like 
 ours. 
 
 The jealousy which would abolish our military 
 establishments in time of peace, may be traced to 
 those habits of thinking which the inhabitants of the 
 United States derived from the people from which 
 ihey sprung, and upon the* prevailing sentiments on 
 the subject at the period of our Revolution. As inci- 
 dent to the undefined and unrestricted power of ma- 
 king 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 
 
CONSTITUTIONAL JURISPRUDENCE. 157 
 
 prerogative, among others, led to the public execution 
 of one king, and the expulsion of another ; and to 
 guard for the future against the exercise of power so 
 dangerous, the Bill of Rights, framed by the Conven- 
 tion-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." 
 The events which led to our own Revolution quick- 
 ened the public sensibility on every point connected 
 with the security of popular rights ; and the princi- 
 ples which taught our fathers to be jealous of the 
 power of an hereditary monarch, were afterward ex- 
 tended to their own representatives. In the consti- 
 tutions of Pennsylvania and North Carolina, prohibi- 
 tions of military establishments in time of peace 
 were introduced ; and in those of New-Hampshire, 
 Massachusetts. Delaware, and Maryland, a declara- 
 tion 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 rais- 
 ing and keeping on foot standing armies could by no 
 possible construction be deemed, at that time, to re- 
 side anywhere else than in the legislatures them- 
 selves. It was therefore superfluous, 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 ex- 
 ercise of its military powers, is contained in an 
 amendment to the Federal Constitution, which de- 
 clares that " no soldier shall, in lime of peace, be 
 quartered in any house without the consent of the 
 owner ; nor in time of war hut in a manner to bt 
 
158 LECTURES ON 
 
 prescribed by law." Even in those stale constitu 
 tions which seem to have meditated a total interdic- 
 tion of military establishments during peace, the 
 expressions used are monitory rather than 2j}ohibltO' 
 ry ; and the ambiguity of their terms appears to have 
 resulted from a conflict between the desire of exclu- 
 ding 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 afl^ords sufficient security that the Federal 
 Government will never be able to persuade or de- 
 lude the people into the support of large and ex- 
 pensive peace establishments. The^anger, 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 w^eak for the protection, but reduce it too low even 
 for the preservation of our forts and arsenals. The 
 Union itself, however, is our best protection and de- 
 fence, 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 tne 
 great source of our maritime strength ; while the 
 palpable necessity of a navy, and its proved efficien- 
 cy 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 favour of the 
 people. 
 
 V. The power of regulating the militia, and com- 
 manding its services in cases oi insurrection or in* 
 
CONSTITUTIONAL JUlllSPUUDENCE. 159 
 
 vasioTi; are incident to the duties of superintending 
 the common defence, and of watching over the inter- 
 nal peace of the Union. 
 
 Uniformity in the organization and discipline of 
 the militia must evidently be attended with the most 
 beneficial results whenever they are called into ser- 
 vice, as it enables them to discharge their duties 
 with mutual intelligence and concert. This desira- 
 ble uniformity could only be accomplished by confi- 
 ding the regulation of the militia of the several states 
 to the General Government. It was therefore es- 
 sential that Congress should have authority, not only 
 " to provide for calling forth the militia to execute 
 the laws of the Union, to suppress insurrections, and 
 repel invasions," but also " to provide for organizing, 
 arming, and disciplining them ; and for governing 
 such parts of them as may be employed in the ser- 
 vice of the United States." 
 
 The President is constituted, as we have seen, 
 commander-in-chief of the militia when called into 
 the actual service of the Union ; and he is author- 
 ized by law, in cases of invasion, or imminent dan- 
 ger thereof, to call forth such numbers of the militia 
 most convenient to the scene of action as he may 
 judge necessary. 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 mili- 
 tia 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 sev- 
 eral states became the subject of doubt and difficult} 
 between the Federal Government and some dF the 
 state governments. It was the opinion of the Con- 
 necticut Government, not only that the militia could 
 not be called out at the requisition of the Genera] 
 
160 LECTURES ON 
 
 Goveniment except in a case founded upon the ex« 
 istence 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 com 
 mand of the officers duly appointed by the state, 
 and placed under the immediate command of an of- 
 ficer of the United States army : nor could the Uni- 
 ted States, in the opinion of that government, law- 
 iully detach a portion of the privates from the body 
 of their company. Similar difficulties arose between 
 the Federal authorities and the government of Mas- 
 sachusetts ; the governor of which state, as well as 
 the governor of Connecticut, refused to furnish de- 
 tachments of militia for the defence of the maritime 
 frontier on an exposition 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 subordinate officer of the 
 United States army, were submitted to the consider- 
 ation of the State Legislature, and received the strong 
 and decided sanction of that body. In Massachu- 
 setts, the governor consulted the judges of the Su- 
 preme Court of that state as to the true construction 
 of the Constitution on both those points. The judge* 
 were of opinion that it belonged to the governors of 
 ihe several states to determine when any of the ex- 
 igencies contemplated by the Federal Constitution 
 existed to require them to transfer the militia, or any 
 part fif it, to the service of the Union and command 
 of the President. It was supposed that the Consti 
 tution did not give the power of judging as to the ex 
 istence of the exigency^ by any express terms, to the 
 
CONSTITUTIONAL JURISPRUDENCE. 161 
 
 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 
 produce a military consolidation of the states. The 
 act of Congress vested in the President the power 
 of calling forth the militia when any one of the exi- 
 gencies existed ; and if to that were superadded the 
 power of determining the casus /(zderis, the militia 
 would, in fact, be under the President's control. 
 
 As to the question how the militia were to be 
 commanded 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 com- 
 mand them as they were organized under officers ap- 
 pointed by the state, as they could not be transferred 
 to the command of any officer, not of the militia, ex- 
 cept the President. But these learned judges, act- 
 ing 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 questions too diffi- 
 cult and perplexing for extra-judicial decision. 
 
 Mr. Madison, one of the most prominent members 
 of the Convention which formed the Constitution, and 
 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 
 N 
 
162 LECTURES ON 
 
 were "novel and unfortunate." In a message to 
 Congress, 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 
 arising on the powers of the Union have been inves- 
 tigated and decided in the Federal Courts ; and the 
 progress of public opinion, as well as the tenour of 
 those decisions, have been favourable to a much more 
 liberal and enlarged construction of the Constitution 
 than that which was adopted by the states in ques- 
 tion ; so that the doctrines of the General Govern- 
 ment, as now understood, 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 b& called 
 into the service of the Union. The acts of Congress 
 already referred to, as well as the act for establish- 
 ing a uniform militia throughout 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. The manner in which 
 the militia are to be organized, armed, disciplined, 
 and governed, is fully prescribed ; provision is made 
 for draughting, detaching, 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 pro- 
 
 * 5 Wheat. R., 1 
 
CONSTITUTIONAL JURISPRUDENCE. 163 
 
 ceeding is perspicuously detailed. The question 
 before the court was whether it was competent for a 
 court-martial, deriving its jurisdiction under state au- 
 thority, to try and punish militiamen draughted, de- 
 tached, and called forth by the President into th(» 
 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,* 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 corre- 
 sponding responsibility. 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 oflicer to whom his order was address- 
 ed might decide for himself, the court was of opin- 
 ion that the authority to decide belonged exclusively 
 to the President, and that his decision was conclu- 
 
 * 12 Wheaton, 19. 
 
Ib4 LECTURES ON 
 
 sive upon all other persons. This construction was 
 lield necessarily to result from the nature of the pow- 
 er given by the Constitution, and from the manifest 
 object contemplated by the act of Congress. The 
 power itself is to be exercised on sudden emergen- 
 cies, and under circumstances which may vitally af- 
 fect the existence of the Union, and a prompt and 
 unhesitating obedience is indispensable to the attain- 
 ment of the object. The service is a military ser- 
 vice, and the command of a military nature ; and in 
 such cases, every delay and obstacle to an efficieni 
 and immediate compliance, necessarily tends to pui 
 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 superintending the 
 common defence, and watching over the internal 
 peace of the Union, then must this power be so con- 
 strued, with respect to its exercise, as not to defeat 
 the important ends in view. If the governor of a 
 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 pri- 
 vate sentinel ; and every act of any person in fur- 
 therance 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 subver- 
 
CONSTITUTIONAL JURISPRUDENCE. 165 
 
 sive 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 constitute 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 insurrec- 
 tions, and repel invasions," confided to Congress by 
 the Constitution, is carried into effect by the law 
 which provides that, when any such exigency exists, 
 the militia of the states may be " called forth" by the 
 chief magistrate of the Union, who, by the Constitu- 
 tion, 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 execu- 
 ted," and whose responsibility for an honest dis- 
 charge of his official obligations is secured by the 
 highest sanctions. He is necessarily to judge, in 
 the first instance, and is bound to act according 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 
 consequence, that every subordinate officer is bound 
 to obey them. Whenever the law gives to the Pres- 
 ident a discretionary power, to be exercised by him 
 upon his own opinion of certain facts, it is a sound rule 
 of construction, that the statute constitutes him the sole 
 and exclusive 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 sus- 
 ceptible of abuse. The remedy for this, and all other 
 official misconduct, is to be found in the Constitution 
 itself. In a free government the danger must be re- 
 
166 LECTURES ON 
 
 mote, since, in addition to the high qualificationa 
 which the chief magistrate must be presumed to pos- 
 sess, the frequency of elections, and the watchful- 
 ness of the national representatives, carry with them 
 all the checks that can be useful to guard against 
 usurpation or tyranny. 
 
 It has, however, been objected, that even admit- 
 ting the judgment of the President to be conclusive 
 as to the existence of the exigency, still it is neces- 
 sary that it should appear that the particular exigen- 
 cy in fact existed ; and the same principles were al- 
 leged 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 government, acting under the most nar- 
 row and special authority. 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 officer, indeed, is presumed 
 to act in obedience to his duty, until the contrary be 
 shown ; and a fortiori, that presumption ought to be 
 favourably applied to the chief magistrate. Nor can 
 the non-existence of the exigency be averred and 
 shown by the delinquent party ; for if it could be aver- 
 red, 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 Presi- 
 dent, 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. 
 
 IV. 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 
 
CONSTITUTIONAL JURISPRUDENCE. 167 
 
 of vesting it in Congress. The support of the na- 
 tional forces, the expense of raising troops, of build- 
 ing and equipping fleets, and all the other expendi- 
 tures in any wise connected with military and naval 
 plans and operations, are not, however, the only ob- 
 jects to which the jurisdiction of Congress, with re- 
 spect to revenue, extends. The terms by which the 
 j)ower is conferred embrace a provision for the sup- 
 port 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" re- 
 quires 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 prin- 
 ciple 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 
 he supported without possessing the means within 
 itself, independently of the concurrence of others, of 
 procuring a regular and adequate supply of revenue, 
 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 Constitution. Congress is accordingly invest- 
 ed with power " to lay and collect taxes, duties, im- 
 posts, and excises, to pay the debts, and provide for 
 the common defence and general welfare ;" and it has 
 also a distinct power " to borrow money on th? credit 
 of the United States." 
 
 It was originally urged as an objection to the Con- 
 stitution, and it is still occasionally contended, that 
 the latter branch of the former of these clauses 
 amounts, in terms, to a commission to exercise every 
 
168 Lt::CiURt:s on 
 
 power which may be alleged to be necessary for the 
 ^''general welfare." But this construction was prompt- 
 ly refuted by the authors of '• The Federalists :" " Had 
 no other enumeration or definition of the powers of 
 Congress," say they, " been found in the Constitu- 
 tion, there might have been some colour for this in- 
 terpretation, 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 ques- 
 tion must be taken in connexion with the preceding 
 branch of the clause, and were intended 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."* 
 
 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 cen- 
 sus, and determined by the rule for the apportionment 
 of representatives in Congress." It is qualified, also, 
 by a provision that " all duties, imposts, and excises 
 shall be equal throughout the United States ;" and it 
 is farther restricted by a prohibition upon Congress 
 to " lay any tax or duties on articles exported from 
 the United States." The Constitution does not de- 
 fine or select subjects for exclusive taxation by the 
 Federal Government ; although, in some instances, 
 an interference must have been foreseen from the ex- 
 ercise of a concurrent power with the states. But 
 it was fhought better that a particular state should 
 sustain this mconvenience, than that the national ne- 
 cessities should fail of supply ; and it was manifest- 
 ly intended that Congress should possess full power 
 
 * Federalist, No. 41. 
 
CONSTITUTIONAL JURISPRUDENCE. 169 
 
 subject to the restrictions and exceptions I have men- 
 tioned, over every species of taxable property. 
 
 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 di- 
 vision of taxes is into direct and indirect ; and al- 
 though the Constitution designates only the former 
 species, it necessarily implies the existence of the 
 latter. The general term, then, includes, 
 
 \st. 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, 
 
 3(i. All other taxes of an indirect operation. 
 
 A direct tax operates and takes effect independent- 
 ly of consumption or expenditure ; w^hile indirect taxes 
 affect expense or consumption ; and the revenue ari 
 sing from them is dependant thereupon. This dis- 
 tinction 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 " apportioned among the several states accord- 
 ing to the respective numbers of their inhabitants ;" 
 while indirect taxes, not admitting of such appor- 
 tionment, are directed to be " uniform throughout the 
 United States." 
 
 Whether direct or indirect taxation were most con- 
 sistent with the interests of the country, and the ge- 
 nius of its government, was a point much discussed 
 when the Fed-eral Constitution was imder the con- 
 sideration of the state conventions ; and even among 
 those who admitted the necessity of surrendering to 
 the National Government sources of revenue suffi- 
 O 
 
170 LECTURES ON 
 
 cie.1t to (ILscliarge its debts, and adequate to its siip- 
 port, tliere were some who were jealous of the povv* 
 ers 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 dis- 
 crimination, it was urged, would violate that funda- 
 mental maxim of good sense and sound policy, which 
 holds that every power should be proportionate to its 
 object ; and that the General Government would still 
 be left in such dependance on the several states as 
 would be inconsistent with its proper vigour and ef- 
 ficiency. Commercial imports alone were shown to 
 be unequal to the exxsting necessities and future ex- 
 igencies of the Union ; and as the latter did not ad- 
 mit of calculation or limitation, it was evident that 
 the power of providing for them ought also to be un- 
 confined, 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 
 country may not form an exception in its favour, it 
 would, perhaps, be premature to decide ; and as the 
 power in question was, at all events, vested in the 
 Federal Government, the only practical importance 
 of the distinction between direct and indirect taxation, 
 consists in the diflerent modes in which they are re- 
 spectively to be levied. Direct taxes are required, 
 as we have seen, to be apportioned among the states 
 a^jcording to their respective numbers, while indirect 
 taxes, not admitting of this apportionment, are to be 
 uniform throughout the United States. Thus, if Con- 
 gress should think proper to raise a sum of money 
 bv direct taxation, the quMa of each state must be 
 
CONSTITUTIONAL JURISPRUDENCE. 171 
 
 fixed according to the census, ano in conformity to 
 the rule of apportionment prescribed by the Constitu- 
 tion. If indirect taxation be resorted to, the same 
 duty must be imposed on the article liable to it, wheth- 
 er 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 per- 
 sons ; and the question arose whether it were a di- 
 rect 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 constitu- 
 tionally imposed ; because, in that case, it should 
 have been laid according to the representative num- 
 bers of the several states. The Circuit Court for 
 Virginia, where the question arose, w^as 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 Con- 
 stitution. 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 tho tax on carriages ; nor could such a tax be laid 
 by that rule, without great inequality and injustice ; 
 and the argument by which this inequality and injus- 
 tice were shown was conclusive against the contrary 
 construction.* 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 Congress to 
 
 * 3 Dallas, 171. 
 
172 LECTURES ON 
 
 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, and to the territories, 
 which are not represented in Congress.* The pow- 
 er 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 w^ell 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 un- 
 der the same necessity of extending a tax to the un- 
 represented district, set apart for the seat of the Na- 
 tional Government, nor to the national territories, yet, 
 if the tax be actually extended to them, the same con- 
 stitutional 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 inseparable, 
 be considered very material or important with respeci 
 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 construction 
 
 ♦ 5 Wheaton, 317. 
 
CONSTITUTIONAL JURISPRUDENCE. 173 
 
 in question can hardly be regarded as impugning the 
 great principle alluded to, inasmuch as its inhabitants 
 have voluntarily relinquished the right of representa- 
 tion, and adopted the whole body of Congress as its 
 legitimate government. 
 
 A question, however, of much greater interest and 
 importance has arisen, in regard to this power of tax- 
 ation, which, of late years, has been much discussed 
 in our public councils, and has not yet ceased to 
 agitate a portion of the Union. I refer to the author- 
 ity of Congress to impose duties on articles of for- 
 eign importation for the encouragement and protection 
 of domestic manufactures ; and to the proceedings 
 which call in question and deny the constitutional ex- 
 istence of any such authority in Congress, and de- 
 nounce its exercise as usurpation. The constitutional 
 validit)'- of those acts of Congress which impose duties 
 on importations, with that end in view, has never been 
 presented as a point for adjudication in the Federal 
 Courts, but a legislative construction in favour 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 Government. Of late years, 
 however, a controversy has arisen on the subject, 
 which at one time threatened the peace and integri- 
 ty of the Union ; and which, though suspended, can 
 ny no means be considered as definitively settled, 
 ftome examination of its merits may be useful, if not 
 necessary. 
 
 Although Congress has the express and exclusive 
 power " to lay and collect duties, imposts, and ex- 
 cises, to pay the debts, and provide for the common 
 defence and general welfare of the United States," 
 yet it is denied that these words confer authority to 
 lay duties and imposts for any other purposes than 
 those of discharging the national debts, supporting 
 
174 LECTURES ON 
 
 the civil and military establishments of the govern- 
 ment, and of carrying into effect the powers specifi- 
 cally enumerated, and vested by the Constitution in 
 Congress ; thus excl jding from all share of meaning 
 the last member of the clause, which specifies the 
 " general welfare'* as one of the objects for which 
 vhis 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 commodities, in order to favour 
 or protect similar productions and fabrics of our own 
 growth or manufacture — nor any power, express or 
 implied, to encourage domestic industry 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 con- 
 stitutionally exercised indirectly, as resulting inci- 
 dentally from the power to regulate commerce with 
 foreign nations ; and that imposts beyond what may 
 be requisite to provide a revenue to meet the necessa- 
 ry and ordinary expenditures of the government, can 
 only be imposed to the extent required to countervail 
 the commercial restrictions of other countries. 
 
 You will perceive, in the first place, that this ex- 
 position 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 meaning more extensive than any other 
 part of the Constitution, and invest Congress with a 
 general power of legislation, it is, however, a sound 
 rule of construction, and admitted to be universal in 
 its application, that the diOerent parts of the same in- 
 
CONSTITUTIONAL JURISPRUDENCE. 175 
 
 struinent 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, 
 therefore, to be excluded from all share in the interpre- 
 tation of the clause, unless incapable of bearing any 
 signification in connexion with those with which they 
 are conjoined. But the speciric ends embraced by 
 these general terms cannot certainly be supposed to 
 be comprised among those more definite objects, sub- 
 sequently enumerated 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 accomplished by means of the taxing power, 
 than the payment of the " public debt," and providing 
 for the " common defence :" and that those farther ob- 
 jects comprehend everything to which the " general 
 w^elfare" required the power to be applied, as the di- 
 rect means of effecting the end proposed. 
 
 A different view was, indeed, taken of this clause 
 of the Constitution by the authors of " The Federal- 
 ist ;"*' and that high authority has been quoted in 
 support of a very different interpretation. In answer- 
 ing the objection urged against the general expres 
 sions 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" do 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, independ- 
 ently of the objects subsequently specified; but in 
 refuting the objection, they seem to adopt, in part, the 
 construction of their adversaries, and admit that the 
 
 * No. 41. 
 
176 LECTURES ON 
 
 words in question confer a substantive and independ- 
 ent 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 sub- 
 sequent enumeration of the specific powers of Con- 
 gress 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 authority, that these words do not invest Con- 
 gress with any power whatsoever distinct from the 
 power of taxation, but that they merely refer to the 
 purposes for which that power may be exercised. 
 So far, moreover, from affording support to the argu- 
 ment against the power of Congress to encourage man- 
 ufactures, two of the authors of " The Federalist," 
 soon after the organization of the government, offi- 
 cially asserted that power to be exclusively vested in 
 Congress, which body, they contended, was bound 
 to exercise it. They derived it, indeed, from the 
 power to regulate commerce ; but the acknowledged 
 construction of the clause conferring 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 imposing 
 duties on foreign commodities to such an amount as 
 to foster our home-manufactures. 
 
 This is clearly a question of national policy and le- 
 gislation, 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 neces- 
 sity belong to the National Legislature ; for the states 
 
CONSTITUTIONAL JURISPRUDENCE. 177 
 
 s^annot afford the protection in the mode contemplated, 
 inasmuch as they are prohibited from laying any da- 
 ties on imports, except such as may be necessary for 
 executing their own health and inspection laws, and 
 have no power whatsoever to regulate commerce. 
 Whatever, therefore, may be the opinions of the mosi 
 enlightened men as to the policy of protecting do- 
 mestic manufactures, 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 political economy, concerning which 
 none but the National Legislature can, for any prac- 
 tical purpose, authoritatively decide. The necessity 
 of vesting in Congress the power of determining such 
 a question, may be illustrated 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 proceedings would turn, not 
 on his knowledge or belief of the one, or his judg- 
 ment on the other, but upon the verdict of a jury as 
 to the facts, and the judgment of the court on the le- 
 gal questions they might present. So with respect 
 to the power now under consideration : unless Con- 
 gress have authority to decide on the circumstances 
 upon which the exercise of their legislative discre- 
 tion depends, both facts and principles of a complica- 
 ted character, concerning which great conflict of 
 opinions exists, would be subject to judicial exami- 
 nation, and a construction given to the Constitution, 
 not merely by the judgment of the court on the ques- 
 tion whether Congress is authorized " to lay duties 
 to provide for the general welfare," but upon the 
 opinion of the jury whether "the general welfare'* 
 
17^3 LECTURES ON 
 
 was, upon sound principles of public policy, in fact 
 promoted by protecting 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 pay- 
 ment of which, as well as to the support of the na- 
 tional institutions, the proceeds of those duties were 
 intended to be applied. Whether they have in fact 
 been so applied, or to what purposes the surplus 
 arising from them has been, from time to time, ap- 
 propriated, 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 Constitution, " no money 
 can be drawn from the treasury but in pursuance 
 of appropriations made by law," the question as to 
 the constitutionality of the objects to 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 operation, and therefore contrary to that pro- 
 vision 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 opera- 
 tion, it is equally plain that it never can be controlled 
 by the Legislature, but must always be regulated by 
 ihe consumption of the article ; for all indirect taxes, 
 
CONSTITUTIONAL JURISPRUDENCE. 179 
 
 except imposts on articles of absolute necessity, may 
 be said to be voluntary in their operation ; as the 
 amount paid by any individual must always depend 
 on his spontaneous purchase of the article. 
 
 The power of harrowing 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 na- 
 tional resources, and must, consequently, be subject 
 to the same restrictions as to its objects, to w4iich 
 the power of taxation is limited and confined. 
 
 When the present Constitution was adopted, the 
 United States were indebted to foreign nations for 
 the expenses of our Revolutionary war ; and many 
 of our own citizens had large claims either upon the 
 confederacy, or upon its separate members, for ser- 
 vices and supplies during that eventful contest. To 
 liquidate and consolidate those debts, discharge a 
 part of them, and secure the remainder, were meas- 
 ures necessary to the preservation of the public 
 faith, and the maintenance of the pubUc 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 foreseen that many of the pub- 
 lic creditors would be satisfied w4th the assumption 
 or recognition by the new government of the princi- 
 pal, and the payment of the interest of the public 
 debts. Under the power conferred 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 confederacy or the 
 states, in one general amount, and funding it as one 
 
180 LECTURES ON 
 
 consolidated debt. The sources of revenue placed al 
 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 late v^^ar. But 
 in case of future exigencies, or a failure of the usual 
 supplies of revenue, similar means are at its com- 
 mand for continuing its operations, maintaining its 
 existence, and vindicating its honour. 
 
 LECTURE VIII. 
 
 ON THE POWERS VESTED IN THE FEDERAL GOVERN- 
 MENT FOR REGULATING INTERCOURSE WITH FOR- 
 EIGN NATIONS. 
 
 The powers vested in the General Govern- 
 ment 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 na- 
 tions ; and, 
 
 Thirdly, Of the power of regulating foreign 
 commerce ; including a power to prohibit, after 
 a certain period, now elapsed, the importation 
 of slaves. 
 
 This class of powers forms an obvious and es- 
 sential branch of Federal administration ; for if 
 the United States are one nation in any respect^ 
 they are most clearly so in respect to other na- 
 tions. 
 
 I. The powers to make treaties, and to send 
 and receive ambassadors and other public minis- 
 
CONSTITUTIONAL JURISPRUDENCE. 181 
 
 ters, are essential attributes of national sover- 
 eignty, and of that international equality which 
 the interests of every sovereignty require it to 
 preserve. Both powers were possessed bj'- Con- 
 gress under the Confederation, but not to the 
 extent to which they are now enjoyed ; for then 
 the former power was embarrassed by an excep- 
 tion, under which treaties might be substantially 
 frustrated by regulations of the states, and the 
 latter did not comprehend •' other public minis- 
 ters and consuls." 
 
 As treaties with France and Holland, and es- 
 pecially the treaty of peace with ^reat 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 j the declaration it contains in re- 
 spect to the supremacy of the latter operating 
 only in future, while in reference to the former 
 the terms are, " all treaties made, or which shall 
 he made, under the authority of the United States, 
 shall be the supreme, law of the land." These 
 terms were intended to apply equally to previ- 
 ously existing treaties, as well as to those made 
 subsequently to the Constitution ; and it has, ac- 
 cordingly, been adjudged, by the Supreme Court, 
 that they effectually repeal so much of the state 
 laws and constitutions as are repugnant to them.* 
 
 More general and extensive terms, also, are 
 used in vesting the power with respect to trea- 
 ties, than in conferring 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 
 
 * .'^ Dalla ■., 10). 
 
182 LECTURES ON 
 
 President and Senate, in exclusion of the House 
 of Eepresentatives, and is executed through the 
 instrumentality of agents, delegated for the pur- 
 pose. And although the President and Senate 
 are thus invested with this high and exclusive 
 control over all those subjects of negotiation 
 with foreign powers, which, in their consequen- 
 ces, may affect important domestic interests, yet 
 it would have been impossible to have defined a 
 power of this nature, and, therefore, general 
 terms only were used. These general expres- 
 sions, however, ought strictly to be confined to 
 their legitimjUe signification ; and in order to as- 
 certain whether the execution of the treaty-ma- 
 king power can be supported in any given case, 
 those principles of the Constitution, from which 
 the power proceeds, ought carefully to 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 super- 
 sede or interfere with, any other of its funda- 
 mental provisions, nor can it ever be so inter- 
 preted as to destroy other powers granted by 
 that instrument. A treaty to change the organi- 
 zation of the government, or annihilate its sov- 
 ereignty, or overturn its Republican form, or to 
 deprive 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 independent nations. It is, in 
 its nature, a contract^ and not a legislative act; 
 and does not, according to general usage, effect 
 of itself the objects intended to be accomplished 
 
CONSTITUTIONAL JL'RISPRUDENCE. d 83 
 
 by it, but requires to be carried into execution 
 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. It has been settled by 
 the Supreme Court,* that, inasmuch as the Con- 
 stitution declares a treaty to be the law of the 
 land, it is to be regarded in courts of justice as 
 equivalent to an act of the Legislature, whenever 
 it operates of itself without requiring the aid of 
 any legislative provision. But when the terms 
 of any treaty stipulation import an executory con- 
 tract, 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 pre-ex- 
 isting 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 
 
 * 2 Peter« iJ14 
 
184 LECTURES ON 
 
 Congress to pass subsequent laws, qualifying, al- 
 tering, 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 ab- 
 rogation of a treaty tends to produce it, the pow- 
 er 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 measures of the party with 
 whom the treaty was made, contrary to its spir- 
 it, or in open violation of its letter 5 and on such 
 grounds alone can this right be reconciled ei- 
 ther with the provisions of the Constitution or 
 the principles of public law. A memorable in- 
 stance has occurred in our history of the annul- 
 ment 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 repeated- 
 ly violated by the French government, and our 
 just claims for reparation disregarded. Never- 
 theless, all treaties, as soon as ratified by com- 
 petent authority, become of absolute efficacy, 
 and, as long as they continue in force, are bind- 
 ing 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 j and its refusal to do so would amount to a 
 breach of the public faith, and afford just cause 
 of war. That department of the government 
 which is intrusted with the power of making 
 treaties may bind the national faitli at its dis. 
 
CONSTITUTIONAL JURISPRUDENCE. 185 
 
 cretion ; for the treaty-making power must be co- 
 extensive with the national exigencies, and neces- 
 sarily involves in it every branch of the national 
 sovereignty, of which the operation may be ne- 
 cessary to give effect to negotiations and com- 
 pacts with foreign nations. i[ a nation have 
 conferred on its executive department, without 
 reserve, the right of treating and contracting 
 with other sovereignties, it is considered as hav- 
 ing invested it with all the power necessary to 
 make a valid contract, because that department 
 is the organ of the government 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 de- 
 partment, charged with the duty and the power 
 of making treaties, a discretion commensurate 
 with all the great interests of the nation.* 
 
 The concurrence of each branch of the legis- 
 lative 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 conclu- 
 ded 5 and foreign states could not deal safely 
 with the government on any other presumption. 
 That branch of the government which is in- 
 trusted thus largely and generally with authori- 
 ty to make valid treaties of peace, can, of course, 
 bind the nation by the alienation of part of its 
 P 
 
186 LECTURES ON 
 
 territorj^ ; and this, according to an approved wri 
 ter on the law of nations,* is equally the case, 
 whether that territory be already in the occupa- 
 tion of the enemy, or remain in possession of the 
 nation, or whether the property be public or pri- 
 vate. In a case decided in the Supreme Court 
 of the United States, it was admitted that indi- 
 vidual rights acquired by war, and vested rights 
 of the citizen, might be sacrificed by treaty for 
 national purposes. f And in another case it was 
 held to be a clear principle of national law, that 
 private rights might be surrendered by treaty to 
 secure the public safety, but the government 
 would be bound to make compensation and in- 
 demnity to the individual whose rights had thus 
 been sacrificed. 
 
 The conclusion of a treaty of commerce and 
 navigation with Great Britain, in 1794<, gave rise 
 to much public discussion as to the nature and 
 extent of the treaty-making power. A resolu- 
 tion was passed by the House of Representatives 
 requiring the President to lay before them a copy 
 of his instructions to the minister who conduct- 
 ed the negotiation, with the correspondence, and 
 other documents, relative to the treaty, except. 
 ing such papers as any existing negotiations 
 might render it improper to disclose. The illus- 
 trious individual who then held the office of Pres- 
 ident returned 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, provided two thirds 
 of the senators present concurred in the ratifica- 
 tion 5 and that any treaty so made and ratified 
 
 * Vattel, b. i., ch. xxi., i) 2, 32 ; b. iv., ch ii., ^11,12. 
 t 1 Cranch., 103. 
 
CONSTITUTiONAr. JURISPRUDENCE. 187 
 
 on being duly pronnulgated, 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 be- 
 lieved, that when so ratified, they became obli- 
 gatory on the nation." In this construction of the 
 Constitution, every former House of Represent- 
 atives had acquiesced, and until that time not a 
 doubt or suspicion had appeared, to his knowl- 
 edge, that it was held not to be the true con- 
 struction ; and he concluded by observing that 
 "it was perfectly clear to 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 ob- 
 jects 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 government that the boundaries fixed by 
 the Constitution between the different depart- 
 ments should be preserved, a just regard to the 
 Constitution, and to the duties of his office, for- 
 bade a compliance with their request." 
 
 The principles thus laid down by General 
 Washington were so far acquiesced in by the 
 House, that they passed a resolution, disclaim- 
 ing the power to interfere in making treaties ; 
 but asserting the right of the House of Repre- 
 sentatives, whenever stipulations are made on 
 subjects committed by the Constitution to Con- 
 gress, to deliberate on the expediency of carry- 
 ing 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 efi'ect. From that time the question re 
 
188 LECTURES ON 
 
 mained undisturbed until the conclusion of a 
 convention with Great Britain, in 1815, when 
 the House of Kepresentatives, after much debate, 
 passed a bill specifically enacting, on a particu- 
 lar subject, the same provisions which were con- 
 tained as stipulations' in the treaty. This dan- 
 gerous innovation on the treaty-making power 
 was warmly opposed by a minority in the House, 
 and disagreed to by the Senate ; but, after sev- 
 eral conferences between them, the affair termi- 
 nated in a compromise, which it is difficult to 
 reconcile with a sound construction of the Con- 
 stitution. The law passed on the occasion brief- 
 ly declares that so much of any act as imposes 
 a duty on tonnage, contrary to the provisions of 
 the convention with Great Britain, should, /row 
 the date of that instrument^ and during its continu- 
 ance, be of no force or effect ; thus setting a 
 precedent which may produce future difficulty in 
 our national legislation, though the judicial tri- 
 bunals would probably regard such a law as a 
 5^k of supererogation, or a mere nullity, and, 
 .rom its retroactive operation, at variance with 
 the spirit of the Constitution. 
 
 Treaties of every kind, when made by compe- 
 ) t 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 ascertained by the same rules of construc- 
 tion and course of reasoning as are applied to the 
 interpretation of private contracts ; and, accord- 
 ing to the most authoritative writers on interna- 
 tional law, if a treaty should be in fact violated 
 by one of the parties, either by proceedings in- 
 compatible with its nature, or by an intentional 
 breach of any of its articles, it res^s with the in- 
 
CONSTITUTIONAL J^lSPRlflfeii^E.'^Xl 89 
 
 [ ' ^ J^T J. ^ / ^ '^'^i,X 
 jured party alone to proriouncis it -broken. "^KJk 
 
 treaty," in such cases, is ri^t absolutely void^ M^\ 
 voida le at the election of the injured party^^lT 
 he chooses not to come to aXupture, the tretiti 
 remains obligatory. He may waive or remit ^ 
 the infraction, or demand a just satisfaction. But 
 the violation of any one article of a treaty is n 
 violation of the whole ; for all its articles are de- 
 pendant on each other, and are to be deemed 
 mutual conditions of each other; and the breach 
 of a single article may, at the election of the in- 
 jured party, overthrow the whole treaty. This 
 consequence may, however, be prevented by an 
 express provision in the treaty itself, that if one 
 article be broken, the others shall, nevertheless, 
 continue in full force ; and in such a case. Con- 
 gress could not annul the treaty on the ground 
 of the breach. The nullification of a treaty by 
 an act of the legislative power, under the cir- 
 cumstances which render such an act justifiable, 
 or its termination by war, does not divest rights 
 of property acquired under it,* Nor do treaties 
 become, ipso facto^ extinguished by war between 
 the parties. 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 repug- 
 nant arrangements are made in a new treaty. 
 
 The supplementary power of sending and re- 
 ceiving ambassadors, and other public ministers 
 and consuls, results as a necessary incident to 
 the leading part in the treaty-making power as- 
 signed to the President ; and it was first ex 
 
 * e Wheaton, 492. 
 
190 LEOTLRJLS Or% 
 
 ercised by General Washington, who broke ofl 
 all intercourse with Citizen Genet^ and demand- 
 ed his recall by the French government, in con- 
 sequence of his insolent assumption of authority 
 to commission private vessels of war, equip them 
 in our ports, and erect consular tribunals, with 
 admiralty jurisdiction, within our territory. The 
 only instance of the kind which has since oc- 
 curred was that of the British minister, Mr. 
 Francis Jackson, who had previously obtained 
 some notoriety at Copenhagen, and, by his con- 
 duct on his extraordinary mission to this coun- 
 try relative to the attack on the Chesapeake frig- 
 ate by a British line-of-battle ship, fully vindica- 
 ted the nom de guerre which he had earned by 
 an attack of a similar character, though on a lar- 
 ger scale, which he had promoted and sanctioned 
 on the former occasion. It was very generally 
 believed that he was selected by Mr. Canning as 
 envoy to the United States in consequence of 
 the celebrity he had gained in the Baltic ; but a 
 better motive was found in England, in the pri- 
 vate friendship existing between the secretary 
 of state and his envoy, derived from the grati- 
 tude of Mr. Canning to the father of his friend, 
 Dr. Cyril Jackson, dean of Christ Church, Ox- 
 ford,* under whose tuition he had been at that 
 university. Be this as it may, the son behaved 
 in this country as unlike as possible to w^hat the 
 conduct and manners of his father would have 
 been in such a situation ; and in consequence of 
 his insolence, he was dismissed by Mr. Madi- 
 son. 
 
 II. The power to define and j)unish piracies and 
 
 * The character of this learned and aV)le man is admira ily and 
 faithfully drawn in Mr. Ward's novel of " Ih V'ctc." 
 
CONSTITUTIONAL JUIIISPRUDENCE 191 
 
 ftlonies committed on the high seas^ and offences 
 against the law of nations, is substantively and 
 separately vested in Congress j although, as to 
 the former objects, it seems unavoidably incident 
 to the power of regulating foreign commerce ; 
 and, as to the latter, to be implied from the au- 
 thority to declare war and make treaties. 
 
 The power to define as well as punish seems 
 rather applicable to felonies and ofiences against 
 the law of nations than to piracies, as piracy is 
 well defined by the law of nations ; and by the 
 high seas is understood not only the ocean out of 
 sight of land, but waters on the seacoast beyond 
 the boundary of low-water mark. 
 
 Piracy, according to the most approved wri- 
 ters on international law, consists in robbery, or 
 a forcible depredation on the high seas, without 
 lawful authority. But felonies on the ocean, 
 or on waters on the coast, beyond low-water 
 mark, and offences against international law, 
 are by no means completely ascertained and de- 
 fined by any code recognised by the common 
 consent of nations 5 so that, with respect to this 
 species of offence, there was a peculiar fitness 
 in granting to Congress the powder to define as 
 well as to punish. Nor, in executing the power 
 inregard to piracy, was it 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 does not depend on the 
 particular provisions of any municipal code, ei- 
 ther for its definition or its punishment.* Con- 
 gress has the right to pass laws to punish pirates, 
 
 * 5 Wheaton, 153. 
 
192 . LECTURES ON 
 
 though they may be foreigners, and have com- 
 mitted no particular offence against the United 
 States 5 and in executing this power, it has de 
 clared, in conformity with the law of nations, 
 that the punishment of piracy shall be leath. 
 The act of Congress, which declares certain of- 
 fences to be piracy which are not so by the law of 
 nations, was intended to punish them at offences 
 against the Unite ^ States, and not as )ffences 
 against the human race ;* 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 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 set- 
 tled principle, that the jurisdiction of every na- 
 tion extends to its own citizens, on board of its 
 own public and private vessels, at sea.f 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 ac- 
 knowledging 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 committed 
 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 property sub- 
 ject to his control, yet it does extend to all of- 
 fences committed against all nations, by persons 
 * 3 Wheaton CIO. f Rutherford's Inst., b, li., ch, xi. 
 
CONSTITUTIONAL JURISPRUDENCE. 193 
 
 who, by common consent, are amenable to the 
 laws of all nations.* 
 
 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 pun- 
 ishable under the statute, for acts which it de- 
 clares to be piracy. The laws of the United 
 States declare those acts piracy on one of their 
 own citizens, which would be merely belligerant 
 acts if committed on a foreigner ; and a citizen 
 of the United States who offends against the 
 government or his fellow-citizens, under colour 
 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, maybe 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 deserve to be, pirates. 
 
 Felony^ when committed on the high seas, 
 amounts in effect to piracy, and has, to a consid- 
 erable 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 road- 
 stead or bay where the sea ebbs and flows, com- 
 mitting the crime of robbery in and upon any 
 vessel, or its crew or lading, shall be adjudged a 
 'pirate; and farther, that "if any person con- 
 cerned in any piratical cruise or enterprise, or be- 
 ing of the crew or ship's company of any piratical 
 ship or vessel, shall land and commit robbery on 
 * 5 Wheaton. J 44. Laws of U. S., 1820, (j 3 
 
194 LECTURES ON 
 
 shore, such person shall be adjudged Ti pirate f^ m 
 which last respect, the statute seems to be mere- 
 jy declaratory of the law of nations.* 
 
 The power to define and punish piracy and 
 felonies on the high seas is exclusive in its na- 
 ture j but it has been doubted whether the power 
 to punish other offences against international law 
 ought not to be considered as exclusively vest- 
 ed 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 of it may 
 be committed on land as well as at sea. The 
 jurisdiction of the several states is certainly su- 
 perseded in regard to those offences against in- 
 ternational law which are committed, at sea j but 
 it does not seem, however, to follow, as a neces- 
 sary consequence, that it is also superseded in 
 regard to those committed on shore. These of- 
 fences are of various kinds, and the power to de- 
 fine and punish them is, with great propriety, 
 given to Congress, as it prevents difficulties 
 which might arise from the doubt of a concur* 
 rent jurisdiction of them by the states \ and, so far 
 as they have been defined by Congress, they may 
 be said to arise under the Constitution and laws 
 of the United States, and to be finally, if not ex- 
 clusively, cognizable under the Federal authority. 
 
 But there are some such oflences not enumer- 
 ated 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 inter- 
 national law, of which the punishment remains 
 unprovided for by Congress, must go unpunished, 
 or the state courts must entertain juri-dictioo 
 * Doug., 015. 
 
CONSTITUTIONAL JURISPRUDENCE. 195 
 
 of them. The United States being alone re- 
 sponsible to foreign nations for all that affects 
 their nnutual intercourse, it rests with the Na- 
 tional Government to declare what shall consti- 
 tute offences against the law regulating that in- 
 tercourse, 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, be- 
 ing enforced by other nations, those nations have 
 a right to require to be applied in their favour. 
 
 The offences falling more immediately under 
 the cognizance of the law of nations are, besides 
 piracy, violations of safe-conducts^ and infringe- 
 ments of the rights of ambassadors and other public 
 ministers. 
 
 A safe-conduct or passport contains a pledge 
 of the public faith that it shall be duly respect- 
 ed, 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 
 conviction, be subjected to fine and imprison- 
 ment. The same punishment is inflicted upon 
 persons offering violence to ambassadors or oth- 
 er public ministers, or being concerned in prose- " 
 cuting or arresting them ; and the process where- 
 by their persons, or those of their domestics, 
 may be imprisoned, or their goods seized or at- 
 tached, is declared void. The policy of these 
 laws regards such proceedings against foreign 
 ministers as highly injurious to a free and libera] 
 
196 LECTURES ON 
 
 communication between difterent governments, 
 and mischievous in their consequences to any 
 nation. They tend, most certainly, to- provoke 
 the resentment of the sovereign whom the en- 
 voy represents, and to bring upon the country 
 the calamity of war ; and, therefore, every civil- 
 ized 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 conclu- 
 ding treaties, especially those of commerce and 
 navigation, and is, with equal propriety, submit- 
 ted to the National Government. 
 
 The oppressed and degraded state of com- 
 merce before the adoption of the Federal Consti- 
 tution, and the injury it sustained from the impo- 
 tent and disconnected efforts of the several states 
 to counteract the restrictions imposed on it by for- 
 eign 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 feeble- 
 ness of the Confederation. The former Congress, 
 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 influ- 
 ence of commerce on national prosperity, per- 
 ceived the necessity of giving the control over 
 ihis important subject to the General Govern- 
 ment, [t is not, therefore, matter of surprise, 
 that the grant should be as extensive as the mis- 
 chiefs that had been experienced ; and it is 
 equally apparent that to construe the grant so 
 
C0NST1TUT10^^\L JURISPRUDENCE. 197 
 
 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 com- 
 Tierce of the nation should be regulated by Con- 
 gress. From its very nature, this power must be 
 considered «s exclusive , for if the several states 
 had retained the right of regulating their own 
 commerce, each of them, as experience had indi- 
 cated, would probably have pursued a different 
 system ; mutual jealousies, rivalries, restrictions, 
 and prohibitions would have ensued, which a com- 
 mon superior alone could prevent or cure, and, 
 at the same time, command that confidence of 
 foreign nations, which is necessary to the nego- 
 tiation 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 ques- 
 tion, and overruled the constitutionality of the 
 laws of New-York, vesting in certain individu- 
 als the exclusive right of steam navigation upon 
 its waters.* On that occasion it was held, that 
 the general power to regulate commerce was not 
 restricted merely to the buying and selling or 
 exchanging commodities, but included the nav- 
 igation of vessels, and commercial intercourse in 
 all its branches, and extended to all vessels, by 
 whatsoever force propelled, and to whatever pur- 
 pose appropriated. It was observed by the ven- 
 erable and lamented Chief-justice Marshall, in 
 
 * 19 Wheaton, 446. Having beer consulted by the late Mi- 
 Gibbons before he determined to try the validity of this grant, it 
 may not be improper to subjoin the opinion given on that ocra 
 sion. Vide Appendix F. 
 
198 LECTURES ON 
 
 delivering the opinion of the court, that, if com 
 merce did not include navigation, the govern 
 ment of the Union had no direct power ovei 
 that subject, and could make no law prescribing 
 the requisites to constitute American vessels, or 
 require them to be navigated by American sea- 
 men ; yet this power had been exercised from the 
 beginning of the government, with the universal 
 consent of the states and of the Union, and had 
 been as universally understood to be a commer- 
 cial regulation. The word commerce^ indeed, must 
 have been understood to comprehend navigation 
 when the Constitution was adopted, as the pow- 
 er over both was one of the primary objects for 
 which the Constitution was formed ; and in that 
 comprehensive sense is the term used in the Con- 
 stitution. It is a rule of construction universal- 
 \Y acknowledged, that the exceptions from a pow- 
 er 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 com- 
 prehend. If, therefore, the Constitution contains 
 plain exceptions from the power over naviga- 
 tion — plain inhibitions against the exercise of 
 that power in a particular way — it is evident that 
 the power to whicl^ they apply must have been 
 intended to have been granted. 
 
 The power to regulate commerce, thus under- 
 stood, is held to extend to every species of com- 
 mercial intercourse 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 be- 
 tween individuals in a state, or different parts ol 
 the same state, without extending to, or affect^ 
 
CONSIITUTIONAL JURISPRUDENCE. 199 
 
 ing Other states, yet, in regulating" commerce 
 with foreign nations, the power of Congress does 
 not stop at the jurisdictional lines of the several 
 states. It would be a very useless power if it 
 could not pass those limits. The commerce of 
 the United States with foreign nations is the 
 commerce of the whole Union, and every district 
 has a right to participate in it. The deep streams 
 v^^hich penetrate our country in every directioii 
 pass through the interior of almost every state in 
 the Union, and furnish the means of exercising 
 this right. If Congress have the power to regu- 
 late, that power must be exercised wherever the 
 subject exists. If it exist within the states — if a 
 foreign voyage may commence 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 com- 
 merce is to be governed, like all other powers 
 vested in Congress, is complete in itself, and may 
 be exercised to its utmost extent, without any 
 limitations but such as are prescribed in the Con- 
 stitution. The restrictions on the powers of Con- 
 gress are there plainly expressed, and not one of 
 them affects the power in question. If, then, as 
 has always been understood, the sovereignty of 
 Congress, though limited to specific objects, be, 
 nevertheless, plenary as to those objects, the 
 power over commerce w^ith 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 con- 
 tained the same restrictions on the exercise of 
 the legislative power as are found in the Consti- 
 tution of the United States. The wisdom and 
 
200 LECTURES ON 
 
 the discretion of Congress 5 the identity of its 
 members with the people j and their dependance 
 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 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 Con- 
 gress 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." 
 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, yet the state governments constitute 
 an important part of our system, and have retain- 
 ed a concurrent power of legislation over many 
 subjects of Federal jurisdiction. The power of 
 taxation, 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 authorities at the same time. But 
 the power of Congress to lay and collect taxe? 
 and duties for the purposes of the Union doe? 
 not, as we have seen, necessarily interfere Avith 
 the power of the states to impose taxes for state 
 objects; nor is the exercise of that power by the 
 states an exercise of 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 concur- 
 rently with Congress ; for Congress is not em- 
 
CONSTITU'I'IONAL J[JRISPIIUDENCE. 20 J 
 
 powered to levy taxes for objects within the ex- 
 clusive province of the states. Each government 
 therefore, when it respectively exercises its prop- 
 er power of taxation, does not exercise the power 
 of the other. But when a state proceeds to reg- 
 ulate commerce with foreign nations, or among 
 the several states, it exercises the identical pow- 
 er 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 U?iited States. 
 
 It was insisted, in the case last referred to, that 
 the states possessed such concurrent power, and 
 the party maintaining the proposition relied on 
 the restriction in the Federal Constitution, which 
 prohibits the states from laying duties on im- 
 ports or exports. It was alleged, very truly, that 
 limitations of a power furnish a strong argument 
 in favour of its existence, and that the prohibi- 
 tion 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 in- 
 ferred that any commercial regulation, not ex- 
 pressly 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 conse- 
 quence from that concession, that a state may 
 Regulate commerce. The levying of duties on 
 imports and exports w^as held to be a branch of 
 the taxing power, and entirely distinct from the 
 Q 
 
202 LECTURES ON 
 
 power to regulate commerce. The latter powei 
 is enumerated in the Constitution subsequently 
 to the former, and each is substantively and in- 
 dependently conferred on Congress. The power 
 of imposing duties on imports is classed with the 
 power of levying taxes ; but the power of levy- 
 ing taxes conferred on Congress, although it 
 abridges the subjects of state taxation, can nev- 
 er be considered as abridging the right of the 
 states relative to taxation itself ; and they might, 
 consequently, have exercised it by levying duties 
 on imports and exports, 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 questiona- 
 ble power to regulate commerce. So, also, the 
 exception in the Constitution, with regard to du- 
 ties on tonnage, is considered as a restriction on 
 the power of taxation, not on that to regulate 
 commerce ; and, like the former prohibition, pre- 
 supposes the existence of that Avhich it restrains, 
 and not of that which it does not purport to re- 
 strain. 
 
 Neither are the state inspection laws regarded 
 as commercial regulations, although they may 
 have a remote and important influence on com- 
 merce, and are certainly recognised in the Con- 
 stitution as proceeding from the exercise of a 
 power remaining in the states. But these, togeth- 
 er with quarantine regulations, and health laws 
 of every description, as well as laws regulating 
 the internal commerce of a state, and those which 
 relate to canals, turnpike-roads, and ferries, are 
 component parts of that .immense mass of legis- , 
 Jation which embraces everything within the ter- 
 /itory of a state not surrendered to the General 
 
CONSTITUTIONAL JURISPRUDENCE. 203 
 
 Governmtnt, and which, being of a local charac- 
 ter, can be more advantageously regulated by the 
 states themselves. No direct general power be- 
 ing 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 giv- 
 en for a special purpose, or where it is clearly 
 incidental to some power expressly given to the 
 National Government. A state has the same un- 
 deniable and unlimited jurisdiction over all per- 
 sons and things within its territorial limits, as any 
 foreign nation, when that jurisdiction is not sur- 
 rendered or restrained by the Federal Constitu- 
 tion. The laws of the United States regulating 
 the transportation of passengers in vessels arri- 
 ving from foreign ports, are obviously regulations 
 of commerce, as they only affect, through the 
 power over navigation, passengers on their voy- 
 age^ 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 
 -ibroad to make a report in writing of the names, 
 ages, and last legal settlement of his passengers; 
 lOr such law does not assume to regulate co?i> 
 merce ;* its operation begins only where the laws 
 of Congress end, and is not even on the same sub- 
 ject ; for although the persons on whom it oper- 
 ates are the same, yet, having ceased to be pas* 
 «• 11 Peters, 103. 
 
204 LECTURES ON 
 
 sengers, they no longer stand in the only relation 
 in which the laws of Congress either professed 
 or intended to act upon them. 
 
 It is obvious, however, that the government 
 of the Union, in the exercise of its express pow 
 ers, may use means which may also be employ- 
 ed by a state in the exercise of its acknowledged 
 powers. If Congress, for instance, license ves- 
 sels to sail from one port to another in the same 
 state, the act is supposed to be necessarily inci- 
 dental to the power expressly granted to regu- 
 late commerce with foreign nations and among 
 the states, and implies no claim of a direct pow- 
 er to regulate the purely internal commerce of a 
 state, or to act directly on its system of domes- 
 tic police. So, if a state, in passing laws on sub- 
 jects acknowledged to be within its control, and, 
 with a view to those subjects, adopt a measure 
 of the same character with one which Congress 
 may adopt, the state does not derive its authori- 
 ty from the residuum which it retains of the par- 
 ticular 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 measure, or 
 measures, scarcely distinguishable from each oth- 
 er, may flow from distinct powers ; but this does 
 not prove that the powers are identical ; and al- 
 though the means used in their execution may 
 sometimes approach each other so nearly as to 
 be confounded, thete are other situations in which 
 they are sufficiently distinct to establish their in- 
 dividuality. 
 
 In our complex system, presenting the rare 
 and difficult scheme of a Federal Government, 
 
CONSTITUTIONAL JURISPRUDENCE. 205 
 
 fiupreme over the whole of its members, but pos- 
 sessing only certain enumerated powers, and of 
 numerous state governments, retaining and exer- 
 cising all power not delegated to the Federal 
 head, contests respecting power must necessari- 
 ly 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 some- 
 times interfere. But this does not prove that the 
 one is, in fact, exercising, or has a right to exer- 
 cise, 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 ca- 
 ses, 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 take place, it would be immaterial 
 whether the former were passed by the state in 
 virtue of its concurrent power with Congress, oi 
 in virtue of a distinct and independent power re- 
 lating 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 regula- 
 ting the coasting trade, is not merely intended 
 to confer a national character on vessels enga- 
 ging in it, but gives to them permission to carry 
 on that trade ; and as the power of Congress to 
 regulate commerce extends to navigation carried 
 on in vessels exclusively employed in the trans- 
 portation of passengers, whether those vessels be 
 
206 LECTURES ON 
 
 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 w^as 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 interfe^ 
 rence 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 exercised, 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 im- 
 portation would, indeed, be nugatory, if unac- 
 companied 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 con- 
 stitutes a part, and is as indispensable to the ex- 
 istence of that intercourse as importation itself. 
 The right of sale, as well as the right to import, 
 was, therefore, considered as involved in the pow- 
 er to regulate commerce ; and it was according- 
 ly held that Congress had a right, not only to 
 authorize importation, but to authorize the im- 
 porter to sell. An act of the Legislature of Mary- 
 land, requiring all wholesale importers and sell- 
 ers of foreign goods to obtain a license from that 
 state, and to pay a sum of money on receiving 
 it, was consequently adjudged to be void, as re* 
 
CONSTITUTIONAL JURISPRUDENCE. 207 
 
 pugnant not only to that provision of the Federal 
 Constitution which declares that " no state shall, 
 without 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."* The principles laid down on this 
 occasion apply equally to importations from an- 
 other state, as, in both cases, the powers remain- 
 ing 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 \vhich is 
 This great universal truth is inseparable from the 
 nature of things ; and the Constitution has appli- 
 ed it to the often interfering powers of the Gen- 
 eral and State Governments, 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 department 
 of the government, and by all classes of citizens in 
 every quarter of the Union, ever since the adop- 
 tion of the Federal Constitution. It was, indeed, 
 to effect this transfer of power that the Constitu- 
 tion was established. This was the primary and 
 avowed motive for assembling the Convention of 
 1787. The exclusive grant of this power to the 
 National Government 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, possess- 
 ed the finest harbour on the coast \ the fertility 
 of its yet uncultivated western territory was al- 
 
 * 9 Wheaton, 1. 
 
208 LECTURES ON 
 
 ready known 5 the rapid increase of its popula- 
 tion had been confidently anticipated j 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 Consti- 
 tution, until it was rendered certain, by the assent 
 of nine of the thirteen members of the Confed- 
 eration, that the new government 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 benefits both of 
 the former confederacy, and of the new compact 
 by which it was superseded. 
 
 The power of prohibiting the importation of 
 slaves into the United States, after a certain pe- 
 riod had elapsed, and of imposing a duty on their 
 importation during the intermediate period, is vir- 
 tually included in the power to regulate com- 
 merce, as the exception which postponed its ex- 
 ercise arose from an express restriction of the 
 general power. The words of the Constitution 
 vesting this power are, " The migration or import- 
 ation" (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 ei- 
 tiier for the existence of this restriction, or for 
 the terms in which it is expressed ; and although 
 it is 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 fa- 
 vour of humanity by fixing a period for the tcr- 
 
CONSTITUTIONAL JURISPRUDENCE. 209 
 
 mination of this barbarous traffic. Before the 
 time arrived, the interdiction was prospectively 
 enacted by Congress, and it took effect in time 
 to afford an example to civilized Europe of abol- 
 ishing 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 j and, 
 by the late treaty with Great Britain, we have 
 stipulated to co-operate wdth 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 un- 
 der the Confederation, 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 mi- 
 ^ration of such persons as any of the states then 
 existing should think proper to admit," which was 
 not exempted from the power of regulating com- 
 merce 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 Co- 
 lumbia, the seat of the National Government, the 
 residence of the representatives of the foreign 
 sovereigns, and the resort of strangers and visit- 
 ers from all quarters of the globe. Yet the evil 
 is not beyond cure. A remedy, slow but sure, 
 R 
 
210 LECTURES ON 
 
 has been for some years, and still is, in opera- 
 tion. Those of the original states which bound 
 ed on others from which slavery is excluded, 
 have been compelled to abandon slave labour, 
 from its inability to compete successfully with 
 the labour of freemen. Every year increases the 
 efficiency of this remedy, and the sphere of its 
 operation. Unfortunately, however, the crisis 
 has been retarded by the untoward and rash in- 
 terference of those empirical zealots, who claim 
 to be the exclusive friends and infallible advocates 
 of emancipation, who, with the blindness of igno- 
 rance, the virulence of bigotry, and madness of 
 fanaticism, denounce every man or woman who 
 refuses or hesitates to unite in their measures, or 
 adopt their narrow dogmas. Nevertheless, be- 
 fore many years expire, the natural influence of 
 benevolence, of mildness, and of Christian for- 
 bearance and moderation, will advance in geo- 
 metrical progression, until the foul blot on our 
 national escutcheon shall be removed, rather by 
 the hand of Providence than by any act or co-op- 
 eration of our own. 
 
 " DeuSf hcBC fortasse benigna, 
 
 Reducit in sedem, vice." 
 
 LECTURE IX. 
 
 ON THE POWERS VESTED IN THE FEDERAL GOVERN- 
 MENT FOR MAINTAINING HARMONY AMONG THE 
 STATES. 
 
 The authority vested in the General Government 
 to provide for the maintenance of harmony and prop- 
 er intercourse among the states, comprises the third 
 
CONSTITUTIONAL JURISPRUDENCE. 211 
 
 class of powers enumerated in the Constitution. 
 Under this head might be induded the particular re- 
 straints on the authority of the states, and certain 
 powers vested in the judicial department; but the 
 former are reserved for a distinct head of considera- 
 tion, and the latter have already been reviewed in 
 our examination of the structure and organization of 
 the government. 
 
 The remaining powers comprehended in this de- 
 scription are, 
 
 First. To regulate commerce among the several 
 states, and with the Indian tribes. 
 
 Second. To establish postoffices and postroads. 
 
 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 coun- 
 terfeiting the securities and current coin of the Uni- 
 ted States. 
 
 Fifth. To prescribe by general laws the manner 
 in which the public acts, records, and judicial pro- 
 ceedings of one state shall be proved, and the effect 
 they shall have in another. 
 
 Sixth. To establish uniform laws on the subject of 
 bankruptcies ; and. 
 
 Seventh. To establish a uniform rule on the sub- 
 ject of naturalization throughout the United States. 
 
 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 Gov 
 ernment. Without this supplemental provision, in- 
 deed, the primary and indispensable power of regu- 
 lating foreign commerce would have been incom- 
 plete and ineffectual, if not altogether nugatory. A 
 very material object of the power was to secure those 
 states which import and export through other states 
 
^12 LECTURES ON 
 
 from unjust contributions levied on them by the lat- 
 ter. It was foreseen that, if the se\eral states were 
 left at liberty to regulate their mutual commerce, 
 means would be discovered or devised to load arti- 
 cles 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 tran 
 quillity. 
 
 In the important case referred to in the last lecture, 
 the whole doctrine relative to the construction of this 
 part of the Constitution was largely and deliberately 
 discussed, and definitively and satisfactorily settled 
 It was declared on that occasion, that the power to 
 regulate 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, re- 
 stricted to that commerce which concerns more states 
 than one. Those terms would hardly have been se- 
 lected to indicate the completely interior traffic of a 
 state, because they are not apt terms for that pur- 
 pose ; and the enumeration 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 commerce of every description. 
 The specification itself presupposes something not 
 specified, and from the language 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, in- 
 deed, evince that its action is to be applied to all 
 the external concerns of the nation, and to those 
 
CONSTITUTIONAL JURISPRUDENCE. 213 
 
 internal concerns which affect the states generally, 
 but not to those which are completely within a par- 
 ticular state, which do not affect other states, and 
 with which it is not necessary to interfere for the 
 purpose 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 com 
 merce 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 with the ocean penetrate into 
 the interior of the country, and pass in their course 
 through several states, but in many cases — in the sig- 
 nal 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 for- 
 eign commerce, while they furnish means of com- 
 mercial intercourse between those states, and, conse- 
 quently, afford occasions to Congress for the exercise 
 of the power in question. This power must be ex- 
 ercised wherever the subject exists, and if the means 
 of commercial intercourse among the states exist 
 within a state — if a coasting voyage may commence 
 or terminate within a state — then the power of Con- 
 gress to regulate commerce among the several states 
 may be exercised wiihin a state. 
 
 The states either join each other, in which case 
 they are separated by a mathematical line, or they are 
 remote 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 
 
214 LECTURES ON 
 
 cannot commence and terminate beyond iho limit* 
 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 al 
 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 ac- 
 tion 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 sub- 
 ject on which it acts. It cannot, in either case, be 
 stopped at the external boundary of a state, but must 
 enter the limits, and be exercised within the territo- 
 rial jurisdiction of all the states. The grant of Con- 
 gress, however, to regulate commerce on the navi- 
 gable waters of the several states, contains no ces- 
 sion of territory, or of public or private property ; the 
 states may regulate the use of fisheries within their 
 territorial limits, though upon navigable waters, pro- 
 vided their free use for the purposes of navigation and 
 commerce be not interrupted.* 
 
 The power of Congress to regulate commerce 
 among the states, extends to the regulation of navi- 
 gation, and to the coasting trade, and fisheries with- 
 in, as well as without any state, 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 con- 
 ferring privileges upon vessels engaged in the coast- 
 ing trade ; and to the navigation of vessels engaged 
 solely in carrying passengers, as well as to those en-^ 
 gaged in traffic, whetl fer propelled by steam or oth- 
 erwise. 
 
 * 4 Wash. Cir. Kep., 371. 
 
cojNSTItutional jurisprudence. 215 
 
 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 to pay for a license from a state government 
 ill 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 an- 
 other. In that case, although the power of the state 
 to regulate its purely internal commerce, and to es- 
 tablish 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 acknowl- 
 edged state powers, could, consistently with the Fed- 
 eral 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 decla- 
 red 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. Nevertheless, if measures undoubted- 
 ly within the powers of the states do not come into 
 actual collision with those of the General Govern- 
 ment, the Federal Courts can take no cognizance of 
 them or their effects.* 
 
 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 description of Indians were to be deemed 
 
 * '?. Peters, ?50. 
 
216 LECTURES ON 
 
 members of a state, was a question of perplexity ami 
 contention in the Federal councils, and was never set- 
 tled ; and how the trade with the Indians not mem- 
 hers of a state, yet residing within its legislative ju- 
 risdiction, 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 question 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 im- 
 material whether they continue within the bounda- 
 ries of a state, or inhabit a part of one of the territo- 
 ries, 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 
 regulation of Congress. By the wisdom and benev- 
 olence 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 car- 
 dinal distinctions. The Indian territory is admitted 
 to compose a part of the Federal domain ; in all our 
 maps, geographical treatises, histories, and laws, it 
 is so considered : in all our intercourse with foreign 
 nations ; in our commercial regulations ; in any at- 
 tempt at intercourse between the Indians and foreign 
 powers, they are considered as within the jurisdic- 
 tional limits of the United States, subject to many of 
 those restraints which are imposed on our own citi 
 zens. They acknowledge themselves in \heir treat- 
 ies to be under the protection of the Federal Gov- 
 
CONSTITUTIONAL JURISPRUDENCE. 217 
 
 ernment ; they admit that it shall have the sole and 
 exclusive right of regulating the trade with them, and 
 managing all their atlairs as it may think proper. In 
 the jmrticular instance of the Cherokees, they were 
 allowed by a treaty, which preceded the present 
 Constitution, " to send a deputy of their choice, when- 
 ever they saw tit, to Congress ,•" and, under the un- 
 settled 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 dependance 
 on that state. 
 
 As to those tribes which reside within the ac- 
 knowledged 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 dependant nations ; they occupy a territory 
 to which we assert a title which must take effect 
 when their right of occupancy 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 any attempt to 
 acquire their lands, or form a political connexion 
 with them, would be considered as a hostile invasion 
 of our territory. They are distinguished in the Con- 
 stitution by an appropriate name from foreign na- 
 tions, as well as from the several states of the Union ; 
 and the objects to which the power now under con- 
 sideration 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 
 
218 LECTURES ON 
 
 the nature and character of the subsisting relations 
 between the United State and the Indian tribes. 
 
 When the great maritime powers of Europe visit- 
 ed and discovered different parts of this continent at 
 nearly the same time, the principle adopted for de- 
 ciding their respective rights was, " that discovery 
 gave title to the government by whose subjects or by 
 whose authority it was made against all other Euro- 
 pean governments, which title might be consum- 
 mated by possession."* The admission of this prin- 
 ciple gave to the nation making 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 vir- 
 tue 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 occu- 
 pant to sell. 
 
 The relation between the Europeans and the na- 
 tives was determined in each case by the particular 
 government which asserted, and could maintain, this 
 pre-emptive privilege in the particular place. The 
 United States succeeded to all the claims of Great 
 liritain, 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 
 
 * 8 Wheat., 573. 
 
CONSTITUTIONAL JURISPRUDENCE. 211J 
 
 Other civilized nations, they still retain their original 
 character, and continue dormant. But so far as they 
 have been practically exerted, they exist in fact : 
 tiicy are well understood 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 re- 
 solved "that the securing and preserving the friend- 
 ship 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 preserve their 
 peace and friendship ;" and the most strenuous ex- 
 ertions were made to procure those articles on which 
 Indian friendships were supposed to depend ; and, 
 in short, everything was done to promote trade and 
 avoid hostilities with them. 
 
 The general law of European sovereigns, respect- 
 ing their claims in America, limited the intercourse 
 of individuals, in a great degree, to the particular po- 
 tentate whose ultimate right of domain was acknowl- 
 edged by 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 re- 
 ceived 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 protec- 
 Uon, only what was beneficial to themselves. It in- 
 volved, practically, no claim upon their lands ; no do- 
 Tiinion over their persons ; but merely bound them 
 
220 LECTURES ON 
 
 to tLe British crown before the Revolution, and to 
 the United States afterward, as dependant allies, 
 claiming the protection of a powerful friend and 
 neighbour, and receiving the advantages of that pro- 
 tection, without involving a surrender of their na- 
 tional 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 com- 
 munities, having territorial boundaries, 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 car- 
 ried on exclusively by the Government of the United 
 States ; while the powers to regulate commerce, de- 
 clare war, make peace, and conclude treaties, com- 
 prises all that is required for regulating our inter- 
 course with the Indian tribes. 
 
 II. The power to establish posioj/ices and postroads 
 is necessarily connected with the regulation of com- 
 merce and the promotion of the general welfare. A 
 regular system of free and speedy communication is 
 not only of vital importance to the mercantile inter- 
 ests 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 pro- 
 motes commercial intercourse, tends to keep the 
 people informed of their political interests, assists 
 the measures of government and the private com- 
 munications between individuals. In war, the rapid 
 
CONSTITUTIONAL JURISPRUDENCE. 221 
 
 transmission of intelligence by means of the public 
 mails, and the greater facility of transferring bodies 
 of troops, and transporting military stores, by means 
 of good and substantial roads, are advantages as evi- 
 dent as they are desirable. 
 
 If the establishment of postoffices and postroads 
 should in practice be productive of no revenue to the 
 j)ublic, the expense would be properly chargeable 
 on the general funds of the Union, arid the proceeds 
 of taxation in the common forms be justly applied 
 to defray it. If, however, as has proved to be the 
 case, the postoffice establishment should continue to 
 yield a revenue, which, in common with the other 
 funds of the Union, is applicable only to the pur- 
 poses of the General Government, it is obvious that 
 no state should be permitted to interfere by establish- 
 ing a postoffice department of its own. The power, 
 therefore, vested in Congress is exclusive, so far as 
 relates to the conveyance of letters, and other arti- 
 cles transmissible by post. In regard to postroads, 
 it would be unnecessary, and therefore unwarrant- 
 able, 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 diffisrent times, been enacted, all found- 
 ed on the principle of its being exclusive, so far as it 
 respects the establishment of postroads, and the con- 
 veyance of letters and other articles by post. Under 
 this power, in conjunction with the powers of Con- 
 
222 LECTURES ON 
 
 gress to raise money to provide for the general wel 
 tare, and to pass all laws necessary and proper to 
 carry into execution the other powers vested in the 
 General Government, 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 
 now vindicated by precedent. The practice ha& 
 been to allow to the new states, on their admissior 
 into the Union, a certain proportion of the proceeds 
 arising from the sale of the public lands therein, tc 
 be laid out in the construction of roads and canals 
 within those states, or leading thereto. In the yeai 
 1806, Congress authorized a road to be opened from 
 Nashville in Tennessee to Natchez in the then Mis- 
 sissippi 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 Ponchar train to the city of New- 
 Orleans, to be extended to the River Mississippi. 
 The bill authorizing the former of these works was 
 objected to by Mr. Jefferson, but was, upon recon- 
 sideration, passed, notwithstanding his objections, by 
 the constitutional majority of two thirds of the mem- 
 bers present in both houses of Congress ; while the 
 bill authorizing the latter was not objected to, though 
 passed under the same administration, from the cir- 
 cumstance, it may be presumed, that the improve- 
 ment it contemplated was wholly within a territory 
 of the United States. 
 
 The Cu7nherland Road, upon which so much has 
 been said in and out of Congress, and so much pub- 
 lic money has been expended, was first authorized 
 by an act of Congress, passed also in 1806, and was 
 constructed under a covenant with the State of Ohio, 
 
CONSTITUTIONAL JURISPRUDENCE. 223 
 
 that a portion of the proceeds of the public lands ly- 
 ing within that state should be applied to the open- 
 ing of roads leading to it, with the consent of the 
 states through which the road might pass. But the 
 expenditures upon it having exceeded the proceeds 
 of the lands appropriated for its construction, Presi- 
 dent Madison, in 1810, objected to a bill appropria- 
 ting 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 ca- 
 nals, and improving water-courses through the dif- 
 ferent states ; and that the assent of those states 
 could not confer the power. Afterward, in 1822, 
 President Monroe objected to a bill appropriating 
 money for repairing the Cumberland Road, and estab- 
 lishing 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 majority of Congress and the President. Mr. 
 Jefferson in 1806, Mr. Madison in 1816, and Mr. 
 Monroe in 1822, denied any such power in Con- 
 gress 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 appears that Congress claims the 
 power to lay out, construct, and improve postroads 
 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 commerce, and the 
 more safe and economical transportation of military 
 stores in time of war, leaving, in all these cases, the ju- 
 risdictional right over the soil in the respective states. 
 By an act passed in 1824, with the assent of Mr. 
 Monroe, the necessary surveys, plans, and estimates 
 
-2i LECTl KES ON 
 
 were directed to be made of such roads and canals 
 as the President might deem of material importance 
 in a commercial or military point of view, or neces- 
 sary for the transportation of the public mail, and 
 appropriated a sum of money for the purpose. 
 
 The younger President Adams, in his inaugural 
 address in 1825, alluded to this question ; and his 
 opinion seemed to be in favour 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 subjecl 
 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 by both houses, appropri- 
 ating a sum of money for a subscription to the stock of 
 a turnpike road, exclusively within the State of Ken- 
 tucky, but leading from Maysville, in the interior of 
 that state, to the River Ohio. This bill was returned 
 by General Jackson, and, on the question of its pas- 
 sage notwithstanding the objections of the President, 
 was finally lost in the House of Representatives, in 
 which it had originated. In his annual message at the 
 commencement of the session, the President had ad- 
 vened to the difficulties which had before attended ap- 
 propriations for purposes of internal improvement, and 
 expressed a hope that some plan might be devised to 
 attain its benefits in a satisfactory manner. He ob- 
 served, that the mode adopted on former occasions 
 had been deprecated b3^many as an infraction of the 
 Constitution, while it had been viewed by others as 
 inexpedient, and that all felt that it had been em- 
 ployed 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 proceed* 
 
CONSTITUTIONAL JURISPRUDENCE. 225 
 
 ed to consider the constitutional power of the Gen- 
 eral Government to construct or promote works of 
 internal improvement, as then presenting itself, in two 
 points of view : first, as bearing on the sovereignty 
 o^ the states within whose limits the execution was 
 contemplated, if jurisdiction of the territory they oc- 
 cupy were claimed as necessary to their preserva- 
 tion and use ; the second, as asserting the simple 
 right to appropriate money from the national treasury' 
 in aid of such Avorks when undertaken by state au- 
 thority, surrendering the claim of jurisdiction on the 
 part of the United States. 
 
 In the first view, he regarded the question of pow- 
 er as an open one, which could be decided without 
 the embarrassments attending the other, arising from 
 the practice of the government. To the extent con- 
 templated 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 government, he insisted, did not possess it ; 
 and he therefore declared that no bill admitting it 
 *woul(J receive his official sanction. But in the other 
 view of the power, he considered the question differ- 
 ently situated, and remarked, that the ground taken 
 at an early period of the governiflent was, that when- 
 ever money raised by the general authority w^as pro- 
 posed to be applied to a particular measure, a ques- 
 tion arose whether that measure was within the enu- 
 merated 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 mon- 
 ey had, in fact, been exercised by the General Gov- 
 ernment, 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 i 
 S 
 
£26 L.ECTURES ON 
 
 of a national, not of a state character. This distinc- 
 tion he considered sufHciently definite and impera- 
 tive to forbid his approbation of a bill of the charac- 
 ter 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 as- 
 suredly, 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 na- 
 tional, than in its local and state character. The 
 true rule on the subject, which seems to have been 
 forgotten or disregarded 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 com- 
 pletely within a particular state, which do not affect 
 other states, and with which it is not necessary to 
 interfere for the purpose of executing any of thp gen- 
 eral powers of the government y* 
 
 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 re- 
 spective states. It must be obvious that the propo- 
 sed uniformity in the value of the current coin might 
 be destroyed by subjecting the foreign coin to the 
 
 * 10 Wheaton, 44G. 
 
CONSTITUTIONAL JURISPRUDENCE. 227 
 
 different regulations of the several states. The pow- 
 er with respect to the coin, both domestic and foreign j 
 is rendered exclusive, by a subsequent provision of 
 the Constitution, prohibiting the individual states 
 from its exercise. And the power of fixing the 
 standard of weights and measures seems also prop- 
 er to be exclusively exercised by Congress ; but until 
 it shall legislate on the subject, each state, it is pre- 
 sumed, retains the right of adopting and regulating its 
 own standard. 
 
 The power of providing for the punishment of coitn- 
 terfeiting 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 pow- 
 ers not antecedently existing in the states. It ap- 
 pears, nevertheless, by the acts of Congress rela- 
 tive to this subject, that cognizance of such cases 
 may, under certain circumstances, 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 cog- 
 nizable under the authority of the United States, 
 unless where their laws should otherwise direct.* 
 The states, therefore, could not exercise a concur- 
 rent jurisdiction in those cases without coming into 
 direct collision with the laws of Congress. But by 
 a proviso in a subsequent act concerning counterfeit- 
 ers of the current coins of the United States, Con- 
 gress has declared that the jurisdiction of the Federal 
 Courts, in certain specified cases, should not be ex- 
 clusive ; so that the concurrent jurisdiction of the 
 state courts is restored, so far as it can be exercised 
 und«r state authority. There aip, besides, other acta 
 * Wheaton, 26, 11 . J. R., 549. 
 
228 LECTURES ON 
 
 of Congress which permit jurisdiction over the oflen- 
 ces described in them to be exercised by the state 
 courts mider the same condition, and in all these 
 cases where the jurisdiction of the state courts is 
 made concurrent with that of the Federal Courts, the 
 sentences of the one, whether of acquittal or convic- 
 tion, are a bar to the prosecution in the other for the 
 same offence. 
 
 IV. The 'power to prescribe by general laws the man 
 ner in which the public acts, records, and judicial pro- 
 ceedings of each state shall be proved, and the effect 
 they shall have in other states, is referred to this class 
 by the authors of " The Federalist." It is an evi- 
 dent and valuable improvement on the provision re- 
 lating to the same subject in the Articles of Con- 
 federation, of which the meaning was so indetermi- 
 nate as to render it of little practical importance. 
 The power, as it now stands, has been found, as 
 was intended, to be a convenient instrument of jus- 
 tice, and particularly beneficial on the borders of con- 
 tiguous states, where persons and effects liable to 
 judicial process may be suddenly and secretly with- 
 drawn to a foreign jurisdiction. 
 
 The clause in the Constitution which vests this 
 power in Congress, previously declares that " full 
 faith and 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 takes:."* ^ - 
 
 * Laws U. S., 1790, ch. 38. 
 
t ^> of 
 
 CONSTITUTIONAL JUU!(sritUD1fijjJ>E. , 
 
 Under the clause of the Constitution, -and this legis- ^v 
 lative provision for giving it effect, if a judgment have 
 the efiect of record evidence, or, in otiier vvorjs,* Ja^^ N > 
 conclusive evidence, i. e., admitting neither of ;;^im-'*^\y 
 peachment nor contradiction in the courts oflhe state " 
 in w^hich it was rendered, it has the same effect in 
 the courts of all the other states.*" 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 prima facie evidence, i. c, 
 evidence open to impeachment, explanation, or con- 
 tradiction, in the courts of every other state ; but 
 that the Constitution contemplates a power in Con- 
 gress to give a conclusive effect to such judgments ; 
 which power it has exercised by rendering a judg- 
 ment conclusive when the courts of the particular 
 8tate would pronounce the same decision.! And in 
 a recent case, it was declared that the clause in ques- 
 tion 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 coUsion with a prior 
 decision of the same case.J 
 
 V. The power '* to establish a uniform system ofnat- 
 uralizalion" which was the next we proposed to ex- 
 amine, 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." 
 
 The dissimilarity of the rules of naturalization 
 which existed in the different states, had given rise, 
 under the Confederation, to some intricate and deli- 
 cate questions, from the ambiguous terms of the ar- 
 ticle in relation to the subject. To put an end to all 
 
 ♦ 7 Cranch, 481. 3 Wheaton. 234. % 14 Petors, 48i. 
 
230 J.fiCTURES ON 
 
 such questions in future, the new Constitution au- 
 thorized the General Government to establish a uni- 
 form rule throughout the United States. There is 
 indeed, no express prohibition of state legislation ii? 
 regard to it ; but if each state retained the power ol 
 naturalization, while the citizens of each state wert 
 entitled to the privileges of citizens in the several 
 states, any one state might impose on all the oth 
 ers 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 un- 
 der the first Constitution of Pennsylvania, might con- 
 fer the right of citizenship : in another, higher qual- 
 ifications, as was, in fact, generally the case, might be 
 required ; and an alieriy desirous of eluding the lat- 
 ter, 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 para- 
 mount in a matter of vital consequence to another. 
 Hence the importance of rendering this power ex- 
 clusive. That it is, indeed, so vested in Congress, 
 was considered incontrovertible by the Supreme 
 Court of the United States, in a case in which the 
 decision depended on that point ;* and it was decla- 
 red, subsequently, to have been so held on the ground 
 of a direct repugnancy or incompatibility in the exer- 
 cise of a similar power by the states-t 
 
 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 
 regarded as the means or instrument of exercising the 
 
 * 2 Wheaton, 2G9. t 5 Wheaton, 41i. 
 
CONSTITUTIONAL JURISPRUDENCE. 231 
 
 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 riaturalized citizens, or per- 
 sons born elsewhere, but who, upon assuming the al- 
 legiance, became entitled to the privileges of native 
 citizens. All who were resident citizens at the time 
 of the Declaration 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. 
 
 It has been admitted, both in the English courts 
 and our own,* that all persons born within the colo- 
 nies, while subject to the crown of Great Britain, 
 were natural-born British 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 inde- 
 pendence. 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 established by the Eng- 
 lish courts adopts the date of the treaty of peace in 
 1783, while ours have fixed upon that of the Decla- 
 ration 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 Independence, and never returned, 
 thereby became 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 Dec* 
 
 * 3 Peters, 128 
 
232 LECTURES ON 
 
 laration of Independence, according to our rule, and 
 at the treaty of peace, according to the English. Dif- 
 ficulties, however, have occurred where rights liave 
 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 Declaration of Independence and the treaty of 
 peace. 
 
 It is a doctrine of the English law, that natural- 
 born subjects owe an allegiance which is intrinsic 
 and perpetual, and which cannot be diverted by any 
 act of their own. But it has been a question fre- 
 quently and gravely debated whether this doctrine ol 
 perpetual allegiance applies in its full extent to the 
 United States. The best writers on public law* 
 have treated this subject rather loosely, but seem 
 generally to favour the right of the citizen to emi- 
 grate and abandon 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 coun- 
 try be in distress, or at war, and in need of his ser- 
 vices. The principle declared in some of our state 
 constitutions, that the citizens have a natural and in- 
 herent right to emigrate, goes far towards a renun- 
 ciation of the doctrine of the English law, as repug- 
 nant to the natural liberty of mankind — provided cm- 
 igration is intended in those cas'es to be used as sy- 
 nonymous with expatriation. But the allegiance of 
 our citizens is due, not merely nor principally to the 
 local government of the state in which they reside, 
 but primarily and chiefly to the United States, which 
 government alone aflfords them national protection, 
 and imparts to them their national character ; and 
 the doctrine of final and absolute expatriation, though 
 
 ♦ Grotius, b. ii„ ch. v. Puffend., b. viii., ch. xi. Vattel, b. i. 
 cb. xix. 
 
CONSTITUTIONAL JURISPRUDENCE. 2?i3 
 
 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,* iri which the treaty of peace was 
 considered as a release from their allegiance of all 
 British subjects who remained in this country. The 
 British doctrine, therefore, is that the American au" 
 te-nati, by remaining in this country after the peace, 
 lost their character as British subjects ; and our doc- 
 trine is, that by withdrawing from this country they 
 lost, or, perhaps, more properly speaking, they never 
 acquired the character of American citizens. 
 
 AH persons born out of the jurisdiction of the Uni- 
 ted States are termed aliens. There are, however, 
 some exceptions to this rule derived from the ancient 
 English law ; as in the case of the children of pub- 
 lic 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 Eng- 
 lish parents were considered as natives of England 
 if the father went and* continued abroad in the char- 
 acter 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 citi- 
 zenship should not descend to persons whose fathers 
 had never resided within the United States. This pro- 
 vision not being prospective in its operation, the ben- 
 "^ 2 C^FQ. anr" ^rp«w,, 779. 
 
234 LECTURES ON 
 
 efit of it narrows rapidly by lapse of time, and the pe- 
 riod will soon arrive when there will be no statutory 
 regulation in favour of children born abroad of Amer- 
 ican parents ; and, imless 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 
 inducements to become citizens. • They are incapa- 
 ble, 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 ac- 
 tive share in the administration of the Federal or 
 State Governments. A convenient and easy mode 
 (perhaps too easy and convenient) has been provi- 
 ded by Congress for removing the disabilities of 
 alienage ; and the terms on which every alien, be- 
 ing a free white person, can obtain the qualifications 
 and privileges of a natural-born citizen, are prescri- 
 bed in the several acts of Congress on the subject.* 
 The right of aliens to the privileges of naturaliza- 
 tion are, by these laws, submitted to the decision 
 of any court of record within the United 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 natu- 
 ral-born citizen, except that a residence of seven 
 years is requisite 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 inel- 
 igible to the offices of President of the United States 
 and governor in several of the states. The policy 
 of these laws have been strongly doubted by some ol 
 our wisest and best statesmen and native politicians ; 
 
 * Laws of U. S., 1802, ch. xviii. ; 1813, ch. clxxxiv. ; 1816, ch. 
 2^xxii. 
 
CCNSTITUTIONAL JURISPRUDENCE. 235 
 
 and every year's experience tends amply to confirm 
 chose doubts. For a short period, during the admin- 
 istration of the elder Adams, the term of residence 
 prescribed by law to entitle an alien to naturalization 
 was fourteen years. But the passing of that law 
 was one of the most powerful causes of the expul- 
 sion of Mr. Adams and the Federal party from the 
 administration of the General Government ; and 
 however some of his successors may have regretted 
 its repeal, they have been too well convinced of the 
 difficulty of recalling a popular concession to attempt 
 its re-enactment. 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 jurisdic- 
 tion in cases of naturalization exclusively in the 
 Federal Courts. 
 
 VI. 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 peculiar reasons why the National Governmerrt 
 should be intrusted with this power, arising from 
 the importance 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 
 mprisonment for debt, to interpose and provide reliel 
 Tor the debtor in cases of inevitable misfortune ; and 
 this has been particularly the case in regard to in- 
 solvent merchants, who are frequently tempted, if 
 not obliged, by the habits, pursuits, and enterprising 
 nature of trade, to give and receive credit, and en- 
 
236 LECTURES ON 
 
 counter extraordinary hazards ; and, besides relieving 
 the debtor, bankrupt and insolvent laws are intended 
 to secure the application of his effects to the pay- 
 ment of his debts. Bonkrwptcy. in the English 
 law, has by long and settled usage received an ap- 
 propriate meaning ; and has been considered appli- 
 cable 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 partition between bankrupt and insolvent 
 laws is not so distinctly marked as to enable laymen 
 or lawmen to determine with positive precision what 
 belongs exclusively to the one or to the other ; and 
 it is the more difficult to discriminate between them, 
 because bankrupt laws may, and frequently do, con- 
 tain 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 class- 
 es, who are most exposed to pecuniary vicissitudes, 
 yet, as misfortune and poverty may also overtake 
 those who pursue otner 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.* 
 
 Whenever, indeed, the terms in which a power ia 
 granted by the Constitution, or the nature and cbar- 
 * 4 Wheat., 122. 12 Wheat., 2ia 
 
CONSTITUTIONAL JURISPRUDENCE. 237 
 
 acter of the power itself, require tliat it should be ex- 
 ercised 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 for- 
 bidden 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 impair 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 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 in- 
 solvent laws, not coming within the technical de- 
 scription 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 con- 
 current power in regard to bankruptcy, qualilied 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 ;* 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 
 
 * Mr. Justice Story, however, observes, in reference to the case 
 of Sturges vs. Crowninshield, that "no distinction was ever prac- 
 :;ically, or even theoretically, attempted to be made between bank 
 -jptfie: and insolvencies." — Comm., HOG. 
 
238 LECTURES ON 
 
 contracts. There is this farther limitation upon the 
 powei 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 throughput 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 discharge 
 was obtained. It only operates upon contracts made 
 within the state : between its own citizens or suitors 
 subject to state powers.* 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 refei 
 to the law of some other country, or be immoral, or 
 contrary to the policy of the country where it is 
 sought to be enforced ; and, consequently, the dis- 
 charge of the contract, or of the party where the con- 
 tract was made, is a discharge everywhere. But a dis- 
 charge under a state law is no bar to a suit on a con^ 
 tiact not existing when the law loas 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 antecedent' 
 ly to the law. 
 
 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 
 
 * 12 Wheaton, 213. 
 
CONSTITUTIONAL JURISPRUDENCE. 239 
 
 for a long time to revive the system ; and whenever 
 afterward, the effort was made, it was unsuccessful, 
 until the last session of Congress. The obstacles to 
 its revival were such as to repress every hope of re- 
 newing the experiment until a material change was 
 wrought in public opinion. These objections were, 
 in the first place, the difficulty of defining, to the sat- 
 isfaction 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 farther than to bankruptcy in its techni- 
 cal and limited sense, by which its operation is re- 
 stricted to merchants and traders. But the more gen- 
 eral, and, perhaps, more substantial objection, was the 
 expense, delay, and litigation which had been found 
 to attend its proceedings ; and the still more griev- 
 ous abuses and frauds to which the system leads, 
 notwithstanding the vigilance and integrity of those 
 to whom its administration was committed. It was 
 observed by the chancellor and the 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 in- 
 solvent laws, that, "judging from their former expe- 
 rience, 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 apprehen- 
 sive,'' they stated, " that the evil was incurable, and 
 arose principally from the infirmity inherent in such 
 a system." With respect to the infirmilies 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 matu- 
 rincr by the wisdom of a succession of distinguished 
 
240 LECTURES ON 
 
 judges, the late Lord Eldon, one of the ablest min 
 isters and soundest lawyers of modern times, aftei 
 his appointment as chancellor, took the earliest op- 
 portunity to express his indignation at the frauds 
 which had been committed under cover of that sys- 
 tem, and emphatically remarked, that " the abuse 
 o( 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 Eng* 
 land and in this country, the friends and advocates of 
 the bankrupt system have persevered, and by strain- 
 ing the constitutional point, and inducing Congress 
 to adopt a latitude of construction which had not 
 been thought of on any of the former occasions, 
 eventually procured the passage of an act which, 
 under the title of a Bankrupt Law, embraces provis- 
 ions peculiar to insolvent laws, rendering it the vol- 
 untary refuge of the debtor, and extending its bene- 
 fits to every description of persons owing debts, with 
 the exception of those created in consequence of a 
 defalcation as a public officer, or as an executor, ad- 
 ministrator, guardian, or trustee, or while acting in 
 any other fiduciary capacity. It moreover subjected 
 merchants, traders, bankers, factors, brokers, and un- 
 derwriters 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 en- 
 terprise and credit had laboured for the few prece- 
 ding years, than from real conviction of its consist- 
 ency either with the provisions of the Constitution, 
 or the rules of sound policy. It was, indeed, con- 
 sidered as a temporary expedient, to be abandoned 
 when it had performed its ofllce, and the causes 
 which produced it had ceased to operate : and it 
 
(JON'STl'I UTIONAL JURISPRUDENCE. 241 
 
 hasj accordingly, been since repealed. None of the 
 states have enacted bankrupt laws, technically so 
 called. Most of them, however, have permanent in- 
 solvent laws ; but, inasmuch as they cannot discharge 
 the debtor from the obligation of his contract, and 
 imprisonment for debt has been abolished in many 
 states, the operation of those laws is, in effect, confi- 
 ned to the person of the debtor in the states where 
 (hat 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." 
 
 LECTURE X 
 
 ON THE POWERS VESTED IN THE FEDERAL GOVERN- 
 MENT RELATIVE TO CERTAIN MISCELLANEOUS OB- 
 JECTS OF GENERAL 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 y 
 
 The claims of authors and inventors are so 
 congenial to our notions of natural justice, and 
 accord so harmoniously with the ultimate objects 
 jf society in establishing the rights of property, 
 '.hat, at first sight, it seems strange that the ex 
 istence of this right should ever have been made 
 ii question. It was so, however, in the great case 
 i)f literary property which arose in England. It 
 w;)s, nevertheless, finally settled, by a solemn 
 j ilnment of the House of Lords, that, although 
 buch right had existed at common law, yet that 
 T 
 
242 LECTURES ON 
 
 the statute passed in the reign of Queen Anne foi 
 securing copy-rights had limited the right, which 
 had hefore 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,* and who, reason- 
 
 * This celebrated case is reported in 4 Burrow, 2303, under the 
 title of Miller vs. 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 publish- 
 ing his work in perpetuity by the common law, and that such 
 right is in no wise 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 vs. Becket 
 brought the question on appeal before the House of Lords. The 
 lords commissioners of the great seal had granted an injunction 
 against violating a copy-right at common law ; and when the appeal 
 from that decree was brought up to the Lords, the judges were di- 
 rected to deliver their opinions upon the following questions, viz. : 
 
 1. Whether, at common law, an author had the sole right oi first 
 printing and publishing his book for sale ; and might bring an ac- 
 tion 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 as- 
 signs, had the sole right of printing and publishing the same in 
 perpetuity by tlie common law ? 
 
 5. Whether this right is in any way impeached, restrained, or 
 taken away by the statute ? 
 
 Qp )n the hrst question, the judges were eight to three in the 
 afiirmative ; on the second, seven to four; on the third, six to five 
 in the negative : so that the general result was, " that an au- 
 thor had the sole right in perpetuity at common law, and that 
 such right was in no wise impeached by the statute." It was 
 known that Lord Mansfikld adhered to the opinion delivered 
 by him in the Court of King's Bench ; and therefore concurred 
 with the eight upon the first question ; and with the seven U])on 
 the second ; and with the five on the third. But, it being unusual 
 tor a peer to support his own judgment on an appeal, he gave no 
 
CONSTITUTIONAL JURISPRUDENCE. 243 
 
 tng upon different principles, arrived at a differ- 
 ent result, were perplexed by the indefinite na 
 ture of the right, and embarrassed by the conse- 
 quences of admitting it. On the one hand, to 
 deprive men of genius of the right to the profits 
 of invention was discouraging literature and 
 the useful arts, and throwing impediments in the 
 wiy 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 conse- 
 quences, would levy a perpetual tax on posteri- 
 ty, and check the progress of invention itself 
 
 The full result of admitting an exclusive and 
 perpetual right of property in the produce of 
 intellectual labour was not, and could not be fully 
 known or estimated ; but that it would operate 
 as a bar to the advancement of human knowl- 
 edge, and powerfully retard the progress of so- 
 ciety, was clear to demonstration. Yet, to deny 
 to inventors the fair profits derivable from their 
 talents and exertions, seemed to be at variance 
 with every idea of natural justice and every dic- 
 tate 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 wri- 
 tings and discoveries, to a term of years, was 
 regarded as a compromise, by which the claims 
 
 opinion; and the Lord Chanckllor (Apsley) seconding Lord 
 Camden's, his predecessor's, motion "to reverse," the decree of 
 the Court of Chancery was reversrd. So that the decision of the 
 Peers was, in ellect, that the right was perpetual at common law, 
 \i)ut reversed by the statute to a term of years. 
 
244 LECTURES ON 
 
 of the inventor were acknowledged, his right* 
 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 stat- 
 ute 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 use- 
 ful arts, by securing to authors and inventors 
 the exclusive right to their writings and discov- 
 eries." The English law had limited the right 
 to a term of years. The power ceded by our Con- 
 stitution was to secure it '•'-for limited times :" 
 the former restricting the right to a definite pe- 
 riod ; the latter adopting the same principle, 
 but leaving the quantum of interest to the dis- 
 cretion of the National Legislature. In execu- 
 tion of this power, several acts have been passed 
 by Congress, and are now in force, defining 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 penal- 
 ties and other appropriate remedies against those 
 who violate the right. 
 
 The object, therefore, of this provision of the 
 Constitution, and of the laws enacted in virtue 
 of it, is twofold : first, to secure to inventors 
 and to authors a reward for their labours ; 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 privilege • 
 
CONSTITUTIONAL JURISPRUDENCE. 245 
 
 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 adop- 
 tion of the Federal Constitution, legislative acts 
 in favour of valuable discoveries and improve- 
 ments had been passed in several of the states; 
 but their efficacy being 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 ap- 
 plicant for the benefit of the protection of Con- 
 gress 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, nev- 
 ertheless, 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 Su- 
 preme Court of the United States — not by an ex- 
 press construction of this particular power, but 
 by a series of decisions upon analogous cases 
 involving similar principles, and bearing in one 
 case on the subject itself. I refer to the case of 
 Livingston and Van Ingen, in which the question 
 arose as to the validity of the grant made by the 
 Legislature of New-York to certain individuals, 
 of the exclusive right of navigating its waters 
 with boats propelled by means of fire or steam.* 
 * 10 Wheat., 466. 
 
246 LECTURES OiN 
 
 Before the adoption of the present Constitution, 
 an act was passed by the Legislature of that state 
 granting and securing to one John Fitch *' the sole 
 right and advantage of employing the steamboat hy 
 him lately invented,''^ and investing him and his rep- 
 resentatives " 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 ter- 
 ritory 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 Fed- 
 eral Constitution, and after Congress had passed that 
 act, in execution of the power under discussion, 
 which contains the provisions requiring the surren- 
 der 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 pream- 
 ble sets forth, " that Robert R. Livingston had rep- 
 resented that he was possessed of a mode of apply- 
 ing the steam-engine to propel a boat on new and 
 advantageous principles ; but that he was deterred 
 from carrying it into efiect by the uncertainty and 
 hazard of a very expensive experiment, unless he 
 could be assured of an exclusive advantage from it 
 should it he found successful ;" and that " he was also 
 deterred from the enterprise by the existence of 
 the previous act in favour of Fitch, who was stated 
 to be dead, or to have withdrawn from this state 
 icithout having made any attempt to execute the plan 
 for which he had obtained the exclusive privilege," 
 whereby it was alleged 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 representatives, for the term 
 of twenty years, upon condition that he should, with- 
 
CONSTITUTIONAL JURISPRUDENCE. 247 
 
 in 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 construction, '' plying between the 
 cities of New-York and Albany." 
 
 These conditions not having been performed with- 
 in the period specified, the time for fulfilling them 
 was repeatedly enlarged by successive acts of the 
 Legislature for the purpose. One of these, passed 
 after the former ones had expired, revived the privi- 
 leges granted by them in favour of Robert R. Liv- 
 ingston and Robert Fulton. In the year 1807, the 
 proof required of performance 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 piyisuance of the second. Other boats 
 were subsequently built by the grantees of the state, 
 and after they had continued for some years in suc- 
 cessful operation, rival boats, propelled in the same 
 manner, were established, in defiance of the state 
 grant, both on the Hudson River and on Lake Cham- 
 plain, 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 Congress 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 dis* 
 
24S LECTURES ON 
 
 tinct grounds, viz. : that, considering Messrs. Liv- 
 ingston and Fulton as inventors, the state had a con 
 current power with Congress to reward them as such, 
 by the grant of exclusive privileges to be exercised 
 within its jurisdiction ; and, secondly, that, consider- 
 ing 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 ce- 
 ded to Congess at all. It was observed, however, 
 by one of the judges, that " if the opposite party could 
 have shown aright hy patent from the United States, 
 as inventors, they must have prevailed, and the state 
 law would have given way to the superior power cf. 
 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 speared, 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 
 etate.* 
 
 After notice of an appeal, on the part of their ad- 
 versaries, to the Supreme Court of the United States, 
 Messrs. Livingston and Fulton offered terms of com- 
 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 
 ill the subsequent case,t referred to in a former lec- 
 ture, the question respecting the nature and effect ot 
 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 Congies^ 
 
 * .Tohn. Kep., 537. -f 10 Whca' . 4'ir. 
 
CONSTITUTIONAL JURISPRUDENCE. 249 
 
 to regulate commerce ; and the state laws were de- 
 clared to be void, merely from their repugnance to 
 the exercise of that powder by the Federal Govern- 
 ment, The leading principles, however, of that de- 
 cision, as well as much of the reasoning in the case 
 relative to the licenses required by the State of Ma- 
 ryland from importers of foreign goods, apply with 
 equal force to the power now under discussion ; and 
 Although the invalidity of the state grant has thus 
 been established, and the question relative to the na- 
 ture 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 endeavour 
 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 diffi- 
 cult to conceive in what manner the right in question 
 can possibly be secured, except by vesting such ex- 
 clusive power in a paramount authority ; and the ne- 
 cessity of such a power to the attainment of the end 
 was an adequate reason for vesting it in the Supreme 
 Legislature of the Union. The power under consid- 
 eration comes under that class of cases enumerated in 
 the thirty-second number of " The Federalist," to 
 which the exercise of a similar power in the states 
 v/ould be repugnant and contradictory. The exam- 
 ple which the learned and eloquent author of that pa- 
 per selected to illustrate his reasoning involved a 
 contjadiction by direct implication, from the force oj 
 U 
 
250 I.ECTURES ON 
 
 the terms. It was an example taken from the powei 
 of Congress to establish a uniform system of natu- 
 ralization ; 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 Con- 
 gress could not be uniform. In the present case, the 
 power given is necessarily exclusive, both from the 
 lenns and the nature of the grant. The words are 
 ».hat '* Congress shall have power to secure the ex- 
 clusive rights of authors and inventors, for limited 
 timesy 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 sovereignty, 
 and, consequently, a powder to grant without limit oj 
 time. But how could Congress secure to the invent- 
 or, ybr 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 Er- 
 rors, by one of its most eminent judges, " that if an 
 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 
 privilege, provided it be confined in its exercise to 
 the particular jurisdiction." But, with all due sub- 
 mission, 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 ox possessor of the same invention, the exclu- 
 sive right to use it within its own jurisdiction ; oi 
 that Congress cannot secure such a right to the in- 
 ventor 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 
 
CONSTITUTIONAL JURISPRUDENCE. 251 
 
 throughout the Union ; and that the individual state 
 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 sub- 
 ject, and within the same jurisdiction, two co-ordi- 
 nate powers may grant exclusive privileges to differ- 
 ent persons. The other branch of the dilemma sup- 
 [)oses the state to derogate, by an assumption of pow- 
 er, from the express terms of its grant to the Feder- 
 al Government, and actually to exercise an exclusive 
 power to secure exclusive privileges, in direct con- 
 tradiction to the terms of the power ceded to Con- 
 gress. 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 su 
 preme law of the land," because the repugnancy is, 
 from the nature of the subject, different from that 
 arising under the power to regulate commerce, and 
 is directly deducible 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 Constitu- 
 tion intended 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, 
 [hit 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 
 
252 LECTURES ON 
 
 a different period, or might secure a right of property 
 lO authors and inventors in perpetuity. Nor could 
 the latter branch of the object be secured by Con- 
 gress if the states could exercise a concurrent 
 power; because each state might, upon that suppo- 
 sition, reduce the term of exclusive enjoyment 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, health, and inspection laws,* 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 owner- 
 ship of a vessel, but confers a right of navigation ; 
 that a right to import goods involves the right to sell 
 them ; and that, whenever those rights come into 
 collision with state laws, passed in virtue either of a 
 concurrent or of an independent right of legislation, 
 on these, or any otl^r subjects, and the exercise of 
 the Federal and state authorities are found repug- 
 nant or irreconcilable to each other, the state law 
 must yield to the superior power of Congress. So 
 a patent or a copy -right not only ascertains the title 
 of the patentee or author, but confers the same para- 
 mount right of using, and vending to others to use, 
 their respective discoveries and writings. 
 
 In applying, however, the reasoning of Chief-jus- 
 
 * Vide a pamphlet entitled "A Vindication of the Laws of New 
 York, granting exclusive privileges to Robert U. Livingston and 
 Itobert Fulton," by Cadwallader D. Golden, Esq., Albany, 1818 
 
CONSTITUTIONAL JURISPRUDENCE. 253 
 
 tice Marshall to the case of a patent or copy-right, it 
 IS, perhaps, necessary to remark, that the property 
 which an author may have in his Avritings 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 re- 
 stricted sense, use his invention for purposes of 
 profit ; to both, however, a right of sale is indispen- 
 sable, but more manifestly so in the first case than 
 in the last. Every other subject of property may be 
 partially enjoyed, though the right of sale be restrict- 
 ed or forbidden ; but the right of property of authors 
 and inventors is so essentially connected with the 
 right of sale, that the inhibition of that right anni- 
 hilates the whole subject. The right of sale, in 
 these instances, therefore, is an elementary princi- 
 ple 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 se- 
 cured, 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 improvements in the arts, give rise to new 
 m.odifications of property, the first thing that attracts 
 the attention of the Legislature to any subject as be- 
 ing capable of appropriation or exclusive ownership 
 is its VALUE. Accordingly, we find that the laws 
 passed by Congress* in virtue of the Constitutional 
 power now in question, secure to an author or his 
 assignee " the sole right and liberty of printing, re- 
 printing, publishing, and vending^^ his work ; and to 
 a patentee, " the full and exclusive right and liberty 
 
 » Laws U. S., 1 Cong., 2 Sess., ch. xv. , 2 Cong., 2 Sess., ch. xl 
 
254 LECTURES QN 
 
 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 meas- 
 ure, on the principles recognised 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,* decided in the Court of 
 Errors of the State of New- York, it was held that 
 the Legislature of a state may prohibit the use of any 
 particular invention, as noxious to the health, injuri- 
 ous 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 mo 
 that the Government of the Union must possess ex- 
 clusively the power of determining whether an in- 
 vention 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 pro- 
 motion of the " useful arts ;" an invention useless or 
 pernicious would not be a proper subject for its ex- 
 ercise ; but should a patent for such an invention 
 have unadvisedly 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 ill itself pernicious 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 
 
 * 9 \. R., 507. 
 
t;ONSriTUTIONAL JURISPRUDENCE. 255 
 
 manufacture to which it relates be injurious, in its 
 exercise, to the public health, the patent would af- 
 ford no protection for the nuisance, because private 
 interests must yield to the public good, and not be- 
 cause the Federal power is superseded or controlled 
 by the state law. So, if the author of an immoral or 
 libellous book prosecute for the invasion of his copy- 
 right, he could receive no indemnity ; and if prose- 
 cuted 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 copy- 
 right would invest him with no right of property, and, 
 in the other, would convey no right to use his prop- 
 erty to the injury of others. Nor would the patentee 
 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 
 permitted to ply on a ferry established by state au- 
 thority, 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 na- 
 ture are general 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 promotion of science and the useful 
 arts. But a construction of the Constitution admit- 
 ting that the states, in the exercise of an absolute 
 discretion, may prohibit the introduction or use of 
 any particular invention for which a patent had been 
 regularly obtained, would render the power in ques- 
 tion completely nugatory, and the states would re- 
 tain substantially the very power they had nominally 
 parted with. 
 
256 LECTURES ON 
 
 This power of securing to authors and inveMors a 
 right of beneficial ownership in their writings and 
 discoveries has been surrendered to Congress, and 
 any encouragement to invention, invitation to the in- 
 troduction of improvements, or attempt to promote the 
 progress of literature, science, and the arts, which 
 interferes with, or prevents the exercise of that power, 
 is an assumption of authority fairly, and on good con- 
 sideration, yielded to the General Government. The 
 several states, nevertheless, retain all other means 
 of securing rewards to genius, of promoting learning 
 and science, of encouraging new discoveries, and 
 inviting improvements in the arts, except the power 
 thus ceded to the Union. And although an indi- 
 vidual state can neither secure to an inventor an ex- 
 clusive property in his invention, 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 learn- 
 ing, encourage new discoveries in science, and in- 
 vite the introduction of new improvements 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 Con- 
 gress. And the reason of the difference is simply 
 this : that all the other modes of effecting those ob- 
 jects may, without danger of being defeated by the 
 clashing laws of co-ordinate legislatures, be safely 
 committed to the several states, while the simple 
 mode of securing the right of property must be pos- 
 sessed 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 " io exercise ex* 
 elusive legislation^ in all cases lohatsoever, over such 
 
CONSTITUTIONAL JURISPRUDENCE. 257 
 
 district, not exceeding ten miles square, as ??iay, by 
 cession of jmrticular states, and the acceptance of Con- 
 gress, become the seat of the Government oj 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 oth- 
 er needful buildings.''^ 
 
 This power was granted to Congress from a con- 
 viction of the indispensable necessity of investing that 
 body with complete supremacy and control at the 
 seat of the National Government. Without the pos- 
 session of such a power, the Federal authority might 
 be insulted, and its proceedings interrupted with im- 
 punity ; and the depend ance of the functionaries of 
 the General Government on one of the states for pro- 
 tection in the exercise of their duties, might subject 
 the national councils to the imputation of partiality, 
 and be productive of an influence equally dishonour- 
 able to the government, and dissatisfactory to the 
 other membei^ 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 perma- 
 nent residence of the National Government would, 
 it w^as thought, create so many additional obstacles 
 to its removal, and still farther abridge its necessary 
 independence. The necessity of a like authority 
 over the forts, arsenals, and dockyards, and their ap- 
 pendages, established by the Federal Government, 
 was supposed to be not less evident. The public 
 money expended on such establishments, and the pub- 
 lic property deposited in them, require their exemption 
 from the local authority of the state where they aro 
 situated. Nor would it be proper that places on which 
 the security of the entire Union may depend should 
 
258 LECTURES ON 
 
 be in any degree dependant on a particular member; 
 and all objections and scruples were obviated by re- 
 quiring 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 
 and Virginia, whereby Congress was enabled to ex- 
 ecute this power by establishing, under its own juris- 
 diction, a permanent seat for the National Govern- 
 ment. This territory was erected into a *' district," 
 under the exclusive jurisdiction of Congress, by the 
 name of the " District of Columbia." The City of 
 '' Washington" was built, and the necessary edili- 
 ces for the accommodation of all the different branch- 
 es of the Federal Government were erected on the 
 banks of the Potomac, in conformity with a favourite 
 wish of General Washington, and almost in sight of 
 the place of his residence in life, and of his repose in 
 death. The seat of government was removed thence 
 at the commencement of the present century. Muni- 
 cipal corporations were created by Coi^ress for man- 
 aging the local concerns of the " Federal city," and 
 of the cities of Georgetown and Alexandria situated 
 within the " ten miles square," ceded by the respec- 
 tive states within whose limits they had been hitherto 
 confined. Laws have from time to time been pass- 
 ed by Congress for the government of the District of 
 Columbia, and local courts established, as we have 
 seen, for the administration of justice within its lim- 
 its. 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 respect- 
 ively, with such alterations only as were rendered 
 necessary by the change of jurisdiction.* Nor wxre 
 
 * 1 Cranch, 252. 
 
CONSTITUTIONAL JURISPRUDENCE. 259 
 
 the separation of the territory and the transfer of the 
 jurisdiction permitted to affect existing contracts be- 
 tween individuals. * 
 
 Although the inhabitants of the District of Colum- 
 bia, 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. t And notwith- 
 standing the power of Congress to exercise exclu- 
 sive legislation over this Federal territory includes 
 the power of taxing its inhabitants, 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 ;J and 
 it may now be added, that the adequate provisions 
 lor their local government, and the advantages deri- 
 ved from the residence of the General Government, 
 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 be- 
 fore the cession of the territory, and when the in- 
 habitants voluntarily established their residence with- 
 in it. 
 
 III. The next power falling within this miscella- 
 neous class is the power of Congress " to declare 
 the punishment of treason^'' against the United States. 
 
 It is a general principle, that every government 
 contains within itself the means and capacity for its 
 own preservation. Had the express enumeration, 
 therefore, of this power been omitted in the Consti 
 
 • 6 Cranch, 192. t 2 ib., 243. X 5 Wheaton, 324. 
 
260 LECTURES ON 
 
 tulion, it could not have been intendeti tbat the Fed 
 eral Government was to depend upon the individua 
 states to protect it 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 fcrime of treason against the United States was 
 one which might be committed, the United States 
 themselves might, without this express authority , have 
 punished its perpetrators ; but as artificial and con- 
 structive treasons had been frequently made engines 
 of oppression by tyrannical governments, and, during 
 the prevalence of vindictive 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 
 author. 
 
 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." The term *' levying war" is of 
 technical signification, and is adopted from the Eng- 
 lish statute of treasons, and receives the same con- 
 struction with us which has been given to it in Eng- 
 land ; and the " war," included in the term, embra- 
 ces internal rebellion, as well as hostilities from with- 
 out. A conspiracy to subvert by force the govern- 
 ment of the United States, violently to dismember 
 the Union, to coerce the repeal of a general law, or 
 to revolutionize a territorial government 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 parts 
 which must be assigned to dilferent persons for th^ 
 
CONSTITUTIONAL JURISPRUDENCE. 261 
 
 purpose of proseciuing the war, are guilty of the 
 crime.* But a mere conspiracy for any such pur- 
 pose, 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. f The mere enlistment 
 of men for the purpose is not sufficient. Nor is it 
 necessary, on the other hand, that an individual should 
 •ppear in arms against his country to constitute the 
 fviXi of treason. If v/ar be actually levied, that is. 
 'if a body of men be actually assembled in arms fox 
 .he purpose of effecting by force a treasonable de- 
 sign, all those who perform any part in the conspira* 
 cy, however minute, or however remote themselve? 
 horn, the scene of action, if actually leagued in the 
 general enterprise, are considered as traitors. Simi- 
 tar acts committed against the government or laws o^ 
 a particular state are punishable according to tho 
 ;.aw of that state, but adhering to a foreign nation at 
 war with the United States, and affording it aid in 
 vhe prosecution of hostilities, is treason against tha 
 United States, and not against the particular state of 
 which the party is a citizen.J 
 
 The Constitution farther declares, that " no person 
 shall be convicted of treason unless on the testimo- 
 ny of two witnesses to the same overt acl, or on con- 
 Cession in open court." A confession out of court, 
 although before a magistrate, is not sufficient ;§ but 
 after the treason is proved by two witnesses, such 
 confession may be given in evidence by way of cor- 
 roboration. The testimony of the two witnesses 
 must be to the same overt act, and not, as in Eng- 
 land, to two different overt acts of the same treason. 
 The restriction on Congress with respect to the pun- 
 
 * 4 Ciancli, 470. t 4 ih., 75-12G. t H J- R-, 553. 
 6 Frics's Case, in V>. S. Clrc. Ct. for Pennsylvania. 
 
262 LECTURES ON 
 
 ishment is, that " no attainder of treason shall work 
 corruption of blood or forfeiture, except during the 
 life of the person attainted." Corruption of blood, in 
 common with many better things, we derive again 
 from the common law. It signifies that an attaint- 
 ed 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 children with a ven- 
 geance, 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 
 equally at variance with the liberal principles of mod- 
 ern times, and the very elements of justice. And 
 in carrying this power into execution. Congress has 
 humanely stopped short of their constitutional author- 
 ity ; 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, ^r any 
 forfeiture of estate •^'' thus acting upon a constriction 
 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 Unions 
 
 No provision of this kind was made in the Articles 
 of Confederation, and great inconvenience, and much 
 assumption of power, were the necessary consequen- 
 ces. With great propriety and advantage, therefore, 
 the new Constitution supplied this /lefect. But t*he 
 power was not granted without restriction ; for " no 
 new state" can *' be formed or erected within the juris- 
 diction of any other state ; nor can any state be form* 
 
CONSTITUTIONAL JURISPRUDENCE. 263 
 
 cd by the junciion of two or more states, without the 
 consent of the legislatures of the states concerned, 
 as well as of Congress." These precautions, which 
 prevent eiilier the partition of a large state, or the 
 junction of small ones, without their consent, were 
 necessary to allay the jealousies existing on the sub- 
 ject, both in the more powerful and in the weaker 
 nu;mbers of the conl'ederacy. 
 
 Upon the purchase of Louisiana by the United 
 Slates, some doubt was entertained whether the 
 power of the General Government to admit new 
 states into the Union extended to territories not com- 
 prised within the boundaries of the United States at 
 the adoption of the Constitution. This question, al- 
 though never presented in a form for judicial decis- 
 ion, was, however, decided in the aliirmative by large 
 majorities of both houses of Congress, on the sever- 
 al occasions of admitting diflerent parts of that prov- 
 ince into the Union, as the separate States of Lou- 
 isiana, Mississippi, iMissouri, and Arkansas ; which 
 acis"were severally approved by successive chief 
 magistrates of the Union. It must therefore be con- 
 sidered as practically settled, and it would savour too 
 much of the spirit of controversy, and betray too much 
 self-con lidence, to ofier, at this time of day, any ar- 
 gument in support of the negative side of that ques- 
 tion, 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 ophiion has sustained the gov- 
 ernment in this exercise of the power in question, on 
 the ground of constitutional right, as strongly as it 
 has been declared in favour of its policy. 
 
 V. The power " to dispose of and make all need- 
 ful regulations respecting the territory or other prop- 
 
264 LECTURES ON 
 
 erty belonging to the United States," is the next ono 
 comprehended in this class. 
 
 It was required 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 condi- 
 tion, not only proper in itself, but which was proba- 
 bly rendered absolutely necessary by the jealousies 
 and controversies that existed concerning the West- 
 ern territory, and which provides that " nothing in 
 the Constitution shall be so construed as to preju- 
 dice any claims of the United States, or of any par- 
 ticular state." 
 
 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 
 ceded to the United States ; nor to any land occu- 
 pied by the General Government for any similar pur- 
 pose, 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, erect- 
 ed in provinces, acquired, like Louisiana and the 
 Floridas, since the adoption of the Federal Constitu- 
 tion. But if the Federal Government possessed au- 
 thority to purchase them, there seems no necessity 
 for resting the right of legislation in regard to them 
 on such narrow and insufficient grounds, for the pow- 
 er of governing a territory is the inevitable conse- 
 quence of the right to acquire and hold it. 
 
 VI. The guarantee by the "United States to ev- 
 ery state in the Union of a Republican form of gov- 
 ernment ; to protect each of them against invasion ; 
 Hnd on application of the Legislature, or of the ex- 
 ecutive, when the Legislature cannot be convened 
 
CONSTITUTIONAL JURISPRUDENCE. 265 
 
 against domestic violence," 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. 
 
 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 su- 
 perintending government created by it ought certain- 
 ly to possess the authority to defend the whole sy? 
 tern against innovation ; and the more intimate tho 
 union, the greater the interests of its members ir 
 the separate institutions of each other, and the great- 
 er the right to insist that the respective forms of gov- 
 ernment under which the general compact was en- 
 tered into should be substantially maintained. But 
 a right implies a remedy, 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, w^ithout the power to enforce its observ- 
 ance, would be of little value ; hence the term " guar- 
 antee'^ 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 farther, 
 and it presumes the pre-existence of governments of 
 the form guarantied. So long, therefore, as the Re- 
 publican forms existing at the time the Constitution 
 was adopted are continued by the states, they are 
 guarantied by the Federal Government, and the Fed- 
 eral Constitution imposes no other 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 pre- 
 X 
 
266 LECTURES ON 
 
 viousiy existing, it has a right so to do, and is equal 
 ly entitled to claim for it the benefit of a Federal 
 guarantee. 
 
 Protection against invasion is due from every so 
 ciety 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 ambitious or vindictive enterprise of its more 
 powerful neighbours. The protection against do- 
 mestic violence is added with equal policy and pro- 
 priety, as it aflfords the means of enforcing the guar- 
 antee before provided for, whenever a faction or mi- 
 nority in a state endeavours by violence to subvert 
 the Republican form of its Constitution. 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 vio- 
 lence. For, although it may at the first view ap- 
 pear inconsistent with the Republican theory either 
 that the minority will have the power, or that a ma- 
 jority have not the right to subvert the government, 
 yet mere speculative reasoning must in these cases, 
 as in all others, be qualified by the lessons of prac- 
 tice and experience. 
 
 Unlawful combinations for purposes of violence 
 may be formed by a majority of persons in a state, 
 especially in a slaveholding state, as well as by a 
 majority of a county, or other subdivision of a state ; 
 and if the authority of the state is bound in the lat- 
 ter case to protect the local magistracy, the Govern- 
 ment of the Union is equally bound in the former to 
 protect the state authority. Besides, there are cer- 
 tain parts of the state constitutions which are so in- 
 terwoven with the Federal compact, that a violent 
 assault cannot be made on the one without injury 
 
CONSTITUTIONAL JURISPRUDENCE. 5^67 
 
 io the other. The power in question, however, can 
 only be exercised when the blow is directed against 
 the state constitution and authority, or when it inci- 
 dentally or indirectly affects the Government 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 govern- 
 ment. But insurrections against the state govern- 
 ments will rarely require Federal interposition, un- 
 less the number of those concerned in them bears 
 some proportion to the friends of the state constitu- 
 tion ; 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 con- 
 test. The existence itself of the right of the Gen- 
 eral Government to interpose will, however, general 
 ly 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 representative authority of the 
 Union, who would be free from the influence of local 
 interests, and from participation in local or personal 
 animosities. 
 
 VII. The power of Congress to "'propose amend- 
 ments to the Constitution, and call conventions for the 
 purpose" is the last to be referred to in this class oi 
 the Federal powers. 
 
 That useful alterations would be suggested by ex- 
 perience, could not but have been foreseen by the 
 framers of the Constitution. It was requisite, there- 
 fore, that a mode for introducing amendments should 
 he provided ; and that which was adopted guards 
 equally against that extreme facility which would 
 render the Constitution too mutable, and the extreme 
 
268 LECTURES ON 
 
 difficulty which might perpetuate its faults. The 
 article in question provides that " Congress, when- 
 ever two thirds of both houses shall deem it neces- 
 sary, shall propose amendments to the Constitution ; 
 or, on the application of the leojislatures of the sev- 
 eral states, shall call a convention for proposing 
 amendments, which, in either case, shall be valid to 
 all intents and purposes, as part of the Constitution, 
 when ratified by the legislatures of three fourths oi 
 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 respect- 
 ing 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 equal- 
 ly enabled to originate amendments, as their neces- 
 sity is pointed out by experience ; and I have al- 
 ready had occasion to remark that those proposed or 
 adopted since the ratification of the Constitution were 
 few in 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 
 •^eainst one of the United States by citizens of an- 
 v^tuer state, or by citizens or subjects of any foreign 
 -tate ;" second, that which changed the mode of bal- 
 loting for President and Vice-president by the elect- 
 ors ; and, third, an amendment ordaining that, *' if any 
 r.itizen of the United States shall accept, claim, re- 
 ..:ve, or retain any title of nobility or honour; or 
 shall, without the consent of Congress, accept or re- 
 tain any present, pension, office, or emolument of 
 
eONiTITUTIONAL JURISPRUDENCE. 269 
 
 any kind whatever, from any emperor, king, prince. 
 or foreign povver, such person shall cease to be a 
 citizen of the United States, and shall be incapable 
 of holding any office of trust or profit under them, or 
 either of them." 
 
 The previous and more numerous amendments 
 were proposed by some of the states as conditions o( 
 their accession to the Constitution. They all oper- 
 ate as general restrictions upon the powers of Con- 
 gress, and are, for the most part, affirmative either ol 
 the inalienable rights of individuals, or of the civil 
 and political rights and privileges substituted in their 
 stead, as explained in our review of the fundamental 
 principles of the government ; and they were man- 
 ifestly adopted from superabundant caution, inasmuch 
 as those rights were already sufficiently guarded by 
 the state constitutions and bills of rights. The fol- 
 lowing, however, may be enumerated as exceptions, 
 viz. : 
 
 1st. That which prohibits Congress from making 
 any law respecting a religious establishment, pro- 
 hibiting the free exercise of religious worship, or 
 abridging the freedom of speech or of the press. 
 
 2d. That *' the enumeration in the Constitution of 
 certain rights shall not be construed to deny or dis- 
 parage others retained by the people." And, 
 
 3d. That " the powers not delegated to the Uni- 
 ted States by the Constitution, nor prohibited by it 
 lo the states, are reserved to the states respectively, 
 or to the people." 
 
 The second of these amendments was intended to 
 prevent any perverse or ingenious misapplication oi 
 the maxim that " an affirmation in particular cases 
 implies a negation in ail others." The one last spe- 
 cified is merely an affirmation of a necessary rule for 
 the interpretation of the Constitution ; which, being an 
 
270 LECTURES ON 
 
 instrument of limited and enumerated powers, what 19 
 not conferred by it is withheld, and retained by the 
 state governments, if vested in them by their constitu- 
 tions, and if not so vested, remains with the people, as 
 a part of their residuary sovereignty. This amend- 
 ment, however, does not confine the Federal Govern- 
 ment to the exercise of express powers ; for hnp/icd 
 j)Owers must necessarily have been admitted, unless 
 the Constitution had descended to the regulation oi 
 the minutest details of legislation. It is a general 
 principle, that ail bodies politic possess all the pow- 
 ers incident to a corporate capacity, without any ex- 
 press declaration to that effect ; and one of those de- 
 fects of the Confederation which led to its abolition, 
 was its prohibiting Congress from the exercise of 
 any power "not expressly delegated." 
 
 It could never, therefore, have been intended by 
 the amendment in question to abridge any of the 
 powers granted under the new Constitution, wheth- 
 er express or implied, direct or incidental. Its man- 
 ifest and sole design was to exclude any interpreta- 
 tion by which other powers should be assumed be- 
 yond those granted. All the powers granted by the 
 Constitution, whether express or implied, direct or 
 incidental, are left by the amendment in their origi- 
 nal state, while all powers " not delegated''^ (not all 
 powers " not expressly delegated") and not prohibit- 
 ed are reserved. 
 
 In these, and all the other restrictions on the le- 
 gislative powers of the Union, the two great objects 
 were to secure the rights of the people^ and to preserve 
 the Federal sy stein. 
 
CONSTITUTIONAL JURISPRUDENCE. 271 
 
 LECTURE XI. 
 
 OF THE CONSTITUTIONAL RESTRICTIONS UPON THK 
 POWERS OF THE SEVERAL STATES. 
 
 The fifth class of provisions in favour of the Fed- 
 eral authority consists of restrictions on the powers 
 of the several states. These may be distinguished 
 by their character as two sorts : the first compre- 
 hending 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 coin- 
 ing money, emitting bills of credit, or making any- 
 thing but gold or silver coin a tender in payment of 
 debts ; from passing any bill of attainder, ex post 
 facto law, or law impairing the obligation of con- 
 tracts ; and from granting any title of nobility. 
 
 1^/,. 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. If every state were at liberty to enter 
 into treaties, alliances, and confederacies with for- 
 eign states, or with other members of the Union, the 
 power confided to the National Government in re- 
 gard 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, 
 
272 LECTURES ON 
 
 thoy must be obtained, as well during the war as pre- 
 viously to its declaration, from the General Govern- 
 ment. This alteration is fully justified by the ad- 
 vantages of uniformity, in all points relating to for- 
 eign powers ; and by the necessity of an immediate 
 responsibility to the nation, in all matters in whicli 
 the nation itself is responsible to others. Moreover, 
 were it otherwise, it would be in the power of a sin- 
 gle 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 meas- 
 ure of hostile retaliation for unredressed grievances, 
 real or supposed, and is most generally succeeded 
 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 cir- 
 culating base or spurious coins, where the coins are 
 various in value and denomination, and issued by 
 several independent and irresponsible authorities 
 Under the Confederation, it was left in the hands of 
 the states as a concurrent right, with an exception 
 in favour of the exclusive right of Congress to regu- 
 late the alloy and the value. In this particular, these 
 two provisions have been found to be an improve- 
 ment on the old ; for while the alloy and the value de- 
 pended.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 th(i power was originally submitti^d to the 
 Federal auihoriiy ; and so far as the former might 
 prevent the easy remittance of gold and silver to the 
 
ONSTITUTIONAL JURISPRUDENCE. 27b 
 
 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 cur- 
 rency obviates the objection entirely, and gives, there- 
 fore, greater importance to the extension of the pro- 
 hibition to " hills of credit^ 
 
 The loss which this country had sustained be- 
 tween 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 
 industry and morals of the people, the national repu- 
 tation, and the character of Republicanism itself, 
 could be redeemed in no other way than by the vol- 
 untary surrender by the several states of the power 
 which had been rendered the instrument of such 
 profligate and destructive 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 it^ 
 place. Were every state at liberty to regulate the 
 value of its metallic currency, there would be as 
 many different currencies as states ; and thus the 
 commercial intercourse between them would be em 
 barrassed and impeded ; retrospective alterations ol 
 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 in 
 terrupt the harmony among the states, and engender 
 animosities between them, but discredit and com- 
 promise the Union with foreign nations, by the indis- 
 cretion 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 l)ut gold or silver coin a tender in pay 
 
274 LECTURES ON 
 
 ment 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 Federal 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 comprehend 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 mis- 
 chief intended to be prevented, equally limit its in- 
 terpretation. The word " emit," it was observed, is 
 never employed in describing those contracts by 
 which a state binds itself to pay money at a future 
 day, for services actually received, or money bor 
 rowed for immediate use. Nor are instruments ex 
 ecuted for such purposes denominated in common 
 language " bills of credit." To emit hills of credit 
 conveys to the mind the idea of issuing paper, re- 
 deemable at a future day, in anticipation of the pub- 
 lic resources, and intended to circulate as money.* 
 This is the sense, indeed, in which the terms have 
 always been understood, and in which they were 
 interpreted by the court. The Constitution, more- 
 over, considers the emission of bills of credit, and 
 the enactment of tender laws, as distinct operations, 
 which may be separately performed, independently 
 of each other. ' Both acts are forbidden ; and to af- 
 firm, as has been done in some of the states,! that 
 bills of credit may be emitted, if not made a legal 
 tender, is, in effect, to expunge that distinct and in* 
 (h'pondent prohibition, and to read the Constitution 
 
 » 4 Peters, 431. + 8 ibid., 40, 
 
CONSTITUTIONAL JURISPRUV-:x.CE. 275 
 
 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 tbi? 
 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 capi- 
 tal consisting of all moneys paid into the treasury of 
 the state for the sale of its vacant lands, and other 
 property. The bank was authorized to receive mon- 
 ey on deposite, 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 v^ere not bills of credit within the mean- 
 ing of the Constitution.* It was admitted, indeed, 
 that to constitute a hill of credit within the purview 
 of the prohibition, it must be issued by a state, 
 on the faith of a state, and designed to circulate 
 as money ; that the paper which it issues must cir- 
 culate 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 individuals 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 Commonwealth of 
 Kentucky" — for such, moreover, was its title — were 
 held not to be hills of credit within the meaning of 
 the Federal Constitution. Before we assent to this 
 conclusion, let us bring the question to a test, I will 
 not say of common sense, but of the character^^^jf^ 
 
 * 11 Peters, 257. 
 
276 LECTURES ON 
 
 specified by the court. These shall serve ?s inter- 
 rogatories, to which answers shall be drawn from its 
 own statement of the facts. 
 
 1st. Were the notes of this bank issued by the 
 state 1 
 
 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, whict 
 was the property of the state. 
 
 3J. Had the persons w^ho issued its notes author 
 ty to bind the state ? 
 
 Ans, The bank was the property of the state, wh - 
 named or appointed its directors in the act of incor • 
 poration. 
 
 4/A. Did the directors or officers of the bank ac* 
 as agents of the state, without incurring personal re- 
 sponsibility ? 
 
 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 principals by the act of incorporation. 
 
 bth. Did the directors or officers of the bank im- 
 part 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 cap- 
 ital of the bank, and to the responsibility of the stock- 
 holders, that the public look for security, and not to 
 the persons whose oficial 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 
 
CONSTITUTIONAL JURISPRUDENCE. 277 
 
 is obvious : *' Qui facit per allum, facit per 5c." In 
 short, if a state wisiies to evade the Coiistitiitiori and 
 emit bills of credit, it has merely to 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.* 
 
 3d. Bills of attainder, ex post facto laws, and laws 
 impairing the obligation of contracts, are contrary to 
 the first principles of the social contract, and to ev- 
 ery principle of sound legislation. The two former 
 are expressly prohibited to Congress by the Federal 
 Constitution, and to some of the state legislatures, by 
 declarations of rights prefixed to their constitutions. 
 The framers of the Federal compact were, neverthe- 
 less, admonished by their own experience of the ne- 
 cessity of additional bulwarks in favour 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 prac- 
 tical wisdom. 
 
 Bills of attainder are such special acts of the Le- 
 gislature as inflict capital punishment upon persons' 
 whom they declare to be guilty of high offences, with- 
 out trial or conviction in the ordinary course of judi 
 cial proceedings. They have generally been confi 
 ned to cases of treason, and have never been resort 
 ( d to but in times of internal commotion and arbitrary 
 misgovernment. If the bill inflict a milder punish- 
 ment than death, it is called a bill of pains and pen- 
 allies ; but, in the sense of the Constitution, bills of 
 
 * 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. Ju: 
 tice Siorv dissenting. 
 
278 LECTURES ON 
 
 Aitainder include bills of pains and penalties, as tht- 
 former may affect the life of an individual, or maj 
 confiscate his property, or both. 
 
 Ex post facto laws are often supposed to signif}) 
 all laws having a retroactive operation ; but theii 
 technical meaning is confined to such as render crim- 
 inal an act done before the law was passed, which 
 was then innocent ; or to such as aggravate the of- 
 fence, 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 differ- 
 ent, or less testimony than was required. at the time 
 the oflence was committed to convict the ofiender. 
 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. 
 4/^. A similar restriction with regard to bills of 
 attainder and ex post facto laws is imposed by tht. 
 Constitution on Congress, as well as upon the state 
 legislatures ; but not with regard to laws impairi?ig 
 the obligation of contracts, which are also retro^^pec- 
 tive 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 un- 
 derstand every executed agreement, whether between 
 individuals, or between individuals and a state, by 
 which a right is vested ; and also every executory 
 agreement which confers a right of action, or creaies 
 
'CONSTITUTIONAL JURISPRUDENCE. 279 
 
 A oinding obligation in relation to subjects of a valu- 
 able nature, which may be asserted in a court of 
 justice ; but it does not comprehend the political re- 
 lations between a government and its citizens. The 
 ])Ovver possessed by a State Legislature to which 
 everything not expressly reserved is granted, and the 
 temptations to abuse that power, render express re- 
 strictions, if not absolutely ncjcessary, at least prudent 
 and useful ; but the National Legislature has no pow- 
 er to interfere with contracts, except where it is ex- 
 pressly given to it. By the obligation of contracts, in 
 the meaning and intendment of the Constitution, is 
 understood not merely the moral, but the legal obliga- 
 tion ; and in this sense a system of bankruptcy im- 
 pairs 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 
 iin implied power, and in no other form can it impair 
 ihe obligation of a contract. 
 
 This prohibition in regard to the states extensive- 
 ly 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. A com- 
 pact between two states, or a grant from a state 
 (which amounts to a contract) to individuals, 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 obligation of 
 a contract between two individuals. The clause 
 under consideration was first brought into direct ju- 
 dicial 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 
 
280 Ll!:CTUIlES ON 
 
 was 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 de- 
 clared its previous 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 author- 
 ity. The court declared that, when a law in its na- 
 ture imports a contract, and absolute rights have vest- 
 ed under it, its repeal could neither divest those 
 rights, nor annihilate or impair the title thus acqui- 
 red.* A party cannot pronounce his own deed inva- 
 lid, 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 un- 
 der the act of 1795, having passed into the hands of 
 a bona jide purchaser for a valuable consideration, 
 the State of Georgia was disabled by the Constitu- 
 tion from passing any law by which that estate could 
 be legally impaired and rendered void. 
 
 The next case in which this prohibition was 
 brought in review was from the State of New- Jer- 
 sey ; on which occasion it was held that, where a 
 State Legislature declared by law that certain lands 
 'o be purchased for the use of some Indians should 
 not be subject to taxation, such act amounted to a 
 contract, which could not be rescinded by a subse- 
 quent Legislature.! In this case the (Colonial Legis- 
 lature, in 1758, authorized a purchase of lands foi 
 
 ♦ C Cranch, 87. t 7 Cranch. 101. 
 
CONSTITUTIONAL JURISPRUDENCE. 281 
 
 the Delaware Indians, and made the stipulation men- 
 tioned. The Indians occupied the land in pursuance 
 of the law until the year 1803, when it was sold un- 
 der the authority of the Legislature. In 1804, ihe 
 Legislature repealed the act exempting the land from 
 taxation ; but the act of 1758 was held to be a con- 
 tract, and that of 1804 a breach of it, and it was ac- 
 cordingly declared void, under the Constitution of 
 the United States : thereby at once confirming the 
 former decision, and recognising the principle allu- 
 ded to in a former lecture, that a change of government 
 does not affect the previously-vested rights of prop- 
 erty. 
 
 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 efTect 
 of a resolution on prior contracts, but at the same 
 time declaring that a legislative grant, competently 
 made, vested an indefeasible and irrevocable title.* 
 There is, indeed, no authority which can support on 
 principle the contrary position. Nor can the Legis- 
 lature of a state repeal statutes creating private cor- 
 porations, 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. Such a provision would be equally 
 repugnant to the letter and spirit of the Constitution, 
 and to the principles of natural justice. But the pro- 
 vision we are considering has never been understood 
 to embrace any other contracts than those relating to 
 property, or some object of value, capable of being 
 Bsserted in a court of justice. 
 
 * 9 Cranch, 43. 
 Y 
 
282 LECTURES ON 
 
 Where the legal interest in literary or charitable 
 institutions is vested by law in trustees, in order to 
 promote the objects for which they were incorpora- 
 ted, and donations made to them, they are considered 
 as within the protection of the Constitution ; and it 
 was in the great case of Dartmoulh College that this 
 inhibition upon the states received the most elaborate 
 discussion, and the most efficient and instructive ap- 
 plication.* It was there decided that the charter 
 granted by the British crown to that institution, in 
 1769, was a conlract within the meaning of the Con- 
 stitution, and protected by the clause in question. It 
 was held that the college was a private charitable in- 
 stitution, not liable to legislative control, and that a 
 law of New-Hampshire, altering the charter in a 
 material point, without the consent of the corpora- 
 tion, was a " law impairing the obligation" of the 
 charter, and it was, consequently, declared to be un- 
 constitutional and void. Chief-justice Marshall, in 
 delivering the opinion of the court, observed that 
 " Dartmouth College was a private eleemosynary in- 
 stitution, endowed with a capacity to take and hold 
 property for objects unconnected with government. 
 Its funds were bestowed by individuals on the faith 
 of the charter, and consisted entirely of private do- 
 nations. 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 govern- 
 ment. It was instituted as a private corporation for 
 general charity ; and the charter was a contract to 
 which the donors, the trustees, and the crov/n were 
 the original parties, and it was made on a valuable 
 consideration for the security and disposition of prop- 
 erty." 
 
 * 4 Wheat.. 518. 
 
CONSTITUTIONAL JURISPRUDENCE. 283 
 
 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 cre- 
 ated and the donations made. Contracts of thi.s 
 kind are most reasonably considered within the pur 
 view 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-Hamp- 
 shire. But the law of that state transferred the 
 whole power of governing the college from the trus- 
 tees, under the charter, to the executive of New- 
 Hampshire ; and the will of the state was thereby 
 substituted for the will of the donors, in every essen- 
 tial operation of the college. The charter was re- 
 organized in such a manner as to convert a literary 
 institution, moulded according to the will of its found- 
 ers, into a machine entirely subservient to the will 
 of the state. A proceeding thus subversiv(^. of the 
 contract on the faith of which the donors invested 
 their property was, consequently, held to be repug- 
 nant to the Constitution. This celebrated case, it 
 has been well said,* " contains one of the most full 
 and elaborate expositions of the constitutional sanc- 
 tity 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 im- 
 pregnable 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." 
 
 In another case, in which this prohibitory clause 
 of the Federal Constitution came again under dis- 
 
 * 1 Kent's (^om. 
 
284 LECTURES ON 
 
 oussion, it was observed by the court that the objec' 
 tion to a law, on the ground of its impairing the vio- 
 lation of contracts, did not depend on the extent of the 
 change effected hy the law; any deviation from the 
 terms of the contract, by accelerating or postponing 
 the period of performance, which the latter pre- 
 scribes, 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. 
 The material point decided on this occasion was, 
 that a. compact between tivo states was a contract 
 within the constitutional prohibition.* 
 
 Another case, which led to a very extensive in- 
 quiry into the operation of this constitutional restric- 
 tion, arose under an insolvent act of New-York, 
 passed in 1811. This law was retrospective, and 
 discharged the debtor, upon his single petition and 
 the surrender of his property, without the concur- 
 rence of any creditor, from all pre-existing debts, and 
 from all liability and responsibility by reason of 
 them. The court on this occasion recognised the 
 doctrine adverted to in a former lecture, that until 
 Congress exercise its power on the subject of bank- 
 ruptcy, the individual states may pass bankrupt laws, 
 provided they contain no provision violating the obli- 
 gation 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 
 admitted that a state may pass statutes of limitations, 
 as they are termed, for these also relate only to thf, 
 remedy, and not to the obligation of the contract ; and 
 it was stated that the insolvent laws of far the greater 
 
 * 8 Wheat., \. 
 
CONSTITUTIONAL JURISPRUDENCE. 285 
 
 number of states only discharged the person of the 
 debtor, and left the obligation to pay in full force. 
 But a law which discharged the debtor from his 
 contract, and released him without" payment, im- 
 paired, because it entirely discharged the obligation 
 of the contract ; for it is to be observed that there is 
 an obvious distinction, in the nature of things, be- 
 tween the oUigalion of a contract, and the remedy to 
 enforce it. The latter may be modified as the wis- 
 dom of the Legislature may direct. But the Consti- 
 tution, intending to restore and preserve completely 
 the public credit and confidence, established as a 
 fundamental principle that the former shall be invio- 
 lable.* 
 
 The case in which the above decision was made 
 had arisen in the Federal Courts, and the contract 
 existed when the state law was passed. But it was 
 afterward held that there was no difference when 
 the suit in such a case is brought in a court of the 
 state of which both the parties were citizens, and in 
 which the contract was made and the discharge ob- 
 tained, and where the parties continue to reside un- 
 til the suit be brought.! 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.J The doctrine they 
 established w^as 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 the exist- 
 ing laws of the country where it is made, and are 
 presumed to make their contract in reference to 
 them. This distinction was supposed to be consist- 
 ent with the decision of the Supreme Court of the 
 
 «• 4 Wheat., 122 f 6 ibid., 131. 
 
 X 16 J. R., 233 V J. C. R., 297, 13 Mass. Rep., 1. 
 
286 LECTURES ON 
 
 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 farther, and held that a 
 discharge under such a law existing when the debt 
 was contracted, was equally within the principle be- 
 fore established.* 
 
 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 gen- 
 eral language of the court on the last occasion 
 seemed to reach even this case ; but the fiicts on 
 which the question then arose did not cover the 
 whole ground. The decision, therefore, was not au- 
 thority to the extent mentioned ; and it was subse- 
 quently ruled, by a bare majority of the court, and 
 after much apparent hesitation, 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 contracted within the state suhse- 
 quently to its enactment. \ 
 
 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 for- 
 mer decisions comprehended the question then pre- 
 sented, and that it was, consequently, an open one. 
 He also admitted that there was an essential differ- 
 ence in principle betwigen laws that act on past or 
 future contracts ; and that, while those of the former 
 description could seldom be justified, those of the lat- 
 ter were proper subjects of ordinary legislative dis- 
 
 ♦ 4 Wheat.. 209. t 13 ibid.. 213. 
 
CONSTITUTIONAL JUIUSTRUDENCE. 287 
 
 cretion. 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 indi- 
 viduals, the lines of separation between states are in 
 many respects obliterated, it would be matter of sur- 
 prise if, on the delicate subject of contracts actually 
 formed, the interference of state legislation should 
 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 lim- 
 ited 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 ac- 
 tion of the state legislatures is absolutely and entire- 
 ly 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 political and general in their nature, 
 consisting in the exercise of sovereignty without af- 
 fecting the rights of individuals ; while the second 
 class comprehends those laws which operate upon 
 individuals, and includes, among others, " laws im- 
 pairing the obligation of contracts." In all the cases 
 embraced in both classes, whether the thing prohib- 
 ited be the exercise of mere political power or legis- 
 lative action on individuals, the prohibition is com- 
 plete and total. Legislation of every discription on 
 those subjects is, without any exception, com])re- 
 hended and forbidden. A state is as entirely pro- 
 hibited from passing laws impairing the obligation of 
 contracts as from making treaties or coining money. 
 
288 LECTURES ON 
 
 So much of the prohibition as restrains the power o 
 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 expressed in more gen- 
 eral terms — in terms which comprehend, in their or- 
 dinary 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 prohibitions relate to 
 kindred subjects ; they contemplate legislative inter- 
 ference with private rights, and restrain such inter- 
 ference. 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 
 may be passed and those afterward contracted. The 
 prohibition in that case is total ; and yet the differ- 
 ence in principle between making property a tender 
 in payment of debts contracted after the passage of 
 the act, and discharging those debts without pay- 
 ment or by a surrender of property, in other words, 
 between an absolute and a contingent right to tender 
 in payment, is not clearly discernible. Nor is the 
 difference in language so obvious as to denote plain- 
 ly a difference of intention 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 ten- 
 der in payment of debts to such as previously exist- 
 ed ; yet the distinction between these and such as 
 were contracted subsequently to the law seems nev- 
 er before to have occurred to any expourtde** of lh« 
 
CONSTITUTIONAL JURISPRUDENCE. 289 
 
 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 im 
 plied that, in the event of insolvency, the contract 
 should be satisfied by a surrender of property. It 
 was admitted on all hands that the Constitution re- 
 fers to, and preserves the legal, not the moral obli- 
 gation of a contract ; because obligations purely 
 moral are not enforced by the agency of human laws ; 
 and the restraints imposed on the states by the Con- 
 stitution are intended for objects which, if not re- 
 strained, 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. " Socie- 
 ty," 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 ot 
 law upon contracts, by administering the remedy for 
 their breach, is the usual exercise of legislative pow- 
 er ; and an interference with those contracts, by in- 
 troducing 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 gratuitously 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 original- 
 ly introduced into it — tbat the debtor should be dis 
 Z 
 
290 LECTURES ON 
 
 chA.^ed by the surrender of his estate. It cannot 
 be true that contracts are entered into in contempla* 
 lion of the insolvency 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 occur, but it is never 
 expected. In the ordinary course of human transac- 
 tions, if its probability be even suspected, security is 
 taken against it. But when it comes unlooked for, 
 it would be entirely contrary 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 ju- 
 risdiction 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 
 agreement, still acts externally upon it, and deter- 
 mines how far the principle of coercion shall be ap- 
 plied to it; and this rule being universally under- 
 stood, no individual can justly complain of its appli- 
 cation to himself." This argument was illustrated 
 by reference to the statutes to prevent frauds, which 
 require certain contracts to be reduced to writing, in 
 order to render them obligatory ; 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 derives all its ob- 
 
JONSTITUTIONAL JURISPRUDENCE. 291 
 
 ligation 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 which he belongs ; and that, 
 
 though the original declaration to this effect be lost 
 
 • 
 xn remote antiquity, yet it must be presumed to be 
 
 the origin of the obligation of contracts. It is, how- 
 ever, 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 pre-exist- 
 ing 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 property ; but from the earli- 
 est time, we find no allusion to any supposed act of 
 the governing power as giving obligation to contracts. 
 On the contrary, all the proceedings respecting them, 
 of which we know anything, support the notion of. 
 a pre-existing 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 obliga- 
 tion. 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 circum^ 
 stances 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 
 
292 LECTURES ON ^ 
 
 this operation when it has the full force of law. A 
 law may determine the obligation of a contract on 
 the happening of a contingency, because it is the 
 law. But if it be noi the law, it cannot have this 
 effect ; and when its existence or force as law is 
 denied, they cannot either of them be proved by 
 showing Avhat are the quaUties of a law. Law has 
 been defined to be " a rule of civil conduct, prescri- 
 bed by the supreme power in a state." In our sys- 
 tem, 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 Uni- 
 ted States. Where it is so restrained, the state Le- 
 gislature ceases to be the supreme power, and its 
 acts are not law. It was, therefore, begging the 
 question to say that, because contracts may be dis- 
 charged by a law previously enacted, it was dis- 
 charged 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 repug- 
 nant to, the Constitution of the United States ? 
 
 It was readily admitted that the whole subject of 
 contracts was under the control of society, and thai 
 all the power of society over them resides in the 
 state legislatures, except in those special cases 
 where restraint is imposed by the Federal Constitu- 
 tion. 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 wri- 
 ting ; that they should be sealed, and attested by a 
 given number of witnesses ; that they should be re- 
 corded, or assume any prescribed form before they 
 became obligatory, all these are regulations which 
 
CONSTITUTIONAL JURISPRUDENCE. 29^; 
 
 society may rightfully make ; and they do not come 
 within the restriction of the Constitution, 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 acknow^ledged to flow from the proper ex 
 ercise of state sovereignty, prescribe regulations 
 which must precede the obligation of the contract, 
 and, consequently, 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 that it cannot, therefore, impair that 
 which never came into existence. Statutes of limit- 
 ation approach more nearly to the subject under con- 
 sideration, but can never be identified with it : they 
 defeat a contract once obligatory, but, as has been 
 before ebserved, they relate only to the remedies fur- 
 nished 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 con- 
 tract, but proceed upon the presumption that a cer- 
 tain length of time, if unexplained by circumstances, 
 aflx)rds reasonable evidence of its having been per- 
 formed. In prescribing the proofs that shall be re- 
 ceived in their courts, and the efifect of those proofs, 
 the states exercise their acknowledged powers, as 
 they also do in regulating the remedies and modes 
 of proceeding in those courts. 
 
 It was, nevertheless, insisted that the right to reg- 
 ulate the remedy, and to modify the obligation of the 
 
294 LECTURES ON 
 
 contract, 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 certain- 
 ly coeval with the contract itself, and operates ante- 
 rior to the time of performance ; while the remedy 
 acts upon a broken contract, and enforces a pre-ex 
 isting obligation. The right to contract is the ac- 
 knowledged attribute of a free agent, and he may 
 rightfully coerce performance from another free agent 
 who violates his faith. Contracts have, consequent- 
 ly, an intrinsic obligation. When men enter into so- 
 cieties, 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 co- 
 erce performance. The former is still incidental to 
 that degree of free agency which the laws of society 
 leave to every individual, and the obligation 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 dif- 
 ferent sources. 
 
 But it was alleged that " the power of the state 
 over the remedy might be used to the destruction ol 
 all beneficial results from the right ;" and hence il 
 was inferred that ^' the construction which maintains 
 the inviolability of the obligation must be extended 
 to the power of regulating the remedy." The ditH- 
 culty, however, which this view of the subject pre- 
 sents, does not proceed from the identity or connex- 
 ion of right and remedy, but from the existence of 
 distinct governments, ac*'ng on kindred subjects 
 
CONSTITU'/IONAL JURISPRUDENCE. 295 
 
 The Constitution of the United States contemplates 
 restraint as to the obligation 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 instru- 
 ment of hostility to invade the inviolability of con- 
 tracts, which is placed beyond its reach. A state 
 may use many of its acknowledged 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 regula- 
 tion by Congress of commerce with foreign nations, 
 or among the states. In such cases, as we have be- 
 fore observed, the power which is supreme must con- 
 trol that which is subordinate. This principle nei- 
 ther involves self-contradiction, nor denies the exist- 
 ence of the several powers in the respective govern- 
 ments. So, if a state shall not merely modify or with- 
 hold a particular remedy, but shall apply it in such a 
 manner as to extinguish the obligation without per- 
 formance of a contract, it would be an abuse of pow- 
 er which 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 
 between obligation and remedy, that " the same pow- 
 er which can withdraw the remedy against the per- 
 son of the debtor, can also withdraw that against his 
 proper^?/," and thus effectually defeat the obligation. 
 " The Constitution," it was said, " did not deal with 
 form, but with substance ; and could not be presumed, 
 if it designed to protect the obligation of contracts 
 from state legislation, to have left it thus obviously 
 
296 LECTURES ON 
 
 exposed to destruction." The answer is, that the 
 state law goes farther, and annuls the obligation 
 without affording the remedy which satisfies it ; or, 
 if its action on the remedy be such as palpably to 
 impa'.r the obligation of the contract, the very case 
 arises which was supposed to be prohibited. If the 
 law leaves the obligation untouched, 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 rem- 
 edy. But should it even be determined that such tx 
 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 obligation is not 
 proved by showing that the Constitution has provided 
 no means for compelling the states to enfore the con- 
 tract. The prohibition in question is, therefore, not 
 incompatible with the fair elxercise of that discretion 
 which the state legislatures possess, in common with 
 all governments, to regulate the remedies aflbrded 
 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 representa- 
 tives in order to unite thirteen independent sovereign- 
 ties under one government, so far as might be neces- 
 sary for the purposes of union, without being sensi- 
 ble of the great importance which was attached to 
 this article of the Constitution. The power of 
 changing the relative situations of debtor and credit- 
 or, 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 
 
CONSTITUTIONAL JURISPRUDENCE. 297 
 
 of every indiv^idiial in those things which he suppo- 
 ses proper for his own exckisive management, had 
 been abused to such an excess by the state legisla- 
 tures as to break in upon the ordinary intercourse of 
 society, and destroy all confidence between man and 
 man. The mischief had become so great and so 
 alarming, as not only to impede commercial inter- 
 course and threaten the existence of public credit, 
 but to injure the morals of the people, and destroy 
 the sanctity of private faith. To guard against the 
 recurrence of such evils was an object of deep inter- 
 est 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 necessa- 
 ry by all who took an honest, enlightened, and com- 
 prehensive 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 in- 
 tended to be perpetual, the presumption is, that every 
 important 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 w^as 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 inhibition 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. 
 
298 LECTURES ON 
 
 Instead of introducing a great principle prohibiting 
 all laws of this obnoxious character, the Constitution 
 would only suspend their operation for a season, oi 
 only except pre-existing cStses : an object which 
 would hardly have been deemed of sufficient impor- 
 tance to have found a place in that instrument. Such 
 a construction, moreover, would change the charac- 
 ter of the provision, and convert an inhibition to pass 
 laws impairing the obligation of contracts into an in- 
 hibition 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 retro- 
 spective law^^ instead of the more general one against 
 " any law impairing the obligation of contracts ;" or, 
 if the intention had been not to embrace all retro- 
 spective laws, but those only which related to con- 
 tracts, the State Legislature would have been forbid- 
 den to pass " any retrospective law impairing the oh- 
 ligation 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 conceiv- 
 able, notwithstanding the imperfection of human lan- 
 guage, that some words would not have been used to 
 indicate that idea, and limit their intention. In in- 
 struments prepared on great consideration, and es- 
 pecially 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 language 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 obligation of contracts — not such as 
 
CONSTITUTIONAL JURISPRUDENCE. 29& 
 
 would be suggested by a particular intent to prohibit 
 retrospective legislation. Besides, the laws Avhicn 
 had effected all the mischief the Constitution, intend- 
 ed to prevent, were prospective, as well as retro- 
 spective in their operation. They embraced future; 
 contracts as well as those previously made ; from 
 this circumstance, therefore, there is less reason foi 
 imputing to the Convention an intention not manifest- 
 ed by their language, and adopt a construction which 
 would confine a restriction designed to guard againsi 
 those mischiefs in future to retrospective legislation. 
 Notwithstanding all this, the decision of the ma- 
 jority of the Supreme Court, in the case which gave 
 rise to this discussion, was, as we have mentioned, 
 in favour 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 discharge had been obtained, and in whose courts 
 it had been pleaded. But upon the question whether 
 a discharge of a debtor, under a state insolvent law, 
 would be valid against a creditor or citizen of anoth- 
 er state, who had never voluntarily subjected himselt 
 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 ques- 
 tion, that the discharge was not available in an. ac- 
 tion 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 favour of state insolvent laws 
 impairing the obligation of subsequent contracts, is 
 restricted to cases in which the contract was mad© 
 within the state, and between 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.* 
 * Tliat a state law may be retrospective in its character, an^ 
 
300 LECTURES ON 
 
 II. The other limitations on the state powers are 
 those in which the prohibition is qualified, and re- 
 strict a state, without the consent of Congress, from 
 laying " any imposts or duties on imports or exports 
 except what may be absolutely necessary" for exe- 
 cuting its inspection laws ; from laying any duty on 
 tonnage ; keeeping troops or ships of war in time 
 of peace ; entering 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 argu- 
 ments which prove the necessity of submitting the 
 regulation of commerce to the General Government, 
 p'rom the vast inequality between the different states 
 
 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 Bos- 
 ton, and of receiving a rent for it. Afterward the Legislature in- 
 corporated a company to erect a bridge over Charles River, at the 
 place where the ferry had been established, the company paying 
 annually to the college 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 Legis- 
 lature authorized the erection 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 con- 
 tract, 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, in- 
 volving 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 ex 
 ercised." — Vide \\ Peters's Rep,, 257. 
 
CONSTITUTIONAL JURISPRUDENCE. 301 
 
 as lo commercial advantages, few subjects were 
 viewed with deeper interest, or excited greater irri 
 tation, than the manner in which the several statesi 
 exercised, or seemed under the Confederation dis 
 posed to exercise, the power of laying duties on im 
 ports. From motives which were thought sufficieni 
 by the Convention, the general {jower of taxation 
 indispensably necessary as it was, and jealous ai 
 the states were of any encroachments upon it, was 
 so far abridged as to forbid their touching imports oi 
 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 venders 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.* This act was also 
 declared to be repugnant to the prohibition of the 
 states from laying duties on exports and imports with- 
 out the consent 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 ex- 
 ercise 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 government. It would not, how- 
 ever, be less an impost on the articles if it were lev- 
 ied on them after they were landed. The policy, 
 
 * 12 Wheaton, 419. / 
 
^2 LECTURES ON 
 
 and consequent practice of levying or securing the 
 duty before or on entering the port, does not limit llie 
 exercise of the power to that period ; and, conse- 
 quently, the prohibition on the states is not limited 
 Ko that state of circumstances, unless the true meaning 
 of the clause so confines it. If we resort either to tech- 
 nical authority or to common usage for the meaning of 
 the term "imports," we find it signifies " the things im- 
 ported," or the articles themselves, which are brought 
 into the country. It is not in its literal sense confi- 
 ned to a duty levied while the article is entering the 
 country, but extends to a tax levied after it has ac- 
 tually entered it. Again, if we look to the objects 
 of the prohibition, we find that there is no difference, 
 in efl!ect, between the power to prohibit the sale of 
 an article and a power to prohibit its introduction. 
 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 accomplish- 
 ed with equal certainty by laying a duty on the 
 thing imported in the hands of the importer ; and it 
 is obvious that the same power which imposes a 
 light duty might impose one amounting to a prohi- 
 bition. 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 
 v'hen they do not approach each other, yet they may 
 approach so nearly as to perplex us in marking the 
 distinction between them. The distinction, never- 
 theless, 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 arid mixed up with the 
 
CONSTITUTIONAL JURISPRUDENCE. 303 
 
 /nass of property in the country, it Las, perhaps, lost 
 its distinctive character as an import, and become 
 subject to the taxing power of the state ; but while 
 it continues the property of the importer, and remains 
 in his 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 Con- 
 stitution. 
 
 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, un- 
 der their respective constitutions ; but, from the par- 
 amount 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 taxation 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 Fed 
 eral Government, they cannot tax certificates issued 
 by it for money borrowed on the credit of the United 
 States, nor the stock of a bank chartered by Con- 
 gress ; the latter is an instrument, and the former in- 
 cidents of a power essential to the fiscal operations 
 of the Union. 
 
 2d. The other qualified prohibitions have their 
 origin in the same general policy which absolutely 
 forbids any state from entering into any treaty, alli- 
 ance, or confederation, and from granting letters of 
 marque and reprisal ; and they are supported by the 
 same reasoning which establishes the propriety of 
 confiding everything relative to the power of decla- 
 ring war to the exclusive direction and control of the 
 
304 LECTURES ON 
 
 General Government. Treaties of alliance, for pur- 
 poses of peace or war, of external political depend- 
 ance, or general commercial privileges ; treaties of 
 confederation for mutual government, political co- 
 operation, or the exercise of political sovereignty, or 
 for conferring internal political jurisdiction, are ab- 
 solutely prohibited to the states. But compacts and 
 agreements, which apply to the mere private rights 
 of sovereignty, such as questions of boundary be- 
 tween a state and a foreign province, or another 
 state ; interests in land situate within their respect- 
 ive boundaries, and other internal regulations for the 
 mutual 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 agreements or contracts might have been 
 attended vvith permanent 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. 
 
 As the maintenance of an army and navy by a 
 state in time of peace might produce jealousies and 
 alarm in neighbouring 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 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 ob- 
 taining the consent of Congress. 
 
CONSTITUTIONAL JURISPRUDENCE. 305 
 
 LECTURE Xll. • 
 
 ON THE PROVISIOJNS CONTAINED IN THE CONSTITU 
 TION FOR GIVING EFFICACY TO THE FEDERAL 
 I'OWERS. 
 
 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 "^o make all laws ne- 
 cessary and proper for carrying the foregoing powers 
 into execution.^'* 
 
 1. It was remarked by the authors of '' The Fed- 
 eralist," that " without the substance of this pow- 
 er, the whole Constitution would be a dead let- 
 ter j" and, as few parts of that instrument had 
 been assailed with more intemperance, they just- 
 ly inferred that ^' it was the form only of the pro- 
 vision that was objected to, and they according- 
 ly proceeded to consider" whether a better one 
 could have been substituted. " There were four 
 other methods," they observe, "which the Con- 
 vention might have pursued : they might have 
 copied the article of the Confederation which 
 prohibited the exercise of any power not express- 
 ly delegated; they might have attempted a posi- 
 tive enumeration of the powers comprehended 
 under the general terms necessary and proper , 
 they might have attempted a negative enumera- 
 tion of them, by specifying the powers excepted 
 from the general definition , or they might have 
 been altogether silent on the subject, and left 
 these necessary and proper powers to construc- 
 tion and inference." 
 
 A A 
 
306 LECTURES ON 
 
 Had the first method been adopted, it is evi« 
 dent that the new Congress, like their predeces- 
 sors, would have been continually exposed to the 
 alternative, either of construing the term " ex- 
 pressly" with so much rigour as to disarm the 
 government of all 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 executed by Congress, without recur- 
 ring, more or less, to the doctrine of construc- 
 tion 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 
 Constitution, by exercising powers indispensa- 
 bly necessary^ but not expressly granted. 
 
 Had the Convention made a positive enumera 
 tion of the powers necessary and proper for car- 
 rying the other powers into effect, it would have 
 involved a complete digest of laws on every sub- 
 ject to which the Constitution relates; accommo- 
 dated, too, not only to the existing state of things, 
 but to all possible changes which futurity might 
 produce. Had they attempted to enumerate the 
 particular powers or means not necessary or 
 proper for carrying the general powers into exe 
 cution, the undertaking would have been no less 
 chimerical, and would, moreover, have been lia 
 ble to this farther objection, that every defect 
 ill 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 thd 
 
CONSTITUTIONAL JURISPRUDENCE. 301 
 
 residue by the general terms " necessary and 
 Droper," the enumeration must have comprehend- 
 ed oxily a [ew of the excepted cases, and those 
 the least likely to be assumed or tolerated j be- 
 cause the enumeration would, of course, have 
 selected such as would have been least necessary 
 tnd proper, and, therefore, the unnecessary and 
 improper powers included in the remainder 
 *rould be less forcibly assumed than if no par- 
 ticular enumeration had been made. 
 
 Had the Constitution been silent on this sub- 
 •-^.ct, there can be no doubt that all the particu- 
 »Hr powers requisite, as means of executing the 
 (general powers, would have resulted to the gov- 
 ernment 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 necessa- 
 ry for doing it is included. Had this last meth- 
 od, therefore, been pursued, every objection urged 
 against this part of the Constitution would have 
 remained, in all its plausibility, and the real in- 
 convenience 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 jeal- 
 ousy which had been excited by this provision, 
 an amendment of the Constitution was adopted, 
 which, omitting the word " expressly" in the 
 Articles of Confederation, simply declares that 
 the powers "not delegated to the United States, 
 nor prohibited to the states, are reserved to the 
 states or to the people 5" thus leaving the ques- 
 tion, whether the particular power, which may 
 become the subject of controversy, has been del 
 
308 LECTURES ON 
 
 egated to the one government or the other, to 
 depend upon a fair construction of the whole in- 
 strument. 
 
 The first occasion which called for an inter- 
 pretation of this part of the Constitution, arose 
 during the first Congress assembled under its 
 '.iihority. General Hamilton, at that time Sec- 
 retary of the Treasury, had recommended the 
 institution of a National Bank, as of primary im- 
 portance to the prosperous administration of the 
 finances, and of the greatest utility in the oper- 
 ations connected with the support of public cred- 
 •^ The bill introduced into the House of Rep- 
 resentatives for that purpose was opposed, as 
 unconstitutional. It was contended that the Fed- 
 eral Government was limited to the exercise of 
 its enumerated powers, and that the power to 
 incorporate a bank was not one of them 5 that if 
 such powder 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 eve- 
 ry government ; and that when a power was del- 
 egated to effect particular objects, all the known 
 and usual means of effecting them followed, as 
 incidental to it 5 and it was on this ground in- 
 sisted that a bank was a known and usual instru- 
 ment which several of the enumerated powers 
 of the government required for their due execu- 
 tion. 
 
 After the bill had passed both houses of Con- 
 gress^ the question touching its conformity to 
 
CONSTITUTIONAL JURISPRUDENCE. 309 
 
 the Constitution was agitated with equal ability 
 and ardour ia the executive cabinet. Mr. Jeffer- 
 son, the Secretary of State, and Mr. Edmund 
 Randolph, the Attorney-general, conceived that 
 Congress had transcended its powers ; but the 
 Secretary of the Treasury maintained the oppo- 
 site opinion, and was supported by General 
 Knox, the Secretary of War. it was argued 
 against the validity of the act, that "the power 
 to incorporate a bank was not among the enu- 
 merated powers j and to take a single step be- 
 yond the boundaries specially drawn around the 
 powers of Congress, would be to take possession 
 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 convenient. It meant those 
 means without which the grant of the power 
 would be nugatory 5 and if such a latitude of con- 
 struction were allowed as to give to Congress 
 any implied powers on the ground of conveni- 
 ence, it would swallow up all the enumerated 
 powers, and reduce the whole list to one phrase." 
 To this it was replied, that "every power vest- 
 ed in a government was, in its nature, sovereign, 
 and gave a right to employ all the means fairly ap- 
 plicable to the attainment of the end of the pow- 
 er, and not specially precluded by specified exce])- 
 tions, nor contrary to the essential ends of politi- 
 cal 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 j that it 
 was incident to sovereign power to erect corpora- 
 
310 ^ LECTURES OIN 
 
 l-ions, and, consequently, it was incident to lh» 
 government of the United States to erect one ir 
 relation to the objects intrusted to its manage 
 ment ; that implied powers are as completely dele 
 gated as those which are expressed, and the pow- 
 er of erecting a corporation may as well be im 
 plied as any other instrument or means of carrying 
 into execution any of the specified powers j that 
 the exercise of the power in that case had a nat- 
 ural relation to the lawful ends of the government.^ 
 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 regulation ;, that the word necessary in the 
 Constitution oiiglit not to be confined to those 
 means without Avhich the grant of the power 
 would be nugatory y that it often means no more 
 than needful ^reqmsite^usefnly or conducive to ^ and 
 that this was the sense in w^hich the word was 
 used in the Constitution. The relation between 
 the measure and the end was the criterion of 
 constitutionality, and not w^hether 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 j and the authority intrusted to govern- 
 ment ought and must be exercised on principles 
 of liberal construction." 
 
 General Washington gave to these arguments a 
 deliberate and profound consideration, which ter- 
 minated in his conviction that the incorporation of 
 a bank was a measure authorized by the Constitu- 
 tion. The bill for that purpose, accordingly, re- 
 ceived his approval, and became a law. 
 
 The same question came before the Supreai«» 
 
CONSTITUTIONAL JURISPRUDENCE. 311 
 
 (/ourt of the United States, in 1819, in reference 
 to the then existing bank, which had been incor- 
 porated in 1816, and upon which the State of 
 Maryland hadT subsequently 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 discussion in the ju- 
 dicial department. The chief-justice,* however, 
 observed " that it could hardly be considered an 
 open one, after the principle had been so early 
 introduced and recognised by many successive 
 legislatures, and had acted upon the judiciary as 
 a law of undoubted obligation." He, neverthe- 
 less, admitted that it belonged to the Supreme 
 Court alone to make a final decision, and that 
 the question involved a consideration of the Con- 
 stitution in its most interesting and vital parts. 
 
 It was, moreover, admitted that " the govern- 
 ment of the United States was one of enumerated 
 powers J but, though limited in its powers, that it 
 was suprevie within its sphere of action." There 
 was nothing, however, in the Constitution which 
 excluded incidental or implied powers. The Ar- 
 ticles of Confederation, indeed, gave nothing to 
 the United States but what was expressly grant- 
 ed ; but the amendment, to the new Constitution 
 had dropped the word " expressly," and left the 
 question whether a particular power was grant- 
 ed to depend, as we have seen, on a fair con- 
 struction of the whole instrument. *' No Consti- 
 tution," he continued, '' can contain an accurate 
 detail of all the subdivisions of its powers, and of 
 all the means by which they may be carried into 
 execution. Its nature required that only the 
 
 MarsnalV/ ^ OF the *' ^r 
 
 'VBPwSIT 
 
312 LECTURES ON 
 
 great outlines should be marked and its impor- 
 tant objects designated, and all the minor ingre- 
 dients left to be deduced from the nature of those 
 objects. The sword and the purse, all the ex- 
 ternal relations, and no inconsiderable portion o( 
 the industry of the nation, were intrusted to the 
 General Government ; and a government intrust- 
 ed with such ample powers, on the due execu- 
 •.ion of which the happiness and prosperity of 
 the nation vitally depend, must also be intrust 
 ed with ample means for their execution; and, 
 unless the words imperiously require it, we 
 ought not to adopt a construction which w^ould 
 impute to the framers of the Constitution, w^hen 
 granting great powers for the public good, the 
 intention of impeding their exercise by withhold- 
 ing a choice of means." 
 
 " The powers given to the government," he 
 said, "imply the ordinary means of execution, 
 and the government, 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 powder. The 
 power of creating a corporation, though apper* 
 taining to sovereignty, was held not to be a great, 
 substantive, and independent power, but merely 
 a means by which other objects are accomplish- 
 ed ; 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 ordinary means of attaining some public and 
 useful end. But the Constitution had not left 
 
CONSTITUTIONAL JURISPRUDENCE. 313 
 
 the right of Congress to employ the necessary 
 means for the execution of its powers to general 
 reasoning : it was expressly authorized to em- 
 ploy such means ; and ' necessary means^ in the 
 sense of the Constitution, did not import an ab- 
 solute 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, *' ad- 
 mitted of all degrees of comparison. A thing 
 might be necessary^ or very necessary, or absolute- 
 ly and indispensably necessary ; to no mind would 
 the same idea be conveyed by these several 
 phrases j" and the remark was well illustrated 
 by a reference to that article of the Constitution 
 which prohibits a state from laying " imposts or 
 duties on imports or exports, except what may 
 be absolutely necessary iov carrying into execution 
 its inspection laws." It is impossible to com- 
 pare this clause with that under consideration, 
 without feeling a conviction that the Convention 
 understood itself to change materially the mean- 
 ing of the word " necessary," 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 oth- 
 ers, is used in various senses; and in fixing its 
 construction, the intention, the subject, the con- 
 text, are all to be taken into view. The powers 
 of the General Government 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 
 
d LECTURED ON 
 
 should, in all future time,. execute its powers, 
 would have changed entirely the character of 
 the Constitution, and given it the properties of a 
 legal code. It would have been an unwise at- 
 tempt to provide by immutable rules for cases 
 which, if foreseen at all, must have been per- 
 ceived 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 Con- 
 gress of the capacity to avail itself of experi- 
 ence, or to exercise its reason and accommodate 
 its legislation to circumstances. 
 
 If the end be legitimate, and within the scope 
 of the Constitution, all means which are appro- 
 priate and plainly adapted to those ends, and 
 which are not prohibited, are la\vful ; and a cor- 
 poration 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 
 early an appropriate measure ; and while the 
 wourt declared it to be within its power, and its 
 duty to maintain that an act of Congress ex- 
 ceeding its constitutional power of legislation 
 was not the law of the land, yet, if a law was 
 not prohibited by the Constitution, and was real- 
 ly calculated to effect an object intrusted to the 
 government, it did not pretend to the power to in- 
 quire into the degree of its necessity, as that 
 would be passing the line which circumscribes 
 the judicial power, and treading on legislative 
 ground 
 
CONSTITUTIONAL JURISPRUDENCE. 315 
 
 The court, therefore, decided that the law 
 creating the bank was made in pursuance of the 
 Constitution, and that the branches of the Na- 
 tional Bank, proceeding from the same stocky 
 and conducing to the complete accomplishment 
 of its objects, were equally consistent with the 
 Constitution.* It was afterward led, in some 
 degree, to review this decision, and, in a subse- 
 quent case, admitted that Congress could not 
 create a corporation for its own sake or for pri-^ 
 vate purposes. f It was observed on this occa- 
 sion, 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 purposes only, though it was undoubt- 
 edly capable of transacting private as well as 
 public business 5 and while it was the great in- 
 strument by which the fiscal operations of the 
 government were effected, it was also engaged 
 in trading with individuals for its own advan- 
 tage It could not, en 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 ful- 
 fil the purposes of the government, and was, 
 therefore, constitutionally and rightfully ingraft- 
 ed on the institution. 
 
 II. The next provis'on for giving effect to the 
 powers of the Federal Constitution is that re- 
 quiring the senators and representatives in Con- 
 gre-'sSj and the members of the state legislatures, ana 
 all executive and judicial officers^ both of the Unitea 
 
 ^ 4 Wheat., 316. + 9 lb., 860. 
 
316 LECTURES ON 
 
 States and of the several states^ tc he hound by oath 
 or affirmation to support the Constitution of the 
 United States. 
 
 The election of the President and Senate de- 
 pends, in all cases, on the legislatures of the sev- 
 eral states ; and the election of members of the 
 House of Representatives 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 ensure the stabil- 
 ity, 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 con 
 tinuance of the state governments, and to ot 
 tain, by an appeal to the consciences of individ 
 uals, an equal security in both cases. This de- 
 pendance on the action of the state governments 
 for the organization of the executive and legis- 
 lative branches of the National Government, and 
 especially for the appointment of electors of Pres- 
 ident and Vice-president, and the election of 
 senators, has been used as an argument in sup- 
 port of the right of a state, in virtue of its sov- 
 ereign power, to secede from the Union. But were 
 it even true that the legislative powers of the 
 Union would be suspended if all the states, or a 
 majority of them, were to refuse to elect sena- 
 tors, yet, if any one state should refuse, Congress 
 would not, on that account, be the less capable 
 of performing all its functions. The same rea- 
 soning would apply to any number of states less 
 than a majority of the whole ; and the argument 
 founded on this delinquency proves rather the 
 subordination of the parts to the whole than the 
 complete independence of any one of them. The 
 
CONSTITUTIONAL J UllISPllUDl£ISCE. 317 
 
 tramers of the Constitution were unable to make 
 any provision whicii siiould protect it against a 
 general combination of the states or of the peo- 
 ple 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 ten- 
 dency 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 provis- 
 ion requiring all officers, civil and military, of the 
 state governments to take an oath to support the 
 Federal Constitution, but by creating distinct ex- 
 ecutive and judicial departments, and by adopt- 
 ing various other provisions, operating immedi- 
 ately 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 individuuL 
 obligation and duty. It permits no man to sit in 
 the Legislature of a state who is not first sworn 
 to support the Constitution of the United States 
 From the obligation of this oath no state power 
 can discharge them. All the members of all the 
 state legislatures are as religiously bound to sup- 
 port the Federal Constitution as they are to sup- 
 port those of their own^ate constitutions, and as 
 solemnly sworn to do so as the members of Con- 
 gress. No member of a state legislature can re- 
 fuse to proceed at the appointed time to elect sen- 
 ators in Congress, or to provide for the choice of 
 electors of President and Vice-president, any . 
 more than the members o^the Senate of the Uni« 
 
318 LECTURES ON 
 
 ted 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 mat- 
 ter of discretion with the states whether they 
 will continue the government or break it up, by 
 refusing to elect senators and appoint electors. 
 Nor can the members of their legislatures neg- 
 lect or evade those duties, Avhen 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 Federal legislative powers may be inclu- 
 ded those specially vested in the executive and 
 judicial departments, and especially the provis- 
 ion extending the jurisdiction of. the Federal 
 Courts to all cases arising under the Constitution 
 of the United States. But these powers have al* 
 ready been subjected to particular examination 
 in our review of the structure and organizatioii 
 of the government, and do not, perhaps, require 
 any farther elucidation. It may, however, be as 
 well here to observe, that the provision last spe- 
 cified in effisct creates in the Supreme Court of 
 the United States a co]M#dn arbiter in all cases 
 of collision between the power and authority of 
 the Union and of the several states. Such collis- 
 ions, 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, ^- i» 
 
CONSTITUTIONAL JURISPRUDENCE. 31/ 
 
 framed for ages to come, and designed to ap 
 proach immortality as nearly as human institu 
 tions can attain to it. Its course cannot always 
 be tranqUii: experience as well as reason teach 
 es us that it is exposed to storms and tempests.^' 
 The same lesson had been taught to its frame'-s 
 under the Confederation, and had confirmer^ ^he 
 suggestions of their own experience, and Jidu- 
 ced them to devise a new form of p^ovprranent 
 for themselves and their posterity. They ac- 
 cordingly provided it, as far as its nature would 
 permit, with the means of self-preservation from 
 the perils it was destined to en^o'irter. They 
 well understood that no governp^e'it should be 
 so defective in its organization f\s not to contain 
 within itself the means of securing the execution 
 of its own laws against othc* fkmgers than those 
 of ordinary occurrence. They were aware that 
 courts of justice were Ui'i 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 judi- 
 cial department ; they conferred on it the power 
 of construing the Constitution and laws of the 
 Union, in the last resort, in all cases, and of pre- 
 serving them from all violation from any quar- 
 ter, so far as judicial decisions could preserve 
 them ; and they conferred on the chief executive 
 magistrate the powers necessary to carry into ef- 
 fect the judgments and decrees of the courts, ei- 
 ther directly in the Constitution itself, or indi- 
 rectly, by vesting in the legislative department 
 authority to do so. 
 
 IV. The next provision for giving eflect to the 
 powers of the General Government is the decla- 
 
320 LECTURES ON 
 
 ration that the " Constitution^ and the laws of the 
 United States which shall be made in pursuance 
 thereof a?id 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 Consti- 
 tat ion and laws of any state to the contrary notwith- 
 sf a tiding y 
 
 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," that the 
 supremacy of the state constitutions had been 
 left complete by a saving clause in their favour. 
 In the first place, as those constitutions invested 
 the state legislatures with absolute sovereignty 
 in all cases, not excepted by the Articles of Con- 
 federation, 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 reduced to the same impotent condition as 
 their predecessors, which it was the avowed and 
 leading design of the Convention in this particu- 
 lar to amend. In the next place, as the consti- 
 tutions of some of the states did not expressly 
 and fully recognise the powers even of the for- 
 mer confederacy, an express saving of such con- 
 stitutions would in those states have brought in 
 question every power contained in the new Con- 
 stitution. 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 con- 
 stitutions, and would, consequently, have been 
 
CONyTlTUTlONAL JURISPRUDENCE. 321 
 
 ralid in some states, and not in others. In the 
 last place, there would have been exhibited a 
 system (such as some modern theorists and po- 
 litical 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 un- 
 der the direction of each of the members. 
 
 But the provision in question marks the char- 
 acteristic distinctions between the Government of 
 the Union and the governments of the states ; and 
 when the Constitution 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 under its author- 
 ity, the validity of the former has been inquired 
 into and decided upon in a variety of cases j 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, referred to in the last lecture,* 
 it was declared that the law of Maryland impo- 
 sing a tax on the Bank was unconstitutional and 
 void, on the ground that the state governments 
 have no right to tax any of the constitutional 
 means employed by the Government of the Union 
 to execute its constitutional powers 5 nor, by tax- 
 ation or otherwise, to retard, impede, burden, or 
 in any manner control the operation of constitu- 
 tional laws enacted by Congress, to carry into 
 effect the powers vested in the National Govern- 
 ment. 
 
 * 4 Wheaton, 316. • 
 
 B B 
 
322 LECTUltES ON 
 
 It was contended, on that occasion, v>rs Vi^half 
 of the state authority, that the powers of the Gen- 
 eral Government were delegated by the state 
 governments, and that the Federal authority mu?t 
 be exercised in subordination to the states, who 
 alone possessed supreme dominion. But the im- 
 possibility of sustaining such a proposition was 
 fully and clearly demonstrated. It was admit* 
 ted, indeed, that the Convention that framed the 
 Constitution was elected by the state legisla- 
 tures ; 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 Convention of delegates to 
 be chosen in each state by the people thereof, 
 under the recommendation of its Legislature, for 
 their assent and ratification." This mode of pro- 
 ceeding was adopted, and the proposed Constitu- 
 tion was accordingly submitted to the people, 
 who acted upon it in the only manner in which 
 they can act efl'ectually and wisely on such sub- 
 jects, by assembling in conventions. They as- 
 sembled in their respective states^ not merely from 
 convenience, but from necessity. There existed 
 no authority under the Confederation, as now ex- 
 ists under the Constitution, for calling a general 
 convention ; and if such authority had existed, 
 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 coiistitutions. They assembled and 
 acted, therefoic, in their several states, the peo- 
 ple of each svaic thus exercising a separate and 
 independent voice m the adoption of the Federal 
 Constitution.. But the measure they adopted ^lid 
 
CONSTITUTIONAL JURISPRUDENCE. 323 
 
 not on that account cease to be the act of the 
 people themselves, or become the measure of the 
 state governments. 
 
 From these state convenlions, then, the Con- 
 stitution of the United States owes its whole au- 
 thority. The instrument submitted to them pur- 
 ports on the face of it to proceed from " the peo- 
 ple of the United States^''' to be " ordained and es- 
 ablished" in their name ; and is declared to be 
 thus ordained and established ''in order to form 
 a more perfect union, to establish justice, ensure 
 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 preamble to the Federal Constitution, 
 containing these 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 lib- 
 erty 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, Avhen 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 governments, and had nothing more to 
 give. But the question whether the people may 
 
324 LECTURES ON 
 
 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 sovereign powers 
 which had separately established the state gov- 
 ernments, united with each other in forming a 
 paramount sovereignty, and establishing a su- 
 preme government. For this purpose each yield- 
 ed a portion of its individual sovereignty, and 
 modified its state constitution, by rendering it 
 subordinate to the Federal power. Their au- 
 thority to do this cannot for a moment be seri- 
 ously doubted. Much more, indeed, might the 
 .egitimacy of the Federal Government have been 
 questioned, had it been erected by the states to 
 operate upon the individual citizens of the sever- 
 al states. The powers delegated to the state 
 governments 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 Confederation, the state governments 
 were 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 universally felt and acknowledged ; and the 
 article of the Constitution which provides, as one 
 of the modes for its amendment, a convention oj 
 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 em 
 phatically nnd truly a government of the people 
 
CONSTITUTIONAL JURISPRUDENCE. 325 
 
 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 government, however, 
 is acknowledged by all to be a government of 
 enumerated powers. The principle that it can 
 only exercise the powers granted to it is admit- 
 ted 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 Gov- 
 ernments must be brought into view ; and the 
 supremacy of their respective laws, when in op- 
 position to each other, must be settled by that 
 power in the Federal Constitution which was 
 created, among others, for this express purpose 
 Though limited in its powers, it would seem to 
 result necessarily, from the nature of the Genera. 
 Government, that it should be supreme within its 
 sphere of action. It is the government 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 
 control them. The Mation^ on those subjects 
 upon which it can act at all, must necessarily 
 bind its component parts. But th^ question is 
 not left to mere reason ; the people have in ex- 
 press terms decided it, by adopting the clause 
 now under discussion, in conjunction with that 
 requiring the oath to support the Federal Con- 
 stitution to be taken by every state, as well as 
 Federal officer. And yet we have witnessed an 
 
326 LECTURES ON 
 
 attempt on the part of one of the states, not 
 merely to assert and vindicate its own suprema* 
 cy, in cases of collision with the authority of the 
 Union, and to reject the control and jurisdiction 
 of the suPuEME ARBITER on all constitutional ques- 
 tions, 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 \yas final. This mon- 
 strous claim it even pretended to reconcile with 
 the doctrines of the Federal Constitution itself, 
 founding it principally on the amendment which 
 declares that '^ the powers not delegated to the 
 United States, nor prohibited to the states, are 
 reserved to the states respectively, or to the peo- 
 ple," and thereby assuming that the power exer- 
 cised by Congress in passing the law in question 
 was not delegated to the General Government, 
 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 contro- 
 versy. 
 
 But this heresy was promptly met and ably re- 
 futed by the proclamation issued on the occasion 
 by the President of the United States.* This 
 admirable document, which confers more dura- 
 ble and honourable fame on the name of General 
 Jackson than even the victory of New-Orleans, 
 exhibits the true doctrines of the Constitution in 
 strict conforjpfiity with those principles of con- 
 struction which I have endeavoured to explain 
 and enforce. In language becoming the dignity 
 and responsibility of his station, the chief magis- 
 
 * This celebrated state paper is well known to have been the 
 production of the late Edward Livingston, then Secretary of State. 
 — Vide Appendix K. 
 
CONSTITUTION A I, JUU I SPRUDENCE. 327 
 
 trate of the Union reminds the individuals concern- 
 ed in these proceedings of their paramount obliga- 
 tions as citizens of the United States, and warns 
 them of the treasonable 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 suppress 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 ; and thus has every department of the 
 government concurred in the declaration appro- 
 ved and sanctioned by a vast majority of the peo- 
 ple, that the Government of the United States is 
 supreme within its limited jurisdiction, and that 
 its laws in pursuance of the Constitution form the 
 supreme law of the land, " anything in the Consti- 
 tution and laws of any state to the contrary not- 
 withstanding;" 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 Consti- 
 tution for giving efficacy to its powers is that 
 by which effect and operation were given to the 
 system by declaring that " ^Ae ratifications of the 
 conventions of nine states should be sufficient for 
 its establishment between the states so ratifying the 
 %ame?^ 
 
 The express authority of the people alone could 
 give validity to the Constitution ; and to have re- 
 quired the unanimous ratification of the people 
 of the several states would have subjected the es 
 sential interests of the whole to the caprice or 
 corruption of the smallest minority in any one 
 
328 LECTURES ON 
 
 state. But a question of a very delicate nature 
 arose with respect to this article when the Con- 
 stitution was proposed for adoption — a question 
 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 su- 
 perseded without unanimous consent ; and it was 
 thereupon suggested by Mr. Madison, in one of 
 the numbers of " The Federalist," that an answer 
 might be found without searching 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 princi- 
 ciple of reciprocity, therefore, seemed to require 
 that its obligation on the other states in which 
 it had been ratified by the people in their conven- 
 tions should be reduced to the same standard. A 
 compact between independent sovereigns, found- 
 ed, as was the Confederation, upon acts of legis- 
 lative authority, could pretend to no higher va- 
 lidity than a league or treaty between the par- 
 ties ; 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 viola- 
 ted, and at an end. 
 
 Had it been necessary to appeal to these prin- 
 ciples 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 par- 
 
CONSTITUTIONAL JURISPRUDENCE. 329 
 
 .ies with multiplied and important infractions of 
 the Articles of Confederation. But a more di 
 rect answer was given to them by recurring 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 safe- 
 ty and happiness of society to be the objects 
 which all political institutions should aim to ac- 
 complish, and for which they may all be sacrifi- 
 ced J and from what is known of the state of pub- 
 lic affairs at that portentous crisis, w^e cannot 
 doubt that this answ^er 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, considered merely as a treaty of 
 alliance, at its mere will and pleasure 5 nor ab- 
 solve itself at its own discretion from its perpet- 
 ual obligation, except in cases of the extreme ur- 
 gency of self-preservation, or of the breach or 
 violation of the compact by some other of the 
 parties, of which the several parties, from the very 
 nature of the Confederation, as a treaty betw^een 
 independent sovereigns, were themselves the 
 judges. It has, nevertheless, been contended, as 
 we have already had occasion to lament, that a 
 state has a right, under the present Constitution, 
 independently of the natural right of self-preser- 
 vation, and resistance to intolerable oppression 
 to secede, at its own will and discretion, from tht 
 Union. But if the Federal Constitution be a gov- 
 ernment owing protection to individuals and en- 
 titled 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 rela- 
 Cc 
 
'^di) LECTURES ON 
 
 tions subsisting between that government and the 
 individuals subjected in either mode to its au- 
 thority. From the very nature of those relations, 
 nothing can dissolve them but revolution ; and 
 there can, therefore, be no such thing as secessio?i 
 without revolution. The Constitution establishes 
 a union between the people of the several states, 
 intended to be perpetual. It contains numer- 
 ous provisions founded on that supposition, and 
 among them, one for its own 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 gov- 
 ernment, 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 
 governments. JVb staie^ 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 mem- 
 bers of the state legislatures renounce their own 
 oaths to support the Federal Constitution as the 
 supreme law of the land ; neither can any con- 
 vention of the people of any state, any more than 
 the people themselves, collectively or individu- 
 ally, dispense with their obligations, or dissolve 
 their allegiance to the United States, unless they 
 
CoNSTlTUllONAL JURISPRUDENCE. 331 
 
 respectively 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, 
 ihe nature and extent of his obligations as a mem- 
 ber of the Union. But if the state within whose 
 local jurisdiction he may happen to reside, may 
 judge for him, or for itself, in a case of an alle- 
 ged violation of the Federal Constitution, and rinal- 
 /y decide and execute their respective decisions 
 by their own powers, the inference follows that, 
 oeing 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 doc- 
 trine is founded in mere theory and assumption ; 
 rtnd is refuted, not only by plain and express con- 
 stitutional provisions, but by the very nature of 
 the compact. It has been shown most conclu- 
 sively, in the legislative halls,*as well as in the 
 judicial tribunals of the Union, that the Govern- 
 ment of the United States possesses, in its appro- 
 priate departments, the authority of final decis- 
 von on all these questions of power, both by ne 
 ^essary implication and express grant, 
 
 1. If the Constitution be, indeed, a govern- 
 ment existing over all the states, operating upon 
 individuals, and not a mere treaty of alliance, it 
 nust, upon general principles, possess the au- 
 Jiority in question, as it is, in fact, an authority 
 naturally belonging to all governments. And al- 
 though the Constitution establishes a govern- 
 
 * Vide the speeches of Mr. Webster on this subject in the Sen 
 ale of the United States. 
 
332 LECTURES ON 
 
 merit of limited powers, yet, as it extends equal- 
 ly over all the states, it follows, independently ot 
 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 government must be Mational in its 
 character, as well as Federal in its principles ol 
 organization. The inference, then, appears tc 
 be irresistible, that the government, 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 pow- 
 er coextensive with the legislative power. To 
 hold, therefore, that these are not supreme, but 
 subordinate in authority to.the legislative and ju- 
 dicial powers of a state, is equally repugnant to 
 common sense, and to all sound reasoning and 
 established principles. The legislative, execu- 
 tive, and judicial departments of the Union must 
 each necessarily judge of the extent of its own 
 powers, as often as it is called on to exercise 
 them ; and that independently of state control, 
 or they could not act at all. Without any ex- 
 press declaration, therefore, to that effect in the 
 Constitution, the whole question is necessarily 
 decided by those provisions which create a legis- 
 lative, an executive, and a judicial power; for if 
 the powers exist in a government 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 
 part?. From the nature of the case, then, and as 
 an inference wholly unav i>idable, the laws of Con 
 
CONSTITUTIONAL JURISPRUDENCE. 333 
 
 ^ress and the decisions of the Federal Courts 
 must be of higher authority than those of the 
 states. 
 
 2. But the Constitution, as we have already- 
 seen, has not left this point without full and ex- 
 plicit provision. For if the express grant to Con- 
 gress of distinct and substantive power to make 
 all laws necessary and proper* for carrying into 
 execution all other powers vested in the Gov- 
 ernment of the United States mean anything, it 
 means that Congress may determine what is ne- 
 cessary and proper for that purpose ; and if Con- 
 gress may judge of what is requisite for the ex- 
 ecution of those powers, it must of necessity 
 judge of their extent, as well as interpret them. 
 With regard to the judicial power, the Constitu- 
 tion 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 Su- 
 preme Court of the Union has appellate jurisdic- 
 tion, and its judgments are final and conclusive. 
 Nothing more effectual could have been done for 
 subjecting all constitutional questions, whenever 
 and wherever they may arise, to the ultimate de- 
 cision of the Supreme Court than has actually 
 been accomplished by this salutary provision oi 
 the Constitution. Congress was saved by it from 
 the necessity of any supervision of the state laws ; 
 and while the whole sphere of state legislation 
 was thus left untouched, an adequate security 
 was obtained against any infringenient of the con- 
 stitutional power of the General Government 
 
 It is clear, then, that the Constitption, bj^ ex- 
 press grant, as well as by necessary implication, 
 
S34: LECTURES ON 
 
 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 tlie laws of the Union, must 
 be the ultimate tribunal to decide in the last resort 
 upon them, in all cases of a constitutional nature 
 which arise in a suit at law or equity, either in 
 the Federal or State Courts. The early legisla- 
 tion of Congress, the Judiciary Act of 1789, and 
 the 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 it- 
 self, to the exclusion of the authority and jurisdic- 
 tion of the several states. A state, therefore, hav- 
 ing no power to interpret the Constitution finally 
 for itself, cannot secede from the Union without 
 adopting a proceeding essentially revolutionary in 
 its character ; and every attempt by a state to ab- 
 rogate or nullify a law of Congress is not only a 
 usurpation of the powers of the National Govern- 
 ment, 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, dispen- 
 ses with existing oaths, dissolves the obligations 
 of allegiance to the supreme authority of the 
 Union, and elevates another power in its place, 
 then are nullification and secession, in character 
 und principle, equally revolutionary. 
 
CONSTITUTICNAL JURISPRUDENCE. 335 
 
 1 have now completed the proposed examina- 
 Uoti of the powers vested in the General Govern- 
 ment, 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 Government, 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, express or implied ; and that, when- 
 ever any of these powers come into collision 
 with the concurrent or independent powers of 
 the states, the state authority, which is subordi- 
 nate, must yield to that of the nation, which is 
 supreme. 3. That this Constitution, the laws 
 made in pursuance of it, and treaties existing 
 under its authority, are the supreme law of the 
 landy and, both from the nature of the case, and 
 the provisions of the Constitution, the National 
 Legislature must judge of and interpret the su- 
 preme law, as often as it exercises its legislative 
 functions 5 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 5 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 inter- 
 preter of the Constitution. 4. That no state au- 
 thority has power to dissolve the relations be- 
 tween 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 cixcumstances as 
 
336 LECTURES ON 
 
 would justify a revolution ; and that an attempt 
 by any state to abrogate or annul an act of the 
 National Legislature is a direct usurpation of 
 the powers of the General Government, an in- 
 fringement of the rights of all the other states, 
 and a violation of the paramount obligation of its 
 members to support and obey the Federal Con- 
 stitution. 
 
 In this exposition, it has, I trust, been rendered 
 also manifest, that unless such were the nature 
 and principles of that Constitution, it w^ould nev- 
 er have accomplished, as it has most effectually 
 and happily, the great ends for which it was or- 
 dained, nor delivered the people of this country 
 from the evils they had experienced under the 
 Confederation. I trust, too, that, in revicAving' 
 this system of government in its practical opera- 
 tion and results, you will have perceived that we 
 have abundant cause of gratitude to Heaven, not 
 only for defending us from those former evils, 
 which must necessarily have increased under a 
 mere alliance between the states, but for bestow- 
 ing on us, in their stead, those blessings of liber- 
 ty, law, order, peace, and prosperity, which, un- 
 der Providence, the present Constitution has se- 
 cured to the present generation and promises to 
 posterity. And, finally, I trust, most confidently, 
 that you will not hesitate to join with me in ear- 
 nest and devout prayer to the Supreme Ruler of 
 the universe that our National Government, as 
 established by this Constitution, and the happi- 
 ness 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. 
 
APPENDIX. 
 
 A, p. 29. 
 
 DECLARATION OF INDEPENDENCE. 
 In Congress, July 4, 1776. 
 
 When, in the course of human events, it becomes neces 
 sary for one people to dissolve the political bands which have 
 connected 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's God entitle them, a de- 
 cent respect to the opinions of mankind requires that they 
 should declare the causes which impel them to the separa- 
 tion. 
 
 We hold these truths to be self-evident : that ail men are 
 created equal ; that they are endowed by their Creator with 
 certain unalienable rights ; that among these are life, liber- 
 ty, and the pursuit of happiness ; that to secure these 
 rights, governments 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 government, 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 dictate that governments 
 long established should not be changed for light and tran- 
 sient 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, 
 svinces a design to reduce them under absolute despotism, 
 it is their right, it is their duty, to throw off such govern- 
 ment, 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 o* Great Britain is a history of repeated injii- 
 
338 APPENDIX. 
 
 ries and usurpations, all having in direct object the estab- 
 lishment 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 opera- 
 tion till his assent should be obtained ; and when so sus- 
 pended, 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 relin- 
 quish the right of representation in the Legislature ; a right 
 inestimable to them, and formidable to tyrants only. 
 
 He has called together legislative bodies at places unusual, 
 uncomfortable, and distant from the depository of their pub- 
 lic records, for the sole purpose of fatiguing them into com- 
 pliance with his measures. 
 
 He has dissolved representative houses repeatedly, for 
 opposing, 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 for their exercis^ ; the state remaining, in the mean 
 time, exposed to all the dangers of invasion from without, 
 and convulsions within. 
 
 He has endeavoured to prevent the population of these 
 states ; for that purpose obstructing the laws for naturali- 
 zation of foreigners ; refusing to pass others to encourage 
 tlieir migrations hither, and raising the conditions of new 
 appropriations of lands. 
 
 He has obstructed the administration of justice, by lefu- 
 sing his assent to laws for establishing judiciary powers. 
 
 He has made judges dependant 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 hith- 
 er 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 jurisdic- 
 tion foreign to our Constitution, and unacknowledged byoui 
 
APPENDIX. 339 
 
 iaws ; giving his assea*^ to their acts of pretended legisla- 
 tion ; 
 
 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 neigh 
 bouring province, establishing therein an arbitrary govern- 
 ment, and 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 valua- 
 oie laws, and altering fundamentally the forms of our gov- 
 ernments : 
 
 For suspending our own legislatures, and declaring them- 
 selves invested with power to legislate for us in all cases 
 whatsoever. 
 
 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 perfidy 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 
 endeavoured 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 peti- 
 tions have been answered only by repeated injury. A 
 prince, whose character is thus marked by every act which 
 may define a tyrant, is unfit to be the ruler of a free people. 
 
340 APPENDIX. 
 
 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 cir- 
 cumstances of our emigration and settlement here. We 
 have appealed to their native justice and magnanimity, and 
 we have conjured them, by the ties of our common kindred, 
 to disavow these usurpations, which would inevitably inter- 
 rupt our connexions and correspondence. They, too, have 
 been deaf to the voice of justice and of consanguinity. We 
 must, therefore, acquiesce in the necessity which denounces 
 our separation, and hold them, as we hold the rest of man- 
 kind, 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 in- 
 tentions, do, in the name, and by authority of the good peo- 
 ple of these colonies, solemnly publish and declare, that 
 these United Colonies 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 con- 
 nexion between them and the state of Great Britain is, and 
 ought to be, totally dissolved ; and that, as free and inde- 
 pendent 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 honour 
 
 JOHN HANCOCK 
 
 c Josiah Bartlett, 
 New-Hampshire. < William Whipple, 
 
 ( Matthew Thornton. 
 
 f Samuel Adams, 
 
 Massachusetts BayJ ^Rl^^n Tr^^l Paine, 
 
 VElbridge Gerry. 
 Rhode island. &c. { ^^.t^ K"' 
 
 ''Roger Sherman, 
 ^ .. . J Samuel Huntington, 
 
 Connecticut. <! ^,„i3^ Wilhams, 
 
 Oliver Wolcott. 
 
APPENDIX. 
 
 341 
 
 New- York. 
 
 New-Jersey. 
 
 Pennsylvania 
 
 Delaware 
 
 Maryland. 
 
 Virginia. 
 
 North Carolina 
 
 South Carolina 
 
 Georgia. 
 
 / William Floyd, 
 j. Philip Livingston, 
 I Francis Lewis, 
 I Lewis Morris, 
 r Richard Stockton, 
 j John Witherspoon, 
 
 < Francis Hopkinson, 
 I John Hart, 
 
 I Abraham Clark. 
 /'Robert Morris, 
 
 Benjamin Rush, 
 
 Benjamin Franklin, 
 . John Morton, 
 ^ George Clymer, 
 
 James Smith, 
 
 George Taylor, 
 
 James Wilson, 
 
 George Ross. 
 ( Caesar Rodney, 
 
 < George Read, 
 
 ( Thomas M'Kean. 
 /'Samuel Chase, 
 j William Paca, 
 S Thomas Stone, 
 I Charles Carroll, of Carrolllon 
 
 George Wythe, 
 
 Richard Henry Lee, 
 
 Thomas Jefferson, 
 ^ Benjamin Harrison, 
 I Thomas Nelson, Jun., 
 
 Francis Lightfoot liCe, 
 L Carter Braxton. 
 * William Hooper, 
 
 < Joseph Hewes, 
 ( John Penn. 
 /'Edward Rutledge, 
 
 ) Thomas Heyward, Jun., 
 I Thomas Lynch, Jun., 
 I Arthur Middleton. 
 c Button Gwinnett, 
 
 < Lyman Hall, 
 
 ( George Walton. 
 Ff3 
 
342 APPENDIX. 
 
 B, p. 30. 
 
 A?vTICLES 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, Vir 
 gmia. North Carolina, South Carolina, and Georgia. 
 
 In Congress, July 8, 1778. 
 
 Article I. The style of this confederacy shall be, *' Tht 
 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 de- 
 fence, the security of their liberties, and their mutual and 
 general welfare, 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 ex- 
 cepted, shall be entitled to all the 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, 
 iliat no impositions, duties, or restriction shall be laid bj 
 iiJiy state on the property of the United States, or either of 
 them. 
 
 ^ 2. If any person guilty of or charged with treason, fel- 
 ony, 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. 
 
APPEiNDix. 34:^ 
 
 ^ 3. Fall 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. <5> 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 of 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 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 dele- 
 gate, be capable of holding any office under the United 
 States for which he, or any other 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 the 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 no* 
 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 thr 
 time of their going to and from, and attendance on Con- 
 gress, except for treason, felony, or breach of the peace. 
 
 Art. VI. ^ I. No state, without the consent of the Unite 
 States in Congress assembled, shall send any embassy to 
 or receive any embassy from, or enter into any conference 
 agreement, alliance, or treaty with any king, prince, or state 
 nor shall any person holding any office of profit or trust un 
 der the United States, or any of them, accept of any present, 
 emolument, office, or title of any kind whatever, from any 
 king, prince, or foreign state ; nor shall the United States 
 in Congress assembled, or any of them, grant any title of 
 nobility. 
 
 ^ 3. No two or more states shall enter into any treaty, 
 confederation, or alliance whatever between them, without 
 ilie 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. 
 
344 APPENDIX. 
 
 ^ 3. No state shall lay any imposts or duties which may 
 mterfere 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 pro- 
 posed by Congress 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 
 necessary by the United States in Congress assembled for 
 the defence 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 necessary 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 con- 
 sent of the United States in Congress assembled, unless 
 such state be actually invaded by enemies, or shall have re 
 ceived certain 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 let- 
 ters of marque or reprisal, except 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 pi- 
 rates ; in which case vessels of war may be fitted out for 
 hat occasion, and kept so long as the danger shall continue, 
 or until the United States in Congress assembled shall de- 
 termine 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 sha^l be 
 filled up by the stale which first made the appointment 
 
 Art. Vill. All charges of war, and all other expense* *^iv^ 
 sH;»il be incurred for the common defence or general •" ^ 
 
APPENDIX. li\5 
 
 fare, and allowed by the United States in Congress assem- 
 bled, 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 
 lor any person, as such land, and the buildings and improve-' 
 ments 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 pro- 
 portion shall be laid and levied by the authority and direc- 
 tion 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 deter- 
 mining on 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 im- 
 portation of any species of goods or commodities whatsoev- 
 er ; of establishing rules for deciding in all cases what cap- 
 tures on land or water shall be legal, and in what manner 
 prizes taken by land or naval forces in the service of the 
 Ilnited States shall be divided or appropriated ; 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 receiving and deter- 
 mining finally appeals in all cases of captures : provided that 
 no member of Congress shall bL appointed a judge of any 
 of the said courts. 
 
 <5) 2. The United States in Congress assembled shall alsa 
 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 ex- 
 ecutive 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 legisla- 
 tive or executive authority of the other state in controver- 
 sy, and a day assigned for the appearance of the parties by 
 the/r lawful agents, who shall then be directed to appoint 
 Dd 
 
346 APPENDIX. 
 
 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 peti- 
 tioners beginning, until the number shall be reduced to thir- 
 teen ; and from that number not less than seven, nor more 
 than nine names, as Congress shall direct, shall, in the 
 presence of Congress, be drawn out by lot ; and the persons 
 whose names shall be so drawn, or any five of them, shall 
 be commissioners or judges, to hear and finally determine 
 the controversy, so always as that a major part of the judg- 
 es who shall hear the cause shall agree in the determina- 
 tion ; and if either party shall negject 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 tnree persons out of 
 each state, and the secretary of Congress shall strike in be- 
 half of such party absent or refusing ; and the judgment 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 judg- 
 ment or sentence and other proceedings being in either case 
 transmitted to Congress, and lodged among the acts of Con- 
 gress, for the security of the parties concerned : provided 
 that every commissioner, 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 
 favour, aflfection, 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 the diflferent 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 tc 
 have originated antecedent to such settlement of jurisdic 
 Hon, shall, on the petition of either party to the Congress o 
 the United States, be finally detormmed, as near as may be 
 
APPENDIX. S47 
 
 m the same manner as is before prescribed for deciding dis- 
 putes respecting territorial jurisdiction between different 
 states. 
 
 <^ 4. The United States in Congress assencibled shall alsc 
 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 ; regu 
 lating the trade and managing all affairs with the Indians, 
 not members of any ot the states : provided that the legis- 
 lative right of any state within its own limits be not infrin- 
 ged or violated ; establishing and regulating postoffices 
 from one state to another, throughout all the United States, 
 and exacting such postage on the papers passing throngii 
 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 commis- 
 sioning 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 opera- 
 ions. 
 
 ^ 5. The United States in Congress assembled shall have 
 •-.uthority to appoint a committee, to sit in the recess of 
 'congress, to be denominated A Committee of the States, and 
 U) consist of one delegate from each state ; and to appoint 
 such other committees and civil officers as may be necessa- 
 ry .^or managing the general affairs of the United States un- 
 aer their direction ; to appoint one of their number to pre- 
 side, provided that no person be allowed to serve in the of- 
 •iice of president more than one year in any term of three 
 ^ears ; to ascertain the necessary sums of money to ha 
 'aised for the service of the United States, and to appropri- 
 ate and apply the same for defraying 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 borrowed or emitted ; 
 u) build and equip a navy ; to agree upon the number of 
 vand-forces, and to make requisitions from each s-tate for its 
 j^uota, in proportion to the number of white inhabitants in 
 juch state, which requisition shall be binding ; and there- 
 jpon the Legislature of each state shall appoint the regiment- 
 al officers, raise the men, and clothe, arm, and equip them 
 in a soldierlike manner, at the expense of the United States ; 
 
348 APPENDIX. 
 
 and the oflicers 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 consid- 
 eration of circumstances, judge proper that any state should 
 not raise men, or should raise a smaller number than its 
 ({uota, and that any other state should raise a greater num- 
 ber 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 Legisla- 
 ture of such state shall judge that such extra number can- 
 not 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 
 ill time of peace, nor enter into any treaties or alliances, 
 i'«or coin money, nor regulate the value thereof, nor ascer- 
 tain 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 adjourn- 
 ing from day to day, be 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, ex- 
 cept such parts thereof relating to treaties, alliances, or mil- 
 itary 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, vv'hen it is desired 
 by any delegate ; and the delegates of a state, or any of 
 them, at his or their request, shall be furnished with a tran- 
 script of the said journal, except such parts as are above 
 excepted; to lay before the legislatures of the several states. 
 
APPENDIX. 349 
 
 Art. X. The Comnittee of the States, or any nine ofthem, 
 shall be authorized to execute, in the recess of Congress, 
 such of tlie powers of Congress as the United States in 
 Congress assembled, by the consent of nine states, shall 
 froni time to time thinic expedient to vest tliem with ; pro- 
 . fided 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. XL Canada, acceding to this confederation, and join- 
 ing 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, money borrowed, and 
 debts contracted by, or under the authority of Congress, be- 
 fore the assembling of the United States, in pursuance of 
 the present confederation, shall be deemed and considered 
 as a charge against the United States, for payment and sat- 
 isfaction whereof the said United States and the public faith 
 are hereby solemnly pledged. 
 
 Art. XIII. Every state shall abide by the determinations 
 of the United States in Congress assembled, in 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 alteration at any time hereafter be made in any of 
 them, unless such alteration be agreed to in a Congress of 
 the United States, and be afterward confirmed by the legis 
 latures of every state. 
 
 AiVD v/HEREAS it hath pleased the great Governor of the 
 world to incline the hearts of the legislatures we respect- 
 ively represent in Congress to approve of, and to authorize 
 us to ratify the said Articles of Confederation and perpetual 
 Union, Kxovv ye, that we, the undersigned delegates, by 
 virtue of the power and authority to us given for that pur- 
 pose, do, by these presents, in the name and behalf of ot]i 
 respective constituents, fully and entirely ratify and confirm 
 each and every of the saLd Articles of Confederation and per- 
 petual Union, and all and singular the matters and things 
 therein contained. And we do farther solemnly plight and 
 engage the faith of our respective constituents, that they 
 shall abide by the determinations of the United States in 
 Congress assembled, in all ouestions which by the said con- 
 
350 
 
 APPENDIX. 
 
 federation are subniitted to them ; and tliat tfic artic^(*« 
 thereof shall be inviolably observed by the states we re- 
 spectively represent, and that the Union shall be pcrpetnai. 
 Lv vviTxXEss 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. 
 Tvj xj , • i Josiah Bartlett, 
 
 New-Hampshire. \ j^,,„ Wentworth, Jun. 
 
 ^John Hancock, 
 Samuel Adams, 
 
 Massachusetts Bay J ElbridgeGerry, 
 
 Rhode Island, &c. 
 
 Connecticut. 
 
 New- York. 
 
 New-Jersey. 
 
 Pennsylvania 
 
 Delaware. 
 
 Maryland. 
 
 Virginia 
 
 Francis Dana, 
 I James Lovell, 
 \. Samuel Holten. 
 i William Ellery, 
 
 < Henry Merchant. 
 ( John Collins. 
 /'Roger Sherman, 
 
 j Samuel Huntington, 
 
 < Oliver Wolcott, 
 j Titus Hosmer, 
 
 V Andrew Adams. 
 I' James Duane, 
 
 } Francis I^ewis, 
 [ William Duer, 
 I Governeur Morris. 
 ^ John Witherspoon, 
 i Nathaniel Scudder. 
 /'Robert Morris, 
 I Daniel Roberdieu, 
 
 < Jonathan Bayard Smith, 
 j Wilham Clingan, 
 
 V Joseph Reed. 
 
 ( Thomas M'Kean, 
 
 < John Dickinson, 
 
 / Nicholas Vandyke. 
 ( John Hanson, 
 \ Daniel Carrol. 
 /-Richard Henry Lee. 
 I John Banister, 
 <; Thomas Adams, 
 I John Harvey, 
 iFr.-^ncis Lifehtfoot Lee. 
 
APPENDIX. 351 
 
 ( John Penn, 
 North Carolina. < Cornelius Harnett, 
 
 ( John Williams. 
 
 ( Henry Laurens, 
 
 I William Henry Drayton, 
 South Carolina. <( John Matthews, 
 
 I Richard Hutson, 
 
 V Thomas Heyward, Jun. 
 
 i John Walton, 
 Georgia. < Edward Taliafero, 
 
 ( Edward Longworthy. 
 
 C, p. 38. 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 The Constitution framed for the United States of America, by 
 a Convention of Deputies from the States of New- Hampshire , 
 Massachusetts, Connecticut, New-York, New- Jersey, Penn- 
 sylvania, Delaware, Maryland, Virginia, North Carolina, 
 South Carolina, and Georgia, at a session begun May 25, 
 2nd ended September 17, 1787. 
 
 We, the people of the United States, in order to form a 
 more perfect Union, establish justice, ensure domestic tran- 
 quillity, provide for the common defence, promote the gen- 
 eral welfare, and secure the blessings of liberty to ourselves 
 and our posterity, do ordain and establish this Constitution 
 for the United States of America. 
 
 ARTICLE I. 
 
 SECTION I. 
 
 All legislative powers herein granted shall be vested in a 
 Congress of the United States, which shall consist of a Sen- 
 ate and House of Representatives. 
 
 SECTION II. 
 
 1. The House of Representatives shall consist of mem- 
 bers chosen every second year, by the people of the several 
 states ; and the electors in each state shall have the qualifi- 
 cations requisite for electors of the most numerous branch 
 of the State Legislature. 
 
 3. No person shall be a representative who shall not have 
 
352 APPENDIX. 
 
 attrtined to the a^e of tvventy-nve 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 anil 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 excluding Indians not taxed, three fifths of all 
 other persons. The actual enumeration shall be made with- 
 in 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 rep- 
 resentative ; and, until such enumeration shall be made, the 
 State of New-Hampshire shall be entitled to choose three ; 
 Massachusetts eight ; Rhode Island and Providence Planta- 
 tions one ; Connecticut live ; 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 
 election to fill such vacancies. 
 
 5. The House of Representatives shall choose their speak- 
 er and other officers, and shall have the sole power of im- 
 peachment 
 
 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 shall be assembled, in conse- 
 quence 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 Leiii&^ature of any state, the execu- 
 
APPENDIX. 353 
 
 tive thereof may make temporary appointments until the 
 next meeting of the Legislature, which shall then fill such 
 vacancies. 
 
 3. No person shall be a senator who shall not have at- 
 tained to the age of thirty years, and been nine years a cit- 
 izen of the United States, and who shall not, when elect- 
 ed, be an inhabitant of that state foe which he shall be 
 chosen. 
 
 4. The Vice-president of the United States shall be Pres 
 ident of the Senate, but shall have no vote unless they bo 
 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 Uni 
 ted States. 
 
 6. The Senate shall have the sole power to try all im 
 peachments. 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 per- 
 son shall be convicted without the concurrence of two 
 thirds of the members present. 
 
 7. Judgment, in cases of impeachment, shall not extend 
 farther than to removal from office; and disqualification to 
 hold and enjoy any office of honour, trust, or profit under 
 the United States. But the party convicted shall, never- 
 theless, 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 iii 
 December, unless they shall, by law, appoint a diffurcni 
 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 shall constitute a quorum to do business ; but a small- 
 er number may adjourn froni day to day, and may be au- 
 
354 APPENDIX. 
 
 thorized to compsl the attendance of absent members, m 
 such manner and under such penalties as each house maj 
 provide. 
 
 2. Each house may determine the rules of its proceed- 
 ings ; punish its members for disorderly behaviour ; and, 
 with the concurrence 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, 
 without 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 com- 
 pensation 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 respective houses, and in going to and re- 
 turning 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 of which shall have been in- 
 creased, during such time ; and no person holding any of- 
 fice 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 of Representatives ; but the Senate shall propose or 
 concur with amendments, as on other bills. 
 
 2. Every bill which shall have passed the House of Rep- 
 resentatives and the Senate shaU, before it become a law, 
 be presented to the President of the United States. If he 
 approve it, he shall sign it ; but if not, he shall return it, with 
 his objections, to that house in which it shall have origina- 
 ted, who shall enter the objections at large on their journal, 
 
APPENDIX. 355 
 
 and proceed to reconsider it. If, after such reconsidera- 
 tion, two thirds of that house shall agree to pass the bill, it 
 shall be sent, together witn the objections, to the other 
 house, by which it shall likewise be reconsidered ; and, il 
 approved by two thirds of that house, it shall become a law. 
 But in all such cases the votes of both houses shall be de- 
 termined by yeas and nays ; and the names of the persons 
 voting for and against the bill shall be entered on the jour- 
 nal of each house respectively. If any bill shall not be re- 
 turned 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 Con- 
 gress, by their adjournment, prevent its return ; in which 
 case it shall not be a law. 
 
 3. Every order, resolution, or vote to which the concur- 
 rence 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, be- 
 fore the same shall take effect, be approved by him ; or, be- 
 ing disapproved by him, shall be repassed by two thirds of 
 both houses, 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 warfare of the United States ; but all duties, im- 
 posts, and excises shall be uniform throughout the United 
 States : 
 
 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 uni- 
 form laws on the subject of bankruptcies throughout the 
 United States : 
 
 5. To coin money, to regulate the value thereof, and of for- 
 eign coin, and fix the standard of weights and measures : 
 
 6. To provide for the punishment of counterfeiting the 
 securities and current coin of the United States : 
 
 7. To establish postoffices and postroads : 
 
 8. To promote the progress of science and useful arts, by 
 securing, for limited times, to authors and inventors, the 
 exclusive right tc theii respective writings and discoveries : 
 
356 At^PENDIX. 
 
 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 : 
 
 ^3. 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. inva- 
 sions : 
 
 16. To provide for organizing, arming, and disciplining 
 the militia, and for governing such part of them as may be 
 employed in the service of the United States, reserving to 
 the states respectively the appointment of the officers, and 
 the authority of training the militia according to the disci- 
 pline prescribed by Congress. 
 
 17. To exercise exclusive legislation, m all cases whatso- 
 ever, over such district (not exceed mg ten miles square) as 
 may, by cession of particular states, and the acceptance of 
 Congress, become the seat of the government of the United 
 States ; and to exercise like authority over all places pur- 
 chased 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 prop- 
 er 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 office thereof - 
 
 SECTION IX. 
 
 I. 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 
 
 j 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 jiost fanin law shall bo passed. 
 
APPENDIX. 357 
 
 4. No capitation or other direct tax shall be laid, unless 
 in proportion to the census or enumeration herein before di- 
 rected to be taken. 
 
 5. No tax or duty shall be laid on articles exported fiou) 
 iny state. 
 
 6. No preference shall be given by any regulation of com- 
 nerce or revenue to the ports of one state over those of an- 
 )ther : nor shall vessels bound to, or from one state, be 
 ol)liged to enter, clear, or pay duties in another. 
 
 7. No money shall be drawn from the treasury but in 
 consequence of appropriations made by law ; and a regular 
 statement 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, ac- 
 cept of any present, 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 con 
 federation ; grant letters of marque and reprisal ; com mon- 
 ey ; emit bills of credit ; make anything but gold and silver 
 coin a tender in payment of debts ; pass any bill of attain- 
 der, ex post facto law, or law impairing the obligation of con- 
 tracts ; 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 inspec- 
 tion laws ; and the nett 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 the Congress, 
 lay any duty on 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 ac- 
 tually invaded, or in such imminent danger as will not ad • 
 mit of delay. 
 
 ARTICLE II. 
 
 SECTION I. 
 
 1. The executive power shall be vested in a President of 
 tb.-. United States of America. He shall hold his office du- 
 
358 APPENDIX. 
 
 ring 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 Legis- 
 lature 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 representative, or person holding any office of trust or 
 profit under the United States, shall be appointed an elector. 
 
 3. The electors shall meet in their respective states, and 
 vote by ballot for two persons, one of whom 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 Sen- 
 ate. The President of the Senate shall, in the presence of 
 the Senate and House of Representatives, open all the cer- 
 tificates, and the votes shall then be counted. The person 
 naving the greatest number of votes shall be the President, 
 if such number be a majority of the whole number of elect- 
 ors 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 bal- 
 lot one of them for President ; and if no person have a ma- 
 jority, then from the five highest on the list the said House 
 shall in like manner choose the President. But in choosii^ 
 the President, the votes shall be taken by states, the repre- 
 sentation from each state having one vote : a quorum foi 
 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 num- 
 ber of votes of the electors shall be the Vice-president. 13ul 
 if there should remain two or more who have equal votes, 
 the Senate shall choose from them by ballot the Vice-presi- 
 dent. 
 
 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 
 Constitution, shall be eligible to the office of President ; 
 neither shall any person be eligible to that office who shaL 
 
APPENDIX. i^59 
 
 not have attained to the age of thirty-five years, and been 
 fourteen years a resident within the United States. 
 
 6 In case of the removal of the President from office, or 
 of his death, resignation, or inabihty 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 
 tlie President and Vice-president, declaring what officer 
 shall then act as President, and such officer shall act ac- 
 cordingly, until the disability be removed, or a President be 
 elected. 
 
 7. The President shall, at stated times, receive for his 
 services 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 exe- 
 cute the office of President of the United States, and will, 
 to the best of my ability, preserve, protect, and defend the 
 Constitution of the United States." 
 
 SECTION II. 
 
 1. The President shall be commander-in-chief of the army 
 and navy of the United States, and of the militia of the sev- 
 eral states when called into the actual service of the United 
 States ; he may require the opinion, in writing, of the prin- 
 cipal officers 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 im- 
 peachment. 
 
 2. He shall have power, by and with the advice and con- 
 sent 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 
 ambassadors, other public ministers and consuls, judges of 
 the Supreme Court, and all other officers of the United 
 States whose appointments are not herein otherwise provi- 
 ded for, and which shall be established by law ; but the 
 Congress may by law vest the appointment of such infeiior 
 officers as they think proper in the President alone, in thfi 
 
 urts of law, or in the heads of the departments. 
 
360 APPENDIX. 
 
 3. The President shall have power to fill up all vacancies 
 that may happen during the recess of the Senate, by grant- 
 ing comniissions which shall expire at the end of their next 
 session. 
 
 SECTION III. 
 
 He shall, from time to time, give to the Congress in 
 formation of the state of the Union, and recommend to theii 
 consideration such measures as he shall judge necessarj 
 and expedient; he may, on extraordinary occasions, con- 
 vene both houses, or either of them, and, in case of disa- 
 greement between them with respect to the lime of ad- 
 journment, he may adjourn them to such time as he shall 
 think proper ; he shall receive ambassadors and other pub- 
 lic ministers ; he shall take care that the laws be faithfully 
 executed, and shall commission all the officers of the Uni- 
 ted 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. 
 
 SECTION II. 
 
 I. The judicial power shall extend to all cases in law 
 nnd equity arising under this Constitution, the laws of the 
 United States, and treaties made, or which shall be made, 
 under their authority ; to all cases affecting ambassadors ; 
 other public ministers, and consuls ; to all cases of a^'mi- 
 ralty and maritime jurisdiction ; to controversies to which 
 the United States shall be a party, to controversies between 
 two or more states, between a state and citizens of anothei 
 state, between citizens of different states, between citizens 
 
APPENDIX. 361 
 
 It the same state claiming lands under grants of different 
 states, and between a state, or the citizens thereof and for- 
 eign states, citizens, or subjects. 
 
 2. In all cases affecting ambassadors, other public mm- 
 ■sters, and consuls, and those in which a state shall be a 
 oarty, the^Supreme Court shall have original jurisdiction. 
 m all the other cases before mentioned, the Supreme Court 
 rhall have appellate jurisdiction, both as to law and fact, 
 'vith such exceptions, and under such regulations, as the 
 Congress shall make. 
 
 3. The trial of all crimes, except in cases of impeach- 
 ment, 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 di- 
 rected. 
 
 SECTION III. 
 
 1. Treason against the United States shall consist only 
 in levying war against them, or in adhering to their enemies, 
 giving 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 punish- 
 ment of treason ; but no attainder of treason shall work 
 corruption of blood or forfeiture, except during the life of 
 ♦he person attainted. 
 
 ARTICLE IV. 
 
 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 penal laws, prescribe th(5 
 manner in which such acts, records, and proceedings shall 
 he proved, and the effect thereof. 
 
 SECTION II. 
 
 1. The citizens of each state shall be entitled to all tha 
 privileges 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 an- 
 other state, shall, on the demand of the executive authority 
 of the state from which he fled, be delivered up, to be remo- 
 •red to the state having jurisdiction of the crime 
 
 K E 
 
362 APPENDIX. 
 
 3. No person, held to service or labour in one state unJer 
 the law thereof, escaping into another, sliall, in consequence 
 of any law or regulation therein, be discharged from such 
 service or labour ; but shall be delivered up on claim of the 
 party to whom such service or labour may be due. 
 
 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 con- 
 cerned, 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 beloncring to the United States ; and nothing 
 in this Constitution snail be so construed as to prejudice 
 any claims of the United States, or of any particular state. 
 
 SECTION IV. 
 
 The United States shall guaranty to every state in this 
 Union a republican form of government, and shall protect 
 each of them against invasion ; and on application of the 
 Legislature, or of the executive (when the Legislature can- 
 not be convened), against domestic violence. 
 
 ARTICLE V. 
 
 The Congress, whenever two thirds of both houses shall 
 deem it necessary, shall propose amendments to this Con- 
 stitution, or, on the application of the legislatures of two 
 thirds of the several states, shall call a convention foi 
 proposing amendments ; which, in either case, shall be val- 
 id to all intents and purposes, as part of this Constitution, 
 when ratified by the legislatures of three fourths of the sev- 
 eral states, or by conventions 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 suflfrage 
 in the Senate 
 
APPENmx. 363 
 
 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 Confederation. 
 
 2. This Constitution, and the laws of the United States 
 w'hich 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 not- 
 withstanding. 
 
 3. The senators \nd representatives , before mentioned, 
 and the members ol the several state legislatures, and all 
 executive 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 un- 
 der the United States. 
 
 ARTICLE VII. 
 The ratification of the convention of nine states shall be 
 sufficient for the establishment of this Constitution between 
 the states so ratifying the same. 
 
 Done in the 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 sub- 
 scribed our names. 
 
 GEORGE WASHINGTON, President, 
 
 and Delegate from Virginia, 
 
 Massachusetts. \ Ruflj^^^J^g""'"'''""' 
 
 Connecticut. \ William Samuel Johnsor,., 
 
 ( Roger Sherman. 
 New- York. Alexander Hamilton. 
 
 /William Livingston, 
 
 Ne\r-Jersev J ^^^^^ Brearley, 
 ISQV jersey. < william Paterso. 
 
 ^Jonathan Dayton. 
 
364 
 
 APPENDIX. 
 
 Pennsylvania. 
 
 Delaware. 
 
 Maryland. 
 Virginia. 
 North Carolina. 
 
 South Carolina 
 
 Georgia. 
 Attest, 
 
 ^Benjamin Franklin, 
 Thomas Mifflin, 
 Robert Morris, 
 George Clymcr, 
 Thomas Fitzsimmons, 
 Jared Ingersol, 
 James Wilson, 
 Gouverneur Morris. 
 George Read, 
 Gunning Bedford, Jun., 
 John Dickinson, 
 Richard Bassett, 
 Jacob Broom. 
 James M'Henry, 
 Daniel of St. Thomas Jenifer, 
 Daniel Carroll. 
 
 SJohn Blair, 
 James Madison, Jun. 
 c William Blount, 
 < Richard Dobbs Spaight, 
 ( Hugh Williamson. 
 /"John Rutledge, 
 J Charles C. Pinck'nev, 
 \ Charles Pinckney, 
 V Pierce Butler. 
 ( William Few, 
 I Abraham Baldwin. 
 
 William Jackson, Secvtinj, 
 
 AMENDMENTS 
 
 The jollowing Articles in addition to, and amendment of, the 
 Constitution of the United States, having been ratified by the 
 Legislatures of nine Slates, are equally obligatory with the 
 Constitution itself 
 
 I. Congress shall make no law respecting an establish 
 ment of religion, or prohibiting the free exercise thereof, oi 
 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 secu- 
 rity of a free state, the right of the pec pie to keep and bea» 
 arms shall not be infringed 
 
APPENDIX. 365 
 
 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 seizures, shall not be violated ; and no warrants shall 
 issue, but upon probable cause, supported by oath or affirm- 
 ation, and particularly describing the place to be searched, 
 and the persons or tilings to be seized. 
 
 V. No person shall be held to answer for a capital or oth- 
 erwise infamous crime, unless on a presentment or indict- 
 ment 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 sub- 
 ject, 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 himself; nor be deprived of life, liber- 
 ty, or property, without due process of law ; nor shall pri- 
 vate property be taken for public use, without just compen- 
 sation. 
 
 VI. In all criminal prosecutions, the accused shall enjoy 
 the right to a speedy aq4 public trial, by an impartial jury, 
 of the state and district wherein the crime shall have been 
 committed ; which district shall have been previously as- 
 certained by law ; and to be informed of the nature and 
 cause of the accusation ; to be confronted with the witness- 
 es against him ; to have compulsory process for obtaining 
 vvitnesses in his favour ; and to have the assistance of coun- 
 sel for his defence. 
 
 VII. In suits at common law, where the value in contro- 
 versy shall exceed twenty dollars, the right of trial by jury 
 shall be preserved ; and no fact tried by jury shall be other- 
 wise re-examinad in any court of the tJnited 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 punishment inflicted. 
 
 IX. The enumeration in the Constitution of certain rights 
 shall not be construed to deny or disparage others retained 
 by the people. 
 
 X. I'he 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. 
 
 XI. The judicial power of the United States shall not be 
 construed to extend to any suit in law or equity commenced 
 
3(3(5 APPENDIX. 
 
 or prosecuted against one of the United Slates by citizens 
 of another state, or by citizens or subjects of any foreign 
 state. 
 
 XII. The electors shall meet in their respective states, 
 and vote by ballot for President and Vice-president, one of 
 whom, at least, shall not be an inhabitant of the same state 
 with themselves ; they shall name in their ballots the per- 
 son voted for as President, and in distinct ballots the per- 
 son voted for as Vice-president ; and they shall make dis- 
 tinct lists of all persons voted for as President, and of all 
 persons voted for as Vice-president, and of the number of 
 votes for each, which lists they shall sign and certify, and 
 transmit sealed to the government of the United States, di- 
 rected 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 for President shall be the President, 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, tte House of Representa- 
 tives shall choose immediately, by ballot, 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. And if the House 
 of Representatives shall not choose a President vv^henever 
 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 consti- 
 tutional disability of the President. The person having the 
 greatest number of votes as Vice-president shall be Vice- 
 president, if such number be a majority of the whole numbei 
 of electors 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. But no person constitutionally ineligible to the of- 
 fice of President shall be eligible to that of Vice-presid ent 
 of the United States. 
 
APPENDIX. 367 
 
 D, p. iv. 
 
 WILLIAM DUER TO JAMES MADISON. 
 
 New- York, June 23d 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 Lawrence, who left Poughkeepsie on Satur- 
 day. 
 
 A considerable majority of the Convention are undoubt- 
 edly Anti-Federal ; or, in other words, wish for amend 
 ments previous to the adoption of the government. A few 
 of the leaders (among which I think I may, without scruple, 
 class the governor) would, if they could find support, go 
 farther, and hazard everything rather than agree to any sys- 
 tem 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 favour of the Federalists. As to 
 the rejection of the Constitution, there is not the least prob- 
 ability of it. The great points of discussion will probably 
 be, whether they will adjourn without coming to any deci- 
 sion, or whether they will adopt it conditionally, or follow 
 the example of Massachusetts and South Carolina. • 
 
 The conduct of your Convention will influence, in a great 
 degree, ours. If you adjourn without doing anything, 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 apparent after a decision to command a majority. 
 While I am writing, a gentleman has favoured me with a 
 copy of a letter from an mtelligent by-stander,* who has at- 
 tended the debates. of the Convention ; I therefore enclose 
 it, as a more faithful history than I can give. 
 
 I am, with sentiments of the most profound esteem. 
 Your obedient, humble servant, 
 
 William Duer. 
 
 * James Kent, then a student at law with Mr. E. Benson. 
 
368 APPENDIX. 
 
 JAMES KENT TO ROBERT TROUf. 
 
 Poughkeepsie, Friday, June 20ih, 1788. 
 Devr Sir, 
 
 I had the pleasure of receiving your letter hy Mr. Hai- 
 rison, 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 
 Governor Clinton president, and appointed hy ballot Duane, 
 Morris, Lansing, Jones, and Hening, a committee for re- 
 porting rules for 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 commit- 
 tee of the whole, for the purpose of discussing the Consti- 
 tution. On Thursday, which was yesterday, the house re- 
 solved itself into a committee, Mr. Couthout, of Albany, 
 chairman. Chancellor Livingston rose and called our at- 
 tention to a fine introductory speech of one hour's length. 
 He mentioned the importance of the occasion, and the pe- 
 culiar 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 neighbours. He 
 stated that a Union was to be expected only from the old 
 Confederation, or from the government now under their 
 consideration. He then demonstrated the radical defects 
 of the Confederation ; that its principle was bad, in legisla- 
 ting for states in their political capacity, as its constitution- 
 al demands could only be coerced by arms ; that it was equal- 
 ly defective inform, as the Congress was a single 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 chancellor, 
 on this head, only gave a summary of the arguments of 
 Publius*^\ie\\ 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 sur- 
 vey by entreating the house to divest themselves of preju- 
 
 * The si{;u;iture adopted by the authors of " The Federalist." 
 
lice and warmth, to examine th^ plan submitted with the 
 utmost coolness and candour, to dpnsrder themselves as cit- 
 izens assembled to consult for the^ general good, and not ^s^ ,v 
 Btate officers, who might be opposed, in that capacity, to^^ 
 every determination of their authority. He conciaded* kis 
 speech by a motion which, with some amendments, wrfs^'^, 
 agreed to by the house, that they would discuss the 'G'onsii- 
 tution by paragraphs, and any amendments which might b^^ 
 proposed in the course of the debate, without taking llie 
 question as to any paragraphs, or as to any amendments 
 which might be offered, until the whole Constitution 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. l^he decision in New- 
 Hampshire and Virginia, we are flattering ourselves, will 
 be favourable ; and that they will give energy to the debate 
 on one side in our Convention, and confusion, if not abso- 
 lute despair, to the other side. I hope you and our friends 
 in New- York will give 'us the earliest information from those 
 states. 
 
 In giving you the heads of the chancellor's speech, I be- 
 lieve 1 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 regret- 
 ted more, I lost some of his figures, for which he is pecu- 
 liarly 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 to request you will 
 communicate this information to Colonel Duer. 
 
 WILLIAM DUER TO JAMES MADISON. 
 
 1788. 
 My dear Sir, 
 Our iQuTual friend, Hamilton, has communicated to me, in 
 ooafidence, the substance of your letter on the political pros 
 
376 APPENDIX. 
 
 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 councils and exertions in the House 
 of Representatives, notwithstanding Mr. Henry's manoeuvres 
 to prevent it. 
 
 You may remember some conversation 1 once had with 
 you on the subject of electing Mr. John Adams as Vice- 
 president. I have ascertained, through General Knox, that 
 this gentleman, if chosen, will be a strenuous opposer against 
 calling a Convention, 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 measures relative to the establishment of the 
 character and credit of the government. I am therefore 
 anxious that the Federalists 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 wisb), 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 .authenti- 
 city of which you may rely, that you may (without commit- 
 ting 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 Gouv 
 erneur Morris seeing this letter. 
 
 JAMES MADISON TO WILLIAM A. DUER. ; 
 
 Montpelier, May 5th, 1835. 
 Dear Sir, 
 I have received your letter of April 25th, and, with the aid 
 of a friend, an amanuensis, have made out the following an 
 swer. 
 
 On the subject of Mr. Pinckney's proposed plan of a Con- 
 stitution, it i« to be observed, that the plan printed in the 
 journal was T**)t the document, actually presented by him tc 
 
APPENDIX. 371 
 
 the Convention. That document was in no otherwise no- 
 ticed in the proceedings of the Convention than by a refer- 
 ence of it, with jMr- Randolph's plan, to a committee of the 
 whole, and afterward 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, charged with the publication of them, ob- 
 tained from Mr. Pinckney the document in the printed jour- 
 nal 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 
 My. Adams could not be the same with the document laid 
 before the Convention. Take, for example, the article con- 
 stituting 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 appears that, within a few days after Mr. 
 Pinckney presented his plan to the Convention, he moved 
 to strike out from the resolution of Mr. Randolph the pro- 
 vision for the election of the House of Representatives by 
 the people, and refer the choice of that house to the legis- 
 latures of the states ; and to this preference he appears to 
 have adhered in the subsequent proceedings of the Conven- 
 tion. Other discrepancies might be found, in a source also 
 within your reach, in a pamphlet published 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.* Farther evidence on this subject 
 await a future, perhaps a posthumous disclosure. One con- 
 jecture explaining the phenomena has been, that Mr. Pinck 
 ney interwove with the draught 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 ion which the 
 deliberations of the committee proceeded, were the result 
 of a consultation among the Virginia deputies, who thought 
 
 * Observations on the Plan of Government submitted to the Federal Con- 
 vention, on the 28lh of May, 1/87, by Charles Pinckney, &c., &c. Vide 
 " Select Facts," vol. ii., in tlie library of tl Historical Society of New- 
 Vork. 
 
372 APPEI^DIX. 
 
 It possible that, as Virginia had taken so leading a part in 
 reference to the Federal Convention, some initiative propo- 
 sitions might be expected from them. They vi^ere under- 
 stood not to commit any of the members, absolutely or de- 
 finitively, on the tenour 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 be 
 ing thrown into a formal shape. The moment, indeed, a 
 real Constitution was looked for as a substitute for tlie con 
 federacy, the distribution of the government into the usuaj 
 departments became a matter of course with all who specu- 
 lated on the prospective change, and the form of general 
 resolutions was adopted, as most respectful to the Conven- 
 tion, 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, with- 
 out enumerating them, as others not overlooked in the res- 
 olutions, but left to be developed and defined by the Con- 
 vention. 
 
 With regard to the plan proposed by Mr. Hamilton, I may 
 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 draught being 
 in the possession 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 desulto- 
 ry 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 honourable man, he brought with 
 him to the Convention the strongest prejudices against the 
 existence and objects of that body, in which he was strength- 
 ened by the course taken in its deliberatioLS. He left the 
 Convention long before the opinions and views of many 
 members were finally developed into their practical applica- 
 tion. The p£fesion and prejudice of Mr. Luther Martin, be- 
 trayed in his public letter, could not fail to discolour his rep- 
 resentations. He also left the Convention before the com- 
 pletion of their work. I have heard, but will not vouch for 
 the fact, that he became sensible oi, and admitted his error ; 
 certain it is that he joined the party who favoured the Con- 
 stitution in its most liberal construction. 
 
APPENDIX. 373 
 
 I had, as you may recollect, an acquaintance with your 
 father, 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 
 M-. Childs. 
 
 With great respect and cordial salutations, yours, 
 
 James Madison. 
 
 E, p. 41. 
 
 PROCLAMATION 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 commodi- 
 ties, 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 offiers ; and by the said or- 
 dinance ^t is farther 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 : 
 
 Aiid ivhereaSf by the said ordinance it is farther 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 per- 
 
374 APPENDIX. 
 
 son attempting to take such appeal shall be punished as fot 
 a contempt of court : 
 
 And, finally, the said ordinance declares that the people of 
 South Carolina will maintain the said ordinance at every 
 hazard ; 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 ves- 
 sels to and from' the said ports, or any other act of the Fed- 
 eral Government to coerce the state, shut up her ports, de 
 stroy or harass her contmerce, 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 absolved from all farther obli- 
 gation to maintain or preserve their political connexion 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 oui 
 fathers, without any other ties to unite them than those of 
 patriotism and a common cause, through a sanguinary strug- 
 gle to a glorious independence — that sacred Union, hitherto 
 inviolate, which, perfected by our happy Constitution, has 
 brought us, by the favour 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 in- 
 violate this state of national honour and prosperity, and to 
 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 
 measures adopted by the convention of South Carolina, and 
 to the reasons they have put forth to sustain them, decla- 
 ring the course which duty will require me to pursue, and, 
 appealing to tlie understanding and patriotism of the people, 
 warn them of the consequences that must inevitably resul' 
 from an observance of the dictates of the convention. 
 
APPENDilv. 'S7b 
 
 Strict duty would require of rne nothing more than the 
 exercise of those powers with which I am now, or may 
 licreafter be, invested, for preserving the peace of the Union, 
 and for the execution of the laws. But the imposing aspect 
 vviiich opposition lias assumed in this case, by clothing it- 
 self witli state authority, and the deep interest which the 
 people of the United States must all feel in preventing a re- 
 son to stronger measures, while there is a hope that any- 
 rliing 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 enunciation of 
 the course which my sense of duty will require me to pur- 
 sue. 
 
 The ordinance is founded, not on the indefeasible right 
 of resisting acts which are plainly unconstitutional, and too 
 oppressive to be endured, but on the strange position that 
 any one state may not only declare an act of Congress void, 
 but prohibit its execution ; that they may do this consist- 
 ently 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 consider as constitutional. It is true, they 
 add, that, to justify this abrogation of a law, it must be pal- 
 pably contrary to the Constitution ; but it is evident that, to 
 give the right of resisting law^s 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 tlie passage of an unconstitutional 
 act by Congress. There is, however, a restraint in this last 
 case, which makes the assumed power of a state more inde- 
 fensible, 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 theo- 
 ry ; and the practical illustration shows that the courts are 
 closed agamst an application to review it, both judges and 
 jurors being sworn to decide in its favour. But reasoning on 
 this subject is surperfluous when our social compact, in ex- 
 press terms, declares that the laws of the United States, its 
 
376 APPENDIX 
 
 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, anything in 
 the constitution or laws of any state to the contrary not- 
 withstanding." And it may be asserted, without fear of ref- 
 utation, that no federative government could exist without a 
 similar provision. Look for a moment to the consequence. 
 If South Carolina considers the revenue laws unconstitu- 
 tional, 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 in- 
 terest 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 w^ould 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, for- 
 tunately, none of those states discovered that they had the 
 right now claimed by South Carolina. The war into which 
 we were forced, to support the dignity of the nation and tlip 
 rights of our citizens, might have ended in defeat and dis- 
 grace, instead of victory and honour, if the states, who sup- 
 posed it a ruinous and unconstitutional measure, had thought 
 they possessed the right of nullifying 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 Constitu- 
 tion was reserved to the present day. To the statesmen of 
 South Carolina belongs the invention, and upon the citizens 
 of that state will, unfortunately, fall the evils of reducing it 
 to practice. 
 
 If the doctrine of a state veto upon the laws of the Union 
 carries with it internal evidence of its impracticable absurd- 
 ity, 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. 
 
APPENDIX. 37" 
 
 In our colonial state,althougli dependant on anothor pow 
 er, we very early considered ourselves as connected 1)) 
 common interest with each other. Leagues were formev, 
 for common defence, and before the Declaration of Independ« 
 ence, we were known in our aggregate character as tub 
 United Colonies of America. That decisive and impor. 
 tant step was taken jointly. We declared ourselves a natioi? 
 by a joint, not by several acts ; and when the terms of our 
 confederation were reduced to form, it was in that of a sol- 
 emn league of several states, by which they agreed that they 
 would, collectively, form one nation for the purpose of con- 
 ducting some certain domestic concerns, and all foreign re- 
 lations. 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 an 
 nul a decision of the Congress, or refuse to submit to its ex- 
 ecution ; but no provision was made to enforce these decis- 
 ions. Congress made requisitions, but they were not com- 
 plied with. The government couldvnot operate on individu- 
 als. 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 doctrine 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 important among these objects, that which is placed 
 first in rank, on which all the others rest, is, " to form a more 
 •perfect unions Now, is it possible that, even if there were 
 no express provision 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 jair- 
 pose of ^^ forming a more perfect union" than that of the Con- 
 federation, could be so constructed by the assembled wisdom 
 of our country as to substitute for that Confederation a form 
 of government dependant for its existence on the local inter- 
 est, the party spirit of a state, or of a prevailing faction in a 
 state '? Every man of plain, unsophisticated understanding, 
 who hears the question, will give such an answer as will 
 
37!^ APPENDIX. 
 
 Dreserve the Union. Metaphysical subtilty, in puisuit of an 
 impracticable theory, could <rlone have devised one that ia 
 calculated to destroy it. 
 
 I consider, then, the power to annul a law of the United 
 States, assumed by one state, incompatible with the ex- 
 istence OF the Union, contradicted expressly by th^ 
 letter of the Constitution, unauthorized by its spir- 
 it, 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 
 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 
 purport to be laws for raising revenue, were, in reality, in- 
 tended 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 unau- 
 thorized by the Constitution. These are the only cause& 
 alleged to justify an open opposition to the laws of the 
 country, and a threat of seceding from the Union, if any at- 
 tempt 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 col- 
 lect imposts ; but its constitutionality was drawn in ques- 
 tion from the motives of those who passed it. However ap- 
 parent this purpose may be in the present case, nothing can 
 be more dangerous than to admit the position that an un- 
 constitutional purpose, entertained by the members who as- 
 sent to a law enacted under a constitutional power, shall 
 make that law void ; for how is that purpose to be ascer- 
 tained] Who is to make the scrutiny 1 How often may 
 bad purposes be falsely imputed ] in how many cases are 
 they concealed by false professions 1 in how many is no dec- 
 laration of motive made 1 Admit this doctrine, and you 
 give to the states an uncontrolled right to decide, and every 
 law may be annulled under this pretext. If, therefore, 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 t he laws in question operate 
 
APPENDIX, 379 
 
 /lequ lly. This objection may be made with truth to eve- 
 ry IdM that has been or can be passed. The wisdom of man 
 .lever ?t contrived a system of taxation that would operate 
 
 mi\\ \ rfect equality. If the unequal operation of a law 
 maker, t unconstitutional, and if all laws of that description 
 may bi abrogated by any state for that cause, then, indeed, 
 .s the 3 ederal Constitution unworthy of the slightest effort 
 ''or 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 
 
 rusted to it as to the sheet-anchor of our safety, in the stormy 
 *imes of conflict with a foreign or domestic foe. We have 
 looked to it with sacred awe as the palladium of our liber- 
 ties, 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 1 Did we pledge ourselves to 
 the support of an airy nothing — a bubble that must be blown 
 away by the first breath of disaffection 1 Was this self-de- 
 stroying, visionary theory, the work of the profound states- 
 men, the exalted patriots, to whom the task of a constitu- 
 T.ional reform was intrusted 1 Did the name of Washing- 
 ion sanction, did the states deliberately ratify, such an anom- 
 aly in the history of fundamental legislation 1 No. We 
 were not mistaken ! The letter of this great instrument is 
 free from this radical fault : its language directly contra- 
 dicts the imputation : its spirit— its evident intent contra- 
 dicts it. No, we did not err ! Our Constitution does not 
 contain the absurdity of giving power to make laws, and an- 
 other power to resist them. The sages, Vv'hose 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 absurdity. Nor did the states, when they severally rat- 
 ified it, do so under the impression that a veto on the laws 
 of the United States was reserved to them, or that they 
 coUiM exercise it by implication. Search the debates in all 
 their conventions — examine the speeches of the most zeai- 
 ous opposers of Federal authority — look at the amendments 
 that were proposed. They are all silent — not a syllable ut 
 tered, not a vote given, not a motion made, to correct the 
 
380 APPENDIX. 
 
 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 reverence, the bond of 
 our Union, our defence in danger, the source of our prosper- 
 ity in peace. It shall descend, as we have received it, un- 
 corrupted by sophistical construction, to our posterity ; and 
 the sacrifices of local interest, of state prejudices, of per- 
 sonal animosities, that were made to bring it into existence, 
 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 
 unconstitutionally 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 rep- 
 resentatives who abuse it, and thus procure redress. Con- 
 gress 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 Constitu- 
 tion has given it to the representatives of all the people, 
 cliecked by the representatives of the states, and by the ex- 
 ecutive 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 magistrate elected by 
 the people, have any representation. Which is the most 
 discreet disposition of the power 1 I do not ask you, fellow- 
 citizens, which is the constitutional disposition — that instru- 
 ment 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 tho 
 last resort 1 Would you add a clause giving it to each ui 
 the states, or would you sanction the wise provisions already 
 made by your Constitution 1 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 ac- 
 knowledge to be destructive, and even absurd, as a general 
 provision 1 Carry out the consequences of this right vest- 
 ed in the different states, and you must perceive that the 
 crisis your conduct presents at this dav would recur when 
 
APPENDIX. 381 
 
 ever 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 pro- 
 ceeds of the tax will be unconstitutionally applied. If this 
 could be ascertained with certainty, the objection would, 
 with more propriety, be reserved for the law so applying the 
 proceeds, but surely cannot be urged against the laws levy- 
 ing the duty. 
 
 These are the allegations contained in the ordinance. Ex- 
 amine them seriously, my fellow-citizens — ^judge for your- 
 selves. I appeal to you to determine whether they are so 
 clear, so convincing, as to leave no doubt of their correct- 
 ness ; and even if you should come to this conclusion, how 
 fur 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 1 
 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 others and yet is this absurdity supposed 
 to be contained in an instrument drawn for the express pur- 
 pose of avoiding collisions between the states and the Gen- 
 eral Government, by an assembly of the most enlightened 
 statesmen and purest patriots ever imbodied for a similar 
 purpose. 
 
 In vain have these sages declared that Congress shall 
 have power to lay and collect taxes, duties, imposts, and ex- 
 cises ; 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 Con- 
 stitution shall be the " supreme law of the land ; and that 
 the judges in every state shall be bound thereby, anything in 
 the constitution or laws of any state to the contrary not- 
 withstanding." 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 profanation of 
 oaths ! miserable mockery of legislation ! if a bare major- 
 ity of the voters in any one state may, on a real or sup- 
 posed knowledge of the intent with which a law has been 
 
382 APPENDIX. 
 
 passed, declare themselves free from its operations — S3\ 
 here it gives too little, there too much, and operates une 
 qually — here it suffers articles to be free that ought to be 
 taxed, there it taxes those that ought to be free — 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 
 (Jonstitution with the right of deciding these questions ac- 
 cording 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 abro- 
 gate 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 unconstitutional from the motives of those who passed 
 them, which we can never with certainty know, from their 
 unequal operation ; although it is impossible, from the na- 
 ture of things, that they should be eqiral ; and from the dis 
 position which we presume may be made of their proceeds, 
 although that disposition has not been declared. This i? 
 the plain meaning of the ordinance in relation to laws 
 which it abrogates for alleged unconstitutionality. But it 
 does not stop there. It repeals, in express terms, an im- 
 portant part of the Constitution itself, and of laws passed 
 to give it effect, which have never been alleged to be un- 
 constitutional. 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 Con- 
 stitution, and treaties, shall be paramount to the state con- 
 stitutions 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 de- 
 :;ide against this provision of the Constitution. The ordi- 
 nance 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 dis- 
 regard their provisions ; and even makes it penal in a suiter 
 to attempt relief by appeal. It farther declares that it shal 
 not bo lawful for the authorities of the United Stat»vs or ot 
 
Ai:»Pi,NiiiX. W'6 
 
 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 ma- 
 jority 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 
 Constitution, which, they say, is a compact between sover- 
 eign states, who have preserved their whole sovereignty, 
 and, therefore, are subject to no superior ; that, because 
 they made the compact, they can break it when, in their 
 opinion, it has been departed from by the other states. Fal- 
 lacious as this course of reasoning is, it enhsts state pride, 
 and finds advocates in the honest prejudices of those wh(? 
 have not studied the nature of our government sufficiently 
 to see the radical error on which it rests. 
 
 Tlie 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 
 conventions 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 repre- 
 sented. 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 candidates having the majority of all the votes are cho- 
 sen. The electors of a majority of states may have giv- 
 en their votes for one candidate, and yet another may be 
 chosen. The people, then, and not the states, are repre- 
 sented 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 peo- 
 ple of all the states do not vote for all the members, each 
 state electing only its own representatives. But this cre- 
 ates 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 ac 
 
384 APPENDIX. 
 
 countable 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 prefer 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. 
 
 The Constitution of the United States, then, forms a gov- 
 ernment, not a league ; and whether it be formed by com- 
 pact between the states, or in any other manner, its charac- 
 ter is the same. It is a government in which all the peoplt 
 are represented, which operates directly on the people indi 
 vidually, not upon the states : they retained all the powei 
 they did not grant. But each state having expressly parted 
 with so many powers as to constitute, jointly with the oth- 
 er 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 connexion with 
 the other parts, to their injury or ruin, without committing 
 any offence. Secession, like any other revolutionary act, 
 indj be morally justified by the extremity of oppression ; 
 but to call it a constitutional right is confounding the mean- 
 ing of terms, and can only be done through gross error, or 
 to deceive 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 
 ()arties to that compact may, when they feel themselves ag- 
 ;;rieved, depart from it ; but it is precisely because it is a 
 »-onipact 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, thenjLhe breach incurs the desig- 
 nated or implied penalty. A league between independent na- 
 tions, generally, has no sanction other than a moral one ; or, 
 if it should contain a penalty, as there is no common supe- 
 
 •or, it cannot be enforced. A government, on the contrary 
 
APPENDIX. 385 
 
 always has a sanction, expressed or implied ; and in out 
 case, it is both necessarily implied and expressly given. An 
 attempt by force of arms to destroy a government is an of- 
 fence, by whatever 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 offend- 
 '^r, unless that right is modified, restrained, or resumed h} 
 the constitutional act. In our system, although it is modi 
 fied 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 anything 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 farther de- 
 velopment to my views on this subject. No one, fellow- 
 citizens, has a higher reverence for the reserved rights of 
 the states than the magistrate who now addresses you. No 
 one would make greater personal sacrifices, or official exer- 
 tions, 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 exercise of power. Men 
 of the best intentions and soundest views may differ in their 
 construction of some parts of the Constitution, 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 undi- 
 vided sovereignty of the states, and on their having formed 
 in this sovereign capacity a compact which is called the ■ 
 Constitution, 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 \n 
 licipated. 
 
 The states severally have not retained their entiie sover 
 eignty. It has been shown that, in becoming parts of a na- 
 tion, not members of a league, they surrendered many of 
 ^heir essential parts of sovereignty. The right to make 
 treaties, declare war, levy taxes, exercise exclusive judi- 
 cial and legislative powers, were all of them functions of 
 £50vereign power. The states, then, for all these important 
 purposes, were no longer sovereign. The allegiance of theii' 
 G G 
 
386 APPENDIX. 
 
 citizens was transferred, in the first instance, to the govern- 
 ment 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 sover- 
 eign and independent, whose citizens owe obedience to laws 
 not made by it, and whose magistrates are sworn to disre- 
 gard those laws when they come in conflict with those 
 passed by another 1 What shows conclusively that the 
 states cannot be said to have reserved an undivided sover- 
 eignty is, that they expressly ceded the right to punish trea- 
 son — 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. Un- 
 der 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 sta- 
 ges did we consider ourselves in any other light than as 
 forming one nation. Treaties and alliances were made in 
 the name of all. Troops were raised for the joint defence. 
 How, then, with all these proofs that, under all changes of our 
 position, we had, for designated purposes and with defined 
 powers, created national governments — 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 pleas- 
 ure 1 It is from an abuse of terms. Compact is used as 
 synonymous with league, although the true term is not em- 
 ployed, because it would at once show the fallacy of the rea- 
 soning. It would not do to say that our Constitution was 
 only a league ; but it is laboured 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 sover- 
 eign 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 
 
APPENDIX. 387 
 
 formed by compact, there would be n3 right ii 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 surren- 
 dered 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 imposed without their assent by 
 those on the Atlantic or the gulf, for their own benefit 1 
 Shall there be a free port in one state, and onerous duties 
 in another 1 No one believes that any right exists in a sin- 
 gle 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 con 
 vention : a repeal of all the acts for raising revenue, leaving 
 the government without the means of support ; or an acqui- 
 escence in the dissolution of the Union by the secession of 
 one of its 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 coun- 
 try in ruin, accede to the proposition ; 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 ordinance, declared to be out 
 of the Union. The majority of a convention assembled for 
 the purpose have dictated these terms, or, rather, this re- 
 jection of all terms, in the name of the people of South Car- 
 olina. 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 " 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 
 tiave called it. But the first magistrate of South Carolina, 
 vvhcn ne expressed a hope that, *' on a review by Congress 
 
388 APPENDIX. 
 
 and the functionaries of the General Government of the mer 
 its of the controversy," such a convention will be accorded 
 to them, must have known that neither Congress nor any 
 functionary of the General Government has authority to call 
 such a convention, unless it be demanded by two thirds of 
 the states. This suggestion, then, is another instance ol 
 the reckless inattention to the provisions of the Constitu- 
 ^--TT with which this crisis has been madly hurried on, or 
 <>e attempt to persuade the people that a constitutional 
 '-•'r»edy had been sought and refused. If the Legislature of 
 6outh Carolina " anxiously desire" a general convention to 
 consider their complaints, why have they not made applica- 
 tion for it in the way the Constitution points out 1 The as- 
 sertion that they " earnestly seek'* it is completely negatived 
 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 elect- 
 ed delegates to a state convention : that convention has or- 
 dained that all the revenue laws of the United States must 
 be repealed, or that they are no longer a member of the 
 Union. The governor of that state has recommended to tlie 
 Legislature the raising of an army to carry the secession 
 into effect, and that he may be empowered to give clearan- 
 ces 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 apprehended ; 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 performed 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 Caroli- 
 na, 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 exhort those 
 who have refused to support it to persevere in their deter- 
 mination to uphold the Constitution and laws of their coim- 
 try. 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 ad- 
 monish you, as the first magistrate of our common country, 
 not to incur the penalty of its laws, but use the influenct 
 
APPENDIX. 389 
 
 that a father would over his children whom he saw rushing 
 to certain ruin. In that paternal language, with that pater- 
 nal feeling, le^. me tell you, my countrymen, that you are de- 
 luded hy 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 treason, on which you 
 stand ! First, a diminution of the value of your staple com- 
 modity, 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 exaggera- 
 ted hy the unfounded theory you were taught to believe, 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 pa 
 Iriotic merit, to the opposition our fathers offered to the op- 
 pressive 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, tu 
 your native courage, to your sense of real injury, were used 
 to prepare you for the period when the mask which con 
 cealed the hideous features of disunion should be taken off. 
 It fell, and you were made to look with complacency on ob- 
 jects which, not long since, you would have regarded with 
 horror. Look back at the arts which have brought you tc 
 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 palpa- 
 bly unconstitutional and intolerably oppressive : it was ad- 
 ded that the right to nullify a law rested on the same j)rij^ 
 pie, but that it was a peaceable remedy J This characte? 
 which was given to it, made you receive, with too much con- 
 fidence, the assertions that were made of the unconstitution- 
 ality of the law, and its oppressive effects. Mark, my fei 
 low-citizens, that by the admission of your leaders, the un- 
 constitutionality must he palpable, or it will not justify either 
 resistance or nullification ! What is the meaning of the 
 word palpable^ in the sense in which it is here used ] — that 
 which is ap/arent to every one • that which no man of or- 
 
390 APPENDIX. 
 
 ojnary intellect will fail to perceive. Is the unconstitution- 
 ality of these laws of that description 1 Let those among 
 your leaders who once approved and advocated the princi-. 
 pie 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 
 coniidence, and endeavouring to mislead you now. In either 
 case, they are unsafe guides in the perilous path tliey urge 
 you to tread. Ponder well on liiis circumstance, and you 
 will know how to appreciate the exaggerated language they 
 iiddress to you. They are not champions of Jiberty, emulating 
 the fame of our revolutionary fatliers ; nor are you an ()}>- 
 pressed 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 unconstitution- 
 ally passed ; but that inequality must necessarily l>e remo- 
 ved. At the very moment when you were madly urged on 
 the unfortunate 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 diminu- 
 tion of duties, had already produced a considerable reduc- 
 tion, and that, too, on some articles of general consumption 
 in your state. The importance of this change was under- 
 stood, and you were authoritatively told that no farther al- 
 leviation of your burdens was to be expected, at the very 
 time when the condition of the country imperiously demand- 
 ed 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 
 to hurry you on to the position you have now assumed, and 
 forward to the consequences it wdl produce. Something 
 more is necessary. Contemplate the condition of that coun 
 try of which you still form an important part ! Consider it:^ 
 government, uniting in one bond of common interests and 
 general protection so many different states, giving to all 
 their inhabitants the proud title of American citizens, ])ro- 
 tecting their commerce, securing llieir literature and tlieir 
 arts, facilitating their intercommunication, defending theii 
 
APPENDIX. 391 
 
 frontiers, and making their name respected in the remotest 
 parts of the earth ! Consider 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, hu- 
 manity, 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 hon- 
 our, and say, We, too, are citizens of America ; Carolina 
 is oiffe 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 Ameri- 
 cans 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 hon- 
 our of the Union '? For the dream of a separate independ- 
 ence — a dream interrupted by bloody conflicts with your 
 neighbours, and a vile depend ance on a foreign power. If 
 your leaders could succeed in establishing a separation, 
 what would be your situation 1 Are you united at home — 
 are you free from the apprehension of civil discord, with all 
 its fearful consequences'! Do our neighbouring republics, 
 every day suffering some new revolution, or contending with 
 some new insurrection — do they excite your envy 1 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 emphat- 
 ically 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 ex- 
 ecution of the laws, and they know that such opposition 
 must be repelled. Their object is disunion ; but be not de- 
 ceived by names ; disunion, by armed force, is treason. 
 Are you really ready to incur its guilt 1 If you are, on the 
 heads of the instigators of the act be the dreadful consequen- 
 ces — on their heads be the dishonour, but on yours may fall 
 the punishment — on your unhappy state will inevitably fall 
 
392 APPENDIX. 
 
 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 gov- 
 ernment 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 malignant joy. It 
 is yei ii. your power to disappoint them. There is ye#time 
 to show that the descendants of the Pinckneys, the Sump- 
 ters, the Rutledges, and of the thousand other names which 
 adorn the pages of your revolutionary history, will not aban- 
 don that Union to support which so many of them fought, 
 and bled, and died. I adjure you, as you honour their mem- 
 ory — as you love the cause of freedom, to which they dedi- 
 cated their lives — as you prize the peace of your country, 
 the lives of its best citizens, and your own fair fame, to re- 
 trace your steps. Snatcii from the archives of your state 
 the disorganizing edict of its convention ; bid its members 
 to reassemble and promulgate the decided expressions of 
 your will to remain in the path which alone can conduct you 
 to safety, prosperity, and honour ; 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 stigmatized when 
 dead, and dishonoured and scorned while you live, as the 
 authors of the first attack on the Constitution of your coun- 
 try ! 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 wlio caused the dis- 
 order. 
 
 Fellow-citizens of the United States ! The threat of un- 
 hallowed 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 perhaps that of all free governments, may 
 depend. The conjunction demanded a free, a full, and ex- 
 plicit enunciation, not only of my intentions, hut of my prin- 
 
APPENDIX. 3C3 
 
 ciples of action ; and as the claim was asserted of a right 
 by a state to annul the laws of the Union, and even to se- 
 cede from it at pleasure, a frank exposition of my opinions 
 in relation to the origin and form of our government, and Ihe 
 construction I give to the instrument by which it was crea- 
 ted, 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 conli- 
 dence on your undivided support in my determination to ex- 
 ecute the laws — to preserve the Union by all constitutional 
 means — to arrest, if possible, by moderate but firm meas- 
 ures, the necessity 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 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 decision 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 bless- 
 ings with which He has favoured ours may not, by the mad- 
 ness of party or personal ambition, be disregarded and lost ; 
 and may His wise providence bring those who have pro- 
 duced this crisis to see the folly, before they feel the mis- 
 ery of civil strife ; and inspire a returning veneration foi 
 that Union which, if we may dare to penetrate His designs, 
 He has chosen as the only means of attaining the high des 
 tinies to which we may reasonably aspire. 
 In testimony wliereof, I have caused the seal of the Uni- 
 ted States to be hereunto affixed, having signed the 
 same with my hand. 
 Done at the city of Washington this 10th day of Decem- 
 ber, in the year of our Lord one thousand eight hun- 
 dred and thirty-tw^^), and of the Independence of tha 
 United States the fifty-seventli. 
 
 A.NDREW JACKSON 
 By the President : 
 
 Edw. Livingston, Sfr.refary of Slate. 
 
394 APPENDIX. 
 
 F, p. 360. 
 
 ortNION AS TO THE CONSTITUTIONAL VALIDITY OF THE 
 LA.WS 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, atfected, or impaired by the 
 legislative grant to Messrs. Livingston and Fulton. I should, 
 therefore, advise Mr. Gibbons, instead of making the appli- 
 cation he contemplates to the Legislature, 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 vs. Van Ingen and oth- 
 ers (9 Johns. Rep., 507) furnishes, as I humbly conceive, 
 no inferences hostile to the claim of Mr. Gibbons ; but, prop- 
 erly considered, 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 Jjivingston 
 and Fulton was absolutely void, as made in contravention 
 of the constitutional powers of Congress, first, " To pro- 
 mote the progress of science and the useful arts ;" and, sec- 
 ondly, whether it were repugnant to the power vested in 
 Congress "to regulate commerce." 
 
 I. On the first point, the court decided that the grant w^as 
 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 invent- 
 ors, by the grant of exclusive privileges ; secondly, that, con- 
 sidering them not as inventors, but as possessors and im- 
 .porters of a foreign invention, the state had an independent 
 power to reward them as such ; w hich power had not been 
 ceded to Congress at all. 
 
 It must be borne in mind, that Van Ingen and his associ- 
 ates 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 alrea^ 
 
APPENDIX. 395 
 
 been introduced by Livingston and Fulton. Throughout 
 the whole discussion, the powers of the state were assimi- 
 lated to the powers of Congress ; and two of the learned 
 judges, by whom opinions were delivered, Mr. Justice 
 Thompson and Mr. Justice Yates, explicitly admit that the 
 state powers can only be legitimately exercised in harmoni/ 
 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 intro- 
 duced 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 
 rendered 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 re- 
 ward inventors, or its independent power to reward the im- 
 porters of foreign inventions, can prohibit the introduction 
 and use, within its jurisdiction, of all future inventions, al- 
 though secured by patent, in relation to the same object ; or, 
 by a still more violent stretch of authority, transfer the ex- 
 clusive right to such inventions from the patentee to the 
 legislative favourite. Yet, if the terms of the original 
 grant to Messrs. Livingston and Fulton, and of the various 
 laws passed to enlarge and secure that grant, are to be ta- 
 ken in their literal extent, such was to be their operation. 
 
 By the act of March, 1798, all the privileges granted before 
 lo John Fitch and his representatives were transferred to Mr. 
 I^ivingston. These privileges were "the sole and exclusive 
 right of constructing, making, using, employing, or naviga- 
 ting 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, cStc, 
 within the territory and jurisdiction of this state." It must 
 be remembered, that the grant to Fitch was made previous- 
 ly to the adoption of the present Federal Constitution, and he 
 fore the state had surrendered this portion of its sovereign 
 
396 APPENDIX. 
 
 ty to the General Government ; while it remained m full and 
 acknowledged possession of the powers to reward genius 
 and skill, and to encourage and foster navigation and com- 
 merce, by the means resorted to in favour of John Fitch. 
 But she had ceded those powers, which, to be effectual, 
 must be exclusive, to the United States, before the monopo- 
 ly — 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 producing and ap- 
 plying that force, which human ingenuity has discovered or 
 can invent. 
 
 By the act of 1808, creating the forfeiture, it is declared 
 that " no person or persons, without the license of the per- 
 sons entitled to the exclusive right, shall navigate on the wa- 
 ters of this state, or witliin 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 navigating 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 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 in- 
 ventors, but, in one important region, would stop the prog- 
 ress of discovery itself The very elements by which im- 
 provements 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 alU Where are we to fix the limit 
 of state power 1 Why may not the states, respectively, 
 grant monopolies embracing all the possible elements aiul 
 materials, of which inventions can be framed, and every 
 possible subject upon which ingenuity can operated and 
 thus anticipate and frustrate, m /oto, the exercise of the con- 
 stitutional power of Congress, to secure an exclusive right to 
 inventors. 
 
 It may be said that this is an extreme and improbable 
 supposition. I admit it to be improbable that the states 
 will attempt such an exercise of power , bu* it is by ex- 
 treme cases, or. to speak with more propriety, it is by pur- 
 
APPENDIX. 397 
 
 \ 
 
 suing a doctrine to its legitimate consequences, that ^ve are 
 frequently best enabled to detect or illustrate its absurdity. 
 If the constitutional power of Congress can he taken away 
 by the grant of a state monopoly 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 conse- 
 quence, of necessity, follows. It was affirmed in argument, 
 by one of the learned counsel "*■ by whom the claim of Messrs. 
 l.ivingston and Fulton was so ably vindicated in the Court 
 of Errors, that the only effect of a patent is to confer on the 
 inventor a?i exclusive right of properly in his discovery; that, 
 at common law, an invention or discovery is converted 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 the muni- 
 cipal law^s of the several states, who may prohibit the use 
 o-^ any particular invention, as noxious to the health, injuri- 
 ous 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 ut- 
 most 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 perni- 
 cious ; in other words, whether it be one for which a patent 
 ought or ought not to be granted. The object of tbe con- 
 stitutional 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 thv 
 use of the noxious discovery. 
 
 The grant of the power in question to Congress would, 
 as it appears to me, be completely nugatory, by the admis 
 sion that the states, in the exercise of an absolute discre 
 tion, may prohibit the introduction or use of any particular 
 mvention, for which a patent has been regularly obtained 
 Were this construction of the Constitution to prevail, tho 
 statps. it seems to me, would retain, substantiai'v. the very 
 
 * The late Thomas Addis Emmet 
 
399 APPENDIX. 
 
 pf vver they nominally have parted with. What is the Con- 
 stitution 1 It is the instrument hy which the states have 
 severally ceded to the Federal Government a certain por- 
 tion of their own sovereignty, to be exercised for the com- 
 mon 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 privileges 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, have 
 they parted with 1 What portion of their sovereignty, quoad 
 hoc, have they ceded 1 The whole value of a patent consists, 
 I apprehend, in the exclusive privilege of using the inven- 
 tion, which it is meant to ascertain and secure. To strip 
 the inventor of this, in ordef 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 overgrown and accumulating wealth of some unpopular 
 landlord, should, on the common pretext of the public good, 
 release his tenants, in perpetuuin, 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 ob- 
 noxious 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 difference 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 my intention to deny 
 that the states may, by their own laws, define and modify 
 the rights of property within their respective jurisdictions, 
 ivhcn such rights have their origin in the state or nfunicipql 
 law. I am free to allow, that not only the exercise of those 
 rights may, by the san. > law, bo controlled and regulateil, 
 
APPENDIX. 399 
 
 but even that the rights themselves may be annulled and 
 jlestroyed. But it seems to have been forgotten that the 
 right of a patentee is not derived from state authority, but 
 lias its foundation in the Constitution and laws of the Uni- 
 ted States. As the state prohibition of its exercise, in 
 whatever terms expressed, under whatsoever pretext made, 
 however coloured and disguised, would, m truth, be a vio- 
 lation 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 far- 
 amount. 
 
 II. I censor the grant to Messrs. Livingston and Ful- 
 ton as repugnant, also, to that clause of the Constitution of 
 the United States which vests in Congress the power " to 
 regulate commerce 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 mo- 
 tive for assembling the Federal Convention. 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 obsta 
 cle to the ratification of the new Constitution. It possessed 
 the best harbour upon the Atlantic coast ; the fertility of its 
 western territory was known ; the rapid increase of its pop- 
 ulation was confidently anticipated ; the tide of immigration 
 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 Constitu- 
 tion in tliis state, until it became certain that, by the assent 
 of "ymie states,'" it would go into immediate operation 
 among them, while this state and the other recusant mem- 
 bers 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. 
 
 It remains only to consider in what manner. Mr. Gibbons 
 may best avail himself of the rights conferred by his pat- 
 ents and coasting license under the Constitution and laws 
 of the United States. My advice is, that he send his boat 
 
400 APPENDIX. 
 
 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 jurisdiction. Nor need he 
 i)e deterred by fear of having his boats seized under the act 
 of 1811, authorizing Messrs. Livingston and Fulton imme- 
 diately to seize and keep possession of his property before 
 condemnation, and without trial ; thus giving them the ben- 
 efit of an execution before the verdict of a jurv or the judg- 
 ment of a court, and without the interventionlW'the sherilf; 
 for I hold this monstrous provision to be so clearly repug- 
 nant 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. 
 
 W. A. DUER. 
 Albany, July 14th, 1816. 
 
 G,p. 
 
 A.N ORDINANCE FOR THE GOVERNMENT OF THE TERRITO- 
 
 RY 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 gov- 
 -ornment, be one district ; subject, however, to be divided 
 into two districts, as future circumstances may, in the opin 
 ion of Congress, make it expedient. 
 
 Be it ordained by the authorihj aforesaid, that the estates 
 i)oth of resident and non-resident proprietors in the said ter- 
 ••itory dying intestate, shall descend to, and be distributed 
 imong 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 chil 
 (Iren 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 distinction between kindred of the 
 whol** 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 relatiye to 
 
APPENDIX. 401 
 
 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, es- 
 tates in the said territory may be devised or bequeathed 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 ex- 
 ecution thereof duly proved, and be recorded within one 
 fear after proper magistrates, courts, and registers shall be 
 appointed for that purpose ; and personal property may be 
 transferred by delivery ; saving, however, to the French 
 and Canadian inhabitants, and other settlers, of the Kaskas- 
 ties, Saint Vincent's, and the neighbouring villages, who 
 ^ave heretofore professed themselves citizens of Virginia, 
 \heir laws and customs now in force among them, relative 
 10 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 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 
 ^ne thousand acres of land, w^hile in the exercise of his of- 
 fice. 
 
 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 authentic copies of such acts and proceedings, 
 every six months, to the secretary of Congress : there shalJ 
 also be appointed a court, to consist of three judges, any two 
 of whom to form a court, who shall have a common law ju- 
 risdiction, and reside in the district, and have each therein 
 a freehold estate in five hundred acres of land, while in the 
 exercise of their offices ; and their commissions shall con- 
 tinue in force during good behaviour. 
 
 The governor and judges, or a majority of them, shali 
 Hh 
 
402 APPENDIX. 
 
 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 disapproved 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 commander- 
 in-chief of the militia, appoint and commission all officers 
 in the same below the rank of general officers ; all general 
 Dfficers shall be appointed and commissioned by Congress. 
 
 Previous to the organization of the Geneial Assembly, the 
 governor shall appoint such magistrates and other civil offi- 
 cers, in each county or township, as he shall find necessary 
 for the 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 magis- 
 trates 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 gov- 
 ernor 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 inhabi- 
 tants, of full age, in the district, upon giving proof thereof 
 to the governor, they shall receive authority, with time and 
 j)lace, to elect representatives from their counties or town- 
 ships to represent them in the General Assembly ; provided 
 that for every five hundred free male inhabitants, there shall 
 be one representative, and so on progressively with the 
 number of free male inhabitants shall the right of represent- 
 ation increase, until the number of representatives shall 
 amount to twenty-five ; after which the number and propor- 
 tion 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 i)een a citizen of one of 
 
APPENDIX. 403 
 
 the United States three years, and be a resident m the dis- 
 trict, 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. 
 
 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. 
 'I'he legislative council shall consist of five members, to 
 continue in oflice five years, unless sooner removed by Con- 
 gress, any three of whom to be a quorum ; and the mem- 
 bers 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, residents 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 va- 
 cancy shall happen in the council, by death or removal from 
 oflice, the House of Representatives shall nominate two per 
 sons, qualified as aforesaid for each vacancy, and return 
 their names to Congress, one of whom Congress shall ap- 
 point 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 aforesaid, and 
 return their names to Congress ; five of whom Congress 
 shall appoint and commission to serve as members of the 
 council five years, unless sooner removed. And the gov- 
 ernor. 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. An(J 
 all bills having passed by a majority in the house, and by a 
 
404 APPENDIX. 
 
 majority in the council, shall be referred to the governor loi 
 his assent ; but no bill or legislative act whatever shall be 
 of any force without his assent. The governor shall 'have 
 power to convene, prorogue, and dissolve the General Assem- 
 bly, 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 
 officers 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 
 delegate to Congress, who shall have a seat in Congress, 
 with a right of debating, but not of voting during this tem- 
 porary government. 
 
 And for extending the fundamental principles (^f civil and 
 religious liberty, which form the basis whereon these repub- 
 lics, their laws and constitutions, are erected ; to fix and 
 establish those principles as the basis of all laws, constitu 
 tions, and governments, which forever hereafter shall be 
 formed in the said territory ; to provide also for the estab- 
 lishment 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 pe- 
 riods 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 peacea[>id 
 and orderly manner, shall ever be molested on account of 
 his mode of worship or rehgious sentiments in the said ter- 
 ritory. 
 
 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 accord- 
 ing to the 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 fuies shall be 
 moderate, and no cruel or unusual punishments shall be 
 ui dieted. No man shall be deprived of his liberty or ])rop- 
 ♦'ily but by tlic judgment of his peers or the law f»f the 
 
APPENDIX. 405 
 
 fand ; and should the public exigencies 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 declared that no 
 law ought ever to be made, or have force in the said terri- 
 tory, that shall in any manner whatever interfere with, or 
 aflfect private contracts or engagements, bona fide, and with- 
 out fraud previously formed. 
 
 Art. III. Religion, morality, and knowledge being neces- 
 sary to good government and the happiness of mankind, 
 schools and the means of education shall forever be en- 
 couraged. The utmost good faith shall always be observed 
 towards the Indians ; their lands and property shall never 
 be taken from them without 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 preventing 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 confeder- 
 acy of the United States of America, subject to the Articles 
 of Confederation, and to such alterations therein as shall 
 be constitutionally made, and to all the acts and ordinan- 
 ces of the United States in Congress assembled conforma- 
 ble thereto. The inhabitants and settlers in the said terri- 
 tory shall be subject to pay a part of the Federal debts, con- 
 tracted or to be contracted, and a proportional part of the 
 expenses of government, to be apportioned on them by 
 Congress, according to the same common 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 direction of the legisla- 
 tures 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 pri- 
 mary disposal of the soil by the United States in Congress 
 assembled, nor with any regulations Congress may find ne 
 cessary for securing the title in such soil to the bona fide 
 purchasers. No tax shall be imposed on lands the property 
 of the United States : and in no case shall non-resident 
 
406 APPENDIX. 
 
 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 Con- 
 federacy, 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 bounda- 
 ries 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 hne 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 territori- 
 al line : Provided, however, and it is farther 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 govern- 
 ment : Provided the constitution and government so to be 
 formed shall be republican, and in conformity to the princi- 
 ples 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 punish- 
 
APPENDIX. 407 
 
 >nent of crimes, whereof the party shall have heen duly con- 
 victed : Provided, always, that any person escaping into the 
 same, from whom labour 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 
 lal?our or service as aforesaid. 
 
 Dope 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 sover 
 oi^nty and independence the twelfth. 
 
 WILLIAM GRAYSON, Chairman. 
 Charles Thomson, Secretary. 
 
INDEX. 
 
 Page 
 
 Admiralty JuRisDtoTiON. 
 Scv District Courts, Judi- 
 cial Power, &c. 
 
 Admission of States. 
 Power of admitting new states 262 
 Construction given to it . . 269 
 
 Aliens. 
 Who so termed . . .233 
 [nducements for them to be- 
 come citizens . . . 234 
 Mode prescribed . . . ib. 
 Rights acquired thereby . . ib. 
 See Naturalization. 
 
 Alleoianck. 
 Nature of that due by citizens 
 of the United States . . 232 
 
 Ambassadors. 
 By whom appointed . . 104 
 In what courts they may sue 
 
 and be sued . . . 128-130 
 Power of sending and receiving 159 
 Infringements on their rights, 
 
 how punishable . . . 195 
 
 Amendment of Constitution. 
 Necessity of such power . . 267 
 Mode of exercising it . . 268 
 Restrictions upon it . . . ib. 
 Amendments adopted . . 269 
 Their nature and design . 270 
 
 Effect and construction of one ib. 
 
 Appeals. 
 See Judicial Power, Supreme 
 Court, &c. 
 
 Appointments. 
 
 Power of, where vested . . 104 
 
 Vacancies, how supplied . 105 
 
 What vacancies intended . ib. 
 
 Arbiter. 
 Seo Judicial Power, Supreme 
 Court. &e. 
 
 Army and Navy. 
 Commander-in-chief of . .101 
 Power of raising and equipping 154 
 Necessity and extent of power 150 
 Restrictions on the states re- 
 lating to them . . , ib. 
 upon Congress 157 
 
 Arsenals and Forts. 
 See Local Jurisdiction. 
 Arts (useful). 
 See Science. 
 
 Attainder. 
 See Bills of Attainder 
 
 Authors and Invertors 
 See Science. 
 
 Auxiliary Powers 
 Power to make laws "neces- 
 sary and proper" to execute 
 other powers . . . JOfi 
 
 Foundation and meaning of it ib. 
 Judicial construction of it . 312 
 Implied powers, how delegated 314 
 See Powers of Government. 
 
 Bane. 
 
 See Corporations. 
 
 Bankruptcy. 
 
 Power to establish uniform sys- 
 tem 235 
 
 Why vested in National (Jov- 
 ernment .... ib. 
 
 Object of bankrupt laws . . ib. 
 
 How distinguished from insol- 
 vent laws .... 236 
 
 Bankruptcy defined . . . ib. 
 
 To what persons confined . ib. 
 
 Nature of power relative to it ib. 
 
 Power retained by states . 237 
 
 State laws cannot discharge 
 from contracts, except in cer- 
 tain cases .... 238 
 
 Why no uniform system \xam "n 
 
410 
 
 INDEX. 
 
 Page 
 
 Bills of Attainder. 
 
 Prohibited to states . . . 273 
 
 Delinitions of . . . . ih. 
 
 To what cases confined . . ib. 
 
 Dills of Credit. 
 
 Their issue prohibited to states 273 
 
 Reasons therefor . . . ib. 
 
 Judicial construction of the 
 
 power of Congress in relation 
 
 to them 275 
 
 Borrowing Money. 
 Power of, where vested . .179 
 How conferred . . . ib. 
 
 Extent and construction . . ib. 
 
 Captures. 
 Rules concerning . . . 153 
 Power of Congress to make 
 
 them ib. 
 
 Nature and extent of the power ib. 
 Judicial construction of it . 154 
 
 Circuit Courts. 
 
 Organization and sessions . 140 
 
 Legislative regulations of their 
 proceedings .... 141 
 
 Original and exclusive jurisdic- 
 tion ib. 
 
 Tn regard to crimes and offences ib. 
 
 Original and concurrent juris- 
 diction ib. 
 
 In civil suits .... ib. 
 
 Jurisdiction as to copy-rights 
 and patents .... 142 
 
 (n cases where United States 
 are parties .... ib. 
 
 A p|)ellate jurisdiction . . ib. 
 
 I n what sense "Inferior Courts" ib. 
 
 Proceedings, how to be inter- 
 preted 143 
 
 Citizens. 
 Who are citizens of U. S. . 231 
 Who native citizens . . 232 
 
 Persons born within the U. S., 
 
 who are not citizens . . 233 
 Persons born abroad, who are ib. 
 See Aliens, Allegiance, Nat- 
 uralization, &c. 
 
 Coasting License. 
 See Commerce. 
 
 Coin and Coinino. 
 8cc Money, Powers of Gov- 
 ernment, &c. 
 
 Fsge 
 
 Commerce. 
 
 Power of regulating it with for- 
 eign nations .... 196 
 
 Where and how vested . , ib. 
 
 Its nature and necessity . . ib. 
 
 To what it extends . . .197 
 
 With what exception . . ib. 
 
 Judicial construction of it ib. 
 
 How far it comprehends navi- 
 gation within a state . 198 
 
 To what vessels it extends 203 
 
 How far it authorizes sale of 
 imported articles . . . 206 
 
 States, how far restricted from 
 preventing such sale . . ib 
 
 Extends incidentally to other 
 and what objects . . .20'* 
 
 Applied to protection of domes- 
 tic industry .... ib. 
 
 To prohibition of slave-trade 206 
 
 Power of regulating commerce 
 among the states . . .213 
 
 Its general objects and extent iG 
 
 How far restricted . . . 21S 
 
 What commerce reserved to 
 states ib. 
 
 When power of Congress may 
 be exercised within a strjte 214 
 
 Judicial construction of this 
 power ib 
 
 Applied to incidental objects . ib. 
 
 Restrictions on states . . ib. 
 
 Power of regulating Indian 
 trade 215 
 
 How vested and interpreted . 220 
 
 Extent of its operation . . ib. 
 
 Trade and intercourse with In- 
 dians by individuals, how re 
 strained ib. 
 
 See Indian Tribes. 
 
 Common Arbiter. 
 
 .See Judicial Power, Supreme 
 Court, &c. 
 
 Common Law. 
 
 How far established in the col- 
 onies 50 
 
 Benefit of, claimed by Congress ib. 
 
 Protects absolute rights . . 51 
 
 Regulated relative rights of col- 
 onists . . . . ib 
 
 Punished offences against pub- 
 lic justice . . . , ib 
 
 How far adopted by states . 52 
 
 Basis of their laws . . ib. 
 
 State Constitutions made in rcf- 
 erenco to its validity . ib 
 
INDEX, 
 
 411 
 
 lu existence presupposed by 
 
 Constitution of U. S. . . 52 
 Referred to for explanation of 
 
 its powers and provisions . 54 
 How fur Common Law in force 
 
 under the Constitution of U. 
 
 S lb. 
 
 Congress. 
 
 IIow constituted . . .62 
 
 Disabilities of members . . G6 
 
 Their privileges and powers . ib. 
 
 Elections, returns, and qualifi- 
 cations ib. 
 
 In what manner these powers 
 are exercised . . .67 
 
 Qiioruin of each HouSe . . ib. 
 
 Adjournments and journals . ib. 
 
 Freedom of debate . . . ib. 
 
 Time and manner of assem- 
 bling 80 
 
 Time and manner of adjourning 81 
 
 Period of dissolution . . ib. 
 
 Sec Legislative Power, 
 House of Representa- 
 tives, Senate, &.c. 
 
 Constitution. 
 
 Definition of one . . • 43 
 
 Oriuinofthem .... ib. 
 
 Where they may exist . . ib. 
 • When derived from act of the 
 Government . . . .43 
 
 When from written compact . ib. 
 
 Dirterent modes of framing one ib. 
 
 Which most practicable . . ib. 
 
 Which preferable . . . ib. 
 
 How obtained .... ib. 
 
 Theory of a Republican Ctmsti- 
 
 tution 44 
 
 Advantages of a written one . ib. 
 
 Evils of a traditionary one . 45 
 
 Reasons for preferring one writ- 
 ten . . . . . ib. 
 
 Constitution of United States. 
 
 On what foundation erected . 47 
 
 On what principles formed . ib. 
 
 From what materials . . 48 
 
 In what manner adopted . ib. 
 
 Fnr what objects designed . 54 
 
 Effect of its adoption on the 
 
 states ib. 
 
 Elfect of its adoption on the 
 
 former Confederation . . ib. 
 
 Principle of representation, how 
 
 applied in it . . . . ib. 
 
 Powers of Government, liow 
 
 delegated by it . 55 
 
 PapB 
 How to be examined . . £5 
 Constitutional Law defined 42 
 
 Constitutions (State). 
 Foundations, how laid . . 47 
 Source of their authority . 43 
 
 On what principle founded . ib. 
 Powers of Government, how 
 vested and distributed by 
 
 them 43 
 
 Former civil and municipal in- 
 stitutions, how far retained 50 
 Natural and moral rights se 
 
 cured 51 
 
 See State Governments, 
 States, &c. 
 
 Consuls and Vice-consuls. 
 By whom appointed . . 104 
 
 In what Courts they may sue 
 
 and be sued or prosecuted 128-9 
 See Judicial Power. 
 
 Contracts. 
 See Laws impairing Contracts. 
 
 Copy-right. 
 See Science. 
 
 Corporations. 
 Grants, of irrevocable . . 262 
 Are Contracts within the mean- 
 ing and protection of the Con- 
 stitution . . . . ib 
 Creation of, incident to sover- 
 eignty 315 
 
 Nature and extent of power ib. 
 See Auxiliary Powers, Laws 
 impairing Contracts, &c. 
 
 Counterfeiting. 
 Power of punishing . . .221 
 To what objects it extends . ib 
 Nature and necessity of power ib 
 See Powers of Government. 
 Courts. 
 See Impeachments, 
 Judicial Power, 
 Circuit Courts, 
 District Courts, 
 State Courts, and 
 Magistrates, and 
 Supreme Court. 
 Debts. 
 See Tender Laws. 
 Declaration of Independknck 
 
 Sec iNDEPEJi^ENCK. 
 
412 
 
 INDEX. 
 
 District Courts. 
 
 Page 
 
 How organized . . .143 
 
 Stated and special terms . ib. 
 
 Exclusive jurisdiction . . ib. 
 Original jurisdiction . . ib. 
 
 Admiralty jurisdiction . . ib. 
 Concurrent jurisdiction with 
 
 Circuit Courts . . . ib. 
 Jurisdiction exclusive in certain 
 
 cases of State Courts . . ib. 
 With respect to patents . . 144 
 Power of judge at chambers . ib. 
 See Judicial Power. 
 
 District of Columbia. 
 Seat of Government . . 258 
 Courts organized therein . . ib. 
 Privileges of its inhabitants . 259 
 Their disabilities . . . ib. 
 See Local Jurisdiction. 
 
 Dock Yards. 
 See Local Jurisdiction. 
 
 Domestic Industry. 
 Encouraged by protecting du- 
 ties 173 
 
 Upon what construction . . 174 
 By whom question of Constitu- 
 tionality must be decided 176 
 Commercial restrictions applied 
 
 to the purpose . . .197 
 To what extent, and upon what 
 
 ground of construction . . ib. 
 How point must be decided . ib. 
 See Commerce, Powers of 
 Government, and Taxa- 
 tion and Taxes. 
 
 DUTIFS. 
 
 See Imposts and Duties, Tax- 
 ation AND Taxes, &c. 
 
 Electors (or President and 
 
 Vice-president). 
 How chosen . . . .90 
 Number in each s*ate . . ib. 
 Requisite qualifications . . ib. 
 At what time to be chosen . 91 
 Time for their assembling . ib. 
 Mode of their proceeding to 
 
 election . ... 92 
 
 I>jl.tA &ubacqi»f nt to election ib. 
 
 See PJIB8IDENT OF U. S. 
 
 r.irprrTivE Power 
 (•euer.i) functions 44 
 
 81 
 
 Objects of this department 
 Extent of discretionary power 
 Obligation to obey and enforce 
 
 laws 
 
 Requisite qualities . 
 Power apportioned to it . 
 Advantage of its unity . 
 Evils of its division or plurality 
 How vested by Constitution of 
 
 U. S. . . 
 See President of U. S. 
 
 Expatriation. 
 Right of. denied by English 
 
 law 232 
 
 How regarded by writers on 
 
 public law .... ib. 
 How far admitted by State Con 
 
 stitutions .... ib. 
 How far settled in Courts of 
 
 U. S 233 
 
 See Naturalization, &c. 
 
 Ex POST facto Laws. 
 Prohibited to states , . 277 
 
 Definition and meaning . . ib 
 
 Felonies (on the Sea). 
 Power to define and punish . 191 
 To what they amount in eflect 193 
 To what extent declared piracy, • 
 and punished as such . . ib. 
 Power, how far exclusive . 104 
 See Piracy. 
 
 Fleets. 
 See Army and Navy. 
 Forts. 
 See Local Jurisdiction 
 Government. 
 Different forms of ... 42 
 Powers of, how divided . 44 
 
 How far distinct . . .45 
 Separate departments . . ib 
 Provincial governments . . 4'J 
 How organized . . . ib 
 
 See Constitution of U. S., 
 Constitutions (State), 
 Powers of Government, 
 State Governments. 
 
 Guarantees. 
 Nature, terms, and effect of tho 
 
 gunranlees to the states CIGI 
 
 Tbpir r^(>np<'i'>tv find extent ib. 
 
INDEX. 
 
 4ia 
 
 Page 
 
 Republican form of Govern- 
 ment 265 
 
 Protection from invasion . 266 
 from domestic vio- 
 lence ib. 
 
 When to be enforced . . 267 
 
 Habeas Corpus. 
 Benefit of writ secured . . 51 
 By whom to be allowed . . 140 
 
 House of Representatives. 
 
 How constituted . . .66 
 
 On what principle of represent- 
 ation ib. 
 
 Members, how^ chosen . . ib. 
 
 For what term . . . ib. 
 
 •Qualifications of electors . ib. 
 
 of members . 67 
 
 How apportioned among the 
 states 68 
 
 Number of representatives . ib. 
 
 /?af/o of representation . . 69 
 
 Exclusive p»wers of House of 
 Representatives . . .71 
 
 Money bills . . . .72 
 
 When to choose President of 
 U. S 93 
 
 Mode of conducting election . ib. 
 
 See Congress, Legislative 
 Power, &c. 
 
 Impeachments. 
 Nature of power, and where 
 
 vested 71 
 
 Court of Impeachments . . 76 
 
 Impeachments, whence derived ib. 
 
 Senate, why selected as court . ib. 
 
 Objects of the jurisdiction . 77 
 
 Causes of impeachment . . ib. 
 
 Persons liable thereto . . ib. 
 Construction of Constitution in 
 
 relation to them . . . ib. 
 
 Quorum of the court . . ib. 
 
 President of the court . . ib. 
 
 When chief-justice presides . ib. 
 
 Power of presiding officer . ib. 
 •See Judicial Power, Senate, 
 
 &c. 
 
 Implied Powers. 
 S'cc'' Auxiliary Powers, Pow- 
 ers OF Government, &c. 
 
 Imposts and Duties. 
 How (ar prohibited to states, 
 reason and necessity of ■* 300 
 
 Page 
 Judicial construction . . 301 
 See Powers of Government, 
 Taxation, and Taxes. 
 
 Independence. 
 Effect of its declaration . . 48 
 As to persons born previously 231 
 As to citizenship . . . ib. 
 As to British subjects . . 232 
 
 Indian Tribes. 
 
 Intercourse with, regulated . 215 
 
 What relations acluiowledged 216 
 
 Those residing within limits of 
 U. S., how considered . . 217 
 
 How distinguished from "for- 
 eign nations" . . . ib. 
 
 Relations with European dis- 
 coverers, how determined . 219 
 
 How far same principle adopted 
 by U. S ib. 
 
 Practical results . . . 220 
 
 How considered in treaties and 
 laws ib. 
 
 Their territory, how regarded ib. 
 
 See Commerce, Judicial Power 
 &c. 
 
 Internal Improvements. 
 Right of appropriating money 
 for, claimed under what pow- 
 er 222 
 
 How far admitted . . . 224 
 See Commerce, Postoffices, 
 and postroads, &c. 
 
 Interpretation of Constitu- 
 tion. 
 Right of interpreting Constitu- 
 tion, where vested . . 121 
 Final interpreter provided . 333 
 See Judicial Power, 
 Supreme Court, 
 Supreme Law. 
 
 Judicial Power. 
 General functions and objects . 44 
 Nature of the power . .110 
 Effect of its omission . . 11 J 
 How far auxiliarj' to executive ib. 
 How far it partakes of legisla- 
 tive power .... ib. 
 Objects of this department . ib. 
 Coextensive with legislative 
 
 power ib 
 
 How recognised in Constitution ib. 
 
 How vested . . . 112 
 
414 
 
 INDEX. 
 
 rage 
 
 In \vha.t manner constitutea . 112 
 Appointment of judges . . ib. 
 Tenure of their offices . .113 
 x\dvantages of such tenure . ib. 
 Provision for their support . 115 
 Necessity of their independence ib. 
 Responsible for misconduct .116 
 Objects of jurisdiction . . 117 
 Necessity and advantages of it 119 
 As to cases arising under Con- 
 stitution .... ib. 
 As to cases arising under the 
 
 laws of tlie U. S. . . . ib. 
 As to treaties .... ib. 
 As to interpreting Constitution 121 
 Objects of separating judicial 
 
 from other departments . 124 
 Power over Constitutions and 
 
 laws of the states . . ib. 
 
 Power of final interpretation . ib. 
 Distribution of jurisdiction . 125 
 Supreme Court . . . 127 
 
 Appellate jurisdiction . . ib. 
 In what cases extended to de- 
 cisions of state courts . . 133 
 Power of U. S. Courts to issue 
 
 process, &c 134 
 
 Of judges to relieve by Habeas 
 
 Corpus 140 
 
 Circuit Courts .... ib. 
 Judicial Districts . . . ib. 
 District Courts . . .143 
 
 Territorial Courts . . .144 
 State Courts and magistrates . 147 
 See Courts, Powers ok Gov- 
 ernment, &c. 
 
 Jurisdiction. 
 See Courts, Local Jurisdic- 
 tion, Judicial Power, &.c. 
 Law. 
 
 Ree Common Law, Supreme 
 Law, &c. 
 
 liAW OF Nations. 
 Power to punish offences 
 
 against 191 
 
 !l(»w far exclusive . . . 194 
 
 Part of common law of states . ib. 
 
 Ollences against, wliat . . 195 
 
 How punishable . . . ib. 
 
 Policy of the law . . . ib. 
 See Judicial Power. 
 
 Laws impairing Contracts. 
 Prohibited to the states . . 278 
 I'. »l icy of the restriction . . ib. 
 
 / 
 
 Pag« 
 
 To what contracts it extends 279 
 Obligation of contracts . . ib. 
 Judicial construction of . . 280 
 See Powers of Government. 
 
 Legislative Power. 
 
 General functions . . .44 
 
 How organized in colonies . 47 
 
 in the states . 48 
 
 How vested by Const, of U. S. ^^9 ' 
 Constituent parts . . .62 
 Objects of its division . . ib. 
 Evils of a single legislative body 63 
 Examples of ... . ib. 
 Farther reason for division in 
 
 Government of the U. S. . 6i» 
 Upon what principle effected . 66 
 Objects to which the legislative 
 
 power of the U. S. extends . ib. 
 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 25b 
 To what places it extends . 257 
 Necessity of such power . . ib. 
 In what mode executed . . 258 
 See District of Columbia, &c. 
 
 Manufactures. 
 See Domestic Industry. 
 
 Marque and Reprisal. 
 Signification of . . .152 
 
 By what authority granted . ib. 
 Elfect of the grant . . . ib. 
 
 In what cases granted . . ib 
 
 Nature and necessity of power ib. 
 Prohibited to states . . .271 
 Upon what grounds . . .272 
 
 Militia. 
 Power of regulating and calling 
 
 forth 158 
 
 Objects of the power . .150 
 Extent, and cases for its exer- 
 cise *^' 
 
 Effect of its exercise on militia 163 
 
 Mode of their organization, &c. ib. 
 
 By whom " called forth" . ib 
 
 Who to judge of exigencies . •* 
 
INDEX. 
 
 Page 
 Obligation of the Slates . . 164 
 Duty of state officers . . ib. 
 When concurrent power of 
 
 states over militia ceases . 165 
 When militia become JVational ib. 
 
 Ministers (Public). 
 See Ambassadors. 
 
 Money. 
 Power of coining . . . 226 
 Regulating value of coins . ib. 
 How rendered exclusive . . 227 
 Its necessity and advantage . ib. 
 Objects of rendering power ex- 
 clusive ib. 
 
 Why prohibited to the states . 272 
 See Borrowing Money, Coins 
 AND Coining, &c. 
 
 Naturalization. 
 Power to establish uniform sys- 
 tem 229 
 
 Necessarily exclusive . . ib. 
 Who may be naturalized . 233 
 
 Mode of proceeding . . . 234 
 Effect of naturalization . . ib. 
 See Aliens, Citizens, &c. 
 
 Natural Rights. 
 
 In what they consist . . 50 
 
 Privileges subordinate thereto 51 
 
 How secured in colonies . . ib. 
 
 — in the states . ib. 
 
 Additional securities . . 52 
 How recognised and secured by 
 
 Constitution of U. S. . . 53 
 
 Navigation. 
 See Commerce. 
 
 Navy. 
 See Army and Navy. 
 Nobility. 
 See Titles of Nobility. 
 Oath to support Constitution. 
 3y whom to be taken . .315 
 Intention and effect . . . 316 
 States cannot discharge from . 317 
 See Powers of Government, 
 States, &c. 
 
 Obligation of Contracts. 
 Sec Laws impairing Contracts. 
 
 Passport.^. 
 See Law of Nations, Powers 
 OF Government, &c. . j 
 
 Patents. 
 
 415 
 
 ?»«• 
 
 See Science. 
 
 Piracy. 
 Power to define and punish . 19 ) 
 Exclusive in its nature . .191 
 Definition of piracy . . . ji,. 
 Mode of defining it . . . a,'. 
 Who are deemed pirates by 
 
 law of nations . . . 193 
 Jurisdiction exercised over 
 
 them j'j 
 
 How punished . . . .' n,. 
 Where they may be tried . ib. 
 Acts declared piracy by Con- 
 
 , giess j-j. 
 
 Jurisdiction in such cases . ib. 
 Particular acts declared piracy 193 
 How punished . . . . ib. 
 
 Postoffices and Postroads. 
 Power to establish them . . 220 
 How far exclusive . . . ^] 
 What power claimed as inci- 
 dent j-j 
 
 How far admitted . . . 226 
 See Internal Lmprovements. 
 Powers of Government. 
 How distinguished . . .44 
 How to be organized . * 45 
 Consequences of uniting them ' ib. 
 How distributed in the colonies 47 
 How organized in the states . 48 
 How vested by Constitution of 
 
 U. S 50 
 
 Extent of their separation . ib 
 Object of their partial union . ib. 
 End thus effected in Govern- 
 ment of U.S. . . .53 
 Legislative power . . ! 59 
 Executive power . .* * gl 
 Judicial power . . . no 
 Nature of powers vested in Gov- 
 ernment of U. S. . . . ]50 
 Reduced to different classes .' ib 
 Powers relative to security from 
 
 foreign danger . . , n, 
 Relative to war . . .251 
 
 taxation . . .* ]66 
 
 borrowing money . 179 
 
 foreign intercourse ib. 
 
 treaties , . . n,^ 
 
 ambassadors, &c. . ib. 
 
 piracy . . .190 
 
 — felonies at sea . 193 
 
 offences against law 
 
 of nations .... lo» 
 
416 
 
 INDEX. 
 
 Relative to foreign commerce . 19G 
 
 slave-trade . . 208 
 
 intercourse between 
 
 the states . . . .210 
 
 commerce among 
 
 the states . . . .211 
 
 with the Indians 215 
 
 postoffices and post- 
 
 roada 220 
 
 coining money, &ic. 226 
 
 weights and meas- 
 ures 227 
 
 punishment of coun- 
 terfeiting .... ib. 
 
 state records . . ih. 
 
 naturalization . . 228 
 
 bankruptcy . . 235 
 
 miscellaneous ob- 
 jects 241 
 
 science and useful 
 
 arts ib. 
 
 local jurisdiction . 256 
 
 punishment of trea- 
 son 259 
 
 ■ admission of new 
 
 states 262 
 
 territory and prop- 
 erty 263 
 
 guarantees to the 
 
 ^tates 264 
 
 amendment of Con- 
 stitution .... 267 
 Implied and reserved powers . 270 
 Restrictions on the states . 271 
 
 absolute against . ib. 
 
 treaties, &c. . . ib. 
 
 letters of marque 
 
 and reprisal .... ib. 
 
 coining money . 272 
 
 bills of credit . 273 
 
 . tender laws . .274 
 
 bills of attainder . 277 
 
 Ex post facto laws ib. 
 
 laws impairing con- 
 tracts ib. 
 
 Qualified restrictions . . 300 
 upon duties on im- 
 ports, &c ib. 
 
 relative to troops and 
 
 ships of war .... 303 
 corni>act and agree- 
 ments ib. 
 
 engaging in war . 304 
 
 Auxiliary jxiwers . . . 305 
 
 . laws *' necessary and 
 
 proptr" for executing pow- 
 »;fr .... ib 
 
 Pac< 
 
 Auxiliary oath to si pport Con- 
 stitution of US.. . 315 
 
 declaration of su- 
 preme law .... 319 
 
 right of final interpre- 
 tation 326 
 
 its ratification by the 
 
 people 327 
 
 President of United States. 
 Q,ualifications for election . 9ft 
 Mode of election . . . ib 
 For what term elected . . 91 
 Provision for his support . . ib. 
 When to be declared elected by 
 
 electors 9^ 
 
 IIow appointed when no choice 
 
 by electors . . . .93 
 Commander-in-chief . . 101 
 Reprieves and pardons . . ib. 
 Power as to treaties . . . 102 
 Nominates to what offices . 104 
 Power of filling vacancies . 105 
 
 as to removal from office ib, 
 
 as to convening and ad- 
 journing Congress . . ib. 
 Duty with respect to ambassa- 
 dors, &c. .... ib. 
 General duties .... ib. 
 Powers and duties . . . 106 
 Negative upon laws, &c. . ib. 
 Evidence of his refusal to ac- 
 cept, or of his resignation . 108 
 How vacancies in office sup- 
 plied ib. 
 
 Liability to impeachment -.109 
 See Executive Power. 
 
 Ratification of Constitution. 
 
 Provision for ratifying Consti- 
 tution 327 
 
 Its nature and eflbcts . . 329 
 
 Mode of ratification adopted . ib. 
 
 How ratified by people . . 330 
 
 Assent of states, how implied . ib. 
 
 Consequences of such ratifica- 
 tion ib. 
 
 See Secession. 
 
 Representation. 
 
 On what principle founded In 
 government . . . .44 
 
 How to be applied . . .45 
 
 In reference to powers of gov- 
 ernment .... ib. 
 
 As to parlies delegating them . ib. 
 
 Practical exception . . 46 
 
INDEX. 
 
 417 
 
 Page 
 
 llow fur principle prevailed in 
 colouitil governments . . 47 
 
 How extended in state consti- 
 tutions 48 
 
 How applied in Constitution of 
 U. S 53 
 
 Representatives. 
 Sec House of Representa- 
 tives. 
 
 Restrictions on States. 
 See Powers of Government, 
 States, &c. 
 
 Revenue. 
 See Taxation, &c. 
 
 Rights. 
 See Natural Rights. 
 
 Safe Conducts. 
 See Law of Nations, Powers 
 OF Government, &c. 
 
 Senate. 
 
 How constituted . . .72 
 
 On what principle of represent- 
 ation ib. 
 
 Number of senators . . . ib. 
 
 In what manner they vote . ib. 
 
 By whom chosen . . . ib. 
 
 Manner of their election . . 73 
 
 For what term elected . . ib. 
 
 Qualifications of senators . 74 
 
 Powers exclusive of House of 
 Representatives . . .76 
 
 Why consent of Senate required 
 to treaties . . . ,78 
 
 Why associated with President 
 in appointing power . . 79 
 
 When to choose Vice president 
 of U. S 93 
 
 Sec Congress, Legislative 
 Power, &c. 
 
 Science. 
 Power to promote its progress . 241 
 Foundation, origin, and policy . ib. 
 Mode in which executed . . 244 
 Objects of the power . . ib. 
 
 By what construction effected 245 
 Former stale laws . . . ib. 
 Mature and extent of power 
 
 vested in Congress , . 249 
 Distinction between pro|)erty of 
 
 authors and that of inventors 253 
 !*rivilcgc.> secured to both ib. 
 
 Extent and limitation of slate 
 
 power in regard to them . 254 
 See Powers of Government. 
 
 Secession. 
 Whether states may secede 
 
 from the Union . . . 329 
 Consequences of secession .330 
 See Powers of Government, 
 
 States, &c. 
 
 Slave-trade. 
 Power of prohibiting . . 208 
 How executed by Congress . 209 
 See Powers of Government. 
 
 State Courts and Magistrates 
 See Judicial Power. 
 
 State Governments. 
 Power over militia . . . 165 
 Jurisdiction of offences against 
 
 laws of nations . . . 193 
 Powers reserved to them . . 204 
 Subordinate to Union . . 205 
 Restricted as to imposts, &c. . 206 
 commerce . 207 
 
 Concurrent power of legislation 
 in certain cases with Con- 
 gress 
 
 Restrictions as to preventing 
 sale of imported articles 
 
 Restrictions as to protecting 
 duties 
 
 Regulation of internal com- 
 merce 211 
 
 Efiect of their collision with 
 powers of Union . . . 213 
 
 Power in cases of bankruptcy 
 and insolvency 
 
 to promote science, &c. 
 
 of punishing treason 
 
 Guarantee of Republican Gov- 
 ernment 
 
 Power as to amendment of Con - 
 stitution of U. S. . 
 
 Restrictions on their powers 
 
 Restricted as to war 
 
 Cannot discharge individuals 
 from their allegiance to the 
 U. S. . . . . 317 
 
 Assent of State Governments to 
 Constitution of U.S.. . 323 
 
 States cannot annul or abrogate 
 the Federal powers . . 326 
 
 Sen Constitutions (State), 
 Powers of Government, 
 States, &.c. 
 
 I 
 
 ib. 
 ib. 
 
 ib. 
 
 . 235 
 241 
 259 
 
 , 264 
 
 , 267 
 , 271 
 , 300 
 
418 
 
 INDEX. 
 
 Pago 
 
 State Records. 
 Power of Congress in relation 
 
 to them -20 
 
 Their effect in other states . 229 
 Effect of judgments of State 
 Courts as evidence in other 
 states ib. 
 
 States. 
 
 Powers reserved to them . 
 
 Their jurisdiction, how far su- 
 perseded in maritime cases . 
 
 Preservation of harmony among 
 
 Commerce among them regu- 
 lated 
 
 Internal concerns, how far af- 
 fected by Constitution of U. S. 
 
 Internal commerce of 
 
 Proof and effect of their records 
 
 Their powers, how affected by 
 collision with those of Con- 
 gress 
 
 Citizens of the several states . 
 
 Treason against a state . 
 
 Admission of new states . 
 
 Guarantees to the states . 
 
 Reserved rights 
 
 Restrictions on their power 
 
 Bound by whose construction 
 of the Constitution of U. S. . 
 
 No discretion as to organizing 
 Government of the U. S. 
 
 Cannot secede from Union 
 
 See Constitutions (State), 
 Powers of Government, 
 State Governments. 
 
 Supreme Court. 
 
 Judges recognised in Constitu- 
 tion, &c. . . . . 
 Tenure of their offices 
 Court created by Constitution . 
 
 organized by law . 
 
 Number of judges 
 Number to form quorum . 
 Terms of the court . 
 Jurisdiction, original 
 
 appellate 
 
 - exclusive 
 
 In "cases against ambassadors, 
 
 &c 
 
 where a state is a p:ir 'y 
 
 In suits by a state 
 Concurrent jurisdiction . 
 In suits by ambassadors . 
 Where a stale is a party . 
 
 Whether original jurisdiction is 
 in all cases exclusive . . 133 . 
 
 Jurisdiction as to Indians . ib. 
 
 Mode of exercising appellate 
 jurisdiction .... ib. 
 
 Writs of error and appeals . ih. 
 
 In what cases allowed . . ib. 
 
 From judgments of what courts 1.36 
 
 Restrictions on the right . . ib. 
 
 Proceedings in case of reversal ib. 
 
 Regulations respecting writs of 
 errors and appeals . . ib. 
 
 Judicial construction in regard 
 to them 137 
 
 Exceptions from appellate juris- 
 diction ib 
 
 Appeals from state courts . ib. 
 
 Superintending power over in- 
 ferior courts .... 139 
 
 See Judicial Power. 
 
 Supreme Law. 
 
 Declared by Constitution . . 320 
 
 Effect of conflict between Fed- 
 eral and state powers . . 322 
 
 Duty of courts in such cases . 324 
 
 States bound by interpretation 
 of Constitution by Supreme 
 Court of the U.S.. . .325 
 
 Taxation and Taxes. 
 Power of levying taxes . . 166 
 Its objects and purposes . . 167 
 Its necessity and extent . . ib. 
 Where vested, and in what 
 
 terms ib. 
 
 How qualified in its exercise . 168 
 Subjects of taxation . . . ib. 
 In what sense term "Taxes" 
 
 used 169 
 
 Different kinds of taxes . . ib. 
 Importance of distinguishing 
 
 them ib. 
 
 Judicial construction of power 171 
 Restrictions on states respect- 
 ing it 300 
 
 Judicial construction thereof . 301 
 See Legislative Power. Pow- 
 ers OF Government, &.c. 
 Tender Laws. 
 How iSiir prohibited to states . 271 
 What allowed as legal tender 
 
 in payment of debts . . 272 
 See Powers of Government. 
 
 Territorial Courts. 
 Where established . . .144 
 
INDEX. 
 
 419 
 
 Page 
 
 Tenure of )udges . . . 145 
 
 Courts there, how organized . ib. 
 
 Jurisdiction vested in the sever- 
 al courts .... ib. 
 
 Special jurisdiction of certain 
 
 territorial courts . . . ib. 
 
 Territorial Regulations. 
 
 Power of disposing of and reg- 
 ulating territory and other 
 property of the Union . . 262 
 
 Condition annexed to it . . 2C3 
 
 Construction of power , . ib. 
 
 See Powers of Government. 
 
 Titles of Nobility. 
 Power of granting, prohibited 
 to the states . . . .271 
 
 Treason. 
 
 Power to declare its punish- 
 ment 259 
 
 Treason against U. S. defined . 260 
 
 Evidence requisite to convict . 261 
 
 Judicial constructions . . ib. 
 
 Treason against a state . . ib. 
 
 Effect of a confession . . ib. 
 
 Punishment of treason against 
 U. S 262 
 
 Treaties. 
 
 Nature of power to make . 180 
 
 To what extent declared su- 
 preme law .... 183 
 
 How and where the power is 
 vested ib. 
 
 How treaties are to be con- 
 strued 188 
 
 How defined by law of nations ib. 
 
 How regarded by courts of U. S. ib. 
 
 Their effect and operation . ib. 
 
 Power of Congress ov er them . 189 
 
 Obligation of treaties 
 Extent of the power 
 
 Interpretation of treaties . . 189 
 Consequencesof their violation 190 
 Effect of partial violations . ib. 
 How such effect prevented . ib. 
 Power of annulling treaties . ib. 
 Effect of its exercise . . ib. 
 
 States restricted in regard to 
 
 them 27] 
 
 Sec Powers of Government, 
 
 President of U. S., Senate, 
 
 &c. 
 
 Vice-president of U. S. 
 
 His powers in cases of impeach- 
 ment 78 
 
 How chosen, and qualifications 90 
 
 For what tenh elected . . 91 
 
 How appointed in case of no 
 choice by electors . . .94 
 
 His duties as President of Senate ib. 
 
 When to act as President of 
 U. S 95 
 
 Evidence of h's refusal to ac- 
 cept ib. 
 
 How long he continues to act 
 as President of U. S. . . ib. 
 
 War. 
 Whence right of declaring it 
 
 derived . 
 
 . 151 
 
 Causes of war . 
 
 . ib. 
 
 Forms of declaring it 
 
 . ib. 
 
 Power of declaring it, 
 
 where 
 
 vested . 
 
 . ib. 
 
 In what mode declared 
 
 . ib. 
 
 Effect of declaration 
 
 . L-ia 
 
 "Levying war" — what 
 
 . 260 
 
 Weights and Measures. 
 Power to fix standards . . 226 
 How far exclusive . . . 227 
 
 Writs of Error. 
 See Supreme Court. 
 
 THE EN1> 
 
A Course of Lectures on the CoxNstitutional Juris- 
 prudence OF the United States, delivered annually 
 in Columbia College, New- York, by William Al- 
 EXANDER Duer, LL.D., latc President of that Insti 
 tution. 
 
 From Mr. Madison. 
 
 "Montpelier, Sept. 4th, ISa.?. 
 "Dear Sir— I have received your letter of the 28th ultimo, en- 
 closing the outlines of your work on the Constitutional Jurispru- 
 dence of the United States. The object of the work is certainly 
 important and well chosen, and the plan marked out in the anal- 
 ysis gives full scope to the instructive execution which is anticipa- 
 ted. I am very sensible, sir, of the friendly respect which sug- 
 gested my name for the distinguished use made of it, and am not 
 less so of the too partial terms which are applied to it. I shall re- 
 ceive, sir, with great thankfulness, the promised volume, with the 
 outlines of which I have been favoured ; though such is the shat- 
 tered state of my health, added to the eighty-three years of my 
 age, that I fear I may be little able to bestow on it all the attention 
 I might wish, and doubt not it will deserve. 
 
 " With great respect and cordiai salutations, 
 
 "James Madison" 
 
 Frotn Chief -j-iistice Marshall. 
 
 "Washington, Mardt 17, 1834. 
 
 * Dear Sir — I had the pleasure of receiving, at the commence- 
 ment of the session of the Supreme Court, your " Outlines of the 
 Constitutional Jurisprudence of the United States," for which I 
 am gi-eatly indebted to you. 
 
 " Tab pressure of official duty has been such as not to leave me 
 leisure enough to give it that attentive perusal to which it has the 
 fairest claim. That agreeable task must be deferred until my re- 
 turn to Virginia. I have, however, passed rapidly through it, and 
 that rapid glance has eatistied me of the value of the A^ork, and 
 the correctness of its principles and statements. I wish very much 
 that this and similar works could be introduced into all our serni- 
 oaHpe for pdnratinn ^r ^ snv^rnmont like ours. if. if! of thp last 
 
importance that early impressions should be just. Permit me I 
 thank you for this flattering mark of your attention, and to make 
 my acknowledgments for the kind and partial manner in which 
 you speak of the Chief-justice of the United States in your pref 
 ace. With very great respect and esteem, 
 
 " I am, sir, your ob't, 
 
 " J. Marshall." 
 
 From Edward Livingston, late U. S. Minister to France. 
 
 "Paris, Nov. 22d, 1833 
 " My dear Sir — I am very much obhged to you for your very 
 valuable little book. It is a work of great use, and must attract 
 great attention in Europe, where all our institutions are scanned, 
 and their operation watched, from different motives, by friends and 
 foes "You are now instructing a royal pupil. Last night, at the 
 Tuileries, the Due d'Orleans asked me many questions respecting 
 our Constitution and Laws, and seemed so desirous of obtaining 
 correct information, that I told him I had just received from a learn- 
 ed friend a small volume, in which all he required to know could 
 be found, and havmg obtained permission, I sent him your work. 
 " 1 am, dear sir, with high regard, your friend and servant, 
 
 " Edw. Livingston." 
 
 From Mons. de 7'ocqueville. 
 *' Sir — I have received the work which you had the goodness 
 to send us, and will not await the return of M. de Beaumont to ex- 
 press in his name, as well as my own, our gratitude for it. The 
 work you address to us, sir, appears to me to be eminently calcu- 
 lated for the purpose to which you destine it. It demonstrates, 
 with as much clearness as precision, the Federal Constitution ; 
 and although short, is not superficial. I have no doubt but that it 
 would excite a very great curiosity in France, if the knowledge 
 ){■ the English language was more general among us. For my 
 part, sir, I have personal reasons for offering you my thanks. I am 
 occupied at present with a work upon the American Institutions, 
 nnd consider your book one of my best documents. 
 
 "I am, very respectfully, sir, youi obedient servant, 
 "Alexis de Tocqueville.** 
 Faris, November 24th, 1833." 
 
tl^^illt'sL^'/^ °^ 25 CENTS 
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