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8/21/2019 Blackstone Commentaries Tucker http://slidepdf.com/reader/full/blackstone-commentaries-tucker 1/96 BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA. IN FIVE VOLUMES. WITH AN APPENDIX TO EACH VOLUME, CONTAINING SHORT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY TO FORM A CONNECTED VIEW OF THE LAWS OF VIRGINIA, AS A MEMBER OF THE FEDERAL UNION. BY ST. GEORGE TUCKER, PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND MARY, AND ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA. PHILADELPHIA: PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL, NO. 17, SOUTH SECOND-STREET. ROBERT CARR, PRINTER. 18!. 1

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BLACKSTONE'S COMMENTARIES:WITH

NOTES OF REFERENCE,

TO

THE CONSTITUTION AND LAWS,

OF THE

FEDERAL GOVERNMENT OF THE

UNITED STATES;

AND OF THE

COMMONWEALTH OF VIRGINIA.IN FIVE VOLUMES.

WITH AN APPENDIX TO EACH VOLUME,

CONTAINING

SHORT TRACTS UPON SUCH SUBJECTS AS APPEARED

NECESSARY

TO FORM A CONNECTED

VIEW OF THE LAWS OF VIRGINIA,

AS A MEMBER OF THE FEDERAL UNION.

BY ST. GEORGE TUCKER,

PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND

MARY, AND

ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.PHILADELPHIA:

PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL,

NO. 17, SOUTH SECOND-STREET.

ROBERT CARR, PRINTER.

18!.

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CONTENTS,

OF BOOK FIRST. PART FIRST.

INTRODUCTION.

OF THE STUDY, NATURE, AND EXTENT OF THE LAWS OF ENGLAND.

SECTION I. Of the Study of the LaSECTION II. Of the Natu!e of La" #$ Ge$e!a%

SECTION III. Of the La" of E$&%a$d

SECTION I'. Of the Cou$t!#e" Su()e*t to the La" of E$&%a$d

THE EDITOR'S APPENDIX.

 NOTE A. Of So+e!e#&$ty a$d Le&#"%atu!e

 NOTE . Of the "e+e!a% Fo!-" of Go+e!$-e$t NOTE C. Of the Co$"t#tut#o$ of '#!&#$#a

 NOTE D. Of the Co$"t#tut#o$ of the U$#ted State"

[The following section divisions were done by the modern editor.] Se*t#o$ 1 / Natu!e of U.S. Co$"t#tut#o$0 -a$$e! of #t" adot#o$2

Se*t#o$ 3 / Natu!e of U.S. Co$"t#tut#o$0 -a$$e! of #t" adot#o$ 4*o$t.52

Se*t#o$ 6 / St!u*tu!e a$d o!&a$#7at#o$ of the fede!a% &o+e!$-e$t2

Se*t#o$ 8 / 9oe!" of Co$&!e""2Se*t#o$ : / Co-a!#"o$ to !#t#"h Co$"t#tut#o$0 Hou"e of Co--o$"2

Se*t#o$ ; / Co-a!#"o$ to !#t#"h Co$"t#tut#o$0 Hou"e of Lo!d"2

Se*t#o$ < / 9oe!" of Co$&!e"" 4*o$t.52

Se*t#o$ = / 9oe!" of Co$&!e"" 4*o$t.52Se*t#o$ > / 9oe!" of Co$&!e"" 4*o$t.52

Se*t#o$ 1? / 9oe!" of Co$&!e"" 4*o$t.52Se*t#o$ 11 / 9oe!" of Co$&!e"" 4*o$t.52

Se*t#o$ 13 / Re"t!a#$t" o$ 9oe!" of Co$&!e""2

Se*t#o$ 16 / Re"t!a#$t" o$ 9oe!" of Co$&!e"" 4*o$t.52

Se*t#o$ 18 / E@e*ut#+e 9oe!"2Se*t#o$ 1: / E@e*ut#+e 9oe!" 4*o$t.52

Se*t#o$ 1; / ud#*#a% 9oe!"2

Se*t#o$ 1< / B#"*e%%a$eou" 9!o+#"#o$"2Se*t#o$ 1= / B#"*e%%a$eou" 9!o+#"#o$" 4*o$t.52

 NOTE E. Of the U$!#tte$, o! Co--o$ La, of E$&%a$d0 a$d #t" #$t!odu*t#o$ #$to, a$dautho!#ty #th#$, the U$#ted A-e!#*a$ State" NOTE F. Of the LEX SCRI9TA0 o! W!#tte$ La, of '#!&#$#a

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Volume 1 — Appendix

Note D

VIEW OF THE CONSTITUTION OF THE UNITEDSTATES.

[Section 1 — Ntu!e o" U.S. Con#titution$ mnne! 

o" it# doption%

HAVING in the preceding pages taken a slight viewof the several forms of government, and afterwardsexamined with somewhat closer attention theconstitution of the commonwealth of Virginia, as asovereign, and independent state, it now becomesnecessary for the American student to enuire intothe connexion established between the severalstates in the union by the constitution of the !nited"tates# $o assist him in this enuiry, I shall nowproceed to consider% &irst, the nature of thatinstrument, with the manner in which it hath been

adopted' and, "econdly, its structure, andorgani(ation' with the powers, )urisdiction, and rightsof the government thereby established, eitherindependent of' or connected with, those of the stategovernments' together with the mutual relation whichsubsists between the federal, and stategovernments, in virtue of that instrument#

I# I am to consider the nature of that instrument bywhich the federal government of the !nited "tates,has been established, with the manner of itsadoption#

$he constitution of the !nited "tates of America,then, is an original, written, federal, and socialcompact, freely, voluntarily, and solemnly enteredinto by the several states of North*America, andratified by the people thereof, respectively' wherebythe several states, and the people thereof'respectively, have bound themselves to each other,and to the federal government of the !nited "tates'and by which the federal government is bound to theseveral states, and to every citi(en of the !nited"tates#

It is a compact' by which it is distinguished from a

charter, or grant' which is either the act of a superiorto an inferior' or is founded upon some considerationmoving from one of the parties, to the other, andoperates as an exchange, or sale% but here thecontracting parties, whether considered as states, intheir politic capacity and character' or as individuals,are all eual' nor is there any thing granted from oneto another% but each stipulates to part with, and toreceive the same thing, precisely, without anydistinction or difference in favor of any of the parties#$he considerations upon which this compact wasfounded, and the motives which led to it, as declared

in the instrument itself' were, to form a more perfectunion than theretofore existed between theconfederated states' to establish )ustice, and ensuredomestic tranuility, between them' to provide fortheir common defence, against foreign force, or suchpowerful domestic insurrections as might reuire aidto suppress them' to promote their general welfare'and to secure the blessings of liberty to the people ofthe !nited "tates, and their posterity 1#

+# It is a federal compact' several sovereign andindependent states may unite themselves togetherby a perpetual confederacy, without each ceasing tobe a perfect state# $hey will together form a federalrepublic% the deliberations in common will offer noviolence to each member, though they may in certainrespects put some constraint on the exercise of it, invirtue of voluntary engagements &# $he extent,modifications, and ob)ects of the federal authorityare mere matters of discretion' so long as theseparate organi(ation of the members remains, andfrom the nature of the compact must continue toexist, both for local and domestic, and for federal

purposes' the union is in fact, as well as in theory, anassociation of states, or, a confederacy '# $he stategovernments not only retain every power,

 )urisdiction, and right not delegated to the !nited"tates, by the constitution, nor prohibited by it to thestates (, but they are constituent and necessaryparts of the federal government' and without theiragency in their politic character, there could heneither a senate, nor president of the !nited "tates'the choice of the latter depending mediately, and ofthe former, immediately, upon the legislatures of theseveral states in the union )#

$his idea of a confederate, or federal, republic, wasprobably borrowed from ontesuieu, who treats ofit as an expedient for extending the sphere ofpopular government, and reconciling internalfreedom with external security *, as hath beenmentioned elsewhere +# $he experience of thepracticability and benefit of such a system, wasrecent in the memory of every American, from thesuccess of the revolutionary war, concluded but afew years before' during the continuance of whichthe states entered into a perpetual alliance andconfederacy with each other# -arge concessions ofthe rights of sovereignty were thereby made tocongress' but the system was defective in notproviding adeuate means, for a certain, and regularrevenue' congress being altogether dependent uponthe legislatures of the several states for supplies,although the latter, by the terms of compact, werebound to furnish, whatever the former should deem itnecessary to reuire# At the close of the war, it wasfound that congress had contracted debts, without arevenue to discharge them' that they had enteredinto treaties, which they had not power to fulfil' thatthe several states possessed sources of anextensive commerce, for which they could not find

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any vent# $hese evils were ascribed to the defects of the existing confederation' and it was said that theprinciples of the proposed constitution were to beconsidered less as absolutely new, than as theexpansion of the principles contained in the articlesof confederation% that in the latter those principleswere so feeble and confined, as to )ustify all thecharges of inefficiency which had been urgedagainst it' that in the new government, as in the old,the general powers are limited, and that the states,in all unenumerated cases, are left in the en)oymentof their sovereign and independent )urisdictions , $his construction has since been fully confirmed bythe twelfth article of amendments, which declares,.that the powers not delegated to the !nited "tatesby the constitution, nor prohibited by it to the states,are reserved to the states respectively, or to thepeople#. $his article was added .to preventmisconstruction or abuse. of the powers granted bythe constitution -, rather than supposed necessary toexplain and secure the rights of the states, or of thepeople# $he powers delegated to the federalgovernment being all positive, and enumerated,

according to the ordinary rules of construction,whatever is not enumerated is retained' for,expressum facit tacere tacitum is a maxim in allcases of construction% it is likewise a maxim ofpolitical law, that sovereign states cannot bedeprived of any of their rights by implication' nor inany manner whatever but by their own voluntaryconsent, or by submission to a conueror#

"ome of the principal points mutually insisted on,and conceded, by the several states, as such, toeach other, were, that representatives and directtaxes should be apportioned among the states,

according to a decennial census' that each stateshould have an eual number of senators' and thatthe number of electors of the president of the !nited"tates, should in each state be eual to the wholenumber of senators and representatives to whichsuch state may be entitled in the congress' that nocapitation or other direct tax shall he laid, unless inproportion to the census' that full faith and creditshall be given in each state to the public acts,records, and proceedings of every other state' thatthe citi(ens of each state shall he entitled to all theprivileges and immunities of citi(ens in the severalstates' that persons charged with treason, felony, orother crime, in one state, and fleeing from )ustice toanother state, shall he delivered up, on demand ofthe executive authority of the state from which hefled' that no new state shall he formed or erectedwithin the )urisdiction of any other state' nor anystate be formed by the )unction of two or morestates, or parts of states, without the consent of thelegislatures of the states concerned' that the !nited"tates shall guarantee to every state in the union arepublican form of government, and shall protecteach of them against invasion' and, on application of the legislature, or of the executive /when the

legislature cannot he convened0 against domesticviolence' that amendments to the constitution, whenproposed by congress, shall not be valid unlessratified by the legislatures of three fourths of theseveral states' and that congress shall, on theapplication of two thirds of the legislatures of theseveral states, call a convention for proposingamendments, which when ratified by theconventions in three fourths of the states shall bevalid to all intents and purposes, as a part of theconstitution' that the ratification of the conventions ofnine states, should he sufficient for theestablishment of the constitution, between the statesso ratifying' and lastly, by the amendment beforementioned, it is declared, that the powers notdelegated to the !nited "tates by the constitution,nor prohibited by it to the states, are reserved to thestates respectively, or to the people# $hus far everyfeature of the constitution appears to he strictlyfederal#

1# It is also, to a certain extent, a social compact' theend of civil society is the procuring for the citi(ens

whatever their necessities reuire, the conveniencesand accommodations of life, and, in general,whatever constitutes happiness% with the peacefulpossession of property, a method of obtaining )usticewith security' and in short, a mutual defence againstall violence from without# In the act of association, invirtue of which a multitude of men form together astate or nation, each individual is supposed to haveentered into engagements with all, to procure thecommon welfare% and all are supposed to haveentered into engagements with each other, tofacilitate the means of supplying the necessities ofeach individual, and to protect and defend him 1# 

 And this is, what is ordinarily meant by the originalcontract of society# 2ut a contract of this natureactually existed in a visible form, between theciti(ens of each state, respectively, in their severalconstitutions' it might therefore he deemedsomewhat extraordinary, that in the establishment ofa federal republic, it should have been thoughtnecessary to extend it3s operation to the persons ofindividuals, as well as to the states, composing theconfederacy# It was apprehended by many, that thisinnovation would he construed to change the natureof the union, from a confederacy, to a consolidationof the states' that as the tenor of the instrumentimported it to he the act of the people, theconstruction might be made accordingly% aninterpretation that would tend to the annihilation ofthe states, and their authority# $hat this was themore to be apprehended, since all uestionsbetween the states, and the !nited "tates, wouldundergo the final decision of the latter#

$hat the student may more clearly apprehend thenature of these ob)ections, it may be proper toillustrate the distinction between federal compactsand obligations, and such as are social by one or

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two examples# A federal compact, alliance, or treaty,is an act of the state, or body politic, and not of anindividual' on the contrary, the social contract isunderstood to mean the act of individuals, about tocreate, and establish, a state, or body politic, amongthemselves#### Again' if one nation binds itself bytreaty to pay a certain tribute to another' or if all themembers of the same confederacy obligethemselves to furnish their uotas of a commonexpence, when reuired' in either of the cases, thestate, or body politic, only, and not the individual isanswerable for this tribute, or uota' for althoughevery citi(en in the state is bound by the contract ofthe body politic, who may compel him to contributehis part, yet that part can neither be ascertained norlevied, by any other authority than that of the state,of which he is a citi(en# $his is, therefore, a federalobligation' which cannot reach the individual, withoutthe agency of the state who made it# 2ut where byany compact, express, or implied, a number ofpersons are bound to contribute their proportions ofthe common expence' or to submit to all laws madeby the common consent' and where, in default of

compliance with these engagements the society isauthori(ed to levy the contribution, or, to punish theperson of the delinuent' this seems to beunderstood to be more in the nature of a social, thana federal obligation#### !pon these grounds, andothers of a similar nature, a considerable alarm wasexcited in the minds of many, who considered theconstitution as in some danger of establishing anational, or consolidated government, upon the ruinsof the old federal republic#

$o these ob)ections the friends and supporters of theconstitution replied, .that although the constitution

would be founded on the assent and ratification ofthe people of America, yet that assent andratification was to be given by the people, not asindividuals composing one entire nation' but ascomposing the distinct and independent states, towhich they respectively belong# It is to be the assentand ratification of the several states, derived fromthe supreme authority in each state, the authority ofthe people themselves# $he, act, thereforeestablishing the constitution, will not,. said they, .bea national but a federal act#

.$hat it will be a federal and not a national act, asthese terms are understood by the ob)ectors, the actof the people, as forming so many independentstates, not as forming one aggregate nation, isobvious one from this single consideration, that it isthe result neither from the decision of a ma)ority ofthe people of the union, nor from a ma)ority of thestates# It must result from the unanimous assent ofthe several states that are parties to it, differing nootherwise from their ordinary assent, than in itsbeing expressed, not by the legislative authority, butby that of the people themselves# 4ere the peopleregarded in this transaction as forming one nation,

the will of the ma)ority of the whole people of the!nited "tates would bind the minority' in the samemanner as the ma)ority in each state must bind theminority' and the will of the ma)ority must bedetermined either by a comparison of the individualvotes' or by considering the will of the ma)ority of thestates, as evidence of the will of the ma)ority of thepeople of the !nited "tates# Neither of these ruleshave been adopted# 5ach state in ratifying theconstitution, is considered as a sovereign body,independent of all others, and only to be bound byits own voluntary act# In this relation then the newconstitution will be a federal, and not a national,constitution#

.4ith regard to the sources from which the ordinarypowers of government are to be derived# $he houseof representatives will derive its powers from thepeople of America, and the people will berepresented in the same proportion, and on thesame principle, as they are in the legislature of aparticular state# "o far the government is national,not federal# $he senate, on the other hand, will

derive its powers from the states, as political and co*eual societies' and these will be represented on theprinciple of euality in the senate, as under theconfederation# "o far the government is federal, notnational# $he executive power will he derived from avery compound source# $he immediate election ofthe president is to be made by the states, in theirpolitical character# $he votes allotted to them are in acompound ratio, which considers them partly asdistinct and co*eual societies' partly as uneualmembers of the same societies# $he eventualelection again is to be made, by that branch of thelegislature which consists of the national

representatives% but in this particular act they are tobe thrown into the form of individual delegations,from so many distinct and co*eual bodies politic#&rom this aspect of the government it appears to beof a mixt character, presenting at least as manyfederal, as national features 11#

.$he difference between a federal and nationalgovernment, as it relates to the operation of thegovernment, is, by the adversaries of the plan of theconvention, supposed to consist in this, that in theformer the powers operate on the political bodiescomposing the confederacy in their politicalcapacities' in the latter, on the individual citi(enscomposing the nation in their individual capacities#6n trying the constitution by this criterion, it fallsunder the national, not the federal character, thoughperhaps not so completely as has been understood#In several cases, and particularly in the trial ofcontroversies to which states may be parties, theymust be viewed and proceeded against in theircollective and political capacities only 1&#. .In someinstances the powers of the federal government,established by the confederation, act immediately onindividuals% in cases of capture, of piracy, of the post*

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office, of coins, weights, and measures, of trade withthe Indians, of claims under grants of land bydifferent states, and, above all, in the cases of trialsby courts martial in the army and navy, by whichdeath may be inflicted without the intervention of a

 )ury, or even of a civil magistrate' in all these casesthe powers of the confederation operate immediatelyon the persons and interests of individual citi(ens#$he confederation itself authorises a direct tax to acertain extent on the post*office' and the power ofcoinage has been so construed by congress, as tolevy a tribute immediately from that source also 1'#$he operation of the new government on the peoplein their individual capacities, in its ordinary and mostessential proceedings, will, on the whole, in thesense of its opponents, designate it, in this relation,a national government#

.2ut if the government be national with regard to theoperation of its powers, it changes its aspect againwhen we contemplate it in relation to the extent of itspowers# $he idea of a national government involvesin it, not only an authority over the individual citi(ens,

but an indefinite supremacy over all persons andthings, so far as they are ob)ects of lawfulgovernment# Among a people consolidated into onenation, this supremacy is completely vested in thenational legislature# Among communities united forparticular purposes, it is vested partly in the general,and partly in the municipal legislatures# In the former case, all local authorities are subordinate to thesupreme' and may be controlled, directed, orabolished by it at pleasure# In the latter, the local ormunicipal authorities form distinct and independentportions of the supremacy, no more sub)ect withintheir respective spheres to the general authority,

than the general authority is sub)ect to them withinits own sphere# In this relation then the governmentcannot be deemed a national one, since its

 )urisdiction extends to certain enumerated ob)ects,only, and leaves to the several states a residuaryand inviolable sovereignty over all other ob)ects# It istrue that in controversies relating to the boundarybetween the two )urisdictions, the tribunal which isultimately to decide, is to be established under thegeneral government# 2ut this does not change theprinciple of the case# $he decision is to be impartiallymade according to the rules of the constitution' andall the usual and most effectual precautions aretaken to secure this impartiality#

.If we try the constitution by its last relation, to theauthority by which amendments are to be made, wefind it neither wholly national, nor wholly federal#4ere it wholly national, the supreme and ultimateauthority would reside in a ma)ority of the people ofthe union' and this authority would be competent atall times, like that of a ma)ority of every nationalsociety, to alter or abolish its establishedgovernment# 4ere it wholly federal on the otherhand, the concurrence of each state in the union

would be essential to every alteration that would bebinding on all# $he mode provided by the plan of theconvention is not founded on either of theseprinciples# In reuiring more than a ma)ority, andparticularly in computing the proportion by states,not by citi(ens, it departs from the national, andadvances towards the federal character' in renderingthe concurrence of less than the whole number ofstates sufficient, it loses again the federal, andpartakes of the national character#

.$he proposed constitution, therefore, even whentested by the rules laid down by its antagonists, is instrictness neither a national nor a federalconstitution, but a composition of both# In itsfoundation it is federal, not national' in the sourcesfrom which the ordinary powers of the governmentare drawn, it is partly federal, and partly national' inthe operation of those powers, it is national, notfederal' in the extent of them, it is federal, notnational' and finally, in the authoritative mode ofintroducing amendments, it is neither wholly federal,nor wholly national 1(#.

7# It is an original compact' whatever political relationexisted between the American colonies, antecedentto the revolution, as constituent parts of the 2ritishempire, or as dependencies upon it, that relationwas completely dissolved and annihilated from thatperiod# #### &rom the moment of the revolution theybecame severally independent and sovereign states,possessing all the rights, )urisdictions, and authority,that other sovereign states, however constituted, orby whatever title denominated, possess' and boundby no ties but of their own creation, except such asall other civili(ed nations are eually bound by, and

which together constitute the customary law ofnations# A common council of the colonies, under thename of a general congress, had been establishedby the legislature, or rather conventional authority inthe several colonies# $he revolutionary war had beenbegun, and conducted under its auspices' but thefirst act of union which took place among the statesafter they became independent, was theconfederation between them, which was not ratifieduntil arch 89:8, near five years from thecommencement of their independence# $he powersthereby granted to congress, though very extensivein point of moral obligation upon the several states,were perfectly deficient in the means provided forthe practical use of them, as has been alreadyobserved# $he agency and co*operation of thestates, which was reuisite to give effect to themeasures of congress, not unfreuently occasionedtheir total defeat# It became an unanimous opinionthat some amendment to the existing confederationwas absolutely necessary, and after a variety ofunsuccessful attempts for that purpose, a generalconvention was appointed by the legislatures oftwelve states, who met, consulted together,prepared, and reported a plan, which contained such

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an enlargement of the principles of theconfederation, as gave the new system the aspect of an entire transformation of the old 1)# $he mild toneof reuisition was exchanged for the activeoperations of power, and the features of a federalcouncil for those of a national sovereignty# $heseconcessions it was seen were, in many instances,beyond the power of the state legislatures, /limitedby their respective constitutions0 to make, withoutthe express assent of the people# A convention wastherefore summoned, in every state by the authorityof their respective legislatures, to consider of thepropriety of adopting the proposed plan' and theirassent made it binding in each state' and the assentof nine states rendered it obligatory upon all thestates adopting it# Here then are all the features ofan original compact, not only between the bodypolitic of each state, but also between the people ofthose states in their highest sovereign capacity#

4hether this original compact be considered asmerely federal, or social, and national, it is thatinstrument by which power is created on the one

hand, and obedience exacted on the other# Asfederal it is to be construed strictly, in all caseswhere the antecedent rights of a state may be drawnin uestion 1*' as a social compact it ought likewiseto receive the same strict construction, wherever theright of personal liberty, of personal security, or ofprivate property may become the sub)ect of dispute'because every person whose liberty or property wasthereby rendered sub)ect to the new government,was antecedently a member of a civil society towhose regulations he had submitted himself, andunder whose authority and protection he stillremains, in all cases not expressly submitted to the

new government1+

# $he few particular cases inwhich he submits himself to the new authority,therefore, ought not to be extended beyond theterms of the compact, as it might endanger hisobedience to that state to whose laws he stillcontinues to owe obedience' or may sub)ect him to adouble loss, or inconvenience for the same cause#

 And here it ought to be remembered that no case ofmunicipal law can arise under the constitution of the!nited "tates, except such as are expresslycomprehended in that instrument# &or the municipallaw of one state or nation has no force or obligationin any other nation' and when several states, ornations unite themselves together by a federalcompact, each retains its own municipal laws,without admitting or adopting those of any othermember of the union, unless there be an articleexpressly to that effect# $he municipal laws of theseveral American states differ essentially from eachother' and as neither is entitled to a preference overthe other, on the score of intrinsic superiority, orobligation' and as there is no article in the compactwhich bestows any such preference upon any, itfollows, that the municipal laws of no one state can

be resorted to as a general rule for the rest# And asthe states, and their respective legislatures areabsolutely independent of reach other, so neithercan any common rule be extracted from their severamunicipal codes# &or, although concurrent laws, orrules may perhaps be met with in their codes, yet itis in the power of their legislatures, respectively todestroy that concurrence at any time, by enacting anentire new law on the sub)ect' so that it may happenthat that which is a concurrent law in all the statesto*day may cease to be law in one, or more of themto*morrow# ;onseuently neither the particularmunicipal law of any one, or more, of the states, northe concurrent municipal laws of the whole of them,can he considered, as the common rule, ormeasurer of )ustice in the courts of the federalrepublic' neither hath the federal government anypower to establish such a common rule, generally'no such power being granted by the constitution#

 And the principle is certainly much stronger, thatneither the common, nor statute law of any othernation, ought to he a standard for the proceedings ofthis, unless previously made its own by legislative

adoption 1,% which, not, being permited by theoriginal compact, by which the government iscreated, any attempt to introduce it, in that or anyother, mode, would he a manifest breach of theterms of that compact#

 Another light in which this sub)ect may he viewed isthis# "ince each state in becoming a member of afederal republic retains an uncontrolled )urisdictionover all cases of municipal law, every grant of

 )urisdiction to the confederacy, in any such case, isto he considered as special, inasmuch as itderogates from the antecedent rights and )urisdiction

of the state making the concession, and thereforeought to he construed strictly, upon the groundsalready mentioned# Now, the cases falling under thehead of municipal law, to which the authority of thefederal government extends, are few, definite, andenumerated, and are all carved out of the sovereignauthority, and former exclusive, and uncontrollable

 )urisdiction of the states respectively% they oughttherefore to receive the strictest construction#6therwise the gradual and sometimes imperceptibleusurpations of power, will end in the total disregardof all its intended limitations#

If it he asked, what would be the conseuence incase the federal government should exercise powersnot warranted by the constitution, the answer seemsto be, that where the act of usurpation mayimmediately affect an individual, the remedy is to besought by recourse to that )udiciary, to which thecogni(ance of the case properly belongs# 4here itmay affect a state, the state legislature, whose rightswill be invaded by every such act, will be ready tomark the innovation and sound the alarm to thepeople 1-% and thereby either effect a change in thefederal representation, or procure in the mode

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prescribed by the constitution, further .declaratoryand restrictive clauses., by way of amendmentthereto# An instance of which may be cited in theconduct of the assachusetts legislature% who, assoon as that state was sued in the federal court, byan individual, immediately proposed, and procuredan amendment to the constitution, declaring that the

 )udicial power of the !nited "tates shall not beconstrued to extend to any suit brought by anindividual against a state#

8# <reamble to the ;# !# "#+# Vattel, 2# 8# c# 8 =# 8>#1# Federalist , vol# 8# p# ?8# ?+#7# Amendments to ;# !# "# art# 8+#?# ;# !# "# art# 8# +#@# Spirit of Laws, vol# 8# 2# # c# 8#9# "ee Note 2# $itle &ederal Government#:# + Federalist , p 1+# 11## <reamble to the amendments#8># Vattel, 2# 8# c# +# = 8?# 8@#

88# Federalist , vol# II# p# +1, +7, +?#8+# Ibidem p# +?#81# Federalist , vol# II# p# 18, 1+#87# Federalist , vol# II# p# +@, +9#8?# Federalist , vol# II# p# 11#8@# Vattel, 2# +# c# 89# =# 1>?, 1>:# amendments tothe ;# !# " art# 8+#89# Vattel, ibid # amendments, ;# !# "# art# 88, 8+#8:# Federalist , p# ?>#8# Federalist  vol# +# 97#

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Volume 1 — Appendix

Note D

[Section & — Ntu!e o" U.S. Con#titution$ mnne! o" it# doption /cont.0%

?# It is a written contract' considered as a federalcompact, or alliance between the states, there isnothing new or singular in this circumstance, as allnational compacts since the invention of letters haveprobably been reduced to that form% but consideredin the light of an original, social, compact, it may beworthy of remark, that a very great lawyer, whowrote but a few years before the Americanrevolution, seems to doubt whether the originalcontract of society had in any one instance beenformally expressed at the first institution of a state &'$he American revolution seems to have given birthto this new political phenomenon% in every state awritten constitution was framed, and adopted by thepeople, both in their individual and sovereigncapacity, and character# 2y this means, the )ustdistinction between the sovereignty, and thegovernment, was rendered familiar to everyintelligent mind' the former was found to reside inthe people, and to be unalienable from them' thelatter in their servants and agents% by this means,also, government was reduced to its elements' itsob)ect was defined, it3s principles ascertained' its

powers limited, and fixed' its structure organi(ed'and the functions of every part of the machine soclearly designated, as to prevent any interference,so long as the limits of each were observed# $hesame reasons operated in behalf of similarrestrictions in the federal constitution, whetherconsidered as the act of the body politic of theseveral states, or, of the people of the states,respectively, or, of the people of the !nited "tates,collectively# Accordingly we find the structure of thegovernment, its several powers and )urisdictions,and the concessions of the several states, generally,pretty accurately defined, and limited# 2ut to guard

against encroachments on the powers of the severalstates, in their politic character, and of the people,both in their individual and sovereign capacity, anamendatory article was added, immediately after thegovernment was organi(ed, declaring' that thepowers not delegated to the !nited "tates, by theconstitution' nor prohibited by it to the states, arereserved to the states, respectively, or to the people&1# And, still further, to guard the people againstconstructive usurpations and encroachments ontheir rights, another article declares' that theenumeration of certain rights in the constitution, shall

not be construed to deny, or disparage, othersretained by the people &&# $he sum of all whichappears to be, that the powers delegated to thefederal government, are, in all cases, to receive themost strict construction that the instrument will bear,where the rights of a state or of the people, eithercollectively, or individually, may be drawn inuestion#

$he advantages of a written constitution, consideredas the original contract of society must immediatelystrike every reflecting mind' power, when undefined,soon becomes unlimited' and the disuisition ofsocial rights where there is no text to resort to, fortheir explanation, is a task, eually above ordinarycapacities, and incompatable with the ordinarypursuits, of the body of the people# 2ut, as it isnecessary to the preservation of a free government,established upon the principles of a representativedemocracy, that every man should know his ownrights, it is also indispensably necessary that heshould be able, on all occasions, to refer to them# Inthose countries where the people have been

deprived of the sovereignty, and have no share,even in the government, it may perhaps be happy forthem, so long as they remain in a state of sub)ection,to be ignorant of their )ust rights# 2ut where thesovereignty is, confessedly, vested in the people,government becomes a subordinate power, and isthe mere creature of the people3s will% it oughttherefore to be so constructed, that its operationsmay be the sub)ect of constant observation, andscrutiny# $here should be no hidden machinery, norsecret spring about it#

$he boasted constitution of 5ngland, has nothing of

this visible form about it' being purely constructive,and established upon precedents or compulsoryconcessions betwixt parties at variance# $he severalpowers of government, as has been elsewhereobserved, are limited, though in an uncertain way,with respect to each other' but the three together arewithout any check in the constitution, althoughneither can be properly called the representative ofthe people# And from hence, the union of thesepowers in the parliament hath given occasion tosome writers of that nation to stile it omnipotent% bywhich figure it is probable they mean no more, thanto inform us that the sovereignty of the nationresides in that body' having by gradual andimmemorial usurpations been completely wrestedfrom the people#

@# It is a compact freely, voluntarily, and solemnlyentered into by the several sates, and ratified by thepeople thereof, respectively% freely, there beingneither external, nor internal force, or violence toinfluence, or promote the measure' the !# "tatesbeing at peace with all the world, and in perfecttranuility in each state% voluntarily, because themeasure had its commencement in the spontaneous

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acts of the state*legislatures, prompted by a duesense of the necessity of some change in theexisting confederation% and, solemnly, as havingbeen discussed, not only by the general conventionwho proposed, and framed it' but afterwards in thelegislatures of the several states, and finally, in theconventions of all the states, by whom it wasadopted and ratified#

$he progress of this second revolution in our politicalsystem was extremely rapid# Its origin may bededuced from three distinct sources% $he discontentsof the army, and other public creditors' #### the decayof commerce, which had been diverted from itsformer channels' and the backwardness, or totalneglect of the state*legislatures in complying with thereuisitions, or recommendations of congress#

$he discontents of the army had at several periods,during the war, risen to an alarming height, andthreatened, if not a total revolt, at least a generaldisbandment# $hey were checked, or palliated byvarious temporary expedients and resolves of

congress' but, not long before the cessation ofhostilities, some late applications to congress,respecting the arrears of their pay and depreciation,not having produced the desired effect' ananonymous address to the army, couched in themost nervous language of complaint, made itsappearance in camp &'' It contained a most spiritedrecapitulation of their services, grievances, anddisappointments, and concluded with advising, .anappeal from the )ustice to the fears of government#.$he effects, naturally to have been apprehendedfrom so animated a performance, addressed to menwho felt their own in)uries in every word, were

averted by the prudence of the commander in chief&(' and congress, as far as in them lay, endeavouredto do ample )ustice to the army' which was soonafter entirely disbanded% but, as congress had notthe command of any revenue, reuisitions to thestates were the only mode, by which funds for thedischarge of so honorable a debt, could be procured#$he states, already exhausted by a long andburthensome war, were either in no condition tocomply with the recommendations of congress, orwere so tardy and parsimonious in furnishing thesupplies reuired, that the clamours against thegovernment became every day louder and louder#5very creditor of government, of which there werethousands, besides the army now dispersed amongthe citi(ens, became an advocate for the change ofsuch an inefficient government, from which they sawit was in vain to hope for satisfaction of their variousdemands#

2ut it is not probable that the discontents or clamorsof the creditors of government, alone, would havebeen sufficient to effectuate a fundamental change inthe government, had not other causes conspired torender it3s inefficiency the sub)ect of observation and

complaint, among another very numerous class ofciti(ens#### these were the commercial part of thepeople, inhabiting almost exclusively all the sea*ports, and other towns on the continent, anddispersed at small intervals through the wholecountry# $he New*5ngland states, in a greatmeasure, dependent upon commerce, had beforethe war en)oyed a free trade with the 4est*IndiaIslands, sub)ect to the crown of Great*2ritain' theyhad likewise maintained a very beneficial intercoursewith the &rench Islands, from whence they drewsupplies of molasses for their distilleries# $hen whaleand cod*fisheries might be said to have been almostmonopoli(ed by them, on the American coast' atleast the advantages they en)oyed for carrying onthese branches of trade, bade fair to exclude everyother nation from a competition with them on theirnative coasts# New*Bork and <ennsylvania hadlikewise the benefit of an advantageous furr*trade,through the channels lately occupied by the 2ritishposts, on the frontiers of the !nited "tates, which bythe treaty of peace were to have been evacuatedwith all convenient speed# $he possession of these

being still retained, and the utmost vigilance exertedby the 2ritish government to prevent anycommunication with the Indian country' that verylucrative branch of the trade of the !nited "tates hadbeen wholly diverted into the channel of ;anada####$he ports of the 5nglish 4est*India Islands, which, itwas expected would have been open to our vessels,as before the revolution, were, immediately after theconclusion of the peace, strictly prohibited to the

 American traders% #### those of the &rench islandswere under such restrictions as greatly impaired theformer advantageous intercourse with them% ##### $heprotection formerly en)oyed under the 2ritish flag

from the depredations of the corsairs of the2arbarian states, being now withdrawn, thecommerce with the editerranean and the portsbordering thereupon, whither a great part of theproduce of the fisheries, as well as the surplus ofgrain, was exported, was entirely cut off, from thedanger of annoyance from those piratical states ###Great*2ritain had, formerly, not only afforded amarket for the whale oil, but had given a liberalbounty on it, both of which she now ceased to do,and no other country could be found to supply eitherof these advantages# $hus the sources of commercein those states, were either dried up, or obstructedon every side, and the discontents prevailing amongthe newly liberated states, were little short of thoseof the Israelites in the wilderness#### ;ommotions inthe northern states, seemed to threaten a repetitionof the horrors of a civil war' these were ascribed tothe inadeuacy of the general government to secureor promote the interest and prosperity of the federalunion% but whether their origin was not also to beascribed to the administration of the stategovernments, is at least highly uestionable#

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$he little regard which was paid to the reuisitions of congress for money from the states, to discharge theinterest of the national debt, and in particular thatpart due to foreigners, or foreign states, and todefray the ordinary expences of the federalgovernment, gave rise to a proposition &), thatcongress should be authori(ed, for the period oftwenty*five years, to impose a duty of five per centon all goods imported into the !nited "tates# ost of the states had consented to the measure &*, but thenumber reuired by the confederation could not beprevailed on to adopt it% New*Bork and Chode*Islandwere particularly opposed to it# $hus a pro)ect whichmight perhaps have answered every beneficialpurpose, proposed afterwards by the newconstitution, was disconcerted, from the )ealousy ofgranting a limited power for a limited time, by thesame people, who, within three years after,surrendered a much larger portion of the rights ofsovereignty without reserve#

In addition to this measure, congress in their act of April 8:th, 89:1, had proposed, that the eighth

article of the confederation, which made the value oflands the ratio of contribution from the severalstates, should be revoked, and instead thereof theratio should be fixed among the states, in proportionto the whole number of white inhabitants and three*fifths of all other persons, according to a triennialcensus# $his proposition was agreed to in Virginia &+,but like the former, was not acceded to by asufficient number of the states to form an article ofthe confederation#### Bet this ratio is precisely thesame, which has been since fixed by the newconstitution as the rate by which direct taxes shall beimposed on the several states#

$he total derangement of commerce, as well as ofthe finances of the !nited "tates, had proceeded tosuch lengths before the conclusion of the year 89:?,that early in the succeeding year commissionerswere appointed by the state of Virginia, to meet suchcommissioners as might be appointed by otherstates, for the purpose of .considering how far anuniform system in the commercial regulations maybe necessary to their common interests, and theirpermanent harmony' and to report to the severalstates such an act, relative to that ob)ect, as whenunanimously ratified by them, would enablecongress effectually to provide for the same#. $hecommissioners assembled at Annapolis accordingly,in "eptember 89:@, but were met only bycommissioners from four of the other twelvestates#### $hey considered the number of statesrepresented to be too few to proceed to business####but before they separated, wrote a letter to theirconstituents, recommending the appointment ofdeputies to meet in <hiladelphia the succeedingay, for the purpose of extending the revision of thefederal system to all its defects#### In pursuancewhereof the legislature of Virginia passed an act,

appointing seven commissioners to meet suchdeputies as may be appointed by other states, toassemble, as recommended, and )oin in .devisingand discussing, all such alterations, and furtherprovisions as may be necessary to render thefederal constitution adeuate to the exigencies of theunion' and in reporting such an act for that purposeto the !nited "tates in congress, as when agreed toby them, and duly confirmed by the several states,would effectually provide for the same &,#. "imilarmeasures were adopted by all the states in theunion, except Chode Island% deputies assembledfrom all the other states' but instead of amendmentsto the confederation, they produced a plan for anentire change of the form of the federal government,and not without some innovation of its principles#$he moment of its appearance all the enemies of theformer government lifted up their voices in its favour#<arty (eal never ran higher without an actual breachof the peace# Had the opposers of the proposedconstitution been as violent as its advocates, it is notimpossible that matters would have proceeded tosome pernicious lengths% but the former were

convinced that some change was necessary, whichmoderated their opposition' whilst the latter wereanimated in the pursuit of their favourite plan, froman apprehension that no other change waspracticable# In several of the states, the uestionwas decided in favour of the constitution by a verysmall ma)ority of the conventions assembled toconsider of its adoption# In North ;arolina it wasonce re)ected, and in Chode Island twice% nor was itadopted by either, until the new government wasorgani(ed by the ratifying states# ;onsiderableamendments were proposed by several states' bythe states of assachusetts, "outh ;arolina,

Virginia, and New Bork, particularly# It was finallyadopted by all the "tates, after having been thesub)ect of consideration and discussion for a periodlittle short of two years &-#

I have said that the constitution was ratified by theconventions of the several states, assembled for thepurpose of considering the propriety of adopting it#

 As the tenor of the instrument imports that it is theact of the people, and as every individual may, to acertain degree, be considered as a party to it, it willbe necessary to add a few words on the sub)ect ofrepresentation, and of the power which a ma)orityhave to bind the minority#

$he right of suffrage is one of the most importantrights of a free citi(en' and in small states where theciti(ens can easily be collected together, this rightought never to be dispensed with on any greatpolitical uestion# 2ut in large communities, such ameasure, however desirable' is utterly impracticablefor reasons too obvious to be dwelt upon% hence thenecessity that the people should appoint a smallerand more convenient number to represent theaggregate mass of the citi(ens# $his is done not only

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for the purposes of ordinary legislation, but in largestates, and on uestions which reuire discussionand deliberation, is the most eligible mode ofproceeding, even where the vote of every individualof the nation should be desired# $herefore, when theconvention at <hiladelphia had made their report,the ordinary legislatures, with great propriety,recommended the appointment of state*conventions,for the sole and especial purpose of considering thepropriety of adopting the constitution, thus proposedby the convention of the states# $he deputies in mostof the counties were chosen according to theprevailing sentiments of the people in favour of theconstitution, the opinions of the candidates beinggenerally previously known# It is much to be wishedthat this had been universally the case, since the willof the people would in that case have beenuneuivocally expressed#

$he right of the ma)ority to bind the minority, resultsfrom a due regard to the peace of society' and thelittle chance of unanimity in large societies orassemblies, which, if obtainable, would certainly be

very desirable' but inasmuch as that is not to beexpected, whilst the passions, interests, and powersof reason remain upon their present footing amongmankind, in all matters relating to the society ingeneral, some mode must be adopted to supply thewant of unanimity# $he most reasonable andconvenient seems to be, that the will of the ma)orityshould supply this defect' for if the will of the ma)orityis not permitted to prevail in uestions where thewhole society is interested, that of the minoritynecessarily must# $he society therefore, in such acase, would be under the influence of a minority ofits members, which, generally speaking, can on no

principle be )ustified#

It is true there are cases, even under our ownconstitution, where the vote of a bare ma)ority is notpermitted to take effect' but this is only in pointswhich have, or may be presumed to have, receivedthe sanction of a former ma)ority, as where analteration in the constitution is proposed# In order,therefore, to give the greater stability to such points,they are not permitted to be altered by a barema)ority% in cases also which are to be decided by afew, but which may, nevertheless, affect a variety ofinterests, it was conceived to be safest to reuire theassent of more than a bare ma)ority' as, inconcluding treaties with foreign nations, where theinterests of a few states may be vitally affected,while that of a ma)ority may be wholly unconcerned#6r, lastly, where the constitution has reposed acorresponding trust in different bodies who mayhappen to disagree in opinion' as, where thepresident of the !nited "tates shall return a bill tocongress with his reasons for refusing his assent toit' in all these cases more than a bare ma)ority arereuired to concur in favour of any measure, beforeit can be carried into complete effect#

9th# It is a compact by which the several states andthe people thereof, respectively, have boundthemselves to each other, and to the federalgovernment#

Having shewn that the constitution had itscommencement with the body politic of the severalstates' and, that its final adoption and ratificationwas, by the several legislatures referred to, andcompleted by conventions, especially called andappointed for that purpose, in each state' theacceptance of the constitution, was not only an actof the body politic of each state, but of the peoplethereof respectively, in their sovereign character andcapacity% the body politic was competent to binditself so far as the constitution of the state permitted,but not having power to bind the people, in casesbeyond their constitutional authority, the assent ofthe people was indispensably necessary to thevalidity of the compact, by which the rights of thepeople might be diminished, or submitted to a new

 )urisdiction, or in any manner affected# &rom hence,

not only the body politic of the several states, butevery citi(en thereof, may be considered as partiesto the compact, and to have bound themselvesreciprocally to each other, for the due observance ofit and, also, to have bound themselves to the federalgovernment, whose authority has been therebycreated, and established#

:# -astly# It is a compact by which the federalgovernment is bound to the several states, and toevery citi(en of the !nited "tates#

 Although the federal government can, in no possible

view, be considered as a party to a compact madeanterior to its existence, and by which it was, in fact,created' yet as the creature of that compact, it mustbe bound by it, to its creators, the several states inthe union, and the citi(ens thereof# Having noexistence but under the constitution, nor any rights,but such as that instrument confers' and those veryrights being in fact duties' it can possess nolegitimate power, but such, as is absolutelynecessary for the performance of a duty, prescribedand en)oined by the constitution# Its duties, then,become the exact measure of its powers' andwherever it exerts a power for any other purpose,than the performance of a duty prescribed by theconstitution, it transgresses its proper limits, andviolates the public trust# Its duties, being moreoverimposed for the general benefit and security of theseveral states, in their politic character' and of thepeople, both in their sovereign, and individualcapacity, if these ob)ects be not obtained, thegovernment will not answer the end of its creation% itis therefore bound to the several states, respectivelyand to every citi(en thereof, for the due execution ofthose duties# And the observance of this obligation is

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enforced, by the solemn sanction of an oath, from allwho administer the government '1#

$he constitution of the !nited "tates, then being thatinstrument by which the federal government hathbeen created' its powers defined, and limited' andthe duties, and functions of its several departmentsprescribed' the government, thus established, maybe pronounced to be a confederate republic,composed of several independent, and sovereigndemocratic states, united for their common defence,and security against foreign nations, and for thepurposes of harmony, and mutual intercoursebetween each other' each state retaining an entireliberty  of exercising, as it thinks proper, all thoseparts of its sovereignty, which are not mentioned inthe constitution, or act of union, as parts that oughtto be exercised in common# It is the supreme law ofthe land '&, and as such binding upon the federalgovernment' the several states' and finally upon allthe citi(ens of the !nited "tates#### It can not becontrolled, or altered without the express consent ofthe body politic of three fourths of the states in the

union, or, of the people, of an eual number of thestates# $o prevent the necessity of an immediateappeal to the latter, a method is pointed out, bywhich amendments may be proposed and ratified bythe concurrent act of two thirds of both houses ofcongress, and three fourths of the state legislatures%but if congress should neglect to proposeamendments in this way, when they may be deemednecessary, the concurrent sense of two thirds of thestate legislatures may enforce congress to call aconvention, the amendments proposed by which,when ratified by the conventions of three fourths ofthe states, become valid, as a part of the

constitution# In either mode, the assent of the bodypolitic of the states, is necessary, either to complete,or to originate the measure ''#

Here let us pause a moment, and reflect on thepeculiar happiness of the people of the !nited"tates, thus to possess the power of correctingwhatever errors may have crept into the constitution,or may hereafter be discovered therein, without thedanger of those tremendous scenes which haveconvulsed every nation of the earth' in their attemptsto ameliorate their condition' a power which theyhave already more than once successfullyexercised# .Americans,. says a writer whom I havebefore uoted, .ought to look upon themselves, atpresent, as almost the sole guardians and trusteesof republican freedom% for other nations are not, aswe are, at leisure to shew it in its true and mostenticing form# 4hilst we contemplate with a laudabledelight, the rapid growth of our prosperity, let usascribe it to its true cause' the wholesome operationof our new political philosophy# 4hatever blessingswe en)oy, over and above what are to be foundunder the 2ritish government, whatever evils weavoid, to which the people of that government are

exposed' for all these advantages are we indebtedto the separation that has taken place, and the neworder of things that has obtained among us# -et usbe thankful to the parent of the universe, that he hasgiven us, the first en)oyment of that freedom, which%is intended in due time for the whole race of man#-et us diligently study the nature of our situation, thatwe may better know how to preserve and improve itsadvantages# 2ut above all, let us study the genuineprinciples of D56;CA;B, and steadily practicethem, that we may refute the calumnies of those whowould bring them into disgrace#

.-et us publish to the world, and let our conductverify our assertions, that by democracy we meannot a state of licentiousness, nor a subversion oforder, nor a defiance of legal authority# -et usconvince mankind, that we understand by it, a wellordered government, endued with energy to fulfil allits intentions, to act with effect upon all delinuents,and to bring to punishment all offenders against thelaws% but, at the same time, not a government ofusurpation' not a government of prescription' but a

government of compact, upon the ground of eualright, and eual obligation' in which the rights ofeach individual spring out of the engagement he hasentered into, to perform the duties reuired of him bythe community, whereby the same rights in others,are to be maintained inviolate#.

$hat mankind have a right to bind themselves bytheir own voluntary acts, can scarcely beuestioned% but how far have they a right to enterinto engagements to bind their posterity likewiseE

 Are the acts of the dead binding upon their livingposterity, to all generations' or has posterity the

same natural rights which their ancestors haveen)oyed before themE And if they have, what righthave any generation of men to establish anyparticular form of government for succeedinggenerationsE

$he answer is not difficult% .Government,. said thecongress of the American "tates, in behalf of theirconstituents, .derives its )ust authority from theconsent of the governed#. $his fundamental principlethen may serve as a guide to direct our )udgmentwith respect to the uestion# $o which we may add,in the words of the author of ;ommon "ense, a lawis not binding upon posterity, merely, because it wasmade by their ancestors' but, because posterityhave not repealed it# It is the acuiescence ofposterity under the law, which continues itsobligation upon them, and not any right which theirancestors had to bind them#

!ntil, therefore, the people of the !nited "tates,whether the present, or any future generation, shallthink it necessary to alter, or revoke the presentconstitution of the !nited "tates, it must be receivedrespected, and obeyed among us, as the great and

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uneuivocal declaration of the will of the people, andthe supreme law of the land#

+># 8# 2lacks# Com# 79#+8# Amendments to ;# !# "# art 8+++# Ibidem# art# 88+1# "ee the Remembrancer  vol# 8:# p# 9+# ;arey3suseum vol# 8# 1>+#+7# Ibidem, p# 8+># Had General 4ashington noother claim to the gratitude of his country, hisconduct on that occasion, alone, would haveentailed an unextinguishable debt of gratitude uponit, to all posterity#+?# "ee Resolves of Congress, April 8:th, 89:1#+@# 6ct# 89:1, c# 18# Cevised ;ode, p# +8# ay89:7# c# +8#+9# Acts of 89:7, c# 18#+:# Acts of 89:@, c# :#F+# "eparate file#F1># Is a footnote to &ootnote +, and appears in thatfile#

18# ;# !# "# Art# +# =# 8# and Art# @#1+# ;# !# "# Art# @#11# Ibidem, Art# ?#

Volume 1 — Appendix

Note D

[Section ' — St!uctu!e nd o!ni2tion o" t3e"ede!l o4e!nment%

II# I shall now proceed to the second branch of ourenuiry' namely' the structure and organi(ation ofthe federal government of the !nited "tates, with itspowers, )urisdiction, and rights, as established by theconstitution of the !nited "tates, either independentof, or connected with, those of the stategovernments, respectively' together with the mutualrelation which subsists between the federal andstate governments in virtue of that instrument#

 And, here, we may be permitted shortly to repeatsome former observations% $hat, when the wholebody of the people are possessed of the supremepower in the state, it is a democracy# $hat in such a

government, the people are in some respects thesovereign, and in others, the sub)ect# $hat, in theestablishment of the constitution or fundamental lawby which the state is to be governed, and in theappointment of magistrates, they are the sovereign%when the constitution of the state is fixed, thegovernment organi(ed, and the magistrates areappointed, every citi(en is bound to obedience to thesovereign will thus expressed, and conseuentlybecomes a sub)ect#

$hat, in a democracy, the people ought to do,themselves, whatever they conveniently can' that,what they can not do of themselves, must becommitted to the management of ministers chosenby themselves' that they are their trustees andagents' and that a government thus formed andorgani(ed, may be stiled a C5<C5"5N$A$IV5D56;CA;B# $hat, the choice of ministers may bemade, either, personally, by the whole body of thepeople' or by their deputies, chosen for that especialpurpose, and in whom they can repose a properconfidence#

$hat, a number of independent states may unitethemselves by one common bond or confederacy,for the purposes of common defence and safety, andfor the more perfect preservation of amity betweenthemselves, without any of them ceasing to be aperfect, independent, and sovereign state, retainingevery power, )urisdiction and right, which it has notexpressly agreed shall be exercised in common bythe confederacy of the states' and not by anyindividual state of the confederacy#

In the commonwealth of Virginia, the constitution,

which is the fundamental law of the republic, hathbeen shewn to be the act of the people '(# $heestablishment of this constitution was an immediateact of sovereignty by them# $hey declared, that allpower is vested in, and conseuently derived fromthe people# $hat magistrates are their trustees andservants, and at all times amenable to them# $hatgovernment is instituted for the common benefit,protection, and security of the people# $hat no manor set of men are entitled to exclusive or separateemoluments or privileges but in consideration ofpublic services# $hat the people have a right touniform government' and, that no free government,or the blessings of liberty, can be preserved to anypeople but by a firm adherence to )ustice,moderation, temperance, frugality, and virtue' and byfreuent recurrence to fundamental principles ')#$his is the principle of democracy#

2y the establishment of this constitution, without anydependence upon any foreign power, Virginiabecame an independent and sovereign state '*% herrights were naturally the same as any other state3s#"he might, therefore, perform every act, which anyother sovereign state, however constituted, could

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perform% she was also eual to any other state, ornation, being sovereign and independent '+#

In becoming a member of the federal allianceestablished between the American states, by thearticles of confederation, she expressly retained hersovereignty and independence ',# $he constraintsput upon the exercise of that sovereignty, by thosearticles, did not destroy its existence '-#

4e have already shewn that this system wasdefective in not providing the means, for a certainand regular revenue and, that the inefficiency of thesystem, in that, and perhaps in some other respects,gave rise to the new constitution (# 6f the immediatecauses, and the particular motives and reasonswhich may be supposed to have led to the adoptionof this important measure, together with a shorthistory of its origin, progress, and finalconsummation' as also, of the foundation, andgeneral nature of the new instrument of unionbetween the states, a short explanation has likewisebeen attempted (1' nevertheless, we shall not

unfreuently have occasion to recur to, and perhapsto repeat, the same points, already touched upon'that the student may more perfectly understand, andbear in mind the reasons for the several provisionscontained in the constitution, and the subseuentamendments to it, which have been proposed andratified, and now form a part of it#

In the new instrument of union, there is no expressreservation, as in the former, of the sovereignty ofthe several states' a sub)ect of considerable alarm,and discussion, among those who were opposed toevery thing that resembled, or might ha(ard, a

consolidation of them# $he advocates of theconstitution answered, that .an entire consolidationof the states into one complete national sovereignty,would imply a complete subordination of all theparts' and whatever power might remain in themwould be altogether dependent on the general will#2ut as the plan of the convention aims only at apartial union, the state governments will clearlyretain all the rights of sovereignty, which they hadbefore, and which are not by that act exclusivelydelegated to the !nited "tates# $hat this exclusivedelegation, or rather this alienation of statesovereignty, would only exist in three cases' wherethe constitution in express terms grants an exclusiveauthority to the union' where it grants in oneinstance an authority to the union, and in anotherprohibits the states from exercising the like authority'and where it grants an authority to the union, towhich a similar authority in the states, would beabsolutely, and totally contradictory, and repugnant(&#. $he same writer elsewhere adds, .that it is not amere possibility of inconvenience in the exercise ofsome powers, but an immediate and constitutionalrepugnancy that can by implication alienate andextinguish a pre*existing right of sovereignty#. And

further, that .the necessity of a concurrent )urisdiction in certain cases, results from the divisionof the sovereign power' and the rule that allauthorities of which the states are not explicitlydivested in favor of the union, remain with them infull vigour, is not only a theoretical conseuence ofthat division, but is clearly admitted by the wholetenor of the instrument ('#. And this constitution, aswe have already had occasion to remark, is nowconfirmed by the subseuent amendments to theconstitution, Art# 8+# $he right of sovereignty,therefore, in all cases not expressly ceded to the!nited "tates by the constitution, or prohibited by itto the several states, remains inviolably, with thestates' respectively# 4hat powers arecomprehended under this reservation, will form apart of our present enuiry#

$he institutions of all well constructed governments,as we have before had occasion to remark, haveregard to two distinct ob)ects' their connections,intercourse, and commerce with other states, andnations' and, the administration of )ustice between

individuals, the preservation of their own domesticpeace, and that of their citi(ens, and theadvancement and promotion of the generalhappiness and prosperity of all who put themselvesunder their protection# 4here the form ofgovernment is national it is the duty of the bodypolitic of the state to attend to all these ob)ects# 2utwhere the government is not national, but federal, adivision of power necessarily results from such aform of government' and the connections,intercourse and commerce of the confederaterepublic, with foreign states and nations' and witheach other, as sovereign and independent states,

naturally fall under the )urisdiction of the federalgovernment, whilst the administration of all theirother concerns, whatsoever, as naturally, remainswith the states forming the confederacy#

$his distinction may be considered as marking outthe grand boundary between the limits of federal andof state )urisdiction' but a more intimate unionbetween the states, in certain respects, beingthought desirable, this grand boundary has not beenstrictly adhered to in the federal constitution, but insome few instances the authority of the federalgovernment has been extended beyond it' aremarkable instance of which occurs in the powergranted to congress to make uniform laws on thesub)ect of bankruptcies, throughout the !nited"tates' a regulation in the strictest sense, municipal,and not federal# $hese instances are, however, few,and being in derogation of the municipal )urisdictionof the several states, ought for reasons alreadygiven to be strictly construed#

4ith regard to the principles of the organi(ation, andstructure of the federal government, whenever itdeparts from those of a confederate republic, it

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appears to conform to those of a representativedemocracy# $he representatives in congress arechosen immediately by the people% the presidentmay be chosen in a manner very nearly approachinga popular election, as in this state' though in someothers, the election is farther removed from thepeople' or rather, may be considered as taken awayfrom them by their own legislatures, as in some ofthe northern states# All officers of the government,including the president, are impeachable formisconduct in office, and on conviction may beremoved, and otherwise punished# $hese areprominent features of a representative democracy# Inthe appointment of senators it3s type is federal % inthe mode of appointing the )udges, it has beenregarded as .suinting at monarchy ((.#

$he grand boundary which was noticed above, asmarking the obvious limits between the federal andstate )urisdictions, may be considered as allotting tothe former, )urisdiction in all eases arising under thepolitical laws of the confederacy, or such as relate toits general concerns with foreign nations, or to the

several states, as members of the confederacy' andto the latter the cogni(ance of all matters of a civilnature, or such as properly belong to the head ofmunicipal law' except in some few cases, where, bya special provision contained in the constitution,either concurrent, or exclusive, )urisdiction is grantedto the federal government# 6f this distribution weshall endeavor to take a nearer survey#

$he ob)ects of the political laws of a state asmentioned by eminent writer, are, first, to provide forthe necessities of the nation#

$o encourage labour and industry, to providenecessary workmen, to promote agriculture, toadvance commerce, to establish an easycommunication between the different parts of thestate, to regulate the rates of money, are rankedamong the first ob)ects of a good government# $oencourage education, the liberal arts, and sciences,

 )ustice and polity, and to fortify itself against attacksfrom without' to preserve peace, to support thedignity and euality of the nation, and to formadvantageous connections, and a beneficialintercourse with other states and nations, may beconsidered as forming the aggregate of the politicallaws of a nation ()# I say nothing of the advancementof piety and religion' the present age seems to doubtof the necessity of any connection between churchand state#

$he powers delegated to congress by art# 8# sect# :,of the new constitution' to the president and senateby art# +# sect# +# and 1# and to the )udiciary by art# 1#sect# +# may severally be arranged under one, or theother of these heads#

6f these powers some appear to be exclusivelyvested in congress, or some other department of thefederal government' in others, the states certainlyhave concurrent, though perhaps subordinate,powers' in a third class it is not easy to determine,the limits of either the state, or federal authority# $headministration of )ustice between the citi(ens of thesame state, appears to be left without reserve,/except in a few instances which will be particularlynoticed, in the seuel0 to the )urisdiction and controlof the state governments#

$hus have we endeavoured to trace the line ofseparation between the )urisdictions of the federaland the state governments, ####it is however a broadline, extending like the ecliptic, sometimes on oneside, and sometimes on the other, of our politicaleuator% but let us examine it more minutely#

 All the powers delegated by the people of the !nited"tates to the government, whether the federal, orthat of the state, must fall under one of the fourfollowing heads#

I# $hose exclusively granted to the federalgovernment#

II# $hose in which the state has unuestionablyconcurrent, though perhaps subordinate powers withthe federal government#

III# $hose where the concurrent authority of the stategovernment is uestionable' or controlable bycongress#

IV# $hose reserved to the states, exclusively#

$hese powers are either legislative, executive, or )udiciary% we shall examine them under theirrespective heads#

I# $he powers exclusively granted to the federalgovernment#

6f these,8# $he legislative% or those vested incongress' that body being empowered,

8# $o borrow money on the credit of the!nited "tates#

+# $o regulate commerce

8# 4ith foreign nations'

+# Among the several states' and

1# 4ith the Indian tribes# $he commercebetween the individuals of the same state,being reserved to the state governments#

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1# $o coin money, regulate the value thereof,and the value of foreign coin#

7# $o fix the standard of weights andmeasures# $hese last powers seem to be anecessary appendage to that of regulatingcommerce#

?# $o provide for the punishment ofcounterfeiting the securities and current coinof the !nited "tates#

@# $o constitute tribunals, under the federalgovernment, inferior to the supreme court

9# $o define and punish,

8# <iracies'

+# &elonies on the high seas'

1# 6ffences against the law of nations#

:# And to declare the punishment of treasonagainst the !nited "tates#

# $o declare war' grant letters of marueand reprisal' and make rules concerningcaptures on land and water#

8># $o provide and maintain a navy, Fin timeof peace#

88# $o make rules for the regulation andgovernment of the land and naval forces#

8+# $o raise and support armies, Fin time ofpeace#

It is at least doubtful whether any such power as thatlast mentioned, was intended to be entrusted to thegovernment, except in case of eminent danger ofhostility% at least beyond the necessary guards forforts, maga(ines, arsenals, c# and even in thesecases the constitution seems to have provided thatthe service should be performed by the militia of the!nited "tates#

81# $o provide for calling forth the militia,when necessary to be employed in theservice of the !nited "tates#

87# And for governing them when soemployed#

8?# $o provide for organi(ing and discipliningthe militia#

8@# $o exercise exclusive )urisdiction withinthe ten miles suare, where the seat ofgovernment shall be permanently

established' and in forts, maga(ines,arsenals, dock*yards, and other placesceded for the use of the federal government#

89# $o prescribe the manner in which thepublic acts, records and )udicial proceedingsof the states shall be proved, in order to theirobtaining faith and credit in other states, andthe effect thereof#

8:# $o establish an uniform rule ofnaturali(ation#

8# And to make all laws necessary andproper for carrying the powers vested in thefederal government into execution#

+# $he powers vested in the executivedepartment of the government of the !nited"tates, are all exclusive of the authority ofthe state government#

$hese are,

8# $o make treaties#

+# $o appoint ambassadors, ministers, andconsuls#

1# udges of the supreme courts, and allother officers of the !nited "tates, exceptsuch as are vested by congress in thepresident alone, in the courts of law of the!nited "tates, or, in the heads ofdepartments#

1# $he )udicial power of the !nited "tates

seems to be exclusively vested in thetribunals of the federal government#

8# In all cases affecting ambassadors, otherpublic ministers and consuls#

+# In all cases, of admiralty and maritime )urisdiction#

1# In controversies between two or morestates#

7# In controversies between a state, and anyforeign state#

?# In all cases of impeachment against anofficer of the federal government#

$o which I shall add,@# In controversies to which the !nited"tates are a party, and

9# In all trials for offences against theconstitution, or law, of the federalgovernment#

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In which two last cases, I am inclined to suppose,that congress are not restrained from vesting thecogni(ance of any case, comprehended under thoseheads, in the state courts, should they find itadvisable so to do, especially in fiscal proceedings(*, and lesser offences against the peace#

$he preceding enumeration seems to comprehendall, the cases applicable to our first head% we shallnow proceed to consider#

II# $hose in which the state has unuestionablyconcurrent, though perhaps subordinate powers,with the federal government#

6f these,8# $he legislature hath unuestionablepower#

8# $o impose taxes, and duties'

+# 5xcises, for the support of its own

domestic establishment#

1# Imposts, or duties on exports, if absolutelynecessary for the purpose of executing itsinspection laws#

7# $o establish post*offices, and

?# <ost roads, within its own precincts orterritory, so that they do not contravene theestablishments of the federal government#

@# $o promote the progress of science, and

useful arts by securing to the authors andinventors the exclusive right, within thestate, to their respective writings anddiscoveries#

9# $o provide for arming the militia of thestate' and to call them forth when necessaryfor their internal defence#

:# $o train and keep troops, Fin time of war E1

and

# "hips of war Fin time of warE1#

8># And to engage in war, when actuallyinvaded' or in such imminent danger as willnot admit of delay#

88# And to propose amendments to thefederal constitution#

$o these we may add, that the )udicial power of the state must be presumed to possessconcurrent, though perhaps subordinate

powers with the courts of the !nited "tatesin the following cases%

8# In controversies between the state, and

8# $he citi(ens of another state,

+# &oreign citi(ens, or sub)ects (+#

+# 2etween citi(ens of different states' if thedefendant reside within the state claiming

 )urisdiction#

1# 2etween citi(ens of the same stateclaiming lands within the state, under grantsfrom different states#

In all which cases, there are neither express words,nor any necessary implication that the states shouldbe abridged of the powers in these respects, whichas states they must have possessed#### we musttherefore refer these powers to the twelfth article ofthe amendments to the constitution of the !nited

"tates#

It is no less true, that the federal governmentpossessing powers of deciding in these cases, thedecision of the federal )udiciary, is according to theprinciples and nature of our government, paramountto that of the state )udiciary# ;auses instituted in thestate courts are therefore liable to re*examination inthe federal courts' and, perhaps in all these cases toremoval in the manner pointed out by the act ofcongress (,#

III# -et us now take a short view of those powers,

where the concurrent authority of the stategovernment, either is uestionable' or sub)ect to thecontrol of congress#

8# ;ongress being authori(ed to establish anuniform rule of naturali(ation, and uniformlaws on the sub)ect of bankruptciesthroughout the !nited "tates, it may well beuestioned how far the states can possessany concurrent authority, on these sub)ects#

If, however, a doubt should arise respecting theformer, it might be presumed, that the rightsintended to be conferred by this uniform rule ofnaturali(ation, should be, in general, confined tosuch as might be derived from the federalgovernment, without infringing those rights whichpeculiarly appertain to the states# $hus a personnaturali(ed pursuant to the laws of the !nited"tates, would undoubtedly acuire every right thatany other citi(en possesses, as a citi(en of the!nited "tates, except such as the constitutionexpressly denies, or defers the en)oyment of' andsuch as the constitution or laws of the individualstates reuire on the part of those who are

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candidates for office under the authority of thestates# &ive years residence, for example, isreuired by the laws of Virginia, before anynaturali(ed foreigner is capable of being elected toany office under the state# It is presumable that hisbeing naturali(ed under the laws of the !nited"tates would not supercede the necessity of thisualification#

In respect to bankruptcies it may be uestionedwhether the power of congress extends to casesarising between citi(en and citi(en of the same state,since their power does not extend to the internal ordomestic commerce of the state, as we have alreadyshewn# Bet, on the other hand it may with greatstrength of reasoning be insisted, that here is aspecial case in which the power of the federalgovernment extends to internal as well as foreigncommerce' and that a contrary construction wouldprobably defeat the constitution, which could notprescribe an uniform rule, without comprehendingsuch cases as well as others#

+# $he following powers appear to be vestedin the federal government, but may be alsoexercised by the states, with the consent ofthe congress, vi(#

8# $o lay imposts or duties on goodsimported into any state, from a foreign state#

+# $o lay any duty of tonnage#

1# $o keep troops, or

7# "hips of war, in time of peace#

?# $o enter into any compact or agreementwith any other state, or,

@# 4ith any foreign power#

9# $o engage in war when not actuallyinvaded, or in such imminent danger as willnot admit of delay#

$his finishes the actual enumeration of the powersgranted to the federal government, except whatrelates to the ceded territory, and the erection of newstates, and some of the provisions which do notseem necessary to be recapitulated here, though weshall have occasion to notice them hereafter# $hereremains only to mention,

IV# $he powers reserved to the states exclusively (-#

$he twelfth article of the amendments to theconstitution of the !nited "tates, declares, that thepowers not delegated to the !nited "tates by theconstitution, nor prohibited by it to the states, arereserved to the states respectively, or to the people#

$he powers absolutely prohibited to the states by theconstitution, are, shortly, contained in article 8#section 8># vi(#

8# No state shall enter into any treaty,alliance or confederation#

+# Nor grant letters of marue and reprisal#

1# Nor coin money#

7# Nor emit bills of credit#

?# Nor make any thing but gold and silvercoin a tender in payment of debts#

@# Nor pass any bill of attainder#

9# Nor any ex post facto law#

:# Nor any law impairing the obligation ofcontracts#

# Nor grant any title of nobility####;oncerning all which, we shall make somefew observations hereafter#

 All other powers of government whatsoever, exceptthese, and such as fall properly under the first orthird heads above mentioned, consistent with thefundamental laws, nature, and principle of ademocratic state, are therefore reserved to the stategovernments )#

&rom this view of the powers delegated to the

federal government, it will clearly appear, that thoseexclusively granted to it have no relation to thedomestic economy of the state# $he right of propertywith all it3s train of incidents, except in the case ofauthors, and inventors, seems to have been leftexclusively to the state regulations' and the rights ofpersons appear to be no further sub)ect to thecontrol of the federal government, than may henecessary to support the dignity and faith of thenation in it3s federal or foreign engagements, andobligations' or it3s existence and unity as thedepositary and administrator of the political councilsand measures of the united republics#### ;rimes andmisdemeanors, if they affect not the existence of thefederal government' or those ob)ects to which it3s

 )urisdiction expressly extends, however heinous in amoral light, are not cogni(able by the federal courts'unless committed within certain fixed anddeterminate territorial limits, to which the exclusivelegislative power granted to congress, expresslyextends )1# $heir punishment, in all other cases,exclusively, belongs to the state )urisprudence#

$he federal government then, appears to be theorgan through which the united republics

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communicate with foreign nations, and with eachother# $heir submission to it3s operation is voluntary%it3s councils, it3s engagements, it3s authority aretheirs, modified, and united# It3s sovereignty is anemanation from theirs, not a flame by which theyhave been consumed, nor a vortex in which they areswallowed up# 5ach is still a perfect state, stillsovereign, still independent )&, and still capable,should the occasion reuire, to resume the exerciseof it3s functions, as such, in the most unlimitedextent#

2ut until the time shall arrive when the occasionreuires a resumption of the rights of sovereignty bythe several states /and far be that period removedwhen it shall happen0 the exercise of the rights ofsovereignty by the states individually, is whollysuspended, or discontinued, in the cases beforementioned% nor can that suspension ever beremoved, so long as the present constitutionremains unchanged, but by the dissolution of thebonds of union# An event which no good citi(en canwish, and which no good, or wise administration will

ever ha(ard#

17# "ee Note ;# p# 91?# 2ill of Cights, Art# 8?#1@# Vattel, 2# 8# c# 8# =# 7#19# Vattel# Introduction, =# 8:# 8#1:# ;onfederation, =# +#1# Vattel, 2# 8# c# 8# =# 8>#7># Ante# Note D page 87>#78# Ibidem, page 87>#7+# Federalist , 8 Vol# p# 8@# 89#

71# Ibidem, p# 8# +>>#77# "peech of the late <atrick Henry, 5s# in theVirginia ;onvention#7?# Vattel, passim#7@# $he acts of the 1rd ;ongress ch# 7, and @?,give to the state courts, )urisdiction in certain casesof this nature#79# 2ut now by the 81th article of the amendments tothe ;# !# "# the states have exclusive )urisdiction inthese causes#7:# 8# ;ongress, 8# session, chap# +># sect# 8+#7# Federalist , vol# I# p#8@#?># $he powers delegated by the proposedconstitution of the federal government, are few anddefined# $hose which are to remain in the stategovernments are numerous and indefinite# $heformer will be exercised principally on externalob)ects, as war, peace, negociation and foreigncommerce' with which last, the power of taxation willfor the most part be connected# $he powersreserved to the several states, will extend to all theob)ects, which in the ordinary course of affairs,concern the lives, liberties, and properties of thepeople' and the internal order, improvement, andprosperity of the state####

Federalist , vol# II# p# :+#?8# "ee the tract upon the common law of 5ngland,7th part#?+# "ee Vattel, page 8:#58# In the original text, these words appeared once,to the right of a tall brace that spanned both lines# Inthis rendering, such a typography is infeasible, sowe repeat the words after each line#

Volume 1 — Appendix

Note D

[Section ( — 5o6e!# o" Con!e##%

-et us now take a view of the federal and stateconstitutions, and examine the structure andorgani(ation of the government, arising from theirmutual connection, and the distribution of poweramong the several branches or departments ofeach, respectively#

$he powers of government, both by the federal and

state constitutions, are distributed under threeheads, the -egislative, 5xecutive, and udiciary' andthese three departments the state constitution )' expressly declares shall be separate and distinct, sothat neither exercise the powers properly belongingto the other# 4e shall nevertheless find that theconstitution itself has in many respects blendedthem' assigning to the legislative body, duties, whichin strictness, belong to the executive' as in theappointment of the officers of government, c# Betthis is undoubtedly conformable to the nature of ademocracy in this, that the appointment is vested inthe immediate representatives of the people# $heconstitution of the !nited "tates seems upon thesame principle to have vested congress, in whomthe legislative power is reposed, with powersabsolutely foreign from the exercise of legislation,strictly speaking' but which will appear upon ascrutiny to have been more safely and beneficiallyentrusted to that department, than they could havebeen to any other whatsoever# Bet these deviationsfrom the fundamental maxims of the government areto be construed strictly, and not made use of asprecedents to )ustify others, where the constitution

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by its silence must be presumed to have referred itto that head under which it properly falls#

In the course of this investigation, we shall haveoccasion to enuire into the constituent parts ofthese several departments' with the mode ofconstituting them' the periods for which they arechosen' their respective ualifications, duties, andprivileges' with the manner of removing them from,and punishing them for, any misconduct in office#

4e shall begin with the federal government#

I# 6f the congress#

8# $he first article or the federal constitution,declares, that all legislative powers therein grantedshall be vested in a congress of the !nited "tates,which shall consist of a senate and house ofrepresentatives# $hese, therefore, are theconstituent parts of the federal legislature#

+# 1# $he next section prescribes the manner in

which the last of these bodies shall be chosen )(,that is to say, every second year, by the people ofthe several states' the ualifications of the electorsbeing the same as that of electors of the mostnumerous branch of the state legislature ))#

$he same article provides that representatives anddirect taxes shall be apportioned among the severalstates according to their respective numbers, to bedetermined by adding to the whole number of freepersons, including those bound to service for a termof years, and excluding Indians not taxed, three fifthsof all other persons' according to an actual

enumeration to be made every ten years)*

% but thenumber of representatives is limited to one for everythirty thousand persons )+#

$his mode of ascertaining the number ofrepresentatives, and the inseperable connectionthereby established between the benefits andburthens of the state, seems to be more consonantwith the true principles of representation than anyother which has hitherto been suggested ),# &orevery man, in his individual capacity, has an eualright to vote in matters which concern the wholecommunity% no )ust reason therefore can beassigned why ten men in one part of the communityshould have greater weight in it3s councils, than onehundred in a different place, as is the case in5ngland, where a borough composed of half ado(en freeholders, sends perhaps as manyrepresentatives to parliament, as a county whichcontains as many thousands' this unreasonabledisparity appears to be happily guarded against byour constitution# It may be doubted indeed how theapportionment of the numbers, as it respects slaves,is founded upon the principles of perfect euality'and if it be not, it may be a further uestion whether

the advantage preponderates on the side of thestates that have the most, or the fewest slavesamongst them' for, if on the one hand it be urged,that slaves are not in the rank of persons )-, being nomore than goods or chattels, according to theopinion of the Coman )urists, and conseuently notentitled to representation, it may be answered thatthe ratio of representation and taxation being thesame, this additional weight in council is purchasedat an expence which secures the opposite party fromthe abuse of it in the imposition of burthens on thegovernment# 6n the other hand, it must beremembered, that the two fifths of this class ofpeople who are not represented, are by that meansexempted from taxation# An exemption whichprobably took its rise from the unprofitable conditionof that proportion of the number of slaves#

$he times, places and manner of holding electionsfor representatives and senators, shall be prescribedin each state by the legislature' sub)ect neverthelessto such alterations as congress may make, exceptas to the places of choosing senators *#

It cannot be denied, that this article vests a power incongress, the exercise of which, if not reallydangerous to the liberties of the states *1, may atleast interrupt their tranuility, unless dictated by theutmost wisdom and discretion# In some of the statesthe vote is conducted by ballot, in others viva voce#In some the members are chosen by a general ticketor ballot of the whole state' in others therepresentatives are chosen by districts# 4ithoutentering into the discussion of the preference due toeither of these modes, we may venture to pronouncethat the states respectively will be tenacious of that

to which their own constitution or laws may havegiven the preference% any attempt to render themanner of election uniform must therefore inevitablyproduce discontents among the states# Hitherto thecongress has wisely left this article to the direction ofthe state governments# $he manner of proceeding inthis state, as established by the act of 89::, /V# -#0 c#+# amended by the act of 89+# c# 8 *&, is shortly, asfollows#

$he act divides the states into as many districts, asthere are representatives to be chosen, and directsthat the persons ualified by law to vote formembers to the house of delegates, in each countycomposing a district, shall assemble at theirrespective court houses, on the third onday inarch, /now altered by the act of 89:# c# 87# to thefourth 4ednesday in April0 in every second year, andthen and there vote for a proper person as arepresentative in congress# $he election to beconducted by the high sheriff, or in case of sicknessor inability to attend, one of his deputies, in the samemanner as the elections for delegates, except thatas no determination is to be had by view, but only bythe polls, the votes being publickly taken viva voce#

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Immediately after the closing of the poll, the clerkhaving first signed the same and made oath to thetruth thereof, is to deliver it to the sheriff' the sheriffsof the respective counties in the district shall withinseven days thereafter, assemble at the court houseof the county first named in the district, comparetheir respective polls, and return the person havingthe greater number of votes, or in case of an eualityof votes, giving their own votes# Duplicates of suchreturn under the hands and seals of the sheriffs areto be sent one to the governor, the other to therepresentative elected, within ten days thereafterunder the penalty of 8>>, and the poll book under asimilar penalty are to be returned again to the clerkof the counties respectively# $he governor ismoreover reuired to transmit to congress withoutdelay the returns made to him# $he act furtherprovides that no person shall, during the sameelection, vote more than once for the samecandidate' under the penalty of one hundred dollars#$his provision was made to prevent persons votingin several counties within the same district#

$he representatives by this bill are chosenimmediately by the people, in a public manner, bythe electors within an aggregate number of countiescomposing a district# $he person chosen seems tobe strictly the delegate of those by whom he ischosen, and bound by their instructions wheneverthey think proper to exercise the right# $his principlehas been denied by the 2ritish writers *' on their owngovernment, and a deference to the maxims of thatgovernment probably prevented the decision of theuestion, when agitated in congress in the form ofam article to a proposed bill of rights% but if themaxim be true, that all power is derived from the

people' that magistrates are their trustees andservants, and at all times amenable to them for theirconduct, it seems impossible to withhold our assentfrom the proposition, that in a popular governmentthe representative is bound to speak the sense of hisconstituents upon every sub)ect, where he isinformed of it# $he difficulty of collecting the sense of the people upon any uestion, forms no argumentagainst their right to express that sense when theyshall think proper so to do# 6therwise, by whateverdenomination the government may be called, it is aconfined aristocracy, in which the people havenothing more to do than to choose their rulers, overwhose proceedings, however despotic, andrepugnant to the nature and principles of thefundamental laws of the state, they have no control*(# It will be answered, that the power of removingand punishing is not denied by this doctrine# Ianswer, that the power of preventing offencesagainst the commonwealth, is to be preferred to thatof punishing offenders% and if the government isvirtually in the people, it ought to be so organi(ed,that whenever they chuse to exercise the right ofgoverning, they may do it without destroying it3sexistence# ;orruption and mal*administration,

unchecked, may drive them to a resumption of allthe powers which they have entrusted to thegovernment, and bring on tumults and disturbanceswhich will end only with it3s f inal dissolution% an eventto be apprehended in all governments, butparticularly in democracies, since dissatisfactiontowards the administration may produce a desire ofchange in the constitution itself' and every changeby which the government is in the smallest degreeremoved from its republican nature and principle,must be for the worse# $his danger is effectuallyavoided by the principle here contended for# $heaggregate of mankind understand their own interestand their own happiness better than any individual%they never can he supposed to have resigned theright of )udging for themselves to any set of menwhatsoever' it is a right which can never bevoluntarily resigned, though it may be wrested fromtheir hands by tyranny, or violated by the infidelityand perfidy of their servants#

4hen vacancies happen in the representation fromany state, the executive authority thereof, shall issue

writs of election to fill the vacancies *)#

$he manner of electing senators is much shorter,being vested in the legislatures of the several states'each state being entitled to two senators, whoseperiods of service are six years, and each senator isentitled to one vote **#

$he election of representatives we have seen' is bya mode strictly popular# Had the distinction of statesbeen entirely done away, there could have been nogood reason assigned, perhaps, why the elections ofsenators should not have been assimilated thereto,

at least in respect to numbers, since in agovernment where all parts are eual, no preferenceunder any pretext whatsoever ought to be allowed toany one part, over the rest# 4hy then should ChodeIsland and Delaware have as many representativesin the senate as Virginia and assachusetts, whichcontain ten times their respective numbersE It hasbeen answered, the senate are chosen to representthe states in their sovereign capacity, as moralbodies, who as such, are all eual' the smallestrepublic, as a sovereign state, being eual to themost powerful monarchy upon earth *+, As states,then, Chode Island and Delaware are entitled to aneual weight in council on all occasions, where thatweight does not impose a burthen upon the otherstates in the union# Now as the relation betweentaxation and representation, in one branch of thelegislature, was fixed by an invariable standard, andas that branch of the legislature possesses theexclusive right of originating bills on the sub)ect ofrevenue, the undue weight of the smaller states isguarded against, effectually, in the imposition ofburdens# In all other cases their interests, as states,are eual, and deserve eual attention from theconfederate government# $his could no way he so

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effectually provided for, as in giving them eualweight in the second branch of the legislature' and inthe executive whose province it is to make treaties,c#### 4ithout this euality, somewhere, the unioncould not, under any possible view, have beenconsidered as an eual alliance between eualstates# $he disparity which must have prevailed, hadthe apportionment of representation been the samein the senate as in the other house, would havebeen such as to have submitted the smaller states tothe most debasing dependence, I cannot, therefore,but regard this particular in the constitution, as oneof the happiest traits in it, and calculated to cementthe union eually with any other provision that itcontains#

$his body is not, like the former, dissolved at the endof the period for which it3s members were e)ected' itis a permanent, perpetual body' the members,indeed, are liable to a partial change every twoyears, the senate being divided into three classes,one of which is vacated every second year, so that atotal change in the members may be made in six

years, but cannot possibly be effected, without theintervention of death, in less time#### According to thearrangements of the classes actually made, both thesenators from the same state shall never vacatetheir seats at the same time' a provision whichcertainly has it3s advantages, as no state is therebyin danger of being not represented at any time#

$his mode of constituting the senate, seems liable tosome important ob)ections *,# $he perpetuity of thebody is favorable to every stride it may be disposedto make towards extending power and influence inthe government% a tendency to be discovered in all

bodies, however constituted, and to which noeffectual check can be opposed, but freuentdissolutions and elections# It is no satisfactoryanswer to this ob)ection, that the members areremovable, though the body itself be perpetual# $hechange, even were the members ineligible a secondtime, would be too gradual, to effect anycounterpoise to this prevailing principle#

It has been insisted that the perpetuity of this body,is the only security to be found in the constitutionagainst that instability of councils and of measureswhich has marked the proceedings of those "tates,where no such check is provided by the constitution*-# $o which it may be answered, that every newlyestablished government must be a government ofexperiment#### $he design of a machine may appearcorrect, the model perfect, and adapted to all thepurposes which the original inventor proposed% yet athousand defects may be discovered when theactual application of it3s powers is made, and, manyuseful improvements, in time, become obvious, tothe eyes of a far less skilful mechanic# $heir successand perfection must, however, still depend uponactual experiment, and that experiment may suggest

still further improvement# Are we to re)ect thesebecause they did not occur to the first pro)ector,though evidently growing out of his original designE6r, if on the other hand we have unwarily adoptedthat as an improvement, which experiment shallevince to he a defect, shall we be so wedded to erroras to persist in the practice of it, for no better reasonthan that we have once fallen into it#

In case of vacancies in the office of senator, theexecutive of the state are authori(ed to make atemporary appointment until the next meeting of thelegislature, who are then to fill the vacancy +#

7# $he ualifications of the members of these bodiesrespectively, are, that both senators andrepresentatives should have been citi(ens of the!nited "tates, the former nine, and the latter sevenyears +1 and be citi(ens also of that state for whichthey shall be chosen, at the time of their election' towhich the law of the state adds, that a representativeshould be a freeholder and resident of the district forwhich he is chosen +&% a wise provision and perfectly

consonant with the principles of representation,which should be made from the body of the peoplewith whom the representative must be presumed tohave a common interest, but which perhaps may berendered nugatory, by the constitution whichimposes no such condition, and which makes eachhouse the )udge of the ualifications, as well as ofthe elections and returns of its own members# $heconstitution further reuires that a representativeshould be twenty*five, and a senator thirty years ofage +'' to which may be added that no personholding any office under the !nited "tates shall be amember of either house during his continuance in

office+(

#

"o much for the ualifications of the members ofcongress, to which we may sub)oin theirincapacities, as individuals, during the period forwhich they are elected' these are shortly anincapacity of being appointed to any civil office underthe !nited "tates, which shall have been created orthe emoluments thereof increased during their time+)# An admirable provision against venality, butwhich, it is to be feared, is not sufficiently guarded toprevent evasion# And to preclude undue influence onthe part of the federal government over that of thecommonwealth, it is provided by a law of the state +*,that the members of congress shall be ineligible to,and incapable of holding any seat in either house ofassembly, or any legislative, executive, or )udicialoffice, or other lucrative office whatsoever, under thegovernment of this commonwealth% and this lastprovision is by the same act extended to all personsholding any legislative, executive, )udicial or otherlucrative office whatsoever under the !nited "tates,with a proviso in favour of militia officers, and countycourt magistrates#

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?# "enators and representatives during theirattendance in congress, as also in travelling to andreturning from the place of their session, areprivileged from arrest in all cases, except treason,felony, and breach of the peace ++' and no speech ordebate in either house can be uestioned in anyother place# $hey are also entitled to acompensation for their services, to be ascertained bylaw, and paid out of the treasury of the !nited "tates+,#

$hese are all the personal privileges which theconstitution gives to the members of the federallegislature# And here I shall transcribe the words ofone of it3s former members on a similar occasion####.$he members of the legislature ought certainly tohave no privilege but what is demonstrably essentialto the freedom, and welfare of their constituents# $hestate is not made to dignify it3s officers, but the the E& officers to serve the state# $he dignity of acommonwealth does not consist in the elevation ofone, or a few, but in the eual freedom of the whole#$he privileges of the legislature ought to be defined

by the constitution, and should be fixed as low as isconsistent with the public welfare#.#### $his is thepoint which the constitution appears to have had inview, and very happily to have attained' and it is tobe sincerely wished, the uestion may never arisewhether they ought to have been more, or less,limitted#

$hus much for the privileges of the members' eachhouse has moreover it3s own distinct privileges andpowers' those of the house of representatives are,

8# $o chuse their own speaker, and other

officers+-

+# $o originate all bills for raising a revenue'but the senate may propose, or concur withamendments, as on other bills ,#

1# $his house also possesses the solepower of impeachment ,1# $hese are all it3sexclusive privileges#

$he vice*president of the !nited "tates is, by virtueof his office, president of the senate' but has no voteunless they be eually divided ,&#

$his power may at first view appear to be of no greatconseuence% it is however of the utmostimportance' and the occasions on which it is said tohave been exercised, will demonstrate the necessityof leaving it, as seldom as possible, to it3s full scope,'#

In fact this part of the constitution gives a decidedinfluence in the legislature to that part of the !nited"tates from which the vice*president shall beelected# He has eventually a veto, without being

obliged to assign his reasons for it' it is otherwisewith the president# 2ut to return to the senate#

8# In case of the absence of the vice*president, or of his exercising the office ofpresident of the !nited "tates, they maychoose a president pro tempore#### theyhave also a right of choosing all their otherofficers ,(#

+# $he senate have the sole power of tryingimpeachments ,)# A most inordinate power,and, in some instances, utterly incompatiblewith their other functions, as we shallhereafter have occasion more fully todemonstrate#

1# $he senate likewise constitute a part ofthe executive department ,* #### theexamination of which part of theirconstitution we shall take up under its properhead#

5xclusive of these privileges which the two housespossess, as contradistinguished from each other,each house possesses the right of determining therules of it3s own proceedings' of punishing it3smembers for disorderly behaviour' and of expulsion,provided two*thirds concur therein ,+#

5ach house is moreover the )udge of the elections,returns, and ualifications of it3s own members -), aswe have before observed' a ma)ority of each isreuisite to form a uorum to do business' aprovision of no small importance, since otherwise itis possible that the concerns of the nation might be

decided by a very small portion of it3srepresentatives' if' as has been done in otherassemblies, the uorum were left to the decision ofthe body itself# In 5ngland, where there are near sixhundred members in the house of commons, thenumber of 7? constitutes a uorum to do business#Is it possible that the nation can be represented bythat number, whilst the elections stand upon theirpresent footingE 2ut although it reuires a ma)orityof the house of representatives, or the senate, to dothe business of the nation, a smaller number mayad)ourn from day to day -*, and compel theattendance of absent members#

5ach house is moreover reuired to keep a )ournalof its proceedings -+, and from time to time to publishthe same' excepting such parts as may in their

 )udgments reuire secrecy' a provision evidentlycalculated to defeat the salutary purposes of theformer part of the rule' since every measure whichintrigue may dictate, or cabal enforce, may thus behid from the public eye, by being consigned to thesecret )ournals an expedient too obvious to beneglected whenever it may be found advisable#

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$he yeas and nays of the members of either house,on any uestion, shall, at the desire of one*fifth ofthose present, be entered on the )ournal -,# Anymember of the house of lords in 5ngland may enterhis protest on the )ournals of the house, but thecommons possess no such privilege# In arepresentative government, it is of the utmostconseuence that the people should be informed ofthe conduct of their delegates individually, as well ascollectively# $his purpose is fully answered by therule here spoken of# 2ut to prevent a call of the yeasand nays too freuently, as is said to have beenpractised in the former congress, the constitutionhas set some reasonable limits to the exercise ofthis power, by reuiring that at least one*fifth of themembers present should concur in the expediencyof it#

$o prevent those inconveniencies which might arisefrom the national legislatures omitting to assembleas often as the affairs of the nation reuire, theconstitution provides, that congress shall assemble--, at least once a year, and fixes the period of

assembling to the first onday of December, unlessthey shall by law appoint another day# It likewisevests the president of the !nited "tates with thepower of convening them, or either house, onextraordinary occasions 1#

-astly, to prevent the evils which might result fromthe want of a proper concert and goodunderstanding between the houses, it is provided 11,that neither house, during the session of congressshall, without consent of the other, ad)ourn for morethan three days, nor to any other place than that inwhich the two houses shall be sitting# And further to

guard against any inconvenience which might resultfrom their disagreement, it is provided 1&, that insuch case the president may ad)ourn them to anytime he shall think proper# $his is the only instance inwhich the constitution permits an interference, withthe duration of the session, on the part of theexecutive' and we have already seen, that thoughthe power of convening the congress is entrusted,on extraordinary occasions, to the president of the!nited "tates, yet he has none to prevent, or evenretard their assembling, at any time, by their ownad)ournment, or at certain stated periods fixed bylaw, or by the constitution#

$he duration of congress is necessarily limited totwo years, the period for which the house ofrepresentatives is chosen# $he period of itscommencement seems to have been fixed to thefourth day of arch, the day on which the firstcongress assembled, and that of it3s expiration to thethird of that month biennially #### It is incapable of anyother mode of termination, their being no power inany part of the government to dissolve it# 2y thesewise and salutary provisions' it is effectually guardedagainst every possible encroachment on it3s

independence# Very different from the constitution ofthe 2ritish parliament, since the crown may, at anytime, put an end to a session by a prorogation, or tothe existence of a parliament by a dissolution#

$he president of the !nited "tates may beconsidered sub modo, as one of the constituentparts of congress 1', since the constitution reuiresthat every bill, order, resolution, or vote, to which theconcurrence of the senate and house ofrepresentatives may be necessary /except on auestion of ad)ournment0 shall be presented to him%if he approve he shall sign it, but if not he shall returnit with his ob)ections to that house in which it shallhave originated, who shall enter the ob)ections atlarge on their )ournal, and proceed to reconsider it# Ifafter such reconsideration two thirds of that houseagree to pass it, it shall be sent, together with theob)ections to the other house, by which it shalllikewise be reconsidered, and if approved by twothirds of that house shall become a law# In all suchcases the yeas and nays shall be entered on the

 )ournals of both houses# If any bill, c# be not

returned by the president within ten days, "undaysexcepted, unless in case of ad)ournment, wherebythe return is prevented, it shall nevertheless be a lawc#

$his closes our hasty sketch of the constituent partsof the congress of the !nited "tates, with a shortview of the duration and the outlines of the distinctpowers, and privileges of both houses, as also of theindividuals who compose them# 2efore we proceedto the investigation of the powers of the whole bodythus formed, let us compare some of it3s mostdistinguished features, with those of the two houses

of the 2ritish parliament, long held in idolatrousveneration, as a palladium of political freedom whichsome partial deity had bestowed upon that favouritenation, and presenting a model of perfection whichthe combined wisdom of nations, and of ages, couldbut faintly imitate, and never eual# 4e shalloccasionally resume this comparison at differentperiods of our enuiry, in order to assist the studentin the application of what he will meet with in authorson the sub)ect of that far famed constitution, to themore recent institutions of our own#

?1# ;# V# Art# 1#

?7# 6n this sub)ect the student is referred to theFederalist , Nos# ?+# and ?1#

??# $he act of 89:? c# ??# /V# -#0 fixes theualification of electors to be a freehold estate, intwenty*five acres of land, with a house the superficiacontent of the foundation whereof is twelve feetsuare or eual to that uantity, and a plantationthereon' or in fifty acres of unimproved land' or in a

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lot, or part of a lot of land in a city or townestablished by act of assembly, with a house thereonof the like superficial content or uantity' but thepossession of lands, in virtue of which the right ofsuffrage is claimed, unless acuired by descent,devise, or marriage settlement, must have continuedsix months#In 4illiamsburg and Norfolk every house*keeperbeing a citi(en is entitled to vote#&ree negroes, mullattoes, persons under the age oftwenty*one years, and such as have refused to giveassurance of fidelity to the commonwealth, areexcluded from the right of suffrage#

F?@# "eparate file#

?9# 6n this sub)ect the student is referred to theFederalist  No# ??, ?@, ?9, ?:#

?:# $he student is referred to the Federalist , No# ?8#

?# "pavan3s Puffendorf , p# 8>#

@># ;# !# "# Art# 8# "ect# 7, see also Federalist , No#?, @>, @8, upon this sub)ect#

@8# Amendments on this sub)ect have beenproposed by the "tates of New Hampshire,assachusetts, Chode*Island, New*Bork, Virginia,North*;arolina, and "outh*;arolina#

@+# $hese two acts are omitted in the compilation of897#

@1# 2lack# Com# 8?#

@7# .4hen we elect persons to represent us inparliament. /says a )udicious writer0 .we must not besupposed to depart from the smallest right which wehave deposited with them# 4e make a lodgment, nota gift' we entrust , but part with nothing# And, were itpossible that they should attempt to destroy thatconstitution which we had appointed them tomaintain, they can no more he held in the rank ofrepresentatives than a factor turned pirate, cancontinue to be called the factor of those merchantswhose goods he had plundered, and whoseconfidence he had betrayed# $he men, whom wethus depute to parliament, are not the bare likenessor reflection of us their constituents' they actuallycontain our powers and privileges, and are, as itwere, the very persons of the people they represent#4e are the parliament in themE we speak and act bythem# 4e have, therefore, a right to know what theyare saying and doing# And should they contradict our sense, or swerve from our interests, we have a rightto remonstrate in form, and direct them# 2y whichmeans we become the regulators of our ownconduct, and the institutors of our own laws, andnothing material can be done but by our authorityand consent#. 2urgh3s Political Disuisitions, Vol# 8#

p# +>+#### However inadmissible this doctrine may bein Great 2ritain, it seems perfectly adapted to theprinciples of our government#

@?# ;# !# "# art# 8# sect# +#@@# Ibid # sect# 1# "ee the Federalist , No# @+#@9# Vattel, , 8@#@:# "ee Federalist , No# @+#@# Ibidem#9># ;# !# "# Art# 8# =# 1#98# Ibid # =# + 1#9+# V# -# Acts of 89::, c# +# 89+, c# 8#91# ;# !# "# Art# 8# "ec# + and 1#97# Ibidem, "ec# @#9?# ;# !# "# Art# 8# "ec# @#9@# V# -# Acts of 89::, c #1:, 897, c# 1@# Amended89:, c# 8?#99# ;# !# "# Art# 8# "ec# @#9:# $he act of the first congress, 8 "ession, c# 89fixed the compensation to the members of congressat six dollars per diem, and the same for everytwenty miles distance, which they travel in coming toand returning from congress, until the fourth of

arch, 89?# After which period the members of thesenate were to receive seven dollars, and therepresentatives six dollars only per diem# 2ut the actof the 7th congress, c# 7# places the members ofboth houses exactly on the same footing, allowingthem six dollars per diem, without distinction#9# ;# !# "# Art# 8# s# +#:># Ibid # s# 9#:8# ;# !# "# Art# 8# s# +#:+# Ibid # s# 1#:1# In the first session of the second congress, thehouse of representatives passed a bill apportioningthe number of representatives in the ratio of one for

thirty thousand# $he senate were eually dividedupon this bill# "ome of the members, thoughmomently expected, being absent, the uestion wasput, and carried by the decision of the vice presidentagainst the bill# If ever a case could he named under the constitution which seemed to belong solely to therepresentatives to determine, it was this#:7# ;# !# "# Art# 8# s# 1#:?# Ibid #:@# Ibid # Art# +# s# +#F:9# "eparate file#F:*7 in &ootnote :9 file#?# ;# !# "# Art# 8# "ect# ?#@# ;# !# "# Art# 8# "ect# ?#9# Ibid #:# ;# !# "# Art# 8# "ect# ?## Art# 8# "# 7#8>># Art# +# "# 1#8>8# Art# 8# "# ?#8>+# ;# !# "# Art# +# "ect# 1#8>1# ;# !# "# Art# 8# "ect# 9#5+# $he double .the. is in the original text# <erhaps atypesetter error#

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Volume 1 — Appendix

Note D

[Section ) — Comp!i#on to 7!iti#3 Con#titution$Hou#e o" Common#%

In the course of this investigation I shall select thoseparts of the constitution of the 2ritish parliament,which in the opinion of one of its ablest advocates,constitutes it3s superior excellence, and not

unfreuently uote his opinions in his own words# $othese I shall occasionally oppose the sentiments oflater writers of his own country, on the same sub)ect'the maxims of our own government, or theadaptation of those of the 2ritish government to theconstitution of the !nited "tates% by these means Iapprehend a fair comparison of their respectivemerits, as tending to promote the liberty and generalhappiness of the community, may be made#

I# $he constituent parts of the 2ritish parliament, are,the house of commons, the house of lords, and theking, sitting there in his royal political capacity, in the

union of which three estates the body politic of thekingdom consists# Analogous to which, though verydifferently constituted, we have seen the house ofrepresentatives and senate of the !nited "tates, andsub modo the president of the !nited "tates formingthe general congress, or the supreme politicallegislature of the federal government# $hus far thegreat outlines of both governments appear to runparallel% they will however upon a nearer scrutiny befound freuently to diverge# 4e shall begin with thehouse of commons, which forms the democraticalpart of the 2ritish constitution#

.In a free state. says the author of the commentaries

.every man who is supposed a free agent, ought tobe in some measure his own governor, and thereforea branch at least of the legislative power shouldreside in the whole body of the people# In so large astate as 2ritain, therefore, it is very wisely contrivedthat the people should do that by theirrepresentatives, which it is impracticable to performin person' representatives, chosen by a number ofminute and separate districts, wherein all the votersare, or easily may be, distinguished 1(#. He adds,elsewhere, .in a democracy there can be no

exercise of sovereignty, but by suffrage, which is thedeclaration of the people3s will# In all democracies,therefore, it is of the utmost importance to regulateby whom and in what manner the suffrages are to becollected# In 5ngland where the people do notdebate in a collective body, but by representation,the exercise of this sovereignty consists in thechoice of representatives 1)#.

"uch are the principles laid down by thisdistinguished writer, from whence one would be ledto conclude that the elections for members of thehouse of commons were regulated in a manner asconformable thereto as possible# $hat where therewas an euality of right, an euality of representationwould also be found' and that the right of suffragewould be regulated by some uniform standard, sothat the same class of men should not possessprivileges in one place, which they are denied inanother#

8# 2y euality of representation, it will beunderstood, that I mean the right which any given

number of citi(ens possessing eual ualifications inrespect to the right of suffrage, have, to an eualshare in the councils of the nation by theirrepresentatives, as an eual number of their fellowciti(ens in any other part of the state en)oy#

In 5ngland and in 4ales there are fifty*two counties,represented by knights 1*, elected by the proprietorsof lands' the cities and boroughs are represented byciti(ens and burgesses, chosen by the mercantilepart, or supposed trading part of the nation #### $hewhole number of 5nglish representatives, is ?81 andof "cots, 7?# $he members of boroughs now bear

above a uadruple proportion to those for counties%from whence one would, at first, be apt to conclude,that the population or at least the number of electorsin the counties were eual' and, that the boroughswere at least four times as populous as the counties,collectively# $he former of these suppositions wouldbe perfectly unfounded in truth' the latter perhapsmay approach nearer to it# In truth, were the lattersupposition well founded, the euality ofrepresentation would not be much advanced by it###In -ondon which is supposed to contain near aseventh part of the number of the inhabitants of all5ngland, they are entitled to four members only inparliament# $he inconsiderable borough of elcombCegis in Dorsetshire sends as many# anchesterand 2irmingham, two large populous, flourishing,manufacturing towns have no representative, whilstthe depopulated borough of 6ld "arum, without ahouse or an inhabitant, is the vehicle through whichtwo members obtain their seats in parliament' arepresentation eual to that of the most populouscounty#

any other corresponding instances might beadduced to prove the ineuality of representation'

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but they are unnecessary #### In America therepresentation is in exact proportion to theinhabitants# 5very part of the states is thereforeeually represented, and conseuently has an eualshare in the government# Here the principle that thewhole body of the people should have a share in thelegislature, and every individual entitled to vote,possess an eual voice, is practically enforced#### In5ngland it is a mere illusion#

It is but )ustice to acknowledge that attempts haverepeatedly been made, to effect a reform in this partof the 2ritish constitution% the voice of the nation hasmore than once loudly demanded it### but their rulers,like the god 2aal, have been otherwise employed' or deaf, or peradventure asleep, and could not beawaked#

+# As to the right of suffrage in the individual, nearlythe same principle seems to prevail in respect to theualification in lands, in both countries' and thedifferent manner of ascertaining it, is not sufficient toreuire any remark# I shall only observe that copy*

holders, whose interest, in almost every otherrespect in their lands, seem to be eual to that of afree*holder, /at least, such as have inheritances inthem0 are not admitted to the tight of suffrage# $heproportion of copy*holders for life' or of inheritance,to the freehold tenants of the counties, I have neverheard estimated% it is, however, very considerable#

.$he right of voting in boroughs is various,. says2lackstone, .depending entirely on the severalcharters, customs, and constitutions of therespective places, which has occasioned infinitedisputes#. It may vary no less perhaps in the

different states of America, but there is thisadvantage, that however various, there can be littleroom for doubts, or disputes on the sub)ect# InVirginia the ualification to vote in boroughs, is asfixed and invariable as in the counties# 6ne principlehowever must not be lost sight of' which perhapsshould have come under the last head# No boroughcan ever be entitled to a representative, wheneverthe number of inhabitants shall, for the space ofseven years together, be less than half the numberof the inhabitants of any county in Virginia# In5ngland the boroughs retain the right ofrepresentation, as we have seen, even after theyhave lost their inhabitants# Another circumstancerespecting them is no less notorious' though theright of suffrage is in the burgher, the power ofsending the member to parliament is in the lord ofthe soil' a number of the boroughs being privateproperty, and the burghers, who are tenants, boundto vote as their lord shall direct% the shadow of theright of suffrage is all these burghers possess#### tothe exercise of that right they are as much strangers,as to the pyramids of 5gypt, or the ruins of <almyra#It is scarcely possible that the electors of America

should ever be degraded to a similar state of politicamechanism#

1# $he ualification of the members is the next ob)ectof our comparison# In 5ngland a knight of the shiremust possess an estate in lands of the value of @>>Jsterling, per annum, and a member for a borough ofone half that value, except the eldest sons of peers'and of persons ualified to be knights of shires, andmembers of the two universities#

$his at first view appears to be a proper andnecessary precaution, as far as it extends, to securethe independence of the members of that branch ofthe legislature# 2ut this argument is neitherconclusive in fact, nor even in theory# Neither ofthese sums is an adeuate support for a manmoving in the rank of a member of the 2ritishparliament# -uxury has taken too deep root in thenation to authori(e the supposition generally' and if itfails in general, it is of little avail that a few instancesmay be found of persons in that sphere, whoseexpences do not exceed the reuiste ualification in

point of fortune# 2ut if the principle be admitted thatan independent fortune be necessary to secure theindependence of the member in his legislativeconduct, it would seem that the measure ought to bethe same to all the members, since, according to thedoctrine laid down by our author, a member thoughchosen by a particular district, when elected, servesthe whole realm, the end of his election not beingparticular, but general# An euality of ualificationshould then have taken place' and if @>>J isnecessary to secure the independence of themember, those who possess but half as much oughtto be excluded' on the other hand, if 1>>J be a

competent sum for that purpose, how in)urious mustthat law be to the rights of the citi(en, which reuiresthe ualification which is acknowledged to besufficient for every good purpose, to be doubled# 2uta ualification in respect to estate is neither euallynor uniformly reuired' if the member elected shouldhappen to be the eldest son of a peer, or of a personualified to be, knight of the shire' in either of thesecases it is altogether dispensed with# $he effect ofthis, as it respects the former of these classes ofmen, we shall speak of hereafter# As to the latter, it issufficient to say, that presumption is allowed tosupply the place of evidence' and both theexceptions prove the deviation from the generalprinciple to have originated in the influence of thearistocratical interest of the nation#

In America no ualification in point of estate isreuired in the representative in congress by theconstitution' and perhaps we may with somepropriety insist that any such ualification would benot only unnecessary, but contrary to the trueinterests of their constituents# In 5ngland theinterests of the crown, of the nobles, and of thepeople, are confessedly distinct and often

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diametrically opposite# In America all are citi(enspossessing eual rights, in their civil capacities andrelations' there are no distinct orders among us,except while in the actual exercise of their severalpolitical functions# 4hen the member uits his seat,or the magistrate descends from the bench, he isinstantly one of the people# $he pageantry of officereaches not beyond the threshold of the place whereit is exercised' and civil distinctions privileges oremoluments independent of the office are interdictedby the principles of our government# $o secure theindependence of the members conduct, perhaps noprevious ualification, in point of estate may bereuisite' though such a ualification might foranother reason have been not improper% that bysharing in the burthens of government, he might berestrained from an undue imposition of them uponhis constituents# $he law of the state indeed reuiresthat the representative should he a freeholder, aswell as a resident in the district' but both theseprovisions, as they reuire ualifications which theconstitution does not, may possibly be found to benugatory, should any man possess a sufficient

influence in a district in which he neither resides noris a freeholder, to obtain a ma)ority of the suffragesin his favor# 2ut how strong soever the reasons infavour of a ualification in point of estate might havebeen, on the grounds last spoken of' they wereoverbalanced probably by two considerations#

&irst, that in a representative government, thepeople have an undoubted right to )udge forthemselves of the ualification of their delegate, andif their opinion of the integrity of their representativewill supply the want of estate, there can be noreason for the government to interfere, by saying,

that the latter must and shall overbalance the former#

"econdly' by reuiring a ualification in estate it mayoften happen, that men the best ualified in otherrespects might be incapaciated from serving theircountry# $o which we may add, that thecompensation which the members receive for theirservices, is probably such an euivalent, as mustsecure them from undue influence, or concessionsfrom motives of interest#

 A second ualification reuired by the 2ritishconstitution is, that the person elected shall be of theage of twenty*one years at the time of his election1+% ours with more caution and perhaps with betterreason, reuires that he shall have attained to theage of twenty*five years#

$hese are all the positive ualifications, in whichthere appears to be any very material differenceworth remarking# 6f negative ones, those whichrelate to the incapacity of certain descriptions ofplacemen and pensioners in 5ngland, are limited toa very small part of the host of the former whodepend upon the crown for support' and in respect

to the latter only such pensioners as hold during thepleasure of the crown, are excluded 1,# A list ofplacemen and pensioners in either the present orlast parliament of 5ngland was published someyears ago#### I do not recollect their exact number,but I can be positive that it exceeded two hundred1-# A number, sufficient to secure the most unlimitedinfluence in the crown% to these let us add the eldestsons of peers, and ask whether in a uestionbetween the commons and the nobility, it would beprobable that they would give an independent vote,against the order in which they soon hoped to obtaina permanent rank and station#

-astly, let me ask, if the conduct of those boroughmembers who hold their seats by the appointment ofmembers of the other house, or perhaps of theirown, may reasonably be expected to beuninfluenced by the nod of their patronsE ;an ahouse thus constituted be said to represent thepeople, the democratic part of the governmentE ;anthey be said to form a check upon the proceedingsof the nobility, or the measures of the crown 11E $he

uestion only reuires to be understood, to beanswered decidedly in the negative#

4e have seen that no person holding any officeunder the !nited "tates, shall be a member of eitherhouse during his continuance in office' and that nomember of congress shall during the time for whichhe was elected, be appointed to any civil office undethe authority of the !nited "tates, which shall havebeen created, or the emoluments thereof increasedduring such time 111# $hese provisions appear to bemore effectual to secure the independence of themembers, than any ualification in respect to estate%

but, they seem not to have been carried uite farenough#

In the course of this parallel, we have seen thatevery deviation in the constitution of the !nited"tates from that of Great 2ritain has been attendedwith a decided advantage and superiority on the partof the former# 4e shall perhaps discover, before wedismiss the comparison between them, that all itsdefects arise from some degree of approximation tothe nature of the 2ritish government#

$he exclusive privileges of the house of commons,and of our house of representatives, with some smalvariation are the same# $he first relative to moneybills, in which no amendment is permitted to bemade by the house of lords, is modified by ourconstitution so as to give the senate a concurrentright in every respect, except in the power oforiginating them' and this upon very properprinciples' the senators not being distinguished fromtheir fellow citi(ens by any exclusive privileges, andbeing in fact the representatives of the people,though chosen in a different manner from the,members of the other house' no good reason could

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be assigned why they should not have a voice onthe several parts of a revenue bill, as well as on thewhole taken together# $he power of impeachment bythe house of representatives corresponds, preciselywith that of the 2ritish house of commons#

II# 4e are now to draw a parallel between the houseof lords and the senate of the !nited "tates, as asecond constituent part of the national legislature'and could the parallel between them end there, itmight have been said, that all the branches of ourpolitical legislature, were, like a well chosen )ury,omni e!ceptione ma"ores#

$he house of lords are to be considered in twodistinct points of view#### &irst, as representing adistinct order of men, with exclusive privilegesannexed to their individual capacity, and. secondly,as representing the nation#

8# As to the necessity of a distinct order of men in astate' with exclusive privileges annexed to theindividual capacity, the author of the commentaries

observes, .$hat the distinction of rank and honoursis necessary in every well governed state, in order toreward such as are eminent for their public services,in a manner the most desirable to individuals, andyet without burthen to the community' excitingthereby an ambitious, yet laudable ardor, andgenerous emulation, in others# A spring of action,which however dangerous or invidious in a mererepublic, will certainly be attended with good effectsunder a monarchy# And since titles of nobility arethus expedient in the state, it is also expedient thattheir owners should form an independent andseparate branch of the legislature# If they were

confounded with the mass of the people, and likethem only had a vote in electing representatives their privileges would soon be borne down andoverwhelmed by the popular torrent, which wouldeffectually level all distinctions 11&#.

$he conclusion which evidently arises from theformer part of this uotation, .that no mere republiccan ever be a well governed state,. inasmuch ashonours and titles, the necessity of which, is here sopointedly urged, are dangerous and invidious in sucha government, may be proved to be false' both, fromreasoning and example# 2ut it will be time enough tocontrovert our author3s conclusion, when the truth ofthe principle upon which it is founded is established#$he 2ritish constitution, with him, is somewhat likethe bed of Procrustes' principles must he limited,extended, narrowed, or enlarged, to fit it# If they arenot susceptible of so convenient a modification, theyare to be wholly re)ected#### 2ut to return%

$he vital principle of mixt governments is thedistinction of of  E' orders, possessing, bothcollectively and individually, different rights,privileges or prerogatives# In an absolute monarchy,

a confirmed aristocracy, or a pure democracy, thisdistinction cannot be found# $here being nodistinction of orders, there can be no contentionabout rights, in either of these forms of government,so long as the government remains in the full vigourof its constitution# 4hen either of these three formsof government departs from its intrinsic nature,unless it assumes one of the other instead thereof, itbecomes a mixt government#### And this mixture mayconsist in the combination of monarchy witharistocracy, as in <oland' or with democracy, as in&rance, under it3s late constitution, as modelled bythe national assembly, and ratified by the king' or, inthe bleeding of the aristocratic and democraticforms, as was the case with the Coman Cepublicafter the establishment of the tribunes' or of all threeas in the 2ritish constitution# $he existence of eitherof these combinations are said to form theconstitution of the state in all the governments of theworld, except those of America, and &rance underit3s late constitution' in these the constitution createsthe powers that exist% In all others, the existingpowers determine the nature of the constitution# $o

preserve those existing powers in their full tone andvigour, respectively, it may be necessary that eachshould possess an independent share in thesupreme legislature, for the reasons assigned by theauthor of the commentaries' but this no more provesthe necessity of the order, in a well governed state,than the necessity of wings to the human bodywould be proved, by a critical dissertation, on thestructure, si(e, and position, of those of the fabulousdeities of antiuity#

6ur author considers those rewards which constitutea separate order of men' as attended with no

burthen to the community' nothing can be more falsethan such a supposition# If the distinction bepersonal, only, it must be created at the expence ofthe personal degradation of the rest of thecommunity, during the life of the distinguishedperson# If hereditary, this degradation is entailedupon the people% personal distinctions cannot besupported without power, or without wealth' theseare the true supporters of the arms of nobility' takethem away, the shield falls to the ground, and thepageantry of heraldry is trodden under foot 11'# 4hatcharacter is less respected in 5ngland, than a poor"cotch lord, who is not one of the sixteen peers ofthat kingdomE $hat lord in his own clan, possessescomparative wealth and power sufficient among hishumble dependents, to be looked up to as a ;rKsusin wealth, and a ;Ksar in authority#

.A titled nobility,. says a late distinguished 5nglishwriter 11(, .is the most undisputed progeny of feudalbarbarism# .$itles had in all nations denoted offices itwas reserved for Gothic 5urope, to attach them toranks# Bet this conduct admits explanation, for withthem offices were hereditary, and hence the titlesdenoting them became hereditary too# $hese

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distinctions only serve to unfit the nobility forobedience, and the people for freedom' to keep alivethe discontent of the one, and to perpetuate theservility of the other' to deprive the one of themoderation that sinks them into citi(ens, and to robthe other of the spirit that exalts them into freemen#$he possession of honours by the multitude, whohave inherited, but not acuired them, engrossesand depreciates these incentives and rewards ofvirtue 11)#. If these are the genuine fruits of thatlaudable ardour, and generous emulation, which givelife and vigour to the community, and sets all thewheels of government in motion, heaven protectthose whom it encounters in it3s progress#

2ut is their no stimulous to that laudable ardour andgenerous emulation which the commentator speaksof, to be found in a pure democracy, which maycompensate for the absence of ranks and honorsEBes# VIC$!5' that principle which actuated the 2ruti,a ;amillus, and a ;ato in the Coman republic, a$imoleon, an Aristides, and an 5paminondas amongthe Greeks, with thousands of their fellow citi(ens

whose names are scarcely yet lost in the wreck oftime# $hat principle whose operation we have seenin our own days and in our own country, and ofwhich, examples will be uoted by posterity so longas the remembrance of American liberty shallcontinue among men#### .Virtue,. says ontesuieu11*, .in a republic is a most simple thing' it is a love of the republic# -ove of the republic in a democracy is alove of the democracy% love of the democracy is thatof euality# $he love of euality in a democracy limitsambition to the sole desire, to the sole happiness, ofdoing greater services to our own country than therest of our fellow citi(ens#### 2ut all cannot render

eual services% hence distinctions arise here fromthe principle of euality, even when it seems to beremoved, by signal services, or superior abilities#.

$his distinction, the only one which is reconcileableto the genius and principle of a pure republic, is, ifwe may reason from effect to cause 11+, the mostpowerful incentive to good government that cananimate the human heart, with this advantage overthose hereditary honors for which the commentatoris so (ealous an advocate, that the ambition excitedby the former must of necessity be directed to thepublic good, whilst the latter springing from self love,alone, may exist in the breast of a ;Ksar or a;ataline# A &ranklin, or a 4ashington, need not thepageantry of honours, the glare of titles, nor the pre*eminence of station to distinguish them# $heir headslike the mountain pine are seen above thesurrounding trees of the forest, but their rootsengross not a larger portion of the soil#

5uality of rights, in like manner, precludes not thatdistinction which superiority in virtue introducesamong the citi(ens of a republic# 4ashington inretirement was eual, and only eual, in rights, to

the poorest citi(en of the state# Bet in the midst ofthat retirement the elevation of his character wassuperior to that of any prince in the universe, and thelustre of it far transcended the brightest diadem#

2ut even where it is conceded that distinctions ofrank and honours were necessary to goodgovernment, it would by no means follow that theyshould be hereditary' the same laudable ardourwhich leads to the acuisition of honor, is notnecessary to the preservation of its badges' andthese are all which it3s hereditary possessors, ingeneral, regard# Had nature in her operations shewnthat the same vigour of mind and activity of virtuewhich manifests itself in a father, descendsunimpaired to his son, and from him to latestposterity, in the same order of succession, that hisestate may be limited to, some appearance ofreason in favour of hereditary rank and honors mighthave been offered# 2ut nature in every place, and inevery age, has contradicted, and still contradicts thistheory 11,# $he sons of unius 2rutus were traitors tothe republic' the emperor ;ommodus was the son of

 Antoninus the philosopher' and Domitian was atonce the son of Vespasian, and the brother of $itus#

If what has been said be a sufficient answer to thenecessity of the distinction of ranks and honors tothe well government of a state, the commentatorhimself 11- hath afforded an unanswerable argumentagainst their expedience in a republic, byacknowledging them to be both dangerous andinvidious in such a government# And herewith agreesthe author of the "pirit of -aws 1&, who informs us,that the principle of a democracy is corrupted, whenthe spirit of euality is extinct# $he same admirable

writer1&1

 gives us a further reason why soheterogeneous a mixture ought not to have a placein any government where the freedom andhappiness of the people is thought an ob)ect worthythe attention of the government .A nobility,. says he,.think it an honour to obey a king, but consider it asthe lowest infamy to share the power with thepeople#.

4e are indebted to the same author 1&&, for thefollowing distinguished features of aristocracy% .If thereigning families observe the laws, aristocracy is amonarchy with several monarchs% but when they donot observe them, it is a despotic state governed bya great many despotic princes# In this case therepublic consists only in respect to the nobles, andamong them only# It is in the governing body' and thedespotic state is in the body governed# $he extremityof corruption is when the power of the noblesbecomes hereditary they can hardly then have anymoderation#. "uch is the picture of that order of menwho are elevated above the people by thedistinctions of rank and honours# 4hen the sub)ectsof a monarchy, they are the pillars of the throne, asthe commentator stiles them' or, according to

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ontesuieu, the tools of the monarch#### 4henrulers, as in an aristocracy, they are the despots ofthe people#### In a mixed government, they are thepolitical anisaries of the state, supporting andinsulting the throne by turns, but still threatening andenslaving the people 1&'#

In America the "enate are not a distinct order ofindividuals, but, the second branch of the nationallegislature, taken collectively# $hey have noprivileges, but such as are common to the membersof the house of representatives, and of the severalstate legislatures% 4e have seen that theseprivileges extend only to an exemption from personalarrests, in certain cases, and that it is utterly lost, incases of treason, felony, or breach of the peace#$hey more properly the privileges of theconstituents, than of the members, since it ispossible that a state might have no representative,and the !nited "tates no legislature, if the membersmight be restrained from attending their duty, byprocess issued at the suit of a creditor, or otherperson who might suppose he had cause of action

against them# In 5ngland the privileges of thepeerage are in some instances an insult to themorals of the people, the honour of a peer, onseveral occasions, being euipollent with the oath ofa commoner# $he exemption from personal arrestsin civil cases is extended as well to his servant, as tothe lord of parliament' to the in)ury of creditors, andthe no small encouragement of fraud and knavery#

 And the statutes of scandalum magnatum hang interrorem over the heads of those who dare toscrutini(e, or to uestion the reality of those superior endowments which the law ascribes, to theimmaculate, character of a peer or peeress of the

realm# Happy for America that her constitution 1&(

 and the genius of her people, eually secure heragainst the introduction of such a pernicious anddestructive class of men 1&)#

8>7# 8# 2lacks# Com# p# 8?:# 8?#8>?# 8# 2lacks# Com# p# 89>#8>@# Ibid # p# 88@# 8?# 5very county in 5nglandsends two knights of the shire to parliament% thecounty of erionethshire in 4ales' only, has but one#"ee acob3s Law Dictionary # $it# Lnights of the "hire#

 As to the electors in boroughs c# see Federalist ,No# ?@#8>9# 8# 2lack# Com# p# 8@+#8>:# Ibid  89?, 89@#8># $he number mentioned in 2urgh3s Pol# Dis# vol# +# p# 77#88># ackintosh3s defence of the &r# revolution p#+@+# to +@, 117# to 17>#888# ;# !# "# Art# 8# "ec# @88+# 8# 2# ;# 8?9, 8?:#

881# George Nevil, duke of 2edford, was degradedby act of parliament, because of his poverty, 8+,Cep# 8>9#887# ackintosh on the &rench Cevolution# p# 99#88?# ackintosh on the &rench Cevolution, p# :+#88@# $sprit des Loi!  , lib# 8# c# +# 1#889# $he greatest characters the world has known,have risen on the democratic floor# Aristocracy hasnot been able to keep a proportionate pace withdemocracy# $he artificial noble shrinks into a dwarfbefore the noble of nature#<aine3s Rights of %an, 7?#88:# <aine3s Rights of %an, 7?#88# 8 Vol# p# 8?9#8+># 8 Vol# p# 8?#8+8# 8 Vol# p# 8@1#8++# 8 Vol# p# 8@7#8+1# It often happens that the contest for power isbetwixt the prince and nobles, the people havingbeen previously enslaved# In this case, the form ofgovernment is variable so far as relates to the princeand nobility' but the slavery of the people is lasting#It would be a very happy thing in an aristocracy, if, by

some indirect means or other, the people could beemancipated front their state of annihilation#ontesuieu, Vol# 8# p# 8@#8+7# ;# !# "# Art# 8# "ec# , 8>#8+?# An alien applying to be admitted to citi(enshipin the !nited "tates, who shall have borne anyhereditary title, or been of any of the orders ofnobility, in any other kingdom or state, must make anexpress renunciation thereof in court, at the time ofhis admission# -# !# "# 1# ;ong# c# :?#51# $he word .of. was doubled in the original text#<erhaps a typesetter error#

Volume 1 — Appendix

Note D

[Section * — Comp!i#on to 7!iti#3 Con#titution$Hou#e o" 8o!d#%

"econdly# 4e shall now consider the 2ritish house olords, as representing the nation#

$he superior degree of wisdom which is to be foundin aristocracies, forms the principal argument in

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favour of this branch of the 2ritish legislature# -et usexamine how far this reuisite to national councils, isto be attained by the constitution of that house#

8# $he house of lords is composed either of newmade peers, or of such to whom that honor hasbeen transmitted by hereditary right' we may admit,though the fact will hardly )ustify it, that the newmade peers have a chance of being selected fortheir superior wisdom' nay that this is universally thecase' the portion of wisdom thus acuired, even inthe creative reign of George the third, could never hesufficient to counterbalance the large ma)ority ofhereditary peers, who affect to hold in greatcontempt the talents and learning of their newcreated brethren# $he wisdom of this body rests thenupon the chance of natural talents, with theadvantages of education to improve and maturethem# As to the latter, should we admit that a child,who, from the moment he is capable of making anyobservation, sees himself treated as a superiorbeing, would have the same stimulus to improve, asone who is taught to consider the road to science as

the only one which leads to distinction, no advantagecould be claimed in favour of the hereditarylegislator, unless it should be proved that thebenefits of education are necessarily confined to thatclass of men #### $he uestion rests then solely uponthe mode by which the nobility become legislators,and here every argument against the transmission of talents and virtue in hereditary succession, recurswith accumulated force, the chance of thisinheritance being confined by the laws to the eldestson 1&*#

$he senate of the !nited "tates, as we have seen, is

composed of individuals selected for their probity,attachment to their country, and talents, by thelegislatures of the respective states# $hey must beciti(ens of the states for which they are chosen ####their merits must be known, must have beendistinguished, and respected# Age must havematured the talents, and confirmed the virtues whichdawned with childhood, or shine forth with youth#<rinciples must have been manifested, and conducthave evinced their rectitude, energy, and stability ####5uivocation of character can scarcely obtainadmittance where the trust is important, electionsrare, and limited to an individual, or, at most, to two#$he whole number of senators are at present limitedto thirty*two #### it is not probable that they will everexceed fifty #### A late writer 1&+ has observed, that anassembly of Newtons, if they exceeded a hundred,would be a mob# $he 2ritish house of peers consistsof twice that number at the least, and may beencreased, at the will of the prince, to any number 1&,

#### $he senators of America have the interest of astate to promote, or to defend# A 2ritish house ofpeers has the privileges of the order, the interests ofthe corporation of aristocracy, to advance# $heirwisdom, their exertions, are directed to their own

personal aggrandi(ement #### $hose of an Americansenator can scarcely find an ob)ect, except the goodof the nation, or of the individual state which herepresents# A peer holds himself responsible to noone for his conduct' a senator is responsible to hisconstituents, and if he abuses their confidence, willbe sure to be displaced, whilst the former hugshimself in the security and stability of his station# Isay nothing of the bench of bishops# $heindependence of that body has been too freuentlyuestioned to render them respectable, even in theeyes of their own nation, as a part of the legislature#

 A member of the house of lords, may make anotherlord his proxy 1&-, to vote for him in his absence' aprivilege which he is supposed to derive from sittingthere in his own right' and not as one of therepresentatives of the nation# He may likewise, byleave of parliament enter his protest against anymeasure, analogous to which we have seen that theyeas and nays of either house of congress shall becalled, if one fifth part of the members presentconcur therein 1'#

$he lord chancellor, or any other person appointedby the king3s commission is speaker of the house oflords 1'1' and if none be so appointed, the house oflords may elect' and if the speaker be a lord ofparliament he may also give his opinion upon anyuestion which the speaker of the commonscannot #### $he vice president of the !nited "tates isin like manner speaker of the senate, but he isprohibited from voting unless the senate be euallydivided 1'&# $he necessity of providing for the case ofa vacancy in the office of president doubtless gaverise to the creation of this officer% and for want of

something else for him to do, whilst there is apresident in office, he seems to have been placed,with no very great propriety, in the chair of thesenate# An idea probably originating from thetendency which we have sometimes discovered, toimitate the model of the 2ritish constitution# $hecasting vote, which this officer is entrusted with, /aswas before observed,0 is a very important trust, andought to have been so modified as to leave theexercise of it, to as few cases as possible #### If ameasure originates in the senate, indeed, it wouldseem to be less dangerous, to permit the exercise ofthis casting vote, than where it was made use of' tonegative a measure, perhaps unanimously adoptedby the other house, and upon which the senate havebeen divided merely from the absence of some of it3smembers# $his has actually happened once, on avery important occasion, as we have seen, and mayhappen again, on others eually interesting to therights of the citi(en#

1# $he third constituent part of the 2ritish parliament,is the king, without whose assent no bill can passinto a law# $he reason for this seems to be theprotection of the &ura Coron' from the

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encroachments of the legislature, but this protection,says the ;ommentator 1'', consists in the power ofre)ecting rather than resolving% in like manner wehave seen, that the president of the !nited "tates to,whom the executive power is entrusted, has a kindof suspensive veto #### not an absolute, but aualified negative' and so ualified too, that nosalutary measure can be so long delayed by hisob)ection to it, if two thirds of both houses concur inthe expediency 1'(# In 5ngland since the revolution,the royal negative, as to the practical and ostensibleexercise of it, seems to be a mere fiction of theconstitution, the influence of the crown in bothhouses, having always proved sufficient to preventthe obtrusion of any obnoxious bill upon the throne'as has been proved on more than one occasion# $hepower of calling up any number of new lords, adlibitum, is a sufficient guarantee against thenecessity of exercising this unpopular prerogative inthe crown# 2ut if that were to be found insufficient, aprorogation which puts an end to all mattersdepending in parliament would effectually answerthe purpose #### And should the parliament upon

being re*assembled give any indications of revivingthe offensive sub)ect, a disolution is sure to pave theway for a more complying body in the house ofcommons# $he history of the present administrationin 5ngland affords facts to )ustify what has here beenoffered 1') #### In America the executive authoritydoes not extend to the creating new members of thelegislature% the president has no power ofdissolution, or prorogation, nor even of ad)ournment,but in case of actual disagreement on that sub)ectbetween the two houses# His assent if held longerthan ten days exclusive of "undays' is notnecessary to the force of a law' and his negative, if it

be exercised at all, must be notified within the sameperiod to congress, together with his reasons insupport of it% if they should be deemed insufficient for the re)ection of the bill by two thirds of both houses,it will become a law without his approbation% whichseems rather to have been intended as a precaution,provided by the constitution against the hastypassage of impolitic, or unconstitutional acts, than asan essential to the completion of a law' as we havebefore observed#

$his concludes a short sketch of the constituentparts of the supreme legislatures of Great 2ritainand the !# "tates, with a parallel between them, andthe mutual checks and balances provided by theconstitution of both countries against the possibleencroachments of one of these constituent partsupon the rights of the other# A late 5nglish writer 1'* of popular eminence, undertakes to prove that thesegovernments of balance and controul have neverexisted but in the vision of theorists# I leave theaffirmative to be proved by the advocates for the2ritish constitution, confessing that my ownconviction inclines rather to the doctrines of thepolitical heretic, than to those of the most orthodox

supporters of the creed which he controverts# 2utbefore I uit the sub)ect of checks and balances, Ishall say a few words on those reuired by thepolitical situation, and provided by the constitution ofthe !nited "tates#

$he territory of the !nited "tates extends along theseacoast from north to south, about one thousandmiles, and westward from the coast about eighthundred, affording a variety of productions, andholding forth a variety of pursuits to the inhabitants,corresponding with that of climate, soil andsituation #### $o secure an eual representation of theinterests of the individuals inhabiting this extensivecountry, united in one political bond, as to theircorrespondence and intercourse with the othernations of the globe, the house of representativeswas constituted upon the principles of euality andreciprocity, between burthens and representation inthe manner that we have already seen# 2ut althoughthe interests of the individuals might be common inmany respects, throughout the !nited "tates, yet theterritorial, as well as political division, constitution

and laws of the several states, created or manifesteda contrariety of interests between them, which allwere perhaps eually tenacious of maintainingunimpared# $he territorial extent of Virginia being atleast one hundred times as great as that ofDelaware, and her representation in the proportionof nineteen to one, at present' the interest of thelatter could never stand in competition with theformer, if the whole legislature were composed of asingle house constituted as the house ofrepresentatives is% but in the senate, Delaware, as astate' has an eual share in council with Virginia#Her separate interests are there put upon the same

footing, with those of the largest states in the union,nor can she be oppressed, but in such a case aswould render any other state liable to the same fate#$his appears to me to be a wise and effectualbalance# "hould it fail, the suspensive negative ofthe president may counteract the machinations of anoppressive ma)ority, in either, or both houses ofcongress by reuiring, the concurrence of a largerproportion of both, than are likely to agree in anyimpolitic, unconstitutional, or partial measure# 6n theother hand should state interest prevail in the senateit would meet an effectual check in the house ofrepresentatives, where the number of members isnot regulated by states, but by the right of suffrage#$he influence of states on the latter house, cannever be so great hereafter, as it was during the firstand second congress, after the adoption of theconstitution' that influence received a check from thenegative of the president 1'+ which restored theconstitution to it3s principles, and manifested thehappy effects to be derived from a well organi(edgovernment, so long as any part of it remainsuninfluenced by partial or corrupt motives#

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2efore we dismiss our parallel, a short notice ofsome other points may not be improper# And first,the privileges of the parliament of 5ngland 1',, and of it3s members, are indefinite, and depend upon theirown construction of them when a new case occurs#In America the privileges of the members ofcongress are, as we have seen, defined, and Ipresume limited, by the constitution 1'-' and thepowers of congress are eually prescribed thereby,whilst those of the 2ritish parliament have noconstitutional limits whatsoever, .and if by anymeans a misgovernment should any way fall upon it,the sub)ects of the kingdom are left without allmanner of remedy 1(#. In America two methods arepointed out, by which any defects in the constitutionmay be remedied' and, should congress prove toocorrupt to adopt the one, it is in the power of thestate legislatures to enforce the other 1(1' besides thechance which freuent elections afford, of remedyingan evil before it has taken root in the severalbranches of government too firmly to be eradicated#&reuent elections of the representatives of thepeople, have been )ustly esteemed one of the best

securities to the liberties of the people# $he mostfreuent elections of parliaments in 5ngland havebeen triennial #### they have been protracted to sevenyears, professedly says 2lackstone 1(&, to preventthe great and continued expences of freuentelections# &reuent elections would certainly offerthe most effectual remedy for this evil, bydiminishing that parliamentary influence whichseptennial elections tend to secure, and to securewhich is the great ob)ect of election expences#4hether biennial election of representatives tocongress will be sufficiently freuent to secure thedue dependence of the members upon their

constituents, must be ascertained by experiment# Iincline to think, that the reasons in favour of thatperiod are at least eual to those against it 1('# 5veryob)ection against it3s extension beyond the periodassigned to the duration of our state legislature,must apply with accumulated force against theduration of the parliament of Great 2ritain# In5ngland, the convening of the parliament, thecontinuance of the session, and the existence of theparliament depend on the pleasure of the crown# In

 America, the periods of election, convening, andduration of congress are fixed by the constitution orby law% the ad)ournments depend upon themselves,the executive have no controul over any matterrelative thereto, except in one instance beforementioned, and that must arise from a disagreementbetween the houses# In 5ngland, forty*five membersconstitute a house to do business, where the wholenumber consists of ??:# In America there must be ama)ority of both houses to constitute a uorum 1((#

8+@# $he right of primogeniture to the inheritance ofvirtue and talents, has always appeared to be

uestionable, if we may draw our conclusion fromthe authority of the sacred scriptures# $he first bornson of the first man, was a murderer# $he first bornson of Abraham, /by a concubine it must beconfessed,0 was an outcast from society' his handwas against every man, and every man3s handagainst him #### $he first born son of Isaac was, bythe dispensations of the divine providence,postponed to his younger brother' the first born ofacob went up unto his father3s bed, and defiled it'and the sceptre was transmitted to the race ofudah' the first born of esse, appeared worthy inthe sight the prophet, but he, with six of his brethren,was re)ected in favour of David the youngest and thefirst born of that same David, was by the sameprovidence set aside in favour of "olomon hisyoungest son#8+9# ackintosh#8+:# $he temporal peers of Great 2ritain are said toamount to two hundred and twenty at this time#8+# 8# 2lack# Com# p# 8@:#81># ;# !# "# Art# 8# s# ?#818# 8# 2lack# Com# p# 8:8#

81+# ;# !# "# Art# 8# s# 1#811# Vol I# p# 8?7#817# ;# !# "# Art# 8# "ec# 9#81?# In the reign of ueen Anne, there was acreation of twelve new peers at once, in order tosecure a ma)ority in the house of lords against a billwhich had been sent up by the commons, and hadpassed one or two readings in the other house# $hepassage of the India bill, which was introduced in thehouse of commons during the administration of;harles &ox and -ord North, was prevented by asimilar expedient, and those obnoxious ministerswere dismissed from the service of the crown after

midnight% of the same evening when thedetermination was obtained #### $he dissolution of theparliament, in which there was an evident ma)orityagainst the new ministry, followed soon after, andsecured the tranuility of their administration, by adecided ma)ority in the new house of commons#81@# ackintosh#819# $he bill for apportioning representatives amongthe states, was negatived by the president, ascontrary to constitutional principles# A new bill wasafterwards introduced and passed, there not being ama)ority of two thirds of either house, in favour of theformer #### +# ;ong# 8# "ess# 89+#81:# 2lack# Com# p# 8@>, 8@7, 8@?#81# ;# !# "# Art# 8# "ec# @#87># 8# 2lack# Com# p# 8@8#878# ;# !# "# Art# ?#87+# Vol# 8# p# 8:#871# Federalist  Vol# +# p# 8+7, to 81?#877# $he manner of conducting the business incongress is very similar to that observed in the2ritish parliament# At the opening of the session, thepresident meets the congress in one or other of theirchambers, and addresses them upon the generalaffairs of the union# $his address has generally

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received a separate answer from each house, whichis presented by the whole house, to the president inhis audience chamber, that is, at his own house#5very resolution to which the concurrence of thesenate is necessary, must be laid upon the table ona day preceding that, in which it is moved, unless, byexpress commission of the house# <etitions,memorials, c# addressed to the house must beproceeded upon in like manner# 2ills are introducedby motion for leave, or by order of the house on thereport of a committee, and in either case acommittee is appointed to prepare the bill# Cevenuebills, as was observed elsewhere, must originate inthe house of representatives' but the senate mayoriginate any other bill, and may also propose, orconcur to amendments, in revenue bills, as well asothers# As the senate constitutes a part of theexecutive department, this power of origination musthave a strong tendency to strengthen, and giveactivity to that branch of the government 1()# 5verybill receives three readings' but no bill can be twiceread on the same day without special order of thehouse# If upon the first reading of a bill it be

opposed, the uestion put is, whether it shall bere)ected' upon the second reading, the speakerstates that it is ready for commitment orengrossment# $he commitment may be either to aselect committee or to the whole house# In acommittee of the whole, the speaker uits the chair,and a chairman is appointed, who, when thecommittee rises, reports to the house the progresstherein made# After commitment and report, a billmay be recommitted, or at any time after, before itspassage# <revious to the third reading of a bill, it isordered to he engrossed, or written in a fair roundhand' when passed in the house of representatives,

it is sent to the senate for concurrence# 2ills, exceptfor imposing taxes, may originate in either house# Ifan amendment be agreed to, in one house, anddissented to in the other, if either house reuest aconference, a committee is appointed in each houseto meet in the conference chamber, to state to eachother, verbally, or in writing the reasons of theirrespective houses, for and against the amendment#

 After a bill has passed both houses it is enrolled onparchment, examined by a )oint committee of bothhouses, signed by the speaker of the house ofrepresentatives, and president of the senate, and isthen presented by the committee of enrolment to thepresident of the !nited "tates for his approbation'with an indorsement thereon, specifying in whichhouse it originated, and the day of presentation isentered on the ournals of such house# 1(* If thepresident approve the bill, he signs it 1(+' it is thenreceived from him by the secretary of state,recorded, and deposited among the rolls in hisoffice' a copy of it is published in at least three of thepublic papers, and one printed copy is delivered toeach senator and representative, and two others,duly authenticated, are sent to the executiveauthority of each state# $he same course is to be

observed, where a bill is not returned by thepresident, within the time limited by the constitution,and thereby becomes a law% or, having beenreturned, reconsidered, and approved by two thirdsof both houses, becomes law# 1(, $he manner ofproceeding in case a bill be not approved and signedby the president, has been already fully mentioned,in this Appendix#87?# "ee De -olme, 2# +# c# 7# and ?#87@# Rules and (rders of the )ouse ofRepresentatives#879# ;# !# "# Article 8# "ect# 9#87:# -# !# "# 8# ;ongress# 8# "ession, c# 87#

Volume 1 — Appendix

Note D

[Section + — 5o6e!# o" Con!e## /cont.0%

4e shall now resume our enuiry into the powersthe exercise of which, is by the constitution confidedto the congress of the !nited "tates# ost of these

we have had occasion to enumerate in the course of our examination into the distribution of powerbetween the federal and state governments# $hisexamination we shall now resume more at large'another ob)ect of our further enuiry will be, how,these powers are ad)usted and to whom confided, inother governments, particularly that of Great 2ritain%this will lead us freuently to resume our parallel,and I trust, it will scarcely be found, that upon a faircomparison, the superiority can in any instance bedenied to the constitution of the !nited "tates#

@# $he powers of congress are the next sub)ect towhich our enuiries are to be directed' these are ingeneral legislative yet in some few instances, theyextend also to other sub)ects, which fall under theexecutive department in most other nations#

8# ;ongress is authorised to lay and collect taxes,duties, imposts, and excises, to pay the debts, andprovide for the common defence, and generalwelfare of the !nited "tates 1(-% but all duties,imposts, and excise shall be uniform throughout the!nited "tates and no capitation' or other direct taxshall be laid, unless in proportion to the census, or

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enumeration, before directed to be taken% nor shallany tax or duty be laid on articles exported from anystate 1)#

$he principle upon which the right of taxation isfounded, is here shortly expressed' vi(# .$o pay thedebts and provide for the common defence, andgeneral welfare of the !nited "tates#. &or since thegovernment is bound to defend the lives andfortunes of the citi(en, which protection cannot beafforded, unless the government be furnished withadeuate supplies for that purpose, it is butreasonable that the individual should, on his part,contribute his proper proportion thereof  1)1# 6n theother hand, since the citi(en is on no other accountobliged to pay taxes, or undergo any other publicburthen, but as they are necessary to defray theexpences of the state, it ought to be the singularcare of the government to draw no further suppliesthan the exigences of the public reuire' and to seelikewise that the citi(ens be as little as possibleincommoded with the charges they are forced to putthem to' and moreover, that the public impositions

be laid in )ust and fair proportions, without favouringand exempting of one, to the defrauding oroppression of another  1)&# "uch are the principleswhich the constitution establishes, by reuiring thatdirect taxes should be .according to the census'.and that indirect taxes, vi(# duties, imposts' andexcises should be .uniform. throughout the !nited"tates#

$he distinction which the constitution thus createsbetween direct taxes, and others, renders an enuiryinto the grounds and nature of that distinctionparticularly interesting#

$he author of the treatise upon political economydefines a tax, to be .a certain contribution of fruits,service, or money imposed upon the individuals of astate 1)'#. He adds' .this definition may include, ingeneral, all kinds of burthens which can possibly beimposed, whether under the name of tribute, tythe,tally, impost, duty, gabel, custom, subsidy, excise, orany other#

 As this definition includes the several species ofburthens which the congress are authori(ed toimpose, it may be proper to see in what manner thesame author distinguishes them #### $his he does intothree classes% 8# $hose upon alienation, which hecalls proportional' +# $hose upon possessions, whichhe calls cumulative, or arbitrary' 1# $hose exacted inservice, as in the militia, on the roads, c#

8# A proportional tax is paid by the buyer, whointends to consume, at the time of the consumption'and is consolidated with the price of the commodity#

$wo reuisites are necessary to fix this tax upon anyone first, he must be a buyer' secondly he must be aconsumer#

5xamples of this tax are all excises, customs, /vi(#duties on imposts or exports0 stamp duties, postage,coinage, and the like#

+# A cumulative or arbitrary tax may be known' 8# 2ythe intention' which is, to affect the possessor insuch a manner' as to make it difficult for him toaugment his income in proportion to the tax he pays%+# 2y the ob)ect when instead of being laid on anydeterminate piece of labour, or consumption, it ismade to affect past, and not present, gains' 1# 2y thecircumstances, under which it is levied' which implyno transition of property from hand to hand 1)(#

5xamples of cumulative taxes, are land taxes, polltaxes, window taxes, duties upon coaches, servants,c#

$he taxes, duties, imposts, and excises, mentioned

in the constitution of the !nited "tates, appearnaturally to fall under a similar division, and thewords direct, and indirect, may conseuently besubstituted for the terms cumulative andproportional, used by that author#

It is the nature of a cumulative /or direct tax0 to affectthe possessions, income, and profit, of everyindividual, without suffering it to be in their power todraw it back again in any way whatever# Aproportional, /or indirect tax0 on the contrary may besaid to be paid voluntarily' being paid by a voluntarypurchaser, who is also a consumer 1))#

$his distinction it is conceived may be illustrated bythe following example% If a tax be laid upon wheels,so that every person in the state shall be liable topay a certain sum in proportion to the number ofcarriages he has for his convenience this, accordingto the author last mentioned, would be a cumulative,or direct tax' but if a similar tax be collected in thehands of the wheel*wright, it would be a proportionalor indirect tax% in the first case' he who pays the taxupon the carriages, which he keeps for hisconvenience, cannot possibly draw the tax backagain, after he has once paid it, by any meanswhatever' in the second, the wheel*wright onlyadvances the tax, but is repaid by the purchaser whobuys it for his convenience% inasmuch as headvances the price of his wheels, in proportion to theduty or tax, he has paid upon them 1)*#

"upposing this to be the true distinction to be takenbetween direct and indirect taxes, a correspondentdistinction in the mode of imposing the tax should beadopted' if, for example, the last mentioned tax is tobe levied upon the person who uses the carriage forhis convenience' this being a direct tax, the whole

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sum reuired to be raised thereby, must first beapportioned among the several states' but the taxitself, need not be uniform throughout the state' if itbe levied on the wheelright, the tax becomes anindirect one, and must be uniform throughout thestates' but there need not be any previousapportionment of the uotas of the several states 1)+#

4hilst the constitution of the !nited "tates wasunder consideration, ob)ections were offered in thisstate, and in some others, against the power ofdirect taxation, thereby granted to congress# 6ne ofthe amendments proposed by the convention of thisstate, was, .$hat when congress shall lay directtaxes or excises, they shall immediately inform theexecutive power of each state, of the uota of suchstate according to the census by the constitutiondirected, which is proposed to be thereby raised'and if the legislature of any state shall pass a law,which shall be effectual for raising such uota, at thetime reuired by congress, the taxes and exciseslaid by congress shall not be collected in such state#.$his amendment was passed over in silence by

congress' but the exercise of the right of directtaxation, which it was intended to ualify, has neveryet been exerted' and probably will not, so long asany other expedient can be fallen upon to raisemoney for the support of the government 1),# Notonly Virginia, but assachusetts, "outh ;arolina,New*Bork, and North*;arolina, concurred inexpressing a disapprobation of this part of theconstitution# It may, however, be doubted, whetherthere is as much reason for the ob)ection, as theconcurring sense of five such considerable statesinduces a supposition that there may be in it3sfavour# $he power of taxation seems indispensably

necessary to constitute an efficient government, andappears inseparable from the right of deciding uponany measure, which reuires the aid of taxes, tocarry it into effect# 2y the same article of theconstitution we shall find, that congress have powerto declare war, and to raise and support armies#4hat could this declaration avail without the furtherpower of procuring the means for their supportE $heeffects of paper emissions, lotteries, loan*offices,impressments, and reuisitions from the states, theoccasional expedients, and ultimate resources of afeeble confederacy, had been sufficiently seen, andfelt during the revolutionary war# How often were thesinews of government unstrung' how often were it3soperations stopped in the most critical con)unctureshow few of them were carried into vigorous effect,from the imbecility of the federal government, andthe deranged state of the finances of the unionE ####Nor is the mode proposed by the amendment,altogether free from ob)ection% the states might passlaws apparently effectual, for the purpose of raisingthe sum reuired, and yet the execution of thoselaws be so retarded by the delinuency of collectors,as to render the suspension of the act of congress amatter no longer reconcilable to the pressing

emergencies of the government# In this case, thegovernment must either be deprived of it3sresources, or the citi(ens he doubly burthened# 4asthere an instance where the reuisitions of therevolutionary congress were strictly complied with,both as to the time of payment, and the uantumreuiredE 4ere not arrears upon arrears continuallythe sub)ect of their demands from the respectivestatesE If this was the case during the struggle forindependence, what may not be apprehended uponother occasionsE It will be alledged, perhaps, thatthe uotas of the several states were not ad)ustedupon eual principles by the confederation% thateach state supposed, and even complained, that ithad already contributed more than it3s proper uota'and that this may well account for their tardiness incomplying with the reuisitions of congress# $his, itis true, was the ostensible excuse with most of them%but it is no less true that the states who were under*rated, or who were actually in arrears, were not lesspositive, or vehement, in their complaints of theineuality of the burthen, than those who had reasonand )ustice on their side' conseuently they were not

less tardy in complying with any new reuisition# Ifthe experience of former evils ought to make uswise, the !nited "tates have surely derived sufficieninformation from this source#

It is observable, that the ob)ection only goes to theexercise of the right of direct taxation' and theimposition of excises' all other indirect modes oftaxation seem to be given up without a uestion% butif the necessity of investing congress with a power toimpose taxes be admitted, it may be uestioned,whether more numerous, and important ob)ectionsmay not be offered against indirect, than direct

taxation, as a source of revenue in a free state# If, onthe one hand, indirect taxation may be consideredas least burthensome in the mode of collection, onthe other hand it may be remarked, that the increaseof burthen upon the consumer, who ultimately paysevery indirect tax, is probably more than aneuivalent for this convenience' which is moreoverfully counterbalanced by that unavoidable ineualityof burthens, resulting from indirect taxes, which itshould be the ob)ect of direct taxation to avoid#Indeed, if euality of taxation be desirable, the onlymode by which it can be obtained, seems to be bydirect taxes, imposed in the mode prescribed by theconstitution# It was, perhaps, impracticable to fix theratio of direct taxes, in any )ust proportion, byreference to any particular species of property, evenland, that kind of property, which, of all others, ismost susceptible of such an ad)ustment, being ofvery uneual value, although perfectly eual inuality, and produce, in different parts of the !nited"tates# And this circumstance, alone, appears toafford a sufficient reason against uniformity, in theimposition of direct taxes# $he attempt was madeunder the confederation to apportion the burthens ofthe union among the states, according to the value

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of all lands within each state, granted to, or surveyedfor any person, with the buildings and improvementsthereon 1)-# 2ut congress, by their act of April 8:,proposed to the states to rescind that part of thearticles of confederation, and in lieu thereof, to adoptprecisely the same mode which the presentconstitution establishes# A bill to that effect waspassed in this state 1*' but whether the proposal wasfavourably received by the other states, I am notinformed# It appears then to be somewhatextraordinary, that the opposition to direct taxationwas so strong in Virginia, where the proportionproposed, had already received the approbation ofher legislature# A proportion established by referenceto labour, the original source of wealth, may beconsidered as the best medium, by which toascertain the rate of actual wealth' and if it beremembered, that two*fifths of the slaves in thesouthern states are thrown out of the calculation, weshould conclude that they could not reasonably bedissatisfied with the ratio thereby established 1*1#

6ne of the ob)ections to the power of direct taxation

most strongly insisted on, was, that a representativeof assachusetts, or Georgia, could not be a proper

 )udge of the most fit ob)ects of taxation in Virginia'this ob)ection, however, the constitution seems tohave guarded against effectually, by reuiring thatthe sum to be raised by direct taxes should beapportioned among the several states in the firstinstance# 4hat motive, then, could representativefrom assachusetts, or from Georgia, have foropposing any mode of raising the tax in Virginia,which might be proposed by the representativesfrom that stateE As the sum to be contributed by thestate would be previously fixed, it could neither be

augmented nor diminished by the mode of collection%of this, the members from the several states mighthe considered as the best )udges, respectively#!niformity not being reuired by the constitution tobe observed in the imposition of direct taxes, the taxin New*5ngland might be a poll*tax, in <ennsylvaniaa land*tax, and in "outh ;arolina a tax on slaves, ifthose modes, respectively, should be recommendedby the representatives of those states, without eitherviolating the constitution, or disadvantage to anyother state# In the imposition of such taxes'therefore, congress might pursue the system of each"tate, respectively, within that state 1*&# $heineuality of indirect taxes, among states, as well asamong individuals, is perfectly unavoidable 1*'# Itmay in time become so great as to shift all theburthens of government from a part of the states,and to impose them, exclusively, on the rest of theunion# $he northern states, for example, alreadymanufacture within themselves, a very largeproportion, or perhaps the whole, of many articles,which in other states are imported from foreign parts,sub)ect to heavy duties# $hey are conseuentlyexempted, in the same proportion, from the burthenof duties paid on these articles# Hence a

considerable ineuality already exists between thecontributions from the several states' this ineualitydaily increases, and is indeed daily favoured, uponprinciples of national policy% for whenever anyspecies of manufacture becomes considerable in the!nited "tates, it is considered proper to impose whaare called protecting duties, upon foreign articles ofthe same kind# Nor does the matter rest here' forseveral American manufactures are now sub)ect toan excise 1*(% this species of tax, though advancedby the manufacturer, is paid by the consumer, as hasbeen already shewn% conseuently, the duty uponevery excised commodity is in fact paid by that statewhere it is consumed, whilst the manufacturing stateis not only exempt from the burthen, but enriched byit# $his ineuality is no otherwise to be avoided butby direct taxes# $he same disproportion also obtainsamong individuals of the same state where itoperates as a tax on luxury, it may be considered ina beneficial light' but there are a thousand instanceswhere a tax upon consumption will produce anineuality of burthens, though the tax should operateonly upon the necessaries, and not the luxuries of

life% a person in health may dispense with manycomforts which a sick man stands in the utmostneed of' he can better afford to pay a tax on what heconsumes' but the sick man must either pay anadditional tax, or perish because he cannot afford it#Indirect taxes, therefore, not unfreuently impose theburthen upon those who are least able to sustain it'a direct tax on the contrary may always beapportioned according to the means of defraying it#

It seems agreed among political writers, that anotherob)ection to indirect taxes arises from the tax beingso interwoven with the price, that the consumer

blends them together, and is thus rendered ignorantof the burthens imposed upon him by thegovernment# $his is conceived to be peculiarlydangerous in a free government, and utterlyincompatible with that responsibility, which ought tosubsist between the representative and hisconstituents' whose burthens are thus imperceptiblyincreased, to the great ha(ard of their liberties,whenever the government shall thus insensiblyacuire an independent revenue' the source andamount of which may be eually unknown to thegenerality of the people# If, for example, a duty of 8>

 per cent# ad valorem, he imposed upon any foreignarticle imported, or upon any domestic manufacturemade for sale in the !nited "tates, the duty is in avery few years entirely forgotten, being wholly lost inthe price of the article, in the consumer3s estimation'an additional ? per cent # is laid' this, like the former,is eually forgotten, and blended with the price in afew years more# $his may be repeated at no verydistant periods, till the duty is doubled, trebled, oruadrupled, and the effect still be the same% inanother generation the same experiment may berepeated with like success, and each succeedinggeneration undergo the like additional burthens, until

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it would reuire the most consummate skill inpolitical arithmetic to calculate the amount' whereas,if direct taxes were increased in the like proportion,every individual would at once perceive from whatsource this additional burthen arose, and would beled to enuire for what reason he was sub)ected to it#Hence it would seem to be the interest of everyfreeman, in a free state, that his taxes should beimposed in such manner as to be sub)ect to hisimmediate observation' since whateverinconvenience he may thereby sustain, must beamply recompensed by the security thus afforded tohis liberty#

$he power of imposing direct taxes, excises, andduties, except on imports or exports, is one of those,in which, according to our distribution, the !nited"tates and the individual states possess concurrentauthority# It was apprehended by the opposers to theconstitution, that this power in the congress would,like Aaron3s rod, swallow up that of the statelegislatures 1*)# $he government must be whollycorrupted whenever this happens' so long as the

taxes imposed by the federal legislature are limitedto constitutional purposes, it is impossible that thestates should be without a revenue sufficient tosupport their civil lists# 2eyond that ob)ect, so longas the federal government is properly administered,the states can have no urgent occasion for anyrevenue 1**#

$he abuse of the powers of government should beguarded against by the constitution as far aspossible# $he purposes for which any grievous taxcan, with any shadow of necessity, be imposed bythe federal legislature, must be the raising and

supporting armies# Appropriations for that purposeare limited to two years# $he duration of congress islimited to the like period# 4ould not a new electionstrike at the root of the evilE If it should not, thepeople must resort to first principles# 5ven annualelections would probably be an insufficient protectionagainst such a total depravity, as could not becurbed by these provisions in the constitution#.

5xcises, the second branch of revenue whichcreated an alarm in the minds of the opposers of theconstitution, are defined to be an inland imposition,usually paid upon the retail sale of a commodity 1*+# Itappears, however, that they are generally imposedon manufactures, and paid by the manufacturer 1*,,who advances the price of his commodity inproportion# $he author of the commentaries on thelaws of 5ngland acknowledges, that the rigour andarbitrary proceedings of excise laws' seems hardlycompatible with the temper of a free nation 1*- ####$his observation, founded on the experience of anation whose accumulated debts, financialembarrassments may have driven them to it3sadoption, it might have been expected, would haveco*operated with the clamours of a considerable part

of the union, against the admission of such aprinciple of taxation into the constitution, to detercongress from an immediate resort to an experimentof it3s effects upon the minds of their constituents# Itis said that this mode of taxation is familiar to theNew 5ngland states, and that it is by no meansobnoxious to the people there# $his circumstanceprobably paved the way for its reception in congressin this state it was a perfect novelty, and was madethe sub)ect of one of the amendments, proposed tothe constitution# $he arguments in favour of this, asan economical mode of taxation, abstractedlyconsidered, appear to be much in its favour' it beingalledged, that the charges of levying, collecting, andmanaging the excise duties in 5ngland, areconsiderably less in proportion, than in any otherbranches of the revenue 1+# $his may be true in acountry abounding in manufacturing towns' but in acountry where the ob)ects of the excise are few, andthose dispersed over an immense tract of country, itis perhaps demonstrable from the number ofsalaried officers employed in the collection, that asmaller portion of the excise, than of any other tax

goes into the treasury of the !nited "tates# $hegiving salaries to these officers is an irrefragableproof of this position% for if the tax to be collectedwere so considerable, as that a moderate percentage would afford a sufficient compensation tothe collectors, for their trouble, there would be noneed of resorting to salaries, which may perhapsamount to fifteen, or twenty per cent, in someplaces, and in others, prove almost commensuratewith the tax itself 1+1# 6n the other hand, it must beacknowledged, that the excise contributes in somemeasure to restore the balance arising from theineuality produced by duties on foreign imports and

this, not only among individuals, but in a smalldegree among the states' the manufacturing statesbeing thereby sub)ect to some portion of the tax onconsumption% but this last benefit can only last solong as each state shall manufacture for its ownconsumption, only' and it will be entirely lost, andeven become doubly oppressive, whenever themanufactures of one part of the union, are exportedfrom thence and consumed in the other states#5xcises will then operate as the most burthensomespecies of impost, on those parts of the union, whereconsumption takes place#

Duties and imposts, in their common acceptationmean those takes which merchants are compelled topay upon merchandi(e imported, or exported, fromany state, and which have in many countriesobtained the general name of customs' probablyfrom the usual and constant demand made of themfor the use of the princes, state, or government# 2utin the constitution of the !nited "tates they seem tohave obtained a more extensive signification, andwere probably intended to comprehend everyspecies of tax, or contribution, not included underthe ordinary terms, taxes and excises# $aken in the

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general and comprehensive sense, the statesrespectively possess the power of imposing them,concurrently with the federal government, with thesingle exception of customs, or duties upon importsor exports' the right of imposing which, is eitherexclusively vested in the congress of the !nited"tates, or can only be exercised by the respectivestates with the assent of congress, except what maybe absolutely necessary for executing theirinspection laws% and the nett produce of all dutiesand imposts laid by any state on imports or exports,shall be for the use of the treasury of the !nited"tates' and all such laws are sub)ect to the revisionand control of the congress' nor can any statewithout the consent of congress lay any duty ontonnage 1+&# &reuent instances have occurredwhere the assent of congress has been given to actsof the state legislatures, made for especial purposes,such as erecting piers, appointing health officers,deepening the navigation, c# 1+'

In &ebruary 89:8, the congress of the !nited "tatesmade a proposal to the several states to authori(e

congress to impose a duty of five per cent# advalorem, on certain goods, wares andmerchandi(es, /such as wines and ardent spirits,c#0 and on all pri(es and pri(e goods, which mightbe imported, or brought, into the !nited "tates# $helegislature, at their next session, passed an act, inconformity thereto 1+(# "everal of the states as wasafterwards alledged, neglected to pass similar laws,and their unanimous consent was reuisite 1+), under the existing articles of confederation, to give effect tosuch an important change in the system' inconseuence of which, the act of this state wassuspended, by a law passed at the ensuing session1+*

, until the several states in the union should concur in adopting the measure% it has been said that thenon*concurrence of a single state, /and that, one ofthe smallest in the union,0 prevented the propositionfrom taking effect' but this is not the reason,assigned by the legislature of this state, for repealingtheir act of assent# An ill timed )ealousy at thatperiod, had crept into the legislature, who declaredby their act of 6ctober, 89:+, c# 819# .$hat thepermitting any power, other than the generalassembly of the commonwealth to levy duties ortaxes upon the citi(ens of this state, within the same,is in)urious to it3s sovereignty, and may provedestructive of the rights and liberties of the people'.for which reason they repeated the act of thepreceding year, by which the concurrence of thestate was yielded to the proposed measure# In themonth of April 89:1, the proposition was newmodelled by congress, and again presented to thestates, for their assent and concurrence' and was asecond time acceded to by the state of Virginia, inthe month of 6ctober, in the same year, but, with asuspending clause, until the other states, in theunion, should likewise, concur in the proposedconcession 1++# $he preamble to this act recites, that

congress had recommended to the several states asindispensably necessary to the restoration of publiccredit, and to the punctual and honourable dischargeof the public debt, to invest the !nited "tates incongress assembled with a power to levy, for the useof the !nited "tates, certain duties upon goodsimported into the said states from any foreign part,for the period of twenty*five years# $he powersthereby granted were moreover guarded by anumber of provisoes and restrictions, and limited toa period, barely sufficient to answer the purpose ofreviving the confidence of the creditors of theunion #### Bet this measure like the former, miscarriedfor the want of the unanimous concurrence of thestates, so cautious were they at that time, in theirconcessions of power to the federal government# Itwas at this session, likewise, /6ct# 89:1 1+,,0 that thelegislature of Virginia, passed an act to authori(e thecongress of the !nited "tates to adopt certainregulations respecting the 2ritish trade' the ob)ect ofwhich was to authori(e that body to prohibit theimportation of the growth or produce of the 2ritish4est*India Islands, in 2ritish vessels' or, to adopt

any other mode which might most effectually tend tocounteract the designs of Great 2ritain, with respectto the American commerce, so long as the growth orproduce of any of the !nited "tates of Americashould be prohibited from being carried to thoseislands, by any other than 2ritish sub)ects, in 2ritishbuilt ships, owned by 2ritish sub)ects, and navigatedaccording to the laws of that kingdom# $his measurewhich, if it had been adopted would have operated tothe exclusive benefit of the navigating states,likewise failed, from the same causes as the twoformer# 4hen peace was concluded with Great2ritain a commercial rivalship very soon began to

manifest itself among the several states, butbetween none more remarkable than aryland andVirginia, to both which the waters of the;hesapeake, and the <otowmac, were as acommon high*way# "carcely a session of the generaassembly passed over in either state, without somechange in the duties upon imports, and tonnage,with a view to counteract some law, or regulation, ofthe other# Various attempts were made to producean uniformity in their custom*house systems, butwithout effect# At this period, likewise, the inefficiencyof the federal government began to excite loudclamours, as we have had occasion to mention,elsewhere# $he want of an uniform system ofcommercial regulations, among the states, and thetotal want of funds, in the hands of congress, for thedischarge of the continental debt, as well foreign, asdomestic, convinced every one of the propriety ofinvesting congress with power over these sub)ects,and gave rise to the measures already mentionedelsewhere# Hence, no opposition was ever made, tothese branches of the authority of congress, whenthe uestion respecting the adoption of theconstitution of the !nited "tates was agitated#

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 All duties and imposts /as contradistinguished fromdirect taxes0 and all excises, as we have seen, mustbe uniform throughout the !nited "tates 1+-, by whichmeans the principle of euality, as far as the natureof the sub)ect will admit, is still adhered to in theconstitution# A candid review of this part of thefederal constitution, cannot fail to excite our )ustapplause of the principles upon which it is founded#

 All the arguments against it appear to have beendrawn from the inexpediency of establishing such aform of government, rather than from any defect inthis part of the system, admitting that a generalgovernment was necessary to the happiness andprosperity of the states, individually# $his greatprimary uestion being once decided in theaffirmative, it might be difficult to prove that any partof the powers granted to congress in this clause,ought to have been altogether withheld% yet beinggranted, rather as an ultimate provision in anypossible case of emergency, than as a means ofordinary revenue, it is to be wished that the exerciseof powers' either oppressive in their operation, orinconsistent with the genius of the people, or

irreconcilable to their pre)udices, might be reservedfor cogent occasions, which might )ustify thetemporary recourse to a lesser evil, as the means ofavoiding one more permanent, and of greatermagnitude 1,#

87# ;# !# "# Art# 8# "ec# :#8?># ;# !# "# Art# 8# "ec# #8?8# "pavan3s Puffendorf , vol# II# p# 11>#8?+# "pavan3s Puffendorf , vol# II# p# +:1#8?1# "tuart3s Political $conomy , vol# II# p# 7:?#

8?7# "tuart3s Political $conomy , vol# II# p# 7:?#8??# Ibid # p# 7@#8?@# "tuart3s Pol# $conomy , Vol# 8, p# ?+># ### &or avariety of examples to illustrate the distinction heremade, the student is referred to the same book# Art#taxes#8?9# $he preceeding investigation of this sub)ect,was made about two years before congress passedthe act imposing duties upon carriages for theconveyance of persons# $he tax was opposed inVirginia as unconstitutional, because the sum to beraised thereby was not first apportioned among thestates# A suit was brought in the federal court inVirginia' the )udges were divided in opinion, and thecase, by consent, was carried to the supremefederal court' it was there decided that the tax wasnot direct' and conseuently that no apportionmentwas necessary# *nited States vs# )ylton# $heeditor3s reasoning upon this sub)ect, must thereforebe regarded by the student as merely hypothetical,and speculative#8?:# Direct taxes have been more than onceproposed in congress% but the strenuous oppositionto them leaves reason to believe that a maritime war,alone, will overcome the repugnance to them#

Happily for America, if this repugnance shouldalways operate so strongly, as to make her avoidsuch an occasion for them#2ut since the preceding was written, congress haveimposed a direct tax of two million of dollars# "ee -#!# "# ?# ;ong# c# :@, and +# 8+@# @ ;ong# c# 1# "eeNote 11# p# 181# of the first 2ook of theCommentaries #### part +#8?# ;onfederation, Art# :#8@># ay, 89:7, c# 18#8@8# "ee Federalist , No# ?7#8@+# "ee Federalist , No# 1@#8@1# Ibid # No# 1?#8@7# "ee -# !# "# +# ;ong# c# 1+# 1# ;ong# c# ?8# 8>:2ut since this was written the excise laws have allbeen repealed# 9 ;ong# 8 "ess# c# 8#8@?# .$hough the law for laying a tax for the use ofthe !nited "tates would be supreme in its nature,and could not legally be opposed or controled, yet alaw for abrogating or preventing the collection of atax laid by the authority of a state, unless uponexports or imports' would not be the supreme law ofthe land, but an usurpation of power not granted by

the constitution#. Federalist , No# 11#$he inference upon the whole is, that under theproposed constitution the individual states wouldretain an independent and uncontrolable authority toraise revenue to any extent, of which they may standin need, by every kind of taxation, except duties onimports and exports#. Ibid , No# 11, vol# I# p# +>?#8@@# .As to the suggestion of double taxation, theanswer is plain# $he wants of the union are to besupplied in one way or another% if it be done by theauthority of the federal government, it will not bedone by that of the state governments# $he uantityof taxes to be paid by the community must be the

same in either case#. Ibid # No# 1@# vol# I# p# ++?#8@9# 8 2lacks# Com# 18:#8@:# Ibid # 1+>#8@# Ibid #89># 2lacks# Com# 18:, which appears however tobe a mistatement# "ee ;hristian3s 5di# in a note to p#18:# 8# 2lacks# Com#898# 4hat is said above was the result of con)ecturebut a report of the secretary of the treasury to thehouse of representatives, dated December 8:, 8:>8,places the sub)ect beyond the uncertainty ofcon)ecture# .It will appear, says the secretary, from astatement annexed, that whilst the expences ofcollection on merchandi(e and tonnage, which aredefrayed out of the revenue do not exceed four percent, those on the permanent internal duties amountto almost twenty per cent# $his is an inconveniencewhich, on account of the great number of individualson whom the duties are raised, and of theirdispersed situation throughout the whole extent ofthe !nited "tates, must, more or less attach to thesystem of internal taxation, so long as the wants ofgovernment shall not reuire any considerableextention, and the total amount of revenue shallremain inconsiderable#.

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89+# ;# !# "# Art# 8# =# 8>#891# "ee -# !# "# ?# ;ong# c# 1:, and 1, with manyothers#897# ay 89:8, c# +# the title occurs in thechancellor3s revisal, p# 87>#89?# Articles of confederation and perpetual union,

 Art# 81#89@# -# V# November, 89:8# c# # "essions Acts#899# Ibid # 6ctober, 89:1# c# +8: Ibid #89:# -# V# 6ctober, 89:1# c# ?#89# ;# !# "# Art# 8, "ec# 2#8:># It seems to have been upon this principle thatall the internal taxes /except that arising from thepost*office,0 were repealed by an act of 9# ;ong# 8#"ession, c# 80

Volume 1 — Appendix

Note D

[Section , — 5o6e!# o" Con!e## /cont.0%

+# ;ongress have power to borrow money on the

credit of the !nited "tates1,1

' a power inseparablyconnected with that of raising a revenue, and withthe duty of protection which that power imposesupon the federal government# &or, though in times of profound peace, it may not be necessary toanticipate the revenues of a state, yet theexperience of other nations, as well as our own,must convince us that the burthen and expence ofone year, in time of war, may be more than eual tothe revenues of ten years# Hence a debt is almostunavoidable, whenever a nation is plunged into astate of war# $he least burthensome mode ofcontracting a debt is by a loan% in case of a maritimewar, the revenues arising from duties uponmerchandi(e imported, and upon tonnage, must begreatly diminished# Had not congress a power toborrow money, recourse must be had to direct taxesin the extreme, or to impressments, lotteries, andother miserable and oppressive expedients# Asystem of revenue being once organi(ed, and theability of the states to pay their debts, being known,money may easily be procured on loan, to be repaidwhen all the sources of revenue shall have regainedtheir operation, and flow in their proper channel#

2ut while we contend for the power, let it not besupposed that it is meant to contend for the abuse ofit# 4hen used as a means of necessary defence, itgives energy, vigour and dispatch to all themeasures of government' inspires a properconfidence in it, and disposes every citi(en toalacrity and promptitude, in the service of hiscountry# 2y enabling the government punctually tocomply with all it3s engagements, the soldier is notdriven to mutiny for want of his subsistence, nor theofficer to resign his commission to avoid the ruin ofhimself' and his family# 2y this means also, thepressure and burthen of a war, undertaken for thebenefit of posterity, as well as the presentgeneration, may be in some degree alleviated, and apart of the burthen transferred to those who are toshare the advantage# 6n the other hand, whereloans are voluntarily incurred, upon the principle thata public debt is a public blessing, or to serve thepurposes of aggrandi(ing a few at the expence ofthe nation, in general, or of strengthening the handsof government, /or more properly those of a partygrasping at power, influence and wealth,0 nothing

can be more dangerous to the liberty of the citi(en,nor more in)urious to remotest posterity, as well as topresent generations#

;ongress had power, under the former articles ofconfederation, to borrow money upon the credit ofthe !nited "tates, and to pledge their faith for therepayment# 2ut not possessing any revenueindependent of the states, their loans were obtainedwith difficulty, and, very rarely in time to answer thepurposes for which they were intended# $heconseuences of these, and other correspondingdefects in the system, have been too freuently

noticed to reuire a repetition of them in this place#

1# ;ongress have power to regulate commerce withforeign nations, and among the several states, andwith the Indian tribes 1,&#

4e have already had occasion to mention the stateof foreign commerce, upon the conclusion of thepeace with Great*2ritain, and the conduct of thegovernment of that nation in excluding our vesselsfrom their ports in the 4est*India Islands# $heproposition made by the state of Virginia to authorisecongress to prohibit the importation of the growth orproduce of those islands into the !nited "tates in2ritish vessels, and even to adopt more energeticmeasures, by refusing the necessary supplies tothose islands, if adopted, would probably havecounteracted the designs of that politic nation% but,that fatal want of unanimity among the states, whichat that period marked all their councils, defeated theproposal# $he boldness of the measure on the partof Great*2ritain, evinced a determination to secureher commercial advantages, even at the risk of theexistence of her colonies' yet it is not to be imaginedthat she would have persevered in such a conduct

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towards her own colonies, if the !nited "tates hadoffered to retaliate her policy, by refusing themprovisions, lumber, and other articles of the firstnecessity, unless they were admitted to send themthither in their own vessels, as well as in those of2ritish sub)ects# &or, independent of the in)ustice andinhumanity of such a conduct in the predominantstate, the prosperity of the sugar colonies must havebeen of more conseuence to Great*2ritain, than thewhole of the carrying trade between those islandsand the !nited "tates# $rue it is , that it waspretended by the 2ritish ministry, and theiradherents, that Nova "cotia and ;anada couldsupply those islands, with every necessary formerlyderived from the !nited "tates# 2ut the bareadmission of those articles from the !nited "tates, inany manner whatsoever, might be relied on as anuneuivocal evidence that they had no confidence inthe sufficiency of the resources which might bedrawn from ;anada or Nova "cotia' and experienceis said to be strongly in favour of the opinion thatthose colonies cannot supply the sugar islands,either with provisions or lumber, in any degree

proportionate to their necessities# $he conduct ofGreat*2ritain in declining any commercial treaty with

 America, at that time, was unuestionably dictated atfirst by a knowledge of the inability of congress toextort terms of reciprocity from her' and of that wantof unanimity among the states, which, under theexisting confederation, was a perpetual bar to anyrestriction upon her commerce with the whole of thestates' and any partial restriction would be sure tofail of effect#

Having repeatedly noticed the defect of the formerconfederation, in respect to the regulation of the

commerce between the several states, and theinconveniences resulting from it, I shall only mentionone not yet touched upon% I mean the burthenswhich might be imposed by some of the states, onothers, whose exports and imports must necessarilypass through them# $hus a duty on salt imported intoVirginia, or on tobacco exported from thence, mightoperate very extensively as a tax upon the citi(ensof the western parts of North ;arolina and$ennessee, to the exclusive emolument of the stateof Virginia# "o unreasonable an advantage ought notto prevail among members of the same confederacy,and without a power to control it lodged somewhere,it would be impossible that it should not be exerted%the repetition of such exertions could scarcely fail tolay the foundation of irreconcileable )ealousies, andanimosities among the states# And it was evidentlywith a view to prevent these inconveniences, that theconstitution provides that no state shall, without theconsent of congress, lay any imposts, or duties onexports or imports, except what may be absolutelynecessary for executing it3s inspection laws 1,'#

 A direct conseuence of this power of regulatingcommerce with foreign nations, and among the

several states, is that of establishing ports' or suchplaces of entry, lading, and unlading, as may bemost convenient for the merchant on the one hand,and for the easy and effectual collection of therevenue from customs, on the other# In 5ngland, thisis one of the branches of the royal prerogative, but isvested in the supreme federal legislature, and not inthe executive, by the constitution of the !nited"tates#

<revious to the revolution the ports of Virginia wereco*extensive with her tide waters# $he shipsanchored wherever their navigators thought proper,and discharged or took on board their cargoes, assuited their own convenience, or contributed to thesaving of expence# Nothing could be morefavourable to the practice of smuggling' andconseuently the revenue was freuently defraudedwith impunity# Nothing could be more unfavourableto the internal navigation by small vessels, althoughfew countries possess greater advantages for it3sencouragement and promotion# $he employment ofa considerable number of these, would not only

afford a nursery for seamen, but prove an actualmercantile saving to the state, so long as commerceshould be carried on in foreign bottoms, as was atthat time pretty generally the case# $he legislaturebecame sensible of the things, and in the year 89:7,/ay session, c# 1+#0 passed an act, whereby ship%and other vessels trading to this commonwealth,from foreign parts, being the property of other thanciti(ens of the commonwealth, were obliged to lade,and unlade at certain particular ports, and no whereelse, within the commonwealth# $he number of portswas increased, by the act of 89:@# c# 7+# and therestrictions as to unlading was extended to all

vessels whatsoever, coming into the state' but anyvessel built within the !nited "tates, and whollyowned by any citi(ens thereof, was permitted to takein her lading at any port or place within the state#$hese acts underwent some further amendments bythe acts of 89:9# c# 1, among which were somewhole some regulations respecting river craft% butthese appear to have beta considered as repealed,by the act of 8 cong# 8 sess# c# 88# sec# ++ and +1,on the sub)ect of the coasting trade# 2ut theconstitutionality of that act may perhaps beuestioned 1,(, so far as it relates to vessels tradingwholly within the limits of any particular state# $hepolicy of the before*mentioned acts of this state,appears to have been well founded% the effectsbegun to manifest themselves in the production of agreater number of river craft, than had ever beenknown at any former period #### 2ut the acts ofcongress, for the establishment of ports, havingextended the number for foreign ships to fourteen,and even permitted them to proceed as far as thetide*water flows in ames3 Civer, Cappahannock,and <otowmac, these salutary regulations in thestate laws, have undoubtedly been, in a greatmeasure, frustrated# It seems rather extraordinary'

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that on a sub)ect of this nature, no regard shouldhave been paid to the former policy of the statelegislature, especially, as that policy was evidentlyfavourable to the collection of the revenue arisingfrom the customs#

 A distinction between the admission of foreign ships,and those of our own confederacy, into the ports ofthe state, obviously appears to be proper to be madeon other grounds# $he navigation of our rivers wasfound, in the time of the revolutionary war, to beinfinitely too familiar to our enemies, in conseuenceof the privilege before*mentioned, which had so longbeen en)oyed by the trading ships of Great 2ritain# Arenewal of the same policy will probably produce thesame conseuences, whenever the occasion willpermit# 2ut if these reasons be not sufficiently cogentfor restraining foreign ships to a few ports, and thoseas near to the sea as might be consistent withsafety' the promotion of an internal domesticnavigation, as a nursery for domestic seamen,appears of itself to be an ob)ect of sufficientimportance to have engaged the attention of

congress to this sub)ect#

 Another conseuence of the right of regulatingforeign commerce, seems to be the power ofcompelling vessels infected with any contagiousdisease, or arriving from places usually infected withthem, to perform their uarantine# $he laws of therespective states, upon this sub)ect, were, by somepersons, supposed to have been virtually repealedby the constitution of the !nited "tates# 2utcongress have manifested a different interpretationof the operation of that instrument, and had passedseveral acts for giving aid and effect to the execution

of the laws of the several states respectinguarantine# $he last act upon the sub)ect, ?# cong# c#88:, en)oins it as a duty upon the collectors, andother officers of the revenue, the masters and crewsof the revenue*cutters, and the commanding officersof forts or stations upon the sea*coasts, duly toobserve, and aid in the execution of those laws#!pon the like principle, I presume that the act of thiscommonwealth concerning wrecks, /5di# 897# c# @#0remains in force, until congress shall think proper topass some law upon that sub)ect# A contraryconstruction of the operation of the federalconstitution in these and other similar cases, uponwhich congress may be authorised to legislate, butomit doing it, might be productive of infiniteinconvenience and disorder#

$he right of regulating foreign commerce, drawsafter it also, the right of regulating the conduct ofseamen, employed in the merchant service' and bya continued chain, that of punishing other personsharbouring or secreting them, as well on land, aselsewhere' and the act of 8# cong# +# sess# c# +,accordingly makes it penal in any person to harbour

or secret any seaman regularly engaged in theservice of any ship#

$here seems to be one class of laws which respectforeign commerce, over which the "tates still retainan absolute authority' those, I mean, which relate tothe inspection of their own produce, for theexecution of which, they may even lay an impost, orduty, as far as may be absolutely necessary for thatpurpose% of this necessity it seems presumable, theyare to be regarded as the sole )udges# F;# !# "# Art#8# "ec# 8># $he article, indeed, is not altogether freefrom obscurity' but as no controversy hath hithertoarisen upon the sub)ect, it is not my intention tobegin one#

2ut, this power of regulating commerce is ualifiedby some very salutary restrictions' for theconstitution expressly declares, Art# 8# "ec# # .$hatno tax or duty shall be laid on articles exported fromany state #### that no preference shall be given byany regulation of commerce, or revenue, to the portsof one state, over those of another' and that vessels

bound to, or from, one state, shall not be obliged toenter, clear, or pay duties in another#. $heserestrictions are well calculated to suppress those

 )ealousies, which must inevitably have arisen amongthe states, had any tax or duty been laid upon anyparticular article of exportation' and, at the sametime, to curb any disposition towards partiality incongress, should it at any time be likely to manifestitself#

 An amendment to the constitution proposed by theconvention of this state, and concurred in by that ofNorth ;arolina, was, .$hat no commercial treaty

should be ratified without the concurrence of two*thirds of the whole number of the members of thesenate #### And, that no navigation law, or lawregulating commerce should be passed without theconsent of two*thirds of the members present in bothhouses 1,)#. It is somewhat remarkable, that thetreaty of navigation and commerce concluded withGreat 2ritain in the year 897, notwithstanding thevery general repugnance to it in almost every part ofthe !nited "tates, was, nevertheless, ratifiedprecisely in the manner proposed by the first ofthese amendments# It appears that a propositionsomewhat like the second, vi(# .that no treaty shouldbe binding upon the !nited "tates, which was notratified by law'. had been made in the generalconvention at <hiladelphia, and re)ected 1,*# Nevertheless, the experience which we have hadupon the sub)ect of treaties, seems to recommendthe adoption of some further precautions against theindiscreet use of this extensive power# 6n thissub)ect we shall say something more hereafter#

$he regulation of commerce with the Indian tribes,as distinguished from foreign nations, seems, insome degree, to be founded upon this principle, that

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those tribes which are not settled within the limits ofany particular state, could only be regarded astributary to the !nited "tates in their federalcapacity' as to those who reside within the limits ofparticular states, it was thought necessary to unfetter them from two limitations in the articles ofconfederation which rendered the provision obscure,and perhaps contradictory# $he power is thererestrained to Indians not members of any of thestates, and is not to violate or infringe the legislativeright of any state within its own limits# 4hatdescription of Indians were to be deemed membersof a state' had been a uestion of freuentcontention and perplexity in the federal councils# Andhow the trade with Indians, though not members of astate, yet residing within its legislative )urisdiction,could be regulated by an external authority, withoutso far intruding on the internal rights of legislation,seems altogether incomprehensible 1,+#

8:8# ;# !# "# Art# 8# "ec# :#

8:+# ;# !# "# Art# 8, "ec# :#8:1# ;# !# "# Art# 8# =# 8>#8:7# $he constitution of the !nited "tates does notauthorise congress to regulate, or in any manner tointerfere with, the domestic commerce of any state#;onseuently, a vessel wholly employed in thatdomestic commerce, seems not to he sub)ect to thecontrol of the laws of the !nited "tates# $hose lawsmay certainly provide for the punishment of suchpersons# and confiscation of such vessels, as mayhe detected in giving aid or assistance to anyfradulent commerce, either with foreign parts, orbetween the states' they may also prescribe, or limit

the terms and conditions, upon which vessels mayhe permitted to trade with foreign parts, or with other states% but they seem to have no constitutional rightto control the intercourse between any two or moreparts of the same state# "ee Amendments to ;# !#"# Art# 8+#8:?# Amendments proposed by the convention ofVirginia, Art# 9, :#8:@# essage from the <resident of the !# "# to theHouse of Cepresentatives, arch 1>, 89@#8:9# Federalist , No# 7+#

Volume 1 — Appendix

Note D

[Section - — 5o6e!# o" Con!e## /cont.0%

7# ;ongress have power to establish an uniform ruleof naturali(ation, and uniform laws on the sub)ect ofbankruptcies, throughout the !nited "tates 1,,#

 As to the former of these powers' by the first articles

of confederation and perpetual union between thestates, it was agreed, that the free inhabitants ofeach state, paupers, vagabonds, and fugitives from

 )ustice excepted, should be entitled to all privilegesand immunities of free ;iti(ens in the several states'and the people of each state shall, in every other,en)oy all the privileges of trade and commerce, c#1,- $he dissimilarity of the rules of naturali(ation inthe several states, had long been remarked as afault in the system, and, as combined with this articlein the confederation, laid a foundation for intricateand delicate uestions# It seems to be a constructionscarcely avoidable, that those who come wider thedenomination of free inhabitants of a state, /althoughnot citi(ens of such state0, were entitled in everyother state to all the privileges of free citi(ens of thelatter, that is, to greater privileges than they may beentitled to in their own state% our free negroes, forexample, though not entitled to the right of suffragein Virginia' might, by removing into another state,acuire that right there' and persons of the samedescription, removing from any other state, into this,might be supposed to acuire the same right here, invirtue of that article, though native*born negroes areundoubtedly incapable of it under our constitution% sothat every state was laid under the necessity, notonly to confer the rights of citi(enship in other states,

upon any whom it might admit to such rights withinitself, but upon any whom it might allow to becomeinhabitants within its )urisdiction# 2ut were anexposition of the term .inhabitants. to be admitted,which would confine the stipulated privileges tociti(ens alone, the difficulty would not be removed#$he very improper power would still have beenretained by each state, of naturali(ing in every otherstate# In one state, residence for a short timeconferred all the rights of citi(enship' in another,ualifications of greater importance were reuired%an alien, therefore, legally incapacitated for certainrights in the latter, might, by previous residence only

in the former, elude his incapacity' and thus the lawof one state, be preposterously rendered paramountto the law of another, within the )urisdiction of suchother# 2y the laws of several states, certaindescriptions of aliens, who had rendered themselvesobnoxious, and other persons whose conduct hadrendered them liable to the highest penalties of thelaw, were laid under interdicts, inconsistent, not onlywith the rights of citi(enship, but with the privilegesof residence, beyond the short period allowed by thetreaty of peace with Great 2ritain# 4e owe it to mere

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casualty, that very serious embarrassments on thissub)ect have not occurred 1-# $he constitution, andthe several acts of naturali(ation passed bycongress, have therefore wisely provided againstthem by this article, and by an explicit declarationcontained in the law, that no person heretoforeproscribed by any state, shall be admitted a citi(en,except by an act of the legislature of the state inwhich such person was proscribed 1-1#

$he federal court, consisting of )udges 4ilson and2lair, of the supreme court, and )udge <eters, district

 )udge in <ennsylvania, at a circuit court held for thedistrict of <ennsylvania, in April, 89+, decided, .thatthe states, individually, still en)oy a concurrent

 )urisdiction upon the sub)ect of naturali(ation% butthat their individual authority cannot be exercised soas to contravene the rule established by theauthority of the union% the true reason for investingcongress with the power of naturali(ation /said thecourt,0 was to guard against too narrow, instead oftoo liberal a mode of conferring the right ofciti(enship# $hus the individual states cannot

exclude those citi(ens' who have been adopted bythe !nited "tates' but they can adopt citi(ens uponeasier terms, than those which congress may deemit expedient to impose 1-&.

2ut this decision seems to have been afterwardsdoubted by )udge Iredel, + Dallas, 191# And the actof ? cong# c# 98# declares, that .no alien shall beadmitted to become a citi(en of the !nited "tates, or of any state, unless in the manner prescribed by thatact#. And by a subseuent act, passed 9 cong#chapter +:, it is also declared, that any alien, being afree white person, may become a citi(en of the

!nited "tates, or any of them, on the conditionstherein mentioned, .and not otherwise#. $heselegislative expositions of the constitution do notaccord with the )udicial opinion above*mentioned# Avery respectable political writer makes the followingpertinent remarks upon this sub)ect 1-'# .<rior to theadoption of the constitution, the people inhabiting thedifferent states might be divided into two classes%natural born citi(ens, or those born within the state,and aliens, or such as were born out of it# $he first,by their birth*right, became entitled to all theprivileges of citi(ens' the second, were entitled tonone, but such as were held out and given by thelaws of the respective states prior to their emigration#In the states of Lentucky and Virginia, the privilegesof alien friends depended upon the constitution ofeach state, the acts of their respective legislatures,and the common law' by these they wereconsidered, according to the time of their residence,and their having complied with certain reuisitionspointed out by these laws, either as deni(ens, ornaturali(ed citi(ens# As deni(ens, they were placedin a kind of middle state between aliens and naturalborn citi(ens' by naturali(ation, they were put exactlyin the same condition that they would have been, if

they had been born within the state, except so far aswas specially excepted by the laws of each state#$he common law has affixed such distinct andappropriate ideas to the terms deni(ation, andnaturali(ation, that they can not be confoundedtogether, or mistaken for each other in any legaltransaction whatever# $hey are so absolutely distinctin their natures, that in 5ngland the rights theyconvey, can not both be given by the same power'the king can make deni(ens, by his grant, or letterspatent, but nothing but an act of parliament canmake a naturali(ed sub)ect# $his was the legal stateof this sub)ect in Virginia, when the federalconstitution was adopted' it declares that congressshalt have power to establish an uniform rule ofnaturali(ation' throughout the !nited "tates' but italso further declares, that the powers not delegatedby the constitution to the !# "tates, nor prohibited byit to the states, are reserved to the states,respectively, or to the people# $he power ofnaturali(ation, and not that of deni(ation, beingdelegated to congress, and the power of deni(ationnot being prohibited to the states by the constitution,

that power ought not to be considered as given tocongress, but, on the contrary, as being reserved tothe states# And as the right of deni(ation did notmake a citi(en of an alien, but only placed him in amiddle state, between the two, giving him localprivileges only, which he was so far from beingentitled to carry with him into another state, that helost them by removing from the state giving them,the inconveniencies which might result from theindirect communication of the rights of naturali(edciti(ens, by different modes of naturali(ationprevailing in the several states, could not beapprehended# It might therefore have been

extremely impolitic in the states to have surrenderedthe right of deni+ation, as well as that ofnaturali+ation to the federal government, inasmuchas it might have operated to discourage migration tothose states, which have lands to dispose of, andsettle' since, it might be a disagreeable alternative tothe states, either to permit aliens to hold lands withintheir territory, or to exclude all who have not yetcompleted their probationary residence within the !#"tates, so as to become naturali(ed citi(ens, frompurchasing, or holding lands, until they should haveacuired all other rights appertaining to thatcharacter#.

Here, another uestion presents itself% if the states,individually, possess the right of making deni(ens ofaliens, can a person so made a deni(en of aparticular state, hold an office under the authority ofsuch stateE And I think it unuestionable that eachstate hath an absolute, and uncontrolable powerover this sub)ect, if disposed to exercise it# &or everystate must be presumed to be the exclusive )udge ofthe ualifications of it3s own officers and servants% forthis is a part of their sovereignty which they can notbe supposed to have intended ever to give up# And if

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there be nothing in their constitutions, respectively,to the contrary, the legislature may unuestionably,by a general law, limit, or extend such ualifications,so far as they may think proper# $he law of Virginiadeclares, .that all persons other than alien enemies,who shall migrate into this state, and givesatisfactory proof by oath or affirmation that theyintend to reside therein, and take the legal oath offidelity to the commonwealth shall be entitled to allthe rights, privileges and advantages of citi(ens,except that they shall not he capable of election orappointment to any office, legislative, executive or

 )udiciary, until an actual residence in the state for fiveyears thereafter' nor until they shall have evinced apermanent attachment to the state, by intermarryingwith a citi(en thereof, or of some one of the !nited"tates, or purchased lands of the value of threehundred dollars therein#. Now although the act ofcongress may operate to repeal this act, so far asrelates to the rights of naturali(ation, or, a state ofperfect citi(enship, under the constitution and lawsof the union' yet, as it respects the rights which thestate hath power to grant, such as holding lands, or

an office under the sole, and distinct authority of thestate, I see no reason to doubt that the law is asvalid at this day, as it was before the adoption of theconstitution of the !nited "tates#

$he periods of residence, reuired by the severalacts of congress before an alien can be admitted aciti(en, have been various# $he act of 8 congress, +session, c# 1, reuired two years only% this periodwas increased to five years, by the act of 1congress, c# :?, which was still further extended tofourteen years, by the act of ? congress, c# 98, butthe act of 9 cong# c# +:# has reduced it to five years,

again# Any alien who shall have borne any hereditarytitle' or been of any order of nobility, in any otherstate, must renounce the same, on oath, at the timeof his admission to take the oath of a citi(en# A wiseprovision, the benefit of which it is to be hoped, mayreach to the latest posterity#

$here are few sub)ects upon which there is lesspractical information to be obtained in Virginia, thanthat of bankruptcies# $he 5nglish statutes of2ankruptcy have never been regarded as in force,here' and the manner in which the commerce of thecolony was conducted, before the revolution, by nomeans seemed to favour their adoption# In acommercial country, such as 5ngland, the necessityof good faith in contracts, and the support ofcommerce, oblige the legislature to secure for thecreditors the persons of bankrupts# It is, however,necessary to distinguish between the fraudulent andthe honest bankrupt% the one should be treated withrigor' but the bankrupt, who, after a strictexamination, has proved before proper )udges, thateither the fraud, or losses of others, or misfortunesunavoidable by human prudence, have stripped himof his substance, ought to receive a very different

treatment# -et his whole property be taken from him,for the benefit of his creditors' let his debt, if you will,not be considered as cancelled, till the payment ofthe whole' let him be refused the liberty of leavinghis country without leave of his creditors, or ofcarrying into another nation that industry, which,under a penalty, he should be obliged to employ fortheir benefit' but what pretence can )ustify thedepriving an innocent, though unfortunate man, ofhis liberty, as is said to be the practice in some partsof 5urope, in order to extort from him the discoveryof his fraudulent transactions, after having failed ofsuch a discovery, upon the most rigorousexamination of his conduct and affairs 1-(M

2ut, how necessary soever, bankrupt laws may be ingreat commercial countries, the introduction of theminto such as are supported chiefly by agriculture,seems to be an experiment which should be madewith great caution# Among merchants and othertraders, with whom credit is often a substitute for acapital, and whose only actual property is the gain,which they make by their credit, out of the property

of others, a want of punctuality in their contracts,may well be admitted as a ground to suspect fraud,or insolvency# 2ut the farmer has generally a visiblecapital 1-), the whole of which he can never employ,at the same time, in a productive manner# His wantof punctuality may arise from bad crops,unfavourable seasons, low markets, and othercauses, which however they may embarrass,endanger not his solvency' his property is incapableof removal, or of that concealment, which fraudulenttraders may practise with success' his transactionswithin the proper line of his occupation are few, andnot liable to intricacy' whilst the merchant is perhaps

engaged in a do(en different copartnerships, inwhich his name does not appear, and inspeculations which it might reuire a life to unravel#$o expose both to the same rigorous, and summarymode of procedure, would be utterly inconsistentwith those maxims of policy, which limit laws to theirproper ob)ects, only# And accordingly, we find, thateven in 5ngland, where the interests of commerceare consulted on all occasions, and where they arenever sacrificed, /unless, perhaps, to ambition,0 thebankrupt laws cannot affect a farmer, who confineshimself to the proper sphere of his occupation' andthe bankrupt law of the !nited "tates, @ congress, 8session, c# 8, is confined to merchants, or otherpersons, actually using the trade of merchandise, bybuying and selling in gross, or by retail, or dealing inexchange as a banker, broker, factor, underwriter, ormarine insurer# 4hilst the bankrupt laws areconfined to such characters, and are resorted to,merely as a necessary regulation of commerce, theireffect, in preventing frauds, especially where theparties or their property may be, or be removed intodifferent states, will probably be so salutary, that theexpediency of this branch of the powers of congress,will cease to be drawn in uestion#

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?# ;ongress have power to coin money, regulate thevalue thereof, and of foreign coin, and fix thestandard of weights and measures 1-*#

2y the former articles of confederation it was agreedthat the !nited "tates in congress assembled,should have the sole and exclusive right and powerof regulating the alloy and value of coin struck bytheir own authority, or by that of the respectivestates' and fixing the standard of weights andmeasures throughout the !nited "tates 1-+# 2y thepresent constitution the respective states areinterdicted from coining money 1-,# All the powersmentioned in this clause are branches of the royalprerogative in 5ngland, but are with much greaterpropriety vested in the legislative department by thefederal constitution# $he history of 5ngland affordsnumberless instances 1--, where this prerogative hasbeen exercised to the great oppression of thesub)ect# $he power of debasing the value of the coin,at pleasure, has in fact been freuently used as anexpedient for raising a revenue, and is accordingly

reckoned as one of the indirect modes of taxation,by the author of the treaties on political economy% for if the government gives coin of an inferior standard,for purer coin of the same weight, as is generallydone in these cases' or if it receives more for thecoin, than the value of the bullion, and the expenceof the coinage, as is likewise freuently practised,the difference is an acuisition of revenue, paid byhim who brings his bullion to the mint# According tothe principles of our constitution, therefore, such atax can not be imposed but by the representatives of the people &#

r# 2arrington, in his readings upon the 5nglishstatutes, doubts whether the regulation of weightsand measures be practicable, by law# He remarks,that in 5ngland it has been attempted by at least sixdifferent statutes, all of which have been ineffectual#He uotes an observation of ontesuieu3s that it isthe mark of a little mind in a legislature to attemptregulations of this kind# In 5ngland, perhaps, theattempt has not succeeded from some defect in thesystem# $hat proposed by r# efferson, whensecretary of state, appears to be perfectly simple,and, I should apprehend, easily practicable% and thestandard of measure, especially, may be obtainedwith a mathematical exactness sufficient for all thepurposes of commerce, and even of arts andsciences#

It appears by the )ournals of the senate of the !nited"tates, arch the 8st, 898# .$hat a proposition hadbeen made to the national assembly of &rance forobtaining a standard of measure, which shall at alltimes be invariable, and communicable to allnations, and at all times# $hat a similar propositionhad been submitted to the 2ritish parliament% as theavowed ob)ect of these is to introduce an uniformity

in the weights and measures of commercial nations'and as a coincidence of regulation by thegovernment of the !nited "tates on so interesting asub)ect would be desirable, the senate resolved, thatit would not be eligible at that time to introduce anyalterations in the weights and measures of the!nited "tates#.

@# ;ongress have power to provide for thepunishment of counterfeiting the securities, andcurrent coin of the !nited "tates &1#

$his power seems to be a natural incident to twoothers, of which we have before taken notice% thepower of borrowing money on the credit of the!nited states, and that of coining money, andregulating the value thereof#

2ut congress appear to have extended theinterpretation of this, article much further than itmight have been supposed it would bear% andpossibly much further than the framers of theconstitution intended# I allude to the act of ? cong# c#

9 :, to punish frauds committed on the bank of the!nited "tates, which inflicts the penalty of fine andimprisonment, for forging or counterfeiting any bill ornote, issued by order of the president, directors andcompany of the bank of the !nited "tates#

$he right of congress to establish this company orcorporation, with exclusive, privileges, was warmlycontested when the bill for establishing the bank wasintroduced into congress# 8 cong# 1 sess# c# 8># $hesame congress had at their first session agreed toan amendment of the constitution, declaring, that thepowers not delegated to the !nited "tates, by the

constitution, nor prohibited by it to the states, arereserved to the states respectively, or to the people#$he advocates for the bill were challenged toproduce the clause in the constitution which gavecongress power to erect a bank# It neverthelesspassed both houses# $he president of the !nited"tates hesitated' it is said that he consulted hisconstitutional advisers upon the sub)ect# $hat two ofthem were of opinion the bill was unconstitutional# Itnevertheless, received his assent on the last day,that the constitution allowed him to deliberate uponit# Had he turned to the )ournals of the convention/as on another occasion,0 it has been confidentlysaid, he would there have seen, that the propositionto authorise congress to establish a bank, had beenmade in convention and re)ected% of this, he can notbe supposed to have been ignorant, as he presidedin the convention, when it happened the )ournals ofthat body were then a secret, and in his keeping# If itwas proper to resort to those )ournals to give aproper interpretation to the constitution in oneinstance, it surely was eually proper in the other'and if the re)ection of one proposition in that body,was a sufficient reason for re)ecting the same, whenmade by either house of congress, it seems difficult

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to assign a reason why the other should not havebeen treated in the same manner &&#

If it were, in fact, an unconstitutional exercise ofpower in congress to pass a law establishing thebank, nothing can manifest the impropriety of over*steping the limits of the constitution, more than theact which we have )ust noticed# It shews that themost unauthorised acts of government may bedrawn into precedents to )ustify other unwarrantableusurpations#

9# ;ongress have power to establish post*offices,and post*roads# And this is one of those cases, inwhich I have supposed in that the states maypossess a concurrent, but subordinate authority, tothat of the federal government# ;oncurrent,inasmuch, as there seems to be nothing in theconstitution, nor in the nature of the thing itself,which may not be exercised by both, at the sametime, without pre)udice, or interference' subordinate,because wherever any power is expressly granted tocongress, it is to be taken, for granted, that it shall

not be contravened by the authority of any particularstate# If, therefore, any state should find it necessaryto establish post*offices on any road, which is not anestablished post*road, under the laws of the !nited"tates, there seems to be no constitutional ob)ectionto its doing so, until congress should think proper toexert its constitutional right to establish acommunication by post, between the sameplaces #### I put this case merely to shew how far theexercise of these concurrent powers may bereconciled% it is much to be desired that a uestion of such delicacy may never occur between any state,and the federal government#

$he post*office, under proper regulations, is one ofthe most beneficial establishments which can beintroduced by any government' by providing themeans of intercourse between the citi(ens of remoteparts of the confederation, on such a regular footing,as must contribute greatly to the convenience ofcommerce, and to the free, and freuentcommunication of facts, and sentiments betweenindividuals# Hence the revenue arising from thissource will always be more easily collected, andmore cheerfully paid, than any other whatever# Itappears, that notwithstanding the many unprofitablebranches, into which the post*roads have beendivided for the convenience of the people of the!nited "tates, there still remains a considerable sumthat is annually brought into the federal treasury#

It seems reasonable that the product of this branchof the revenue should be, exclusively, applied to theextention of its benefits, until they shall completelypervade every part of that union &'#

:# ;ongress have power to promote the progress ofscience and useful arts, by securing for limited times

to authors and inventors the exclusive right to theirrespective writings and discoveries# ;# !# "# Art# 8,"ect# :#

$his is another branch of federal authority, in which Ipresume the states may possess some degree ofconcurrent right within their respective territories' butas the security which the state could afford, wouldnecessarily fall short of that which an authority co*extensive with the union may give, it is scarcelyprobable that the protection of the laws of anyparticular state will hereafter be resorted to' moreespecially, as the act of + ;ong# c# ?1, declares, that.where any state before it3s adoption of the presentform of government shall have granted an exclusiveright to any invention, the party claiming that right,shall not be capable of obtaining an exclusive rightunder that act, but on relinuishing his right undersuch particular state, and of such relinuishment hisobtaining an exclusive right under that act, shall besufficient evidence#. 2ut this act does not appear toextend to copy*rights% the exclusive right to which issecured by an act passed, 8 ;ong# + "ess# c# 8?,

amended by the act of 8 ;ong# c# 1@, for fourteenyears' and if at the expiration of that term, the authorbeing living, the same exclusive right shall becontinued to him and his heirs, for other fourteenyears# 2ut the exclusive rights of other persons totheir inventions, is limited to fourteen years, only, bythe act first mentioned# Aliens, who have resided twoyears in the !nited "tates, are moreover entitled tothe benefit of a patent for any new invention, byvirtue of the act of @ ;ong# c# +?#

4hether it was under this clause of the constitution,or not, that the first secretary of the treasury

grounded his opinion of the right of congress toestablish trading companies, for the purpose ofencouraging arts and manufactures &(' or whether itwas under this clause, that the establishment of acompany for the discovery of mines, minerals, andmetals, was contemplated by the authors of thatscheme &)' or whether it was from a conviction ofthe unconstitutionality of the proposition, in bothcases, that neither of them took effect, I cannotpresume to determine% but, certainly, if this clause ofthe constitution was relied upon, as giving congressa power to establish such monopolies, nothing couldbe more fallacious than such a conclusion# &or theconstitution not only declares the ob)ect, but pointsout the express mode of giving the encouragement'vi(# .by securing for a limited time to authors andinventors, the exclusive right to their respectivewritings, and discoveries#. Nothing could be moresuperfluous, or incompatible, with the ob)ectcontended for, than these words, if it was, indeed,the intention of the constitution to authorisecongress, to adopt any other mode which they mightthink proper#

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8::# ;# !# "# Art# 8# "ec# :#8:# ;onfederation, Art# 7#8># Federalist , No# 7+#88# -# !# "# 8 ;ong# + "ess# c# 1# 9 ;ong# c# +:#8+# + Dallas3s Reports, +@#81# "ee a letter of George Nicholas, 5s# on the

 Alien and "edition laws#87# "ee 2eccaria, on Crimes and Punishments, c#878?# In Virginia, farmers generally cultivate their ownlands# It may be otherwise in the northern states#8@# ;# !# "# Art# 8# sect# :#89# ;onfederation, Art# #8:# ;# !# "# Art# 8# sect# #8# "ee Hale3s )ist # p# ;# v# 8# p#8:#+>># ;onseuently every bill for this purpose, or forany other by which a revenue may be raised, shouldoriginate in the house of representatives# Bet I amvery much mistaken if a recurrence to the early

 )ournals of the senate of the !nited "tates, wouldnot prove, that the several acts for establishing thepost*office' for regulating the value of foreign coins,

and for establishing a mint, all originated in thesenate# $he reason of the acuiescence of thehouse of representatives on these occasions,probably was, that no revenue was in tended to bedrawn to the government by these laws% whereasstrictly speaking, a revenue is raised by the actestablishing the mint' + cong# c# 8@# =# 87, eual toone half per centum, as an indemnification to themint for the coinage% and in the case of the bill forestablishing the post*office, there can be no room todoubt that it operates as a revenue law, and that, toa very considerable amount#+>8# ;# !# "# Art# 8# sec# :#

+>+# 6n the +7th of arch, 89@, the house ofrepresentatives reuested the president to lay beforethe house his instructions to r# ay, together withthe correspondence and other documents relative tothe treaty with Great 2ritain, which he refused to do,upon the ground, that that house had noconstitutional participation in the business of makingtreaties' to which he adds the following% ####.If other proofs than these, and the plain letter of the;onstitution itself be necessary to ascertain the pointunder consideration, they may be found in the

 )ournals of the general ;onvention, which I havedeposited in the office of the department of state# Inthose ournals, it will appear, that a proposition wasmade, that no treaty should be binding on the !nited"tates which was not ratified by a law, and that theproposition was explicitly re)ected#. #### essagefrom the president to the house of representatives,arch 1>, 89@#+>1# $he annual proceeds of the duties on postagemay not be estimated at less than ?>,>>> Dollars ####Ceport of the secretary of the treasury to the houseof representatives# December 8:, 8:>8#+>7# "ee the report of r# "ecretary Hamilton on thissub)ect#

+>?# "ee the resolution of congress respecting thecopper*mines on the south side of -ake "uperior#

 April 8@, 8:>> #### A bill for establishing a mine,mineral, and metal company, was brought intocongress the next session, /as I have understood0but miscarried#

Volume 1 — Appendix

Note D

[Section 1 — 5o6e!# o" Con!e## /cont.0%

# ;ongress is moreover authorised to constitutetribunals inferior to the supreme court# F;# !# "# Art#8# = :# $he third article of the constitution furtherdeclares, that the )udicial power of the !nited "tatesshall be vested in one supreme court, and in suchinferior courts, as congress may from time to time,ordain, and establish #### $he establishment of courtsis in 5ngland, a branch of the royal prerogative,which has in that country been, from time to time,

very much abused' as in the establishment of thefamous courts of high*commission, and of the star*chamber' two of the most infamous engines ofoppression and tyranny' that ever were erected inany country# .$he )udges of which /as the statute forsuppressing the former declares0 undertook topunish, where no law did warrant, and theproceedings, and censures of which were anintollerable burthen upon the sub)ect, and the meansto introduce an arbitrary power and government#. In5ngland there are also courts of special*commissionof oyer and terminer , /I do not here speak of theordinary commissions of oyer and terminer  andgeneral goal delivery, under which, courts are heldby the )udges of the courts of 4estminster*hall, atthe assi(es, in every county,0 occasionallyconstituted for the special purpose of trying personsaccused of treason, or rebellion, the )udges of which,are freuently some of the great officers of state,associated with some of the )udges of 4estminster*hall, and others, whose commission determines assoon as the trial is over# ost of the state trials, havebeen had before courts thus constituted% and thenumber of convictions and condemnations in thosecourts is a sufficient proof how very exceptionable

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such tribunals are% or rather how dangerous to thelives and liberties of the people, a power to selectparticular persons, as )udge# for the trial of stateoffences, must be, in any country, and under anypossible form of government# In these cases, theoffence is not only in theory, against the crown andgovernment, but often, in fact, against the person,authority, and life of the ruling monarch# His greatofficers of state share with him in danger, and tooprobably in apprehension, and resentment# $heseare the )udge, he selects, and from their handsexpects security for himself and them# 4hilst thefrailties of human nature remain, can such a tribunalbe deemed impartialE 4isely, then, did theconstitution of the !nited "tates deny to theexecutive magistrate a power so truly formidable%wisely was the supreme federal legislature made thedepositary of the power of establishing courts,inferior to the supreme court' and most wisely was itprovided, that the )udges of those courts, when onceappointed by the president with the advice of thesenate, should depend only on their good behaviourfor their continuance in office, and be placed at once

beyond the reach of hope or fear, where they mighthold the balance of )ustice steadily in their hands#

$hese considerations induce a conviction in mymind, that this clause of the constitution does notauthorise the establishment of occasional, ortemporary courts, but courts of a permanentconstitution and duration# ;ourts that could neitherbe affected in their conduct nor in their existence bythe ferments or changes, of parties' and which mightremain a monument to all posterity of the wisdom ofthat policy, which seperates the )udiciary from theexecutive and legislative departments, and places it

beyond the influence or control of either#

$hese remarks are offered in this place, only for thesake of method' it will be our duty to give the sub)ecta fuller consideration elsewhere#

8># ;ongress have power to define and punishpiracies and felonies committed on the high seas,and offences against the law of nations# ;# !# "# Art#8# = :#

$he definition of piracies, says the author of the&ederalist, might perhaps, without inconvenience, beleft to the law of nations% though a legislativedefinition of them is found in most municipal codes#

 A definition of felonies on the high seas is evidentlyreuisite, being a term of loose signification, even inthe common law of 5ngland# $he true ground ofgranting these powers to congress seems to be, theimmediate and near connection and relation whichthey have to the regulation of commerce with foreignnations, which must necessarily be transacted by thecommunication on the high seas' and the right ofdeciding upon uestions of war and peace, wherethe law of nations, is the only guide# !nder this

head, of offences against the law of nations, theviolation of the rights of ambassadors, as also ofpassports, and safe conducts is included# $he act of8 cong# + sess# c# , embraces the whole#

 And here we may remark by the way, the veryguarded manner in which congress are vested withauthority to legislate upon the sub)ect of crimes, andmisdemeanors# $hey are not entrusted with ageneral power over these sub)ects, but a fewoffences are selected from the great mass of crimeswith which society may be infested, upon which,only, congress are authorised to prescribe thepunishment, or define the offence# All felonies andoffences committed upon land, in all cases notexpressly enumerated, being reserved to the statesrespectively# &rom whence this corollary seems tofollow# $hat all crimes cogni(able by the federalcourts /except such as are committed in places, theexclusive )urisdiction of which has been ceded to thefederal government0 must be previously defined,/except treason,0 and the punishment thereofpreviously declared, by the federal legislature &*#

88# $he power of declaring war, with all its train ofconseuences, direct and indirect, forms the nextbranch of the powers confided to congress &+' andhappy it is for the people of America that it is sovested# $he term war, embraces the extremes ofhuman misery and iniuity, and is alike the offspringof the one and the parent of the other# 4hat else isthe history of war from the earliest ages to thepresent moment but an afflicting detail of thesufferings and calamites of mankind, resulting fromthe ambition, usurpation, animosities, resentments,piues, intrigues, avarice, rapacity, oppressions,

murders, assassinations, and other crimes, of thefew possessing powerM How rare are the instancesof a )ust war &,M How few of those which are thusdenominated have had their existence in a nationalin)uryM $he personal claims of the sovereign areconfounded with the interests of the nation overwhich he presides, and his private grievances orcomplaints are transferred to the people' who arethus made the victims of a uarrel in which theyhave no part, until they become principals in it, bytheir sufferings# 4ar would be banished from theface of the earth, were nations instead of princes todecide upon their necessity# In)ustice can never bethe collective sentiment of a people emerged frombarbarism# Happy the nation the people are thearbiters of their own interest and their own conductMHappy were it for the world, did the people of allnations possess this power#

In 5ngland the right of making war is in the king# In"weden it was otherwise after the death of ;harlesII# until the revolution in 899+, when from a limitedmonarchy, "weden became sub)ect to a despot &-#4ith us the representatives of the people have theright to decide this important uestion, con)unctively

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with the supreme executive who may, on thisoccasion as on every other, /except a proposal toamend the constitution,0 exercise a ualifiednegative on the )oint resolutions of congress' but thisnegative is unavailing if two thirds of the congressshould persist in an opposite determination' so that itmay be in the power of the executive to prevent, butnot to make, a declaration of war &1#

$he several states are not only prohibited fromdeclaring war, but even from engaging in it, withoutconsent of congress, unless actually invaded, or insuch imminent danger as will not admit of delay &11# $his is certainly a very wise prohibition #### in fact,every barrier which can be opposed to the hastyengaging in war, is so much gained in favour of theinterests of humanity# !pon the same principle itseems to be, that the states are likewise prohibitedfrom granting letters of marue and reprisal% ameasure which not unfreuently precedes adeclaration of war where individuals of one nationare oppressed or in)ured by those of another, and

 )ustice is denied by the state to which the author of

such oppression or in)ury belongs &1&# Did the severalstates possess the power of declaring war, or ofcommencing hostility without the consent of thewhole, the union could never be secure of peace,and since the whole confederacy is responsible forany such act, it is strictly consonant with )ustice andsound policy, that the whole should determine on theoccasion which may )ustify involving the nation in awar# $he keeping up troops or ships of war in time ofpeace, is also prohibited to the several states uponthe same principle# &or these kinds of preparationsfor hostility are such as freuently may provoke, andeven )ustify hostility on the part of other nations# 2ut

whenever war is actually declared, this prohibitionceases, and any state may adopt such additionalmeasures for it3s own peculiar defence as it3sresources will enable it to do# $he prohibition to emitbills of credit &1', must, however, infallibly narrow themeans of recurring to these resources' aconseuence which probably was not adverted to bythe state conventions, as I do not recollect anyamendments proposed on that sub)ect#

$he power of declaring war, with all it3s immediateconseuences, was granted to congress under theformer confederation &1(, and nearly the samerestrictions against engaging in war, keeping uptroops and vessels of war in time of peace, were laidupon, the individual states by the same instrument&1)#

 Among the amendments proposed by theconvention of this state, and some others, to theconstitution, there was one, .that no declaration ofwar should be made, nor any standing army orregular troops be raised or kept up, in time of peace,without the consent of two*thirds of the memberspresent in both houses# And that no soldier should

be enlisted for a longer term than four years, exceptin time of war, and then for no longer term than thecontinuance of the war &1*#. North*;arolina, as wellas some other of the states, concurred in proposingsimilar amendments, but none has yet been made inthis respect#

6ne of the most salutary provisions of theconstitution, under this head, appears to be, that noappropriation of money to the use of an army, shallbe for a longer term than two years &1+# <erhaps itwould have been better to have limited such anappropriation to a single year# 2ut inasmuch as noappropriation can be made for a longer time than theperiod affixed for the duration of congress, it will bein the power of the people, should the reasons ofsuch an appropriation be disapproved by them, toremove their representatives, on a new election,from a trust which they may appear willing to betray#It is, therefore, to be hoped, that such aconsideration will afford a sufficient check to theproceedings of congress, in regard to the raising andsupporting armies# 4ith regard to a navy, the nature

of such an establishment, to have any good effect,must be permanent# It would, therefore, have beenextremely unwise to impose any prohibitions on thatsub)ect#

8+# ;ongress has, moreover, power to provide fororgani(ing, arming and disciplining the militia, andfor governing such part of them as may be employedin the service of the !nited "tates, reserving to thestates, respectively, the appointment of the officers,and the authority of training the militia, according tothe discipline prescribed by congress ;# !# "# Art# 8,"ec# :#

$he ob)ects of this clause of the constitution,although founded upon the principle of our state billof rights, Art# :, declaring, .that a well regulatedmilitia, composed of the body of the people trainedto arms, is the proper, natural, and safe defence of afree state,. were thought to be dangerous to thestate governments# $he convention of Virginia,therefore, proposed the following amendment to theconstitution' .that each state respectively shouldhave the power to provide for organi(ing, arming,and disciplining it3s own militia, whenever congressshould neglect to provide for the same#. A furtheramendment proposed, was, .that the militia shouldnot be sub)ect to martial law, except when in actualservice, in time of war, rebellion, or invasion. #### Aprovision manifestly implied in the words of theconstitution# As to the former of these amendments,all room for doubt, or uneasiness upon the sub)ect,seems to be completely removed, by the fourtharticle of amendments to the constitution, sinceratified, vi(# .$hat a militia being necessary to thesecurity of a free state, the right of the people tokeep, and hear arms, shall not be infringed#. $owhich we may add, that the power of arming the

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militia, not being prohibited to the states,respectively, by the constitution, is, conseuently,reserved to them, concurrently with the federalgovernment# In pursuance of these powers, an actpassed, + ;ong# 8 "ess# c# 11, to provide for thenational defence, by establishing an uniform militiathroughout the !nited "tates' and the system oforgani(ation thereby established, has been carriedinto effect in Virginia, and probably in all the otherstates of the union#

!niformity in the system of organi(ation, anddiscipline of the militia, the constitutional defence ofa free government is certainly desirable, and mustbe attended with beneficial effect, whenever theoccasion may again reuire the co*operation of themilitia of the states respectively# $he want of powerover these sub)ects, was one of the defects of theformer system of government under theconfederation' and the conseuent want ofuniformity of organi(ation, and of discipline, amongthe several corps of militia drawn together from theseveral states, together with the uncertainty and

variety of the periods of service, for which thosecorps were severally embodied, produced a verylarge portion of those disgraces, which attended themilitia of almost every state, during the revolutionarywar' and, thus contributed to swell the national debt,to an enormous si(e, by a fruitless expence# 2yauthorising the federal government to provide for allthese cases, we may reasonably hope, that thefuture operations of the militia of the confederatedstates, will )ustify the opinion, that they are the mostsafe, as well as most natural defence of a free state#

 An opinion, however, which will never be )ustified, ifthe duty of arming, organi(ing, training, and

disciplining them, be neglected% a neglect the moreunpardonable, as it will pave the way for standingarmies' the most formidable of all enemies togenuine liberty in a state#

4e have seen that the appointment of the officers ofthe militia, and the authority of training them, areexpressly reserved to the states, by this article% thiswas considered as a most important check to anypossible abuse of power in the federal government,whenever the aid of the militia should be reuired byit#

Notwithstanding this wise precaution in theconstitution, the fifth congress appear to havedisregarded it, by authorising the president of the!nited "tates, to enlist and organi(e volunteers, orspecial corps of militia, whose officers H5 wasauthorised to appoint, either by his own authority, orwith the concurrence of the senate' they werelikewise to be trained and disciplined in the mannerwhich he should direct, and be liable to be calledupon to do duty, at any time that he should )udgeproper, within two years after their acceptance, andbe exempted, during the time of their engagement,

from all militia duty, which might be reuired of themby the laws of the !nited "tates, or of any state, andfrom every line, penalty, or disability, provided toenforce the performance of any duty or service in themilitia #### $he number of these corps was at firstunlimited &1,, and the president was authorised to selor lend them artillery, small*arms, accoutrements,from the public arsenals# -# !# "# ? ;ong# c# @7# "ec#1, and c# 97 #### As these select corps were not calledinto actual service by those acts, but were only liableto be called upon at the pleasure of the president, itseems impossible to view them in any other light,than as a part of the militia of the states, separatedby an unconstitutional act of congress, from the rest,for the purpose of giving to the president powers,which the constitution expressly denied him, and aninfluence the most dangerous that can be conceivedto the peace, liberty, and happiness of the !nited"tates#

81# ;ongress have power to declare the punishmentof treason, against the !nited "tates' but noattainder of treason shall work corruption of blood, or

forfeiture, except during the life of the personattainted# ;# !# "# Art# 1# "ec# 1# $he act of 8 ;ong#+ "ess# c# # accordingly declares, that thepunishment shall be death, by hanging' and that noconviction or )udgment for treason, shall work anyforfeiture of estate# $he constitution# itself declares,that treason against the !nited "tates shall consistonly in levying war against them, or in adhering totheir enemies, giving them aid and comfort% and thatno person shall be convicted of treason, unless onthe testimony of two witnesses to the same overtact, or on confession in open court#

$he precise definition of treason, and the limitationof it to two cases, only, both of which are clearly andexplicitly described, at once evince the prudence,caution, and wisdom, of the framers of theconstitution, by shutting the door /as far as humanprudence, and human foresight, could provide themeans of doing so0, against all possible cases ofconstructive treason# $he many infamous acts ofcomplying parliaments in 5ngland, during the reignsof the $udors and other tyrannical princes, and thestill more infamous and detestable decisions ofservile and corrupt )udges, from the days of 5mpsonand Dudley, to those of the execrable efferies, mustevince the necessity and propriety of such alimitation# &rom such corruption and servility, eitherin the legislature, or in the tribunals of )ustice, wemay reasonably hope that this clause of theconstitution will effectually guard and protect the!nited "tates# Nor should we forget, that the securityof the citi(en is still further ensured by that provisionin the constitution, which declares that no personshall be convicted of treason, unless on thetestimony of two witnesses to the same overt act, oron confession in open court# "o that no extra)udicialconfession, though proved by fifty witnesses, would,

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of itself, be evidence sufficient to convict a man upona charge of treason# A provision which almost bidsdefiance to false witnesses #### $he abolition offorfeiture, and of the corruption of blood, in cases oftreason, is moreover a happy expedient forlessening the incentives, to prosecutions for treason,in corrupt governments# Capacity is eually thecause and effect of tyranny# $o curb every pretencefor the exercise of it, should be the invariable ob)ectof a people forming a constitution# It is a monsterthat assumes a thousand shapes' of which the mostodious, as well as the most terrible, is that, in whichit attacks life, liberty and property, at the same time,and with the same weapons% its power is thenirresistible#

87# ;ongress have power to exercise exclusivelegislation, in all cases whatsoever, over suchdistrict, /not exceeding ten miles suare0 as may, bycession of particular states, and the acceptance ofcongress' become the seat of the government of the!nited "tates' and to exercise like authority over allplaces purchased by the consent of the legislature of 

the state' in which the same shall be, for the erectionof forts, maga(ines, arsenals, dock*yards, and otherneedful buildings# ;# !# "# Art# 8# =# :#

$he exclusive right of legislation granted to congressby this clause of the constitution, is a power,probably, more extensive than it was in thecontemplation of the framers of the constitution togrant% such, at least, was the construction which theconvention of Virginia# $hey, therefore, proposed anarticle, as, an amendment to the constitution,declaring, .that the powers granted by this clause,should extend only to such regulations as respect

the police, and good government thereof#. $hestates of New*Bork and North*;arolina proposedsimilar amendments &1-' and one to the like effectwas actually proposed in the senate of the !nited"tates, but shared the fate of many others, whoseob)ect was to limit the exercise of power in thefederal government#

I agree with the author of the &ederalist &&, that acomplete authority at the seat of government wasnecessary to secure the public authority from insult,and it3s proceedings from interruption# 2ut theamendment proposed by Virginia, certainly, wouldnot have abridged the federal government of suchan authority# A system of laws incompatible with thenature and principles of a representative democracy,though not likely to be introduced at once, may bematured by degrees, and diffuse it3s influencethrough the states, and finally lay the foundation ofthe most important changes in the nature of thefederal government# -et foreigners be enabled tohold lands, and transmit them by inheritance ordevise' let the preference to males, and the rights ofprimogeniture, be revived, together with the doctrineof entails, and aristocracy will neither want a ladder

to climb by, nor a base for it3s support# any personsalready possess an extent of territory in the !nited"tates, not inferior to in any of the Germanprincipalities% if they can be retained for a fewgenerations, without a division, our posterity maycount upon the revival of feudal principles, withfeudal tenures#

$he permanent seat for the government of the!nited "tates has been established under theauthority of an act passed 8 ;ong# + "ess# c# +:,and 1 "ess# c# 89, upon the river <otowmac,including the towns of Alexandria in Virginia, andGeorgetown in aryland# And the laws of Virginia/with some exceptions0 were declared in force in thatpart of the ten miles suare, which was ceded byVirginia, and those of aryland in the other part,ceded by aryland' and several other regulationswere likewise established by two several acts, @;ong# + "ess# c# 8? and +7# An amendatory actpassed also at the first session of the seventhcongress, but the system does not appear to be asyet completely organi(ed &&1# It has been said, that it

was in contemplation to establish a subordinatelegislature, with a governor to preside over thedistrict# 2ut it seems highly uestionable whethersuch a substitution of legislative authority iscompatible with the constitution' unless it besupposed that a power to exercise exclusivelegislation in all cases whatsoever, comprehends anauthority to delegate that power to anothersubordinate body# If the maxim be sound, that adelegated authority cannot be transferred to anotherto exercise, the pro)ect here spoken of will probablynever take effect# At present that part of the union isneither represented in the congress, nor in any state

legislature' a circumstance, of which there seems tobe some disposition to complain# An amendment ofthe constitution seems to be the only means ofremedying this oversight#

+>@# "ee the opinion delivered by udge ;hase, inthe federal circuit court of <ennsylvania, in the caseof the *nited States vs# ,orrel , + Dallas3s Reports,1:7#+>9# ;# !# "# Art# 8# "ec# :#+>:# Vattel, -ib# 1# ;h# 1#+># Vattel, 71#+8># $his is certainly the spirit of the constitution% butin the practical exercise of the functions of thepresident of the !nited "tates, it may be found to bein the power of that magistrate to provoke, thoughnot to declare war#+88# ;# !# "# Art# 8, "ec# 8>#+8+# 8 2lacks# Com# +?:#+81# ;# !# "# Art# 8, "ec# #+87# ;onfederation, Art# #+8?# Ibidem, Art# @#+8@# &ournals of the -irginia Convention, Art# , 8>#

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+89# $his restriction has proved illusory in practice'though congress are restricted from making anyappropriation for the support of an army for morethan two years, they have supposed themselvesauthorised to enlist an army for any period they maythink proper, even in times of peace#+8:# $hey were afterwards limited to 9?,>>> men# ?cong# c# 819#+8# Amendments proposed by Virginia' Art# 8+, byNew Bork, Art# 88, and 8+, by North*;arolina, Art# 81#++># Federalist , Vol# +# No# 71#++8# Having lately procured a copy of the actspassed at the first session of the seventh congress, Ifind that three acts were passed on the sub)ect ofthe present seat of the government of the !nited"tates# $he first, entitled .An act to abolish the boardof commissioners in the city of 4ashington, and forother purposes#. $he second, .An act additional to,and amendatory of, an act, entitled, an actconcerning the district of ;olumbia#. And the third,an act to incorporate the inhabitants of the city of4ashington, in the district of ;olumbia# -# !# "# 9;ong# c# 78, ?+, and ?1# $he latter is limited to two

years, and from thence to the end of the nextsession of congress#

Volume 1 — Appendix

Note D

[Section 11 9 5o6e!# o" Con!e## /cont.0%

8?# ;ongress may admit new states into the union'but no new state shall be formed, or erected withinthe )urisdiction of any other state, nor any state beformed by the )unction of two or more states, or partsof states, without the consent of the legislatures ofthe states concerned, as well as of congress# ;# !#"# Art# 1, "ec# 1#

In the articles of confederation it was agreed, that;anada, acceding thereto, and )oining in themeasures of the !nited "tates, should be admittedinto the union' but no other colony should beadmitted, unless such admission be agreed to bynine states# $he eventual establishment of new

states, within the limits of the territory of the !nited"tates, seems to have been overlooked by thecompilers of that instrument# $he inconvenience ofthis omission had been felt, and congress were,perhaps, led into an assumption of power not strictlywarranted by the confederation' in the establishmentof a government north*west of the 6hio# 4ith greatpropriety, therefore, has the constitution supplied thedefect# $he general precaution that no new statesshould be formed without the concurrence of thefederal authority, and that of the states concerned, isconsonant to the principles which ought to governsuch transactions# $he particular precaution againstthe erection of new states by the partition of a statewithout it3s consent, uiets the )ealousy of the largerstates' as that of the smaller is uieted by a likeprecaution against a )unction of states without theirconsent# !nder the authority of this article, the statesof Vermont, Lentucky, and $ennessee, have beenadmitted into the union# And the boundaries of a newstate have been lately established within the territorynorthwest of the 6hio, which, as soon as formed, isto be admitted as a member of the union, upon the

same footing with the original states &&&#

;ongress, under the former confederation, passedan ordinance, uly 81, 89:9, for the government ofthe territory of the !nited "tates, north*west of the6hio, which contained, among other things, sixarticles, which were to be considered as articles ofcompact between the original states, and the peopleand states of the said territory, and to remainunalterable, unless by common consent# $hesearticles appear to have been confirmed by the sixtharticle of the constitution, which declares, that, alldebts contracted, and engagements entered into

before the adoption of the constitution, shall be asvalid against the !nited "tates under theconstitution, as under the confederation# $he first ofthese articles secures the absolute freedom ofreligion% $he second secures the benefit of the writ ohabeas corpus' the trial by )ury' )udicial proceedingsaccording to the course of the common law' the rightof bail' the moderation of f ines and of punishments'the right of personal security, and the right of privateproperty' the sacredness of private contracts' and aproportionate representation of the people in thelegislature# $he third engages for theencouragement of schools, and the means ofeducation' and for good faith with the Indians, andthe security of their persons and property from in)ury$he fourth stipulates, that the states formed in thatterritory shall forever remain part of the Americanconfederacy, c# that they shall pay it part of thefederal debt, and a proportional part of the expencesof government' that the legislatures of the newstates shall never interfere with the primary disposalof the soil, by the !nited "tates in congressassembled' that no tax shall be imposed on landsthe property of the !nited "tates' and that non*resident proprietors shall in no case be taxed higher

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than residents# $hat the navigable waters andcarrying places shall be common highways, andforever free to all the citi(ens of the Americanconfederacy, without any tax, impost, or dutytherefor# $he sixth article declares, that there shallbe formed in the said territory, not less than three,nor more than five states' that whenever any of thesaid states shall have sixty thousand freeinhabitants, it shall be admitted into the confederacyon an eual footing with the original states in allrespects whatever, and be at liberty to form apermanent constitution and state government'provided the same be republican, and in conformityto the principles contained in those articles% and sofar as can be consistent with the general interest ofthe confederacy' such admission shall be soonerallowed# $he last article stipulates that there shall beneither slavery, nor involuntary servitude, otherwisethan in punishment of crimes% with a proviso, thatpersons escaping into the same from any state,where they may have been lawfully held to service,may be lawfully reclaimed and delivered up#

$he ordinance further provides, that the estates bothof resident and non*resident proprietors, shalldescend to their children, or other next of kin, of aperson dying intestate, in eual degree' and thatthere shall be no distinction between kindred of thewhole and half blood' that the widow shall beendowed of one third part of the real and personalestate of her intestate husband, for life' and that thislaw, relative to descents and dower, shall remain infull force until altered by the legislature# $hat estatesmay be devised by will, and conveyed by lease andrelease, or by bargain and sale, by persons of fullage, until the governor and )udges should adopt

other laws, as therein authorised# $hat the governorand )udges, or a ma)ority of them, shall adopt andpublish, in the district, such laws of the originalstates, criminal and civil, as may be necessary, andbest suited to the circumstances of the district, andreport them to congress from time to time' whichlaws shall be in force until the organi(ation of thegeneral assembly therein, unless disapproved of bycongress' but afterwards, the legislature might alterthem as they should think fit# $hat the generalassembly shall consist of the governor, a legislativecouncil, and a house of representatives' that thegovernor shall be appointed by congress, everythree years' that he shall have a negative upon alllegislative acts' that he shall have power to convene,prorogue, and dissolve the general assembly' thatthe legislative council shall consist of five members,to continue five years in office, and to be appointedby congress, out of ten persons, residents andfreeholders in the district, to be nominated by thehouse of representatives' that the governor andmembers of the council be removable by congress'that a house of representatives shall be chosen assoon as there shall be five thousand free maleinhabitants of full age in the district, and consist of

one member for every five hundred free maleinhabitants, until the number shall amount to twenty*five, after which the number shall be regulated bythe legislature' that the representatives thus elected,shall serve for two years# $hat a court of commonlaw )urisdiction shall be appointed, to consist of three

 )udges, who shall hold their offices during goodbehaviour# "uch are the principal outlines of thetemporary provisions made upon this sub)ect, which,I presume, still remain in force in those parts of theterritory, not included within the bounds of the newstate, lately admitted as a member of the federalunion# 2y the act of 8 ;ong# c# :, the president of the!nited "tates is authorised to nominate, and by andwith the advice and consent of the senate, to appointall officers, which, by that ordinance were to havebeen appointed by congress, under theconfederation# And by the act of @ ;ong# c# 78, theterritory was divided into two separate governments,one of which was called the Indiana $erritory, and agovernment established therein, in all respectssimilar to that provided by the above mentionedordinance, except that the legislature thereof might

be organi(ed, notwithstanding there may not be fivethousand free male inhabitants of full age therein#$he act further declares, that nothing thereincontained, shall be construed in any manner, toaffect the government already in force, on thenorthwest of the 6hio river, further than to prohibitthe exercise thereof within the Indiana territory#

2y the act of ? ;ong# c# 7?, authorising theestablishment of a government in the ississippiterritory, the president of the !nited "tates isauthorised to establish therein a government, in allrespects similar to that in the northwest territory,

excepting and excluding that article of the ordinanceof uly 81, 89:9, which declares, that there shall beneither slavery' nor involuntary servitude therein#$he importation of slaves from foreign parts, is,nevertheless, prohibited, under the penalty of threehundred dollars upon the importer, and the slave ismoreover entitled to freedom# ;onsidering that thesouthern climate is in general favourable to negroes,and the difficulties which the number of them may intime create in some of the states' their dispersion isan ob)ect rather to be favoured, perhaps, thandiscountenanced# Bet it is difficult to suppress a sigh,whenever we discover any measure which seems tofavour the continuance of slavery among us#

8@# ;ongress, have power to dispose of' and makeall needful rules and regulations respecting theterritory, or other property belonging to the !nited"tates' and nothing in the constitution shall be soconstrued as to pre)udice any claims of the !nited"tates, or of any state# ;# !# "# Art# 1, "ec# 1#

During the revolutionary war, congressrecommended to the several states in the union,having claims to waste and unappropriated lands in

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the western country, a liberal cession to the !nited"tates of a portion of their respective claims, for thecommon benefit of the union# In conseuence ofwhich, the state of Virginia ceded to the !nited"tates, for the common benefit of the wholeconfederacy, all the right, title, and claim which thecommonwealth had to the territory northwest of theriver 6hio, sub)ect to the terms and conditionscontained in her several acts of cession, vi(# anuary+, 89:8### Acts of 6ctober session, 89:1# c# 8:, andof December 1>, 89:: &&'# 6ne of the conditions ofthe latter act, being, that the said territory should bedivided into not more than five, nor less than threestates, whose boundaries are therein prescribed, ofwhich we have already had occasion to make#mention# It appears by a late document &&(, that thetract of country thus ceded, probably contains about8>,:7,779, acres, within the line of the Indianboundary, of which 8,>?,8+>, acres have beeneither located or set apart for military claims,?9?,+@:, have been sold, or otherwise granted, andabout ,+@>,>:, remained unsold on the first ofNovember, 8:>8# $he acts of 7 ;ong, c# +, and @

;ong, c# ??, providing for the sale of these lands,contain many wise, and wholesome regulations, theprincipal of which, are, that they shall be laid out intotownships six miles suare, by north and south lines,according to the true meridian, and by otherscrossing them at right angles' that one half of thosetownships, taking them alternately, shall besubdivided into sections of six hundred and fortyacres, which shall be numbered in order' that fairplats of these townships shall be made' that foursections at the center of every township, and everyother section upon which a salt spring may bediscovered shall be reserved for the use of the

!nited "tates' that all navigable rivers shall bedeemed, and remain public highways' and all lesserstreams, and their beds shall become common tothe proprietors of the lands on the opposite banks'and that no part of the lands shall be sold for lessthan two dollars per acre# A former secretary of thetreasury estimated the value of these lands at twentycents per acre, only &&)# $hose which have beenalready sold pursuant to the act of congress, haveaveraged two dollars and nine cents' or, more thanten times that valuation# $he celebrated Doctor<rice, in his observations on the importance of the

 American revolution, recommends the reserving thewhole, or a considerable part of these lands, andappropriating a certain sum annually to the clearingunlocated lands, and other improvements thereon'and computes that 8>>,>>># thus expended, withfidelity, would produce a capital of one hundredmillions sterling, in about eighty years# $his hint isprobably worthy of attention to a certain extent% but itmight well be uestioned, whether, if the measurewere adopted as )ar as he seems to have thoughtadvisable, it might not lay the foundation of so largea revenue, independent of the people, as to heformidable in the hands of any government# $oamass immense riches to defray the expences of

ambition when occasion may prompt, withoutseeming to oppress the people, has uniformly beenthe policy of tyrants# "hould such a policy creep intoour government, and the sales of land, instead ofbeing appropriated to the discharge of former debts,be converted to a treasure in a bank, those who canat any time command it, may be tempted to apply itto the most nefarious purposes# $he improvidentalienation of the crown lands in 5ngland, has beenconsidered as a circumstance extremely favourableto the liberty of the nation, by rendering thegovernment less independent of the people &&*# $hesame reason will apply to other governments,whether monarchical or republican% whenever anygovernment becomes independent of the nation allideas of responsibility are immediately lost% andwhen responsibility ceases, slavery begins# It is thedue restraint, and not the moderation of rulers thatconstitutes a state of liberty' as the power tooppress, though never exercised, does a state ofslavery#

$he disposal of the whole of the western lands, at so

low a rate as even that now established bycongress, as a minimum, is a measure of the policyof which, doubts may be entertained #### $he westernterritory ought to be regarded as a national stock ofwealth# It may be compared to bullion, or coindeposited in the vaults of a bank, which although itproduces no present profit, secures the credit of theinstitution, and is ready to answer any emergency#$his supposes the lands, like bullion, to remainalways of the same value' but the lands mustincrease in value at the rate of compound interest,whenever population becomes considerable in thoseparts of the union# $his we see is daily encreasing

with great rapidity' and the value of the lands can notfail to keep pace with it# $he most fertile spots uponthe globe are of no more value than those which arecovered by the ocean, so long as they continueremote from population' as the most barren spotsare rendered valuable by its progress, andapproach# A reserve of one half, or some otherconsiderable proportion of the lands remainingunsold, therefore, seems to be recommended bymany prudential considerations#

6ther considerable cessions have been made to the!nited "tates by other states in the union# $he stateof ;onnecticut, made a cession which appears tohave been accepted by congress, "eptember 87,89:@# $he act of @ ;ong# c# 1:, authorises thepresident of the !nited "tates to release the soil of atract lying west of the west line of <ennsylvania, andextending one hundred and twenty statute miles,westward, and from the completion of the forty*first,to the latitude of the forty*second degree and twominutes, north, which was excepted by the state of;onnecticut out of their cession, provided that stateshall cede to the !nited "tates certain other lands,and relinuish her right of )urisdiction over the

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territory, the soil of which shall be thus released tothat state# "outh*;arolina likewise appears to havemade a cession of lands to the !nited "tates &&+# $heterritory ceded by North*;arolina now constitutes thestate of $ennessee &&,# $he acts of ? ;ong# c# 7?,and @ ;ong# c# ?>, authorise the acceptance of acession of lands, or of the )urisdiction thereof, fromthe state of Georgia, on such terms as may seemreasonable to the commissioners appointed on thepart of that state, and of the !nited "tatesrespectively# In the mean time the establishment ofthe ississippi government is not in any respect toimpair the right of the state of Georgia to the

 )urisdiction, or of the said state, or any person, to thesoil of the territory thereof &&-#

89# $o give efficacy to these powers, congress isauthorised to make all laws which shall benecessary and proper for carrying into execution theforegoing powers, and all other powers vested bythe constitution in the government of the !nited"tates, or in any department, or officer thereof# ;# !#"# Art# 8# =# :#

 After the, satisfactory exposition of this article givenin the &ederalist &', that if the constitution had beensilent on this head, there could be no doubt, that allthe particular powers reuisite, as the proper meansof executing the general powers specified in theconstitution, would have resulted to the federalgovernment, by unavoidable implication' and that ifthere be any thing exceptionable in this particularclause, it must be sought for in the specific powers,upon which this general declaration is predicated%and after the explicit declaration contained in thetwelfth article of the amendments to the constitution,

that the powers not delegated to the !nited "tatesby the constitution, nor prohibited by it to the states,are reserved to the states respectively, or to thepeople% we might have indulged a reasonable hope,that this clause would neither have continued toafford any ground of alarm, and apprehension, onthe part of the people or the individual states, norany pretext for an assumption of any power notspecified in the constitution, on the part of thefederal government# 2ut, notwithstanding thisremarkable security against misconstruction, adesign has been indicated to expound these phrasesin the constitution, so as to destroy the effect of theparticular enumeration of powers, by which itexplains and limits them, which must have fallenunder the observation of those who have attended tothe course of public transactions &'1#

$he plain import of this clause is, that congress shallhave all the incidental or instrumental powers,necessary and proper for carrying into execution allthe express powers' whether they be vested in thegovernment of the !nited "tates, more collectively,or in the several departments, or officers thereof# Itneither enlarges any power specifically granted, nor

is it a grant of new powers to congress, but merely adeclaration, for the removal of all uncertainty, thatthe means of carrying into execution those otherwisegranted, are included in the grant# A single examplemay illustrate this matter# $he executive has powerto make treaties, and by the treaty with Algiers, acertain tribute is to be paid annually to that regency#2ut the executive have no power to levy a tax for thepayment of this tribute' congress, therefore, areauthorised by this clause, to pass a law for thatpurpose% without which the treaty, although it be asupreme law of the land, in it3s nature, and thereforebinding upon congress, could not be executed withgood faith# &or the ;onstitution expressly prohibitsdrawing any money from the treasury but inconseuence of appropriations made by law#

4henever, therefore, a uestion arises concerningthe constitutionality of a particular power' the firstuestion is, whether the power be expressed in theconstitutionE If it be, the uestion is decided# If it benot expressed, the next enuiry must be, whether itis properly an incident to an express power, and

necessary to it3s execution# If it be, it may beexercised by congress# If it be not, congress cannotexercise it #### And this construction of the words.necessary and proper,. is not only consonant withthat which prevailed during the discussions andratifications of the constitution, but is absolutelynecessary to maintain their consistency with thepeculiar character of the government, as possessedof particular and defined powers, only' not of thegeneral and indefinite powers vested in ordinarygovernments &'&#

!nder this construction of the clause in uestion, it is

calculated to operate as a powerful and immediatecheck upon the proceedings of the federallegislature, itself, so long as the sanction of an oath,and the obligations of conscience, are regarded,among men# &or, as every member is bound by oathto support the constitution, if he were to bring everymeasure that is proposed to the test herementioned, and re)ect whatsoever could not standthe scrutiny, we should probably cease to hear anyuestions respecting the constitutionality of the actsof the federal government# $o which we may add,that this interpretation of the clause is indispensablynecessary to support that principle of theconstitution, which regards the )udicial exposition ofthat instrument, as the bulwark provided againstundue extension of the legislative power# If it beunderstood that the powers implied in the specifiedpowers, have an immediate and appropriate relationto them, as means, necessary and proper forcarrying them into execution, uestions on theconstitutionality of laws passed for this purpose, willbe of a nature sufficiently precise and determinate,for )udicial cogni(ance and control# If on the onehand congress are not limited in the choice of themeans, by any such appropriate relation of them to

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the specified powers, but may use all such as theymay deem capable of answering the end, withoutregard to the necessity, or propriety of them, alluestions relating to means of this sort must beuestions of mere policy, and expediency, and fromwhich the )udicial interposition and control arecompletely excluded #### If, for example, congresswere to pass a law prohibiting any person frombearing arms, as a means of preventinginsurrections, the )udicial courts, under theconstruction of the words necessary and proper,here contended for, would be able to pronouncedecidedly upon the constitutionality of these means#2ut if congress may use any means, which theychoose to adopt, the provision in the constitutionwhich secures to the people the right of bearingarms, is a mere nullity' and any man imprisoned forbearing arms under such an act, might be withoutrelief' because in that case, no court could have anypower to pronounce on the necessity or propriety ofthe means adopted by congress to carry anyspecified power into complete effect#

$his finishes our view of the legislative powersgranted to the federal government' great andextensive as they must appear, they are in generalsuch as experience had evinced to be necessary, oras the principles of a federal government hadrecommended to experiment, at least# In manyinstances these powers have been guarded by wiseprovisions, and restraints' some which have beenalready noticed' the remainder will soon pass underreview# 5xperience has already evinced the benefitof these restraints' and had they been morenumerous, and more effectual, there is little reasonto doubt that it would have contributed largely to the

peace and harmony of the union, both heretofore,and hereafter# All governments have a naturaltendency towards an increase, and assumption ofpower' and the administration of the federalgovernment, has too freuently demonstrated, thatthe people of America are not exempt from this vicein their constitution# 4e have seen that parchmentchains are not sufficient to correct this unhappypropensity' they are, nevertheless, capable ofproducing the most salutary effects' for, whenbroken, they warn the people to change thoseperfidious agents, who dare to violate them#

+++# -# !# "# 9 ;ong# c# 7> #### $he act authorises theinhabitants of the eastern*division of the territorynorth*west of the river 6hio, to form for themselves aconstitution and state government, and to assumesuch name as they shall deem proper, and declares,that, the said state when formed, shall be admittedinto the union, upon the same footing with theoriginal states, in all respects whatever#

$he boundaries of the state, as established for thepresent, are as follows% 6n the east, by the<ennsylvania line' on the south, by the 6hio river, tothe mouth of the Great iami river' on the west, by aline drawn due north from the Great iami river atthe mouth' and on the north, by an east and westline drawn through the southerly extreme of likeichigan, running east after intersecting the linefrom the mouth of the iami river, until it intersectlake 5rie, or the territorial line' and thence with thesame through lake 5rie to the <ennsylvania line# 2utcongress reserve to themselves the liberty at anytime hereafter to attach all the territory lying east ofthe line to be drawn due north from the mouth of theiami, to the territorial line, and north of an east andwest line drawn through the southerly extreme oflake ichigan, running east to lake 5rie, to suchstate, or dispose of it otherwise, in conformity to thefifth article of the compact between the originalstates, and the people and states to be formed in theterritory north*west of the river 6hio#

$he convention have accordingly established a

constitution pursuant to the act of congress, andhave adopted the name of the river 6hio, as thename their state#

++1# Virginia laws, 5di# 89:?, p# +87# 5di# 897# p#79#++7# Ceport of the "ecretary of the $reasury, Dec#8:, 8:>8#++?# Ceport of r# "ecretary Hamilton, to congress,anuary 8, 89?#++@# "ee <rice3s (bservations on the AmericanRevolution, p# 8>, and 8 2lacks# Com# p# 1>@#++9# -# !# "# ? ;ong# c# 7?#

++:# "ee -# !# "# 8 ;ong# 8 "ess# c# @# and 7 ;ong#c# 79#++# An act passed in the 9 ;ong# c# 7>, to enablethe people of the eastern division of the territorynorth*west of the river 6hio, to form a constitutionand state government, and for the admission of suchstate into the union' by which it is declared, that allthat part of the territory of the !nited "tates north*west of the river 6hio, heretofore included in theeastern division, of the said territory, and notincluded within the boundary by that act prescribedfor the said state, shall be attached to, and made apart of the Indiana $erritory, sub)ect nevertheless tothe future disposal of congress, according to theright reserved in the fifth article of the ordinance ofcongress, /uly 81, 89:90 for the government of theterritory of the !nited "tates north*west of the river6hio# $his was necessarily noticed under the lasthead#+1># "ee the Federalist , No# 11, and 77#+18# 4itness, the act for establishing a bank' the actauthorising the president to appoint officers tovolunteer corps of militia' the act declaring that apaper not stamped agreeably thereto, shall not beadmitted as evidence in a state court' the alien and

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sedition laws, c# .not to multiply proofs on thissub)ect, it may be sufficient to refer to the debates ofthe federal legislature, for several years, in whicharguments have, on different occasions, been drawnwith apparent effect from these phrases, in theirindefinite meaning#. "ee report of the committee ofthe general assembly of Virginia, on the alien andsedition laws, anuary +>, 8:>>#+1+# "ee the report of the committee of the generalassembly of Virginia on the alien and seditionlaws #### anuary +>, 8:>>#

Volume 1 — Appendix

Note D

[Section 1& — :e#t!int# on 5o6e!# o"Con!e##%

$he restraints imposed on the legislative powers ofthe federal government, are briefly comprised in theninth section of the first article of the constitution, orin the amendments, proposed by the first congress,

and since ratified in the mode prescribed by theconstitution# 6f these we shall take a brief survey, inthe order in which they occur#

8# $he migration, or importation of such persons, asany of the states now existing shall think proper toadmit, shall not be prohibited by congress prior tothe year 8:>:, but a tax or duty may be imposed onsuch importation, not exceeding ten dollars for eachperson# ;# !# "# Art# 8# =# #

$his article, at the time the constitution was framed,was deemed necessary to prevent an opposition, onthat ground, to it3s adoption in those states which stillpermitted the importation of slaves from Africa, andother foreign parts# A more liberal policy has sinceprevailed, so far as to render it probable thatcongress will never have occasion to exert the rightof prohibiting the importation of slaves, such beingnow prohibited by the laws of all the states in theunion# 2ut should any of them shew an inclination torescind the present prohibitions, congress, after theyear 8::, will be able to interpose it3s authority toprevent it, and impose some partial restraint uponthe farther extension of the miseries of mankind#

How to remove the calamities of slavery from amongus, is left to the wisdom of the state government' thefederal government can only prevent the furtherimportation of slaves after the period limited#

+# $he privilege of the writ of habeas corpus shall notbe suspended, unless when in cases of rebellion orinvasion, the public safety may reuire it# ;# !# "#

 Art# 8# =# #

$he writ of habeas corpus, is the great andefficacious remedy provided for all cases of illegalconfinement' and is directed to the person detaininganother, commanding him to produce the body of theprisoner, with the day and cause of his option anddetention, to do, submit to, and receive whatsoeverthe )udge or court awarding such writ shall considerin that behalf# In 5ngland this is a high prerogativewrit, and issues out of the court of king3s*bench, notonly in term time, but during the vacation, by a fiat  from the chief )ustice, or any other of the )udges, andrunning into all parts of the king3s dominions# InVirginia it may issue of the high court of chancery,

the general court, or the court of the district in whichthe person is confined, and may be awarded by any

 )udge of either of those courts in vacation% and if any )udge in vacation, upon view of the copy of thewarrant of commitment or detainer, or upon affidavitmade, that such copy was denied, shall refuse anywrit of habeas corpus, reuired to be granted by law,such )udge shall be liable to the action of the partyaggrieved &''# And by the laws of the !nited "tates&'(, all the courts of the !nited "tates, and either ofthe )ustices of the supreme court, as well as )udgesof the district courts, have power to grant writs ofhabeas corpus for the purpose of an enuiry into the

cause of commitment #### <rovided that writs ofhabeas corpus shall in no case extend to prisonersin goal, unless they are in custody under or by colouof the authority of the !nited "tates, or arecommitted for trial before some court of the same, orare necessary to be brought into court to testify &')#

Here a uestion naturally occurs% if a person beillegally committed to prison in any state, under, orby colour of the authority of the !nited "tates, canany )udge, or court of the state in which he isconfined, award a writ of habeas corpus, for thepurpose of an enuiry into the cause of hiscommitmentE $o which, I answer, that if he becommitted or detained for a crime, unless it be fortreason or felony, plainly expressed in the warrant ofcommitment, and be neither convicted thereof, nor inexecution by legal process, the writ /due reuisitesbeing observed0 can not be refused him &'*% for theact is imperative, as to awarding the writ# $he courtor )udge, before whom the prisoner is brought, must

 )udge from the return made to the writ, what coursehe ought to pursue% whether, to discharge him fromhis imprisonment' or bail him, or remand him again

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to the custody of the person from whom he may bebrought#

In 5ngland the benefit of this important writ can onlybe suspended by authority of parliament# It has beendone several times of late years, both in 5nglandand in Ireland, to the great oppression of the sub)ect,as hath been said# In the !nited "tates, it can besuspended, only, by the authority of congress' butnot whenever congress may think proper' for itcannot be suspended, unless in cases of actualrebellion or invasion# A suspension under any othercircumstances, whatever might be the pretext, wouldbe unconstitutional, and conseuently must bedisregarded by those whose duty it is to grant thewrit# $he legislatures of the respective states are left,I presume, to )udge of the causes which may inducea suspension within any particular state# $his is thecase, at least, in Virginia#

1# No bill of attainder, or e! post facto law, shall bepassed by congress, or by any state# ;# !# "# Art# 8#=# # 8>#

2ills of attainder are legislative acts passed for thespecial purpose of attainting particular individuals oftreason, of felony, or to inflict pains and penaltiesbeyond, or contrary to the common law# $hey arestate*engines of oppression in the last resort, and ofthe most powerful and extensive operation, reachingto the absent and the dead, as well as to the presentand the living &'+# $hey supply the want of legalforms, legal evidence &',, and of every other barrierwhich the laws provide against tyranny and in)usticein ordinary cases% being a legislative declaration ofthe guilt of the party, without trial, without a hearing,

and often without the examination of witnesses, andsub)ecting his person to condign punishment, andhis estate to confiscation and forfeiture# Instances oftheir application to these nefarious purposes occur inalmost every page of the 5nglish history for a veryconsiderable period% and very few reigns havepassed in which the power has not been exercised,though, to the honour of the nation, I believe, noinstance of the kind has occurred for more than halfa century#

In ay, 899:, an act passed in Virginia, to attaintone osiah <hilips, unless he should render himselfto )ustice, within a limited time% he was taken, afterthe time had expired, and was brought before thegeneral court to receive sentence of executionpursuant to the directions of the act# 2ut the courtrefused to pass the sentence, and he was put uponhis trial, according to the ordinary course of law ####$his is a decisive proof of the importance of theseparation of the powers of government, and of theindependence of the )udiciary' a dependent )udiciarymight have executed the law, whilst they execratedthe principles upon which it was founded#

If any thing yet more formidable, or more odiousthan a bill of attainder can be found in the catalogueof state*enginery, it is what the constitution prohibitsin the same clause, by the name of e! post facto laws% whereby an action indifferent in itself, and notprohibited by any law at the time it is committed, isdeclared by the legislature to, have been a crime,and punishment in conseuence thereof, is inflictedon the person committing it# Happily, for the peopleof Virginia, I can not cite any case of an e! postfacto law, /according to this definition, which I haveborrowed from udge 2lackstone &'-,0 that has beenmade in this commonwealth, nor have I heard of anysuch, in any other of the !nited "tates, that Irecollect#

7# $o check any possible disposition in congresstowards partiality in the imposition of burthens, it isfurther provided, that no capitation or other direct taxshall be laid, unless in proportion to the census, orenumeration, by the constitution directed to betaken# F;# !# "# Art# 8# = # And the fifth article of theconstitution declares, that no amendment made prior

to the year 8:>:, shall in any manner affect this, andthe first clause of the ninth section, above noticed#

$he acts of 1 ;ong# c# 7?, and 7 ;ong# c# 19, layingduties upon carriages for the conveyance ofpersons, were thought to be infringements of thisarticle, it being supposed, that such a tax was adirect tax, and ought to have been apportionedamong the states# $he uestion was tried in thisstate, in the case of the !nited "tates, againstHylton, and the court being divided in opinion, wascarried to the supreme court of the !nited "tates, byconsent# It was there argued by the proposer of it,

/the first secretary of the treasury,0 on behalf of the!nited "tates, and by the present chief )ustice of the!nited "tates, on behalf of the defendant# 5ach ofthose gentlemen was supposed to have defendedhis own private opinion# $hat of the secretary of thetreasury prevailed, and the tax was afterwardssubmitted to, universally, in Virginia &(#

@# !pon similar principles of euity, and impartiality,the succeeding clause declares, that no tax or dutyshall be laid on articles exported from any state# Nopreference shall be given by any regulation ofcommerce, or revenue, to the ports of one state,over those of another' nor shall vessels bound to, orfrom one state, be obliged to enter, clear, or payduties, in another #### And the fourth article of theconstitution, "ec# 1, further provides, that nothing inthe constitution of the !nited "tates shall be soconstrued as to pre)udice any claims of the !nited"tates, or of any particular state# $he reasons ofthese several restrictions and explanations havingbeen already noticed, I shall add nothing more to thesub)ect here' they being mentioned in this place onlyfor the sake of method#

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@# No title of nobility shall be granted by the !nited"tates, or any state% and no person holding anyoffice of profit or trust under the !nited "tates, shall,without consent of congress, accept of any present,emolument, office, or title of any kind whatever, fromany king, prince, or foreign state# ;# !# "# Art# 8#"ec# , 8>#

$he first of these prohibitions was indispensablynecessary to preserve the several states in theirdemocratic form, tone, and vigour# Distinctionsbetween the citi(ens of the same state, are utterlyincompatible with the principles of suchgovernments# $heir admission, therefore, can not betoo cautiously guarded against% and their totalexclusion seems to be the only mode by which thiscaution can operate effectually# 4e have alreadynoticed, that the several acts passed for establishingan uniform rule of naturali(ation, reuire of everyalien becoming a citi(en, of the !nited "tates, anabsolute renunciation, on oath, of any title of nobility,which he might have borne under any other prince or state# 4ithout this wise provision, this clause of the

constitution might have failed of some of thosesalutary effects which it was intended to produce#$he second prohibition is not less important#;orruption is too subtle a poison to be approached,without in)ury# Nothing can be more dangerous toany state, than influence from without, because itmust be invariably bottomed upon corruption within#<resents, pensions, titles and offices are alluringthings# In the reign of ;harles the second of5ngland, that prince, and almost all his officers ofstate were either actual pensioners of the court of&rance, or supposed to be under its influence,directly, or indirectly, from that cause# $he reign of

that monarch has been, accordingly, proverbiallydisgraceful to his memory# $he economy whichought to prevail in republican governments, withrespect to salaries and other emoluments of office,might encourage the offer of presents from abroad, if the constitution and laws did not reprobate theiracceptance# ;ongress, with great propriety, refusedtheir assent to one of their ministers to a foreigncourt, accepting, what was called the usual presents,upon taking his leave% a precedent which we mayreasonably hope will be remembered by all futureministers, and ensure a proper respect to this clauseof the constitution, which on a former occasion issaid to have been overlooked#

$hus far the restrictions contained in the constitutionextend% .$he conventions of a number of the stateshaving, at the time of adopting the constitution,expressed a desire, in order to preventmisconstruction, or abuse of its powers, that furtherdeclaratory and restrictive clauses should be added'and as extending the ground of public confidence inthe government, will best ensure the beneficent endsof its institution &(1#. $he following articles wereproposed by congress, as amendments to the

constitution, which having been duly ratified by theseveral states, now form a part thereof#

9# ;ongress shalt make no law respecting anestablishment of religion, or prohibiting the freeexercise thereof, or abridging the freedom ofspeech, or of the press, or the right of the peoplepeaceably to assemble, and to petition thegovernment for a redress of grievances

 Amendments to ;# !# "# Art# 1#

6n the first of these sub)ects, our state bill of rightscontains, what, if pre)udice were not incapable ofperceiving truth, might he deemed an axiom,concerning the human mind# $hat .religion, or theduty we owe to our ;reator, and the manner ofdischarging it, can be dictated only by reason andconviction, not by force or violence#. In vain,therefore, may the civil magistrate interpose theauthority of human laws, to prescribe that belief, orproduce that conviction, which human reasonre)ects% in vain may the secular arm be extended,the rack stretched, and the flames kindled, to reali(e

the tortures denounced against unbelievers by allthe various sects of the various denominations offanatics and enthusiasts throughout the globe# $hemartyr at the stake, glories in his tortures, andproves that human laws may punish, but cannotconvince# $he pretext of religion, and the pretencesof sanctity and humility, have been employedthroughout the world, as the most direct means ofgaining influence and power# Hence the numberlessmartyrdoms and massacres which have drenchedthe whole earth with blood, from the first momentthat civil and religious institutions were blendedtogether# $o separate them by mounds which can

never be overleaped, is the only means by which ourduty to God, the peace of mankind, and the genuinefruits of charity and fraternal love, can be preservedor properly discharged# $his prohibition, therefore,may be regarded as the most powerful cement of,the federal government, or rather, the violation of itwill prove the most powerful engine of separation#$hose who pri(e the union of the states will neverthink of touching this article with unhallowed hands#$he ministry of the unsanctified sons of Aaronscarcely produced a flame, more sudden, moreviolent, or more destructive, than such an attemptwould inevitably excite #### I forbear to say more, inthis place, upon this sub)ect, having treated of itsomewhat at large in a succeeding note#

$he second part of this clause provides, against anylaw, abridging the freedom of speech, or of thepress#

It being one of the great, fundamental principles ofthe American governments, that the people are thesovereign, and those who administer thegovernment their agents, and servants, not theirkings and masters, it would have been a political

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solecism to have permitted the smallest restraintupon the right of the people to enuire into, censure,approve, punish or reward their agents according totheir merit, or demerit# $he constitution, therefore,secures to them the unlimited right to do this, eitherby speaking, writing, printing, or by any other modeof publishing, which they may think proper# $hisbeing the only mode by which the responsibility ofthe agents of the public can be secured, andpractically enforced, the smallest infringement of therights guaranteed by this article, must threaten thetotal subversion of the government# &or arepresentative democracy ceases to exist themoment that the public functionaries are by anymeans absolved from their responsibility to theirconstituents' and this happens whenever theconstituent can be restrained in any manner fromspeaking, writing, or publishing his opinions uponany public measure, or upon the conduct of thosewho may advise or execute it#

6ur state bill of rights declares, that the freedom ofthe press is one of the great bulwarks of liberty, and

can never he restrained but by despoticgovernments# $he constitutions of most of the otherstates in the union contain articles to the sameeffect# 4hen the constitution of the !nited "tateswas adopted by the convention of Virginia, theyinserted the following declaration in the instrument of ratification% .that among other essential rights, theliberty of conscience, and of the press, cannot becancelled, abridged, restrained, or modified by anyauthority of the !nited "tates#.

 An ingenious foreigner seems to have been a gooddeal pu((led to discover the law which establishes

the freedom of the press in 5ngland% after many vainresearches, he concludes, /very rightly, as it relatesto that government,0 that the liberty of the pressthere, is grounded on its not being prohibited &(&# 2utwith us, there is a visible solid foundation to be metwith in the constitutional declarations which we havenoticed# $he 5nglish doctrine, therefore, that theliberty of the press consists only in this, that thereshall be no previous restraint laid upon thepublication of any thing which any person may thinkproper, as was formerly the case in that country, isnot applicable to the nature of our government, andstill less to the express tenor of the constitution# $hatthis necessary and invaluable liberty has beensometimes abused, and .carried to excess' that ithas sometimes degenerated into licentiousness, isseen and lamented' but the remedy has not beendiscovered# <erhaps it is an evil inseparable fromthe good to which it is allied% perhaps it is a shootwhich cannot be stripped from the stalk, withoutwounding vitally the plant from which it is torn#However desirable those measures might be whichcorrect without enslaving the press, they have neveryet been devised in America &('#.

It may be asked' is there no protection for any manin America from the wanton, malicious, andunfounded attacks of envenomed calumnyE Is thereno security for his good nameE Is there no value putupon reputationE No reparation for an in)ury done toitE

$o this we may answer with confidence, that the )udicial courts of the respective states are open to alpersons alike, for the redress of in)uries of thisnature' there, no distinction is made between oneindividual and another' the farmer, and the man inauthority, stand upon the same ground% both areeually entitled to redress for any false aspersion ontheir respective characters, nor is there any thing inour laws or constitution which abridges this right# 2utthe genius of our government will not permit thefederal legislature to interfere with the sub)ect' andthe federal courts are, I presume, eually restrainedby the principles of the constitution, and theamendments which have since been adopted#

"uch, I contend, is the true interpretation of the

constitution of the !nited "tates% it has received avery different interpretation both in congress and inthe federal courts# $his will form a sub)ect for adiscussion on the freedom of the press, which thestudent will find more at large in another place#

$he same article secures to the people the right ofassembling peaceably' and of petitioning thegovernment for the redress of grievances# $heconvention of Virginia proposed an article expressedin terms more consonant with the nature of ourrepresentative democracy, declaring, that the peoplehave a right, peaceably to assemble together to

consult for their common good, or to instruct theirrepresentatives% that every freeman has a right topetition, or apply to the legislature, for the redress ofgrievances# $his is the language of a free peopleasserting their rights% the other savours of that stileof condescension, in which favours are supposed tobe granted# In 5ngland, no petition to the king, oreither house of parliament for any alteration inchurch or state, shall be signed by above twentypersons, unless the matter thereof be approved bythree )ustices of the peace, or a ma)or part of thegrand*)ury in the county' nor be presented by morethan ten persons# In America, there is no suchrestraint#

:# A well regulated militia being necessary to thesecurity of a free state, the right of the people tokeep, and bear arms, shall not be infringed#

 Amendments to ;# !# "# Art# 7#

$his may be considered as the true palladium ofliberty #### $he right of self defence is the first law ofnature% in most governments it has been the study ofrulers to confine this right within the narrowest limitspossible# 4herever standing armies are kept up, and

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the right of the people to keep and bear arms is,under any colour or pretext whatsoever, prohibited,liberty, if not already annihilated, is on the brink ofdestruction# In 5ngland, the people have beendisarmed, generally, under the specious pretext ofpreserving the game% a never failing lure to bringover the landed aristocracy to support any measure,under that mask, though calculated for very differentpurposes# $rue it is, their bill of rights seems at f irstview to counteract this policy% but the right of bearingarms is confined to protestants, and the wordssuitable to their condition and degree, have beeninterpreted to authorise the prohibition of keeping agun or other engine for the destruction of game, toany farmer, or inferior tradesman, or other personnot ualified to kill game# "o that not one man in fivehundred can keep a gun in his house without beingsub)ect to a penalty#

# No soldier shall in time of peace be uartered inany house without the consent of the owner' nor intime of war, but in a manner to be prescribed by law#

 Amendments to ;# !# "# Art# ?#

6ur state bill of rights, conforming to the experienceof all nations, declares, that standing armies in timeof peace, should be avoided as dangerous to liberty'this article of the constitution, seems by a kind ofside wind, to countenance, or at least, not to prohibitthem# $he billeting of soldiers upon the citi(ens of astate, has been generally found burthensome to thepeople, and so far as this article may prevent thatevil it may be deemed valuable, but it certainly addsnothing to the national security#

8># $he right of the people to be secure in their

persons, houses, papers, and effects, againstunreasonable searches and sei(ures, shall not beviolated' and no warrant shall issue, but uponprobable cause supported by oath, or affirmation,and particularly describing the place to be searched,and the person or things to be sei(ed# Amendmentsto ;# !# "# Art# @, and herewith agrees the tentharticle of our state bill of rights#

$he case of general warrants' under which term allwarrants not comprehended within the description of the preceding article, may be included, was warmlycontested in 5ngland about thirty or thirty*five yearsago, and after much altercation they were finallypronounced to be illegal by the common law &((# $heconstitutional sanction here given to the samedoctrine, and the test which it affords for trying thelegality of any warrant by which a man may bedeprived of his liberty, or disturbed in the en)oymentof his property, can not be too highly valued by a freepeople#

2ut, notwithstanding this constitutional sanction, andthe security which it promises to all persons, an actpassed during the second session of the fifth

congress, entitled an act concerning aliens, whichwas supposed to violate this article of theconstitution, in the most flagrant and un)ustifiabledegree% by authorising the president of the !nited"tates to order all such aliens as he should )udgedangerous to the peace and safety of the !nited"tates, or have reasonable grounds to suspect ofany treasonable or secret machinations against thegovernment thereof, to depart out of the territory ofthe !nited "tates within a limited time' and in caseof disobedience, every alien so ordered was liableon conviction to be imprisoned for any term notexceeding three years# And any alien so ordered todepart, and remaining in the !nited "tates without alicence from the president might be arrested, andsent out of them, by his order% and, in case of hisvoluntary return, might be imprisoned so long, as inthe opinion of the president, the public safety mightreuire# Alien friends, only, were the ob)ects of thisact, another act being passed at the same session,respecting alien enemies #### $he general assemblyof Virginia at their session in 89:, .protestedagainst the palpable, and alarming infractions of the

constitution in this act' which exercises a power nowhere delegated to the federal government' andwhich, by uniting legislative and )udicial powers tothose of executive, subverts the general principles ofa free government, as well as the particularorgani(ation, and positive provisions of the federalconstitution#. Lentucky had before adopted a similarconduct#

 Among the arguments used by the general assemblyof Virginia in their strictures upon this act, thefollowing seem to be more peculiarly apposite to thesub)ect of this article#

In the administration of preventive )ustice, thefollowing principles have been held sacred' thatsome probable ground of suspicion be exhibitedbefore some )udicial authority' that it be supportedby oath or affirmation' that the party may avoid beingthrown into confinement, by finding pledges orsecurities for his legal conduct, sufficient in the

 )udgement of some )udicial authority' that he mayhave the benefit of a writ of habeas corpus, and thusobtain his release, if wrongfully confined' and that hemay at any time be discharged from hisrecogni(ance, or his confinement, and restored tohis former liberty and rights, on the order of theproper )udicial authority' if it shall see sufficientcause &()#

-et the student diligently compare these principles ofthe only preventive )ustice known to American

 )urisprudence, and he will probably find that they areall violated by the alien act# $he ground of suspicionis to be )udged of, not by any )udicial authority, but bythe executive magistrate, alone' no oath, oraffirmation is reuired' if the suspicion be heldreasonable by the president, /whatever be the

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grounds of it0 he may order the suspected alien todepart, without the opportunity of avoiding thesentence by finding pledges for his future goodconduct, as the president may limit the time ofdeparture as he pleases, the benefit of the writ ofhabeas corpus may he suspended with respect tothe party, although the constitution ordains, that itshall not be suspended, unless when the publicsafety may reuire it, in case of rebellion, orinvasion, neither of which existed at the passage ofthat act% and the party being, under the sentence ofthe president, either removed from the !nited"tates, or punished by imprisonment, ordisualification ever to become a citi(en onconviction of his not obeying the order of removal, or on returning without the leave of the president, hecan not be discharged from the proceedings againsthim, and restored to the benefits of his formersituation, although the highest )udicial authorityshould see the most sufficient cause for it &(*#

 Among the reasons alledged by a committee ofcongress, in support of the constitutionality of the

alien law, one was' .that the constitution was madefor citi(ens, not for aliens, who of conseuence haveno rights under it, but remain in the country, anden)oy the benefit of the laws, not as matter of right,but merely as matter of favour and permission'which may be withdrawn whenever the governmentmay )udge their further continuance dangerous &(+#.

$o this it was answered' that, .although aliens arenot parties to the constitution, it does not follow thatthe constitution has vested in ;ongress an absoluteright over them' or that whilst they actually conformto it, they have no right to it3s protection# $hat if they

had no rights under it, they might not only bebanished, but even capitally punished, without a )ury,or other incidents to a fair trial &(,#. A doctrine so farfrom being sound, that a )ury, one half of which shallbe aliens, is allowed, it is believed, by the laws ofevery state, except in cases of treason# $o which wemay add that the word . persons. in this, and thesubseuent articles of the amendments to theconstitution, most clearly designate, that aliens, as

 persons, must be entitled to the benefits thereinsecured to all persons alike# ### As we shall haveoccasion to mention the sub)ect of this interestingcontroversy, again, in another place, I shall only addhere, that the act was permitted to expire at the endof two years, without any attempt, I believe, tocontinue it#

+11# -# V# 5di# 89>7# c# 88:#

+17# -# !# "# 8 ;ong# 8 "ess# c# +># =# 87#+1?# 6f the nature and efficacy of the writ of habeascorpus the student may be informed# 2lacks# Com#8# 81?# 1# 81?# 7# 71:#

+1@# -# V# 5di# 897# c# 88:#+19# 8# Hale3s )ist # <# ;# :+, 17+, c#+1:# "ir ohn &enwicke was attainted for treason, byact of parliament, because he could not be convictedin the ordinary course of trials' the law reuiring twowitnesses in cases of treason, and there being butone, who could be had, to give testimony againsthim# "tat# : 4 1# c# @#+1# 2lacks Com# 7@#+7># $he president of the court of appeals in Virginiawas one of those who refused to pay the tax, untilthe uestion was )udicially determined# $he opinionof the author of this essay, with the reasons of ithave been shewn before, page 89#+78# <reamble to the amendments proposed by the8 ;ong# 8 "ess#+7+# De -olme on the 5nglish constitution# 189#<hila# printed#+71# -etter from the American envoys to the &renchminister of foreign affairs# $his nervous passagebespeaks its author' a gentleman who now fills thehighest )udicial office under the federal government#+77# "ee 1 2urrows Rep# 8971# 8 2lacks# Reports,

???# 7 2lacks Com# +8#+7?# Ceport of the committee of the generalassembly of Virginia on the alien and sedition laws,anuary +>, 8:>>#+7@# Ceport of the committee of the generalassembly of Virginia, c#+79# Ceport of the committee of congress, on thepetitions for the repeal of the alien and sedition laws'&ebruary +?, 89#+7:# Ceport of the Virginia assembly #### ut supra#

Volume 1 — Appendix

Note D

[Section 1' — :e#t!int# on 5o6e!# o" Con!e##

/cont.0%

88# No person shall be held to answer for a capital,or otherwise infamous crime, unless on apresentment, or indictment of a grand )ury, except incases arising in the land or naval forces, or in themilitia in the time of war, or public danger' nor shallany person be sub)ect for the same offence to betwice put in )eopardy of life or limb' nor be compelled

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in any criminal case, to be witness against himself'nor be deprived of life, liberty, or property, withoutdue process of law' nor shall private property betaken for public use without )ust compensation#

 Amendments to ;# !# "# Art# 9, and,

8+# In all criminal prosecutions, the accused shallen)oy the right to a speedy and public trial, by animpartial )ury of the state, and district, wherein thecrime shall have been committed, which district shallhave been previously ascertained by law, and to beinformed of the nature and cause of the accusation'to be confronted with witnesses against him' to havecompulsory process for obtaining witnesses in hisfavour, and to have the assistance of counsel for hisdefence# Amendments to ;# !# "# Art# :#

81# 5xcessive bail shall not be reuired, norexcessive fines imposed, nor cruel, and unusualpunishments inflicted# Amendments to ;# !# "# Art#8>#

$he sub)ects of these three articles are so

immediately connected with each other, that I havechosen not to separate them# $he first may beconsidered as liberal exposition, and confirmation ofthe principles of that important chapter of agna;harta, which declares, ..ullus liber )omo aliuomodo destruatur nisi per legale "udicium pariumsuorum,. which words, aliuo modo destruatur ,according to "ir 5dward ;oke, include a prohibitionnot only of killing and maiming, but also of torturing,and of every oppression by colour of legal authority%and the words liber )omo, extend to every one ofthe king3s sub)ects, .be he ecclesiastical or temporal,free or bond, man or woman, old or young, or be he

outlawed, ex*communicated, or any other, withoutexception &(-.# ### for even a villein, as he tells uselsewhere, is comprehended under the term liber)omo, except against his lord &)#

$he common law maxim, that no man is to bebrought in )eopardy of his life more than once for thesame offence, is here rendered a fundamental law of the government of the !nited "tates' as, is also, thatother inestimable maxim of the common law, that noman shall be compelled in any criminal case to giveevidence against himself' that he shall, moreover, beinformed of the nature and cause of his accusation'that he shall be confronted with the witnessesagainst him' that be shall have compulsory processfor obtaining witnesses in his favour' #### a benefitlong denied by the courts in 5ngland% and that heshall have the assistance of counsel for hisdefence' #### not as a matter of grace, but of right' ###not for his partial defence, upon a point of law' butfor his full defence, both on the law, and theevidence% and, that he shall, in no case, be deprivedof life, liberty, or property, without due process of law#$o all which, is added, the inestimable right of a trialby )ury, of the state and district in which the crime

shall have been committed# $he importance of allwhich articles will more evidently appear, in thecourse of our examination of the various sub)ects towhich they relate, in the first and fourth book of the;ommentaries, on the -aws of 5ngland# $hat part ofthe seventh article which declares that privateproperty shall not be taken for public use, without

 )ust compensation, was probably intended to restrainthe arbitrary and oppressive mode of obtainingsupplies for the army, and other public uses, byimpressment, as was too freuently practised duringthe revolutionary war, without any compensationwhatever# A law of the state of Virginia describes bywhom, and in what cases, impresses may be made'and authorises the commitment of the offender incase of any illegal impressment &)1#

4e have already noticed the act concerning aliens&)&, as violating the sixth article of the amendments tothe constitution# It was said, moreover, to violate theseventh and eighth# $o this the congress answered,.that the provisions in the constitution relative topresentment and trial of offences by )uries, do not

apply to the revocation of an asylum given to aliens#$hose provisions solely respect crimes, and thealien may be removed without having committed anyoffence, merely from motives of policy, or security#$he citi(en, being a member of society, has a right toremain in the country, of which he cannot bedisfranchised, except for offences first ascertained,on presentment and trial by )ury# ### $hat the removalof aliens, though it may be inconvenient to them,cannot be considered as a punishment inflicted foran offence, but merely the removal, from motives ofgeneral safety, of an indulgence, which there isdanger of their abusing, and which we are in no

manner bound to grant or continue&)'

#.

$o these arguments the general assembly of Virginiareplied' that it can never be admitted that theremoval of aliens authorised by the act, is to beconsidered, not as a punishment for an offence, butas a measure of precaution and prevention# If thebanishment of an alien from a country into which hehas been invited, as the asylum most auspicious tohis happiness' a country where he may have formedthe most tender connections, where he may havevested his entire property, and acuired property ofthe real and permanent, as well as the moveableand temporary kind' where he en)oys under thelaws, a greater share of the blessings of personalsecurity, and personal liberty, than he can elsewherehope for, and where he may have nearly completedhis probationary title to citi(enship' if, moreover, inthe execution of the sentence against him, he is tobe exposed, not only to the ordinary dangers of sea,but to the peculiar casualties incident to a crisis ofwar, and of unusual licentiousness on that element,and possibly to vindictive purposes which hisemigration itself may have provoked' if a banishmentof this sort be not a punishment, and among the

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severest of punishments, it will be difficult to imaginea doom, to which the name can be applied# And, if itbe a punishment, it will remain to be shewn,whether, according to the express provisions ofthese articles, it can be constitutionally inflicted, onmere suspicion, by the single will of the executivemagistrate, on persons convicted of no personaloffence against the laws of the land, nor involved inany offence against the law of nations, charged onthe foreign state of which they were members &)(#

87# In suits at common law, where the value incontroversy shall exceed twenty dollars, the right oftrial by )ury shall be preserved, and no fact tried by a

 )ury shall be otherwise re*examined in any court ofthe !nited "tates than according to the rules of thecommon law# ;# !# "# Art# , Amendments#

$his article provides for the trial by )ury in civil cases,as well as criminal, and supplies some omission inthe constitution#

8?# $he enumeration in the constitution, of certain

rights, shall not be construed to deny, or disparageothers retained by the people# Amendments to ;# !#"# Art# 88, and,

8@# $he powers not delegated, to the !nited "tatesby the constitution, nor prohibited by it to the states,are reserved to the states respectively, or to thepeople# ;# !# "# Art# 8+, Amendments#

 All the powers of the federal government beingeither expressly enumerated, or necessary andproper to the execution of some enumerated power'and it being one of the rules of construction which

sound reason has adopted' that, as exceptionstrengthens the force of a law in cases not excepted,so enumeration weakens it, in cases notenumerated' it follows, as a regular conseuence,that every power which concerns the right of theciti(en, must be construed strictly, where it mayoperate to infringe or impair his liberty' and liberally,and for his benefit, where it may operate to hissecurity and happiness, the avowed ob)ect of theconstitution% and, in like manner, every power whichhas been carved out of the states, who, at the timeof entering into the confederacy, were in fullpossession of all the rights of sovereignty, is, in likemanner to be construed strictly, wherever a differentconstruction might derogate from the rights andpowers, which by the latter of these articles' areexpressly acknowledged to be reserved to themrespectively#

$he want of a bill of rights was among the ob)ectionsmost strongly urged against the constitution in itsoriginal form# $he author of the &ederalistundertakes to shew, that a bill of rights was not onlyunnecessary, but would be dangerous &))# A bill ofrights may be considered, not only as intended to

give law, and assign limits to a government about tobe established, but as giving information to thepeople# 2y reducing speculative truths tofundamental laws, every man of the meanestcapacity and understanding may learn his ownrights, and know when they are violated' acircumstance, of itself, sufficient, I conceive, tocounterbalance every argument against one#

$o comprehend the full scope and effect of thetwelfth article, by which certain rights are said to bereserved to the states respectively, or to the people,it is to be recollected, that there are powers,exercised by most other governments, which in the!nited "tates are withheld by the people, both fromthe federal government and from the stategovernments% for instance, a tax on exports can belaid by no constitutional authority whatever, whetherof the !nited "tates, or of any state' no bill ofattainder' or e! post facto law can be passed byeither' no title of nobility can be granted by either#any other powers of government are neitherdelegated to the federal government, nor prohibited

to the states, either by the federal or stateconstitutions# $hese belong to that indefinite class ofpowers which are supposed necessarily to devolveupon every government, in conseuence of the veryact of its establishment, where no restrictions areimposed on the exercise of them' such as the powerof regulating the course in which property may betransmitted by deed, will, or inheritance' the mannerin which debts may be recovered, or in)uriesredressed' the right of defining and punishingoffences against the society, other than such as fallunder the express )urisdiction of the federalgovernment' all which, and all others of a similar

nature are reserved to, and may be exercised by thestate governments# &rom those powers, which are inexpress terms granted to the !nited "tates, andthough not prohibited to the states respectively, arenot susceptible of a concurrent exercise of authorityby them, the states, notwithstanding this article, willcontinue to be excluded' such is the power toregulate commerce, and to define and punishpiracies and felonies committed upon the high seas'from which the states, respectively, are by necessaryand unavoidable construction excluded from anyshare or participation# 6n the other hand, such of thepowers granted by the constitution to the federalgovernment, as will admit of a concurrent exercise ofauthority, both in the federal and the stategovernments' such for example, as the right ofimposing taxes, duties' and excises /except dutiesupon imports or exports, or upon tonnage, which thestates cannot do without consent of congress0 maybe exercised by the states respectively, concurrentlywith the federal government# And here it may not beimproper to take a short review of the powers whichare expressly prohibited to the individual states bythe constitution' or can be exercised by them onlywith the consent of congress' they have been

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enumerated elsewhere, but seem to reuire a moreparticular notice in this place#

8# &irst, then' no state shall enter into any treaty,alliance, or confederation# ;# !# "# Art# 8# =# 8>#

 A similar provision was contained in the articles ofconfederation, the terms of which are in reality morestrong and definite than those of the constitution#$he federal government being the organ throughwhich the individual states communicate with foreignnations, and the interest of the whole confederacybeing paramount to that of any member thereof' thepower of making treaties and alliances with foreignnations, is with propriety vested exclusively in thefederal government# oreover, as congress isvested with the power of admitting new states intothe union, it was necessary to prohibit any allianceor confederacy with such state, antecedent to itsadmission into the union' for such an alliance mightcontravene the principles of the constitution, andprevent or retard the proposed admission# And lastly,to preserve the union entire, and unbroken, no

partial confederacy between any two or more states,can be entered into% for that would in fact dissolvethe government of the !nited "tates, as nowestablished#

+# "econdly' no state shall, without the consent ofcongress, enter into any agreement or compact withanother state, or with any foreign power# ;# !# "# Art#8 =# 8>#

Here we find a distinction between treaties,alliances, and confederations' and agreements orcompacts# $he former relate ordinarily to sub)ects of

great national magnitude and importance, and areoften perpetual, or made for a considerable period of time &)*' the power of making these is altogetherprohibited to the individual states% but agreements,or compacts, concerning transitory or local affairs, or such as cannot possibly affect any other interest butthat of the parties, may still be entered into by therespective states, with the consent of congress# $hecompact between this state and aryland, enteredinto in the year 89:@, may serve as an example ofthis last class of public agreements &)+#

1# No state shall grant letters of marue and reprisal&),#

 As these measures ordinarily precede a declarationof war, the reasons for the total prohibition of theexercise of this power, by the states respectively,have been already mentioned% for otherwise thepetulance and precipitation of any one state, whoseciti(ens may have been in)ured by the sub)ects of aforeign nation, might plunge the union into a war#

7# No state shall, without consent of congress, keeptroops, or ships of war, in time of peace' or engage

in war, unless actually invaded, or in such imminentdanger as will not admit of delay &)-#

$he prohibitions contained in this clause are notabsolute, but are sub)ect to the consent of congress,or imperious circumstances# $he setting on foot anarmy or navy, in the time of profound peace, is oftena )ust cause of )ealousy between neighbouring, andeven remote nations# 2ut there is not unfreuently aperiod between the commencement of a uarrelbetween two nations, and a declaration of war, orcommencement of actual hostility, when prudencemakes it necessary to prepare for the issue of thedispute# During such a period, it might be necessaryto call for the exertions of the several states, in aid ofthe federal strength# At this epoch, it might be thesummit of indiscretion to check the ardour of therespective states, if disposed to raise an army ornavy from its own resources# ;ongress thereforemay permit it% and if the danger of an attack uponany particular state be so imminent, as not to admitof delay, or if it be actually invaded, it may adoptmeasures for its own defence, without waiting for the

consent of congress# And when a war is actuallybegun, under the authority of the federal union, anystate may, according to its resources and discretion,keep any number of troops or ships% for theprohibition ceases as soon as war begins#

?# No state shall coin money% emit bills of credit,make any thing but gold and silver coin a tender inpayment of debts% or pass any law impairing theobligation of contracts &*#

$he right of coining, and regulating the value of coin,being vested in the federal government, a

participation in those rights could not be permitted tothe respective states with any propriety# &or thegovernment must be responsible for the purity andweight of all coin issued under its authority% thiscould not be if the states were permitted to coinmoney according to the standard prescribed by the!nited "tates, as the officers of the mint would beunder the directions of the state government# And ifthe several states were to issue coin of differentstandards, or denominations, the inconveniencies tocommerce would be infinite# $hey are thereforeprohibited altogether from coining money# ### $heevils of paper money, the in)ury produced by it topublic credit' the utter destruction of the fortunes ofnumberless individuals, by a rapid and unparalleleddepreciation during the revolutionary war' thegrievous hardships introduced, at the same period,by the tender laws, /an unhappy, but perhapsunavoidable expedient, to which both the federal,and state governments were constrained to haverecourse, at the same time0 by which a creditor wasin some instances obliged to accept paper in a mostdepredated state, for a )ust debt of an hundred timesit3s real value, or incur the general odium of hisfellow*citi(ens, probably gave rise to the prohibition

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against any state3s emitting paper money, or makingany thing but gold or silver a tender in payment ofdebts, or passing any law impairing the obligation ofcontracts# ### 2ut why was not the prohibitionextended to the federal, as well as to the stategovernmentsE $he federal government, during therevolutionary war, was not more exempt from )ustcause of censure upon these grounds, than the"tates respectively# any of the laws passed by thestates to support the credit of the continental money,by making it a tender in payment of debts, werepassed on the recommendation of congress# $heforty for one scheme originated there' why notprohibit some future congress from renewing thesame breach of faithE

@# No state shall pass any bill of attainder, or e! post facto law' or grant any title of nobility# ### Ibid #

$hese prohibitions being extended eually to thefederal government, as to the states, have beenalready sufficiently noticed#

9# No state shall, without the consent of congress,lay any imposts or duties on imports or exports,except what may be absolutely necessary forexecuting it3s inspection laws' and the nett produceof all duties and imposts, laid by any state onimports, or exports, shall be for the use of thetreasury of the !nited "tates% and all such laws shallbe sub)ect to the revision and control of congress#Nor shall any state, without the consent of congresslay any duty of tonnage#

6n the sub)ect of these prohibitions, respectively,sufficient hath already been said, under the article

which authorises congress to regulate commerce#

Having thus taken a survey of the powers delegatedto the congress of the !nited "tates, and of thoseprohibited thereto, by the constitution' as also, ofthose, which are either altogether prohibited to thestates, individually, or can be exercised by themonly, with the consent, and under the control ofcongress' and in the course of that survey, havingpointed out according to the best of my abilities,those powers which are exclusively vested in thefederal government' secondly, those powers, inwhich the federal, and state governments, may bepresumed to possess concurrent )urisdiction, andauthority% thirdly, those powers which are euallyprohibited to both' and fourthly, those which areabsolutely prohibited to the states, respectively, orcan be exercised by them only, with the approbationand consent of the federal government' it followsthat all other powers of government compatible withthe nature and principle of democratic governments,and not prohibited by the bill of rights, or constitutionof the respective states, remain with them, and maybe exercised by them, respectively, in such manneras their several constitutions, and laws, may permit,

or direct# And this right, is expressly recogni(ed, asbefore*mentioned, by the twelfth article of theamendments to the federal constitution' declaring,that the powers not delegated to the !nited "tatesby the constitution, nor prohibited by it to the states,are reserved to the states respectively, or to thepeople# $his numerous class of powers relatesaltogether to the civil institutions, or laws of thestates' and the sub)ect of them forms their severalmunicipal codes, according to the constitutions andlaws of each state, respectively#

Here, let us again pause, and reflect, how admirablythis division, and distribution of legislative power isadapted to preserve the liberty, and to promote thehappiness of the people of the !nited "tates' byassigning to the federal government, ob)ects whichrelate only to the common interests of the states, ascomposing one general confederacy, or nation' andreserving to each member of that confederacy, apower over whatever may affect, or promote itsdomestic peace, happiness, or prosperity% at thesame time limiting, and restraining both from the

exercises, or assumption of powers, whichexperience has demonstrated, either in this, or inother countries, to be too dangerous to be entrustedwith any man or body of men whatsoever# ###Cestraint upon the power of the legislature, says De-olme &*1, are more necessary than upon theexecutive' the former does in a moment, what thelatter accomplishes only by successive steps# In5ngland, all legislative power, without limitation, andwithout control, is concentrated in the two houses ofparliament, with the king at their head' and theirunited power according to the maxims of thatgovernment, is omnipotent# In the !nited "tates, the

great and essential rights of the people are securedagainst legislative as well as executive ambition####$hey are secured, not by laws, only, which thelegislature who makes them may repeal, and annulat it3s pleasure' but by constitutions, paramount to alllaws% defining and limiting the powers of thelegislature itself, and opposing barriers againstencroachments, which it can not pass, withoutwarning the people of their danger# "econdly, by thatdivision, and distribution of power between thefederal, and the state governments, by which each isin some degree made a check upon the excesses ofthe other# &or although the states possess noconstitutional negative upon the proceedings of thecongress of the !nited "tates, yet it seems to he a

 )ust inference and conclusion, that as the powers ofthe federal government result from the compact towhich the states are parties' and are limited by theplain sense of the instrument constituting thatcompact' they are no further valid, than as they areauthorised by the grants enumerated therein% and,that in case of a deliberate, palpable, and dangerousexercise of other powers, not granted by thatcompact, the states, who are parties thereto, havethe right, and are in duty bound, to interpose, for

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arresting the progress of the evil, and for maintainingwithin their respective limits, the authorities, rights,and liberties appertaining to them &*&# $hirdly, by theconstitution of the legislative department itself, andthe separation and division of powers, between thedifferent branches, both of the congress, and of thestate legislatures% in all which, an immediatedependence, either from the people, or the states, ishappily, in a very great degree preserved# &ourthly,by the ualified negative which the constitution of the!nited "tates, gives to the president, upon all theproceedings of congress, except a uestion ofad)ournment# &ifthly, and lastly' by the separation ofthe )udiciary from the legislative department' and theindependence of the former, of the control, orinfluence of the latter, in any case where anyindividual may be aggrieved or oppressed, undercolour of an unconstitutional act of the legislature, orexecutive# In 5ngland, on the contrary, the greatestpolitical ob)ect may be attained, by laws, apparentlyof little importance, or amounting only to a slightdomestic regulation% the game*laws, as was beforeobserved, have been converted into the means of

disarming the body of the people% the statute dedonis conditionalibus has been the rock, on whichthe existence and influence of a most powerfularistocracy, has been founded, and erected% the actsdirecting the mode of petitioning parliament, c# andthose for prohibiting riots% and for suppressingassemblies of free*masons, c# are so many waysfor preventing public meetings of the people todeliberate upon their public, or national concerns#$he congress of the !nited "tates possesses nopower to regulate, or interfere with the domesticconcerns, or police of any state% it belongs not tothem to establish any rules respecting the rights of

property' nor will the constitution permit anyprohibition of arms to the people' or of peaceableassemblies by them, for any purposes whatsoever,and in any number, whenever they may seeoccasion#

+7# +# Inst# ??#+?># Ibid # c# 7?#+?8# -# V# 5di# 897, c# 8+8#+?+# -# !# "# ? ;ong# c# 9?#+?1# Ceport of the committee of congress, &ebruary+?, 89#+?7# Ceport of the committee of the generalassembly or Virginia, on the alien and seditionlaws# ### anuary +>, 8:>>#+??# Vol# II# 17#+?@# "ee Vattel, +@, +9#+?9# -# V# 5di# 897, c# 8:#+?:# ;# !# "# Art# 8# =# 8>#+?# ;# !# "# Act# 8# "ec# 8>#+@># Ibidem#+@8# 6n the 2ritish ;onstitution, p# 8@7#

+@+# Cesolutions of the general assembly of VirginiaDecember +8, 89:# Also the resolution of thegeneral convention of Virginia, ratifying theconstitution of the !# "tates#### for which see ante#

Volume 1 — Appendix

Note D

[Section 1( 9 Executi4e 5o6e!#%

II# $he second article of the federal constitutionprovides, that the executive power shall he vested ina president of the !nited "tates of America' that heshall be a natural born citi(en, unless he was aciti(en at the time of the adoption of the constitution,and in that case, that he shall have been fourteenyears a resident in the !nited "tates' that he shallhave attained the age of thirty*five years' that heshall continue in office four years' that he shallreceive a stated compensation for his services,which shall neither be encreased nor diminishedduring the period for which he is elected, and shall

not receive within that period, any other emolumentfrom the !nited "tates, or any of them' and thatbefore he enters upon the execution of his office, heshall take an oath, .faithfully to execute the same,and to the best of his ability, preserve, protect, anddefend the constitution of the !nited "tates#.

$he author of the $reatise on the 5nglish;onstitution &*', considers the unity of the executiveamong the advantages peculiar to that, as a freegovernment# $he advantages ordinarily attributed tothat circumstance, are supposed to be a necessaryand unavoidable unanimity' promptitude anddispatch, as a conseuence of it% and, immediateand obvious, responsibility# If such are the realadvantages of a single executive magistrate, wemay contend that they are found in a much greaterdegree in the federal government, than in the5nglish# In the latter it exists, only theoretically, in anindividual' the practical exercise of it, being devolvedupon ministers, councils, and boards# $he king,according to the acknowledged principles of theconstitution, not being responsible for any of hisacts, the minister upon whom all responsibilitydevolves, to secure his indemnity acts by the advice

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of the privy council to whom every measure ofimportance is submitted, before it is carried intoeffect# His plans are often digested and canvassed ina still more secret conclave, consisting of theprincipal officers of state, and stiled the cabinet*council, before they are communicated to the privycouncil &*(% matters are freuently referred to thedifferent boards, for their advice thereon, previouslyto their discussion, and final decision, in the council#$hus, in fact, the unity of the executive is merelyideal, existing only in the theory of the government'whatever is said of the unanimity, or dispatch arisingfrom the unity of the executive power, is thereforewithout foundation# And with respect to responsibility,we have already observed that the nominalexecutive, is absolved from it by the constitution% allthe responsibility that the government admits, isshared between the different ministers, privy council,and boards# $he unity of the nominal executive,therefore, so far from ensuring responsibility,destroys it# If then the constitution of 5ngland berelied on as proving the superior advantages of unityin the executive department, it does not support any

part of the position#

In the !nited "tates the unity of the executiveauthority is practically established, in almost everyinstance# &or, the senate are constituted a council,rather for special, than for general purposes# It mayreasonably be doubted, whether they have a right toadvise the president, in any case, without being firstconsulted' and whether, when consulted, he isobliged to carry into effect any measure which theymay advise% the constitution is perhaps defective inboth these cases# $o illustrate them, let it besupposed, that the senate, without being consulted

should advise the sending an ambassador to aforeign court% is the president bound to nominate oneto them for that purposeE 6r, suppose anambassador to have concluded a treaty, which thepresident disapproves, but, which the senate advisehim to ratify' is he bound to do soE $he constitutionsays, .)e shall have power , by, and with, the adviceand consent of the senate, to make treaties,provided two thirds of the senators present, concur'and shall nominate, and by, and with, the advice andconsent of the senate shall appoint ambassadors#.$hese words appear rather to confer a discretionaryauthority, that to impose a mandate, or obligation####2ut although the president may perhapsconstitutionally decline the ratification of a treaty, orthe appointment of an ambassador, notwithstandingthe advice of the senate, yet he cannot adopt anymeasure, which they may advise him to re)ect, if theconstitution reuires their advice, or assent% so that,in general, whatever he does must have the sanctionof the senate for it3s support% whatever he omitsdoing, is chargeable upon him, only, unless themeasure shall have been submitted to the senateand re)ected by them# $he conduct of the firstmagistrate of a nation is as freuently liable to

censure for his omissions, as for his acts# 4hatever,therefore, is left undone, which the public safety mayreuire to have been done, is chargeable upon theneglect of the president, exclusively% whatever maybe done amiss is likewise chargeable upon him, inthe first instance, as the author and propounder ofthe measure% although it should afterwards receivethe approbation and consent of the senate#Cesponsibility, then, pursues him in every situation%whether active or passive' sleeping, or awake#

2ut although a king of 5ngland be not responsible, itis said that his ministers are' for they may beimpeached% so may a president of the !nited "tates&*)#### 2ut I lay no stress upon this point, as apractical means of enforcing responsibility, forreasons that will be more fully explained hereafter#$he, true point of responsibility rests upon theshortness of the period for which a president of the!nited "tates is elected, and the power which thepeople possess, of re)ecting him at a succeedingelection% a power, the more formidable, an energetic,as it remains in their hands, is untrammelled by

forms, and the exercise of it depends more uponopinion, than upon evidence# 4hen brought beforesuch a tribunal, in vain would a culpable presidentseek shelter under the flimsy veil, of advice ofcouncil' such a cobweb, like the net of Vulcan, wouldonly expose him, more effectually#

6n the ground of responsibility, then, an immensepreference is due to the constitution of the !nited"tates% it is at least eual to that of Great*2ritain onthe ground of unanimity% for, as every executivemeasure must originate in the breast of thepresident, his plans will have all the benefit of

uniformity, that can be expected to flow from theoperations of any individual mind% let it be supposedthat the senate re)ect one of his proposed measures'possessing a perfect acuaintance with the wholesystem of his own administration, he will naturally beled to adopt some other course, which shall neitherretard, nor counteract any other part of his system#No 2ritish minister, whose measures are opposed inthe cabinet, can do more' probably not so much% fora substitute may, perhaps, be obtruded upon him, bysome other influential minister# 2ut no suchsubstitute can be obtruded upon a president of the!nited "tates' the power of the senate consistingrather in approving, or re)ecting, than in advising orpropounding, as already hinted#

$he advantages of information, and dispatch, areprobably eually in favour of the constitution of the

 American executive# $he constitution of the !nited"tates has made ample provision for his aid in theserespects, by assigning to him ministers to whom theconduct of each of the executive departments maybe committed' from whom be may reuire allnecessary information, as also their opinions inwriting, upon any sub)ect relating to the duties of

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their respective offices' and whom, he may,moreover, remove at pleasure &**# Here we find asingle executive officer substituted for a numerousboard, where responsibility is divided, till it is entirelylost, and where the chance of unanimity lessens ingeometrical proportion to the number that composeit#

$he perpetuity of the office, is another boastedadvantage of the constitution of the supremeexecutive magistrate in Great 2ritain# .$he kingnever dies#. 2ut Henry, 5dward, or George may die,may be an infant in swaddling clothes, asuperannuated dotard, or a raving maniac# 6f whatbenefit is the immortality of the kingly office, in any of these instancesE ;an the puling infant, or the feeblehand of palsied age wield the sceptre, or can it beentrusted to the raving 2edlamiteE A president of the!nited "tates cannot be the first% it is highlyimprobable that he will ever be the second' theconstitution has provided for the third case' and forall others, of a similar kind# &or, in case of theremoval of the president of the !nited "tates from

office, or of his death, resignation, or inability todischarge the powers and duties of his office, thesame shall devolve on the vice*president' andcongress may by law provide for the case ofremoval, death, resignation, or inability, both of thepresident and vice*president, declaring what officershall then act as president, and such officer shall actaccordingly, until the disability be removed, or apresident shall be elected &*+# "uch provision hasbeen accordingly made by law, and the executiveauthority in such a case, would immediately devolveupon the president of the senate pro tempore' or ifthere be no president of the senate, upon the

speaker of the house of representatives, for the timebeing &*,# Nothing is wanting to the perpetuity of theoffice, but a provision for it3s continuance in case nopresident shall be elected at the period prescribedby the constitution# "uch a case will probably nothappen, until the people of the !nited "tates shallbe weary of the present constitution andgovernment, and adopt that method of putting aperiod to both# And it is, perhaps, among therecommendations of the constitution, that it thusfurnishes the means of a peaceable dissolution ofthe government, if ever the crisis should arrive thatmay render such a measure eligible, or necessary# Acrisis to be deprecated by every friend to his country#

$o pursue the parallel between a king of 5ngland,and the president of the !nited "tates, a little further#

 A king of 5ngland is the fountain of honour, of office,and of privilege# Honours, as distinct from offices,are unknown in the !# "tates' so likewise areprivileges# At least there are none, which a presidentof the !nited "tates can constitutionally create, orbestow# It is not so with respect to offices' these hecan not constitutionally create' they must first beestablished by law &*-# 2ut when established, he has

the exclusive right of nomination to all offices, whoseappointments are not otherwise provided for by theconstitution' or by some act of congress, to which hisassent may be necessary, or may have beenpreviously given# $he influence which this powergives him, personally, is one of those parts of theconstitution, which assimilates the government, in itsadministration, infinitely more nearly to that of Great2ritain, than seems to consist with those republicanprinciples, which ought to pervade every part of thefederal constitution% at least so long as the union iscomposed of democratic states# 6n this sub)ect weshall offer some further remarks hereafter#

$he heir of a king of 5ngland may be born with allthe vices of a Cichard' with the tyrannicaldisposition, and cruelty of the eighth Henry' with theempty pride and folly of a ames' with the cowardiceand imbecility of a ohn' or with the stupid obstinacy,bigotry' or other depravity of temper, of any of hissuccessors' he must nevertheless succeed to thethrone of his fathers' his person is sacred andinviolable as if he were an Alfred' and unless his

misdeeds are so rank as to bring him to the block, orforce him to an abdication, he continues the lord3sanointed all his days# A president of the !nited"tates must have attained the middle age of life,before he is eligible to that office% if not a native, hemust have been fourteen years a resident in the!nited "tates% his talents and character mustconseuently be known# $he faculties of his mindmust have attained their full vigour% the charactermust be formed, and formed of active, not of passivematerials, to attract, and secure the attention, andapprobation of a people dispersed through such avariety of climate and situation, as the American

people are# $his activity of mind and of talent, musthave manifested itself on the side of virtue, before itcan engage the favour of those who acknowledge nosuperiority of rights among individuals, and who areconscious that in promoting to office, they shouldchoose a faithful agent, not a ruler, withoutresponsibility# And should it happen, that they areafter all deceived in their estimate of his characterand worth, the lapse of four years enables them tocorrect their error, and dismiss him from theirservice# 4hat nation governed by an hereditarymonarch has an eual chance of happinessM

2ut, the tumult of popular elections, and the dangerin elective monarchies, will be insisted on, ascounterbalancing the advantage which we claim inbehalf of the constitution of the executive magistratein the !nited "tates# 4ith regard to the latter,something will be said hereafter, when we examinethe mode of electing a president of the !nited"tates# As to the former% if the sovereignty of thepeople of the !nited "tates, like that of the Coman,and Grecian republics, resided in the inhabitants of asingle city, or a small territory, the influence of menof popular talents would doubtless produce in certain

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con)unctures, similar events to those recorded in theannals of those republics# 2ut nature, herself seemsto be enlisted on the side of the liberty andindependence of the citi(ens of !nited America# 6urcities are few' the population inconsiderable,compared with many of the capitals of ancient, ormodern, 5urope% that population /from theunfavorable influence of climate for some yearspast0 seems not likely to be extended very farbeyond its present bounds, and probably will neverbear any great proportion to the population of thecountry at large# $his circumstance alone, wouldprobably defeat any attempt to establish an undueinfluence in any part of the union# Agriculture is, andprobably will for ages continue to be, the principalob)ect of pursuit in the !nited "tates' and the periodseems to be yet very far removed, when theirpopulation will be eual to the extent, and fertility ofthe soil# 5urope has so far got the start of us inmanufactures, that it is also probable, our populationwill not depend upon, nor derive any great increasefrom, them# !ntil it does, our towns will be principallyconfined to the sea coast, and, the interior of the

!nited "tates will continue, as at present, the nurseof a hardy, independent yeomanry# A strong, barrierbetween the !nited "tates and the countries whichabound in the precious metals is devoutly to bewished by all, who can appreciate, properly, theblessings of liberty and peace# 4hilst the ambition of 

 America is limited to the cultivation of the arts ofpeace, and the science of free government' to theimprovement, instead of the extention of her territory,and to the fortefying herself against enemies fromwithin, as well as from without, by fostering, andencouraging the principles of genuine liberty' localinfluence can never be so formidable, as to

endanger the peace or happiness of the union onany occasion# 2ut, whenever our evil genius shallprompt us to aspire to the character of a militaryrepublic, and invite us to the field of glory% when,rapacity, under the less odious name of ambition,shall lead us on to conuest' when a bold, thoughraw, militia shall be exchanged for a well trained,well disciplined and well appointed army' ready totake the field at the nod of an ambitious president,and to believe that the finger of heaven points to thatcourse which his directs' then, may we regard theday of our happiness as past, or as hasting rapidly toits decline#

$hat provision in the constitution which reuires thatthe president shall be a native*born citi(en /unlesshe were a citi(en of the !nited "tates when theconstitution was adopted,0 is a happy means ofsecurity against foreign influence, which, whereeverit is capable of being exerted, is to he dreaded morethan the plague# $he admission of foreigners into our councils, conseuently, cannot be too much guardedagainst' their total exclusion from a station to whichforeign nations have been accustomed to, attachideas of sovereign power, sacredness of character,

and hereditary right, is a measure of the mostconsummate policy and wisdom# It was by means offoreign connections that the stadtholder of Holland,whose powers at first were probably not eual tothose of a president of the !nited "tates, became asovereign hereditary prince before the late revolutionin that country# Nor is it with levity that I remark, thatthe very title of our first magistrate, in some measureexempts us from the danger of those calamities bywhich 5uropean nations are almost perpetuallyvisited# $he title of king, prince, emperor, or c(ar,without the smallest addition to his powers, wouldhave rendered him a member of the fraternity ofcrowned heads% their common cause has more thanonce threatened the desolation of 5urope# $o haveadded a member to this sacred family in America,would have invited and perpetuated among us all theevils of <andora3s 2ox#

$he personal  independence of the president issecured by that clause, which provides that he shallreceive a compensation at stated periods, whichshall not be diminished during his continuance in

office# $o guard against avarice, corruption, andvenality, it is also provided, that it shall not beencreased during the same period, nor shall hereceive within that period any other emolument fromthe !nited "tates, or either of them# His salary, asnow fixed by law, seems to be fully adeuate, thoughfar below the income of many private persons in5ngland, and even in America#

$he political  independence of the president of the!nited "tates, so far as it is necessary to thepreservation, protection, and defence of theconstitution, is secured, not only by the limitations

and restrictions which the constitution imposes uponthe powers of congress, but by a ualified negativeon all their proceedings, as has been alreadymentioned elsewhere# $his share in the proceedingsof the federal legislature, which the constitutionassigns to him, consists, like that of a king of5ngland, in the power of re)ecting, rather thanresolving' a circumstance on which both )udge2lackstone, and de -olme, lay considerable stress&+' and is one of the grounds upon which the latterfounds his preference of that constitution to therepublican system# In republics, he tells us, the lawsusually originate with the executive' it is otherwise inall the American states# In 5ngland, the laws do, infact, originate with the executive% a revenue bill isalways proposed by the chancellor of the excheuer,or some member of that department &+1' and it isunderstood to be the practice, that every othermeasure of considerable magnitude and importanceis first discussed in the privy council, before it isbrought into parliament' where it is generallyintroduced, and the bill prepared by some of theofficers of the crown# $he preference which de-olme gives to the 5nglish constitution, therefore, isnot altogether well founded# $he negative of the

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president of the !nited "tates is not final, like that ofthe king of 5ngland, but suspensive# Neither is theexpression of his assent absolutely necessary to theestablishment of a law, for if he witholds his decisionbeyond the period of ten days /exclusive of"undays0 his assent shall be presumed# He mayretard for a few days, but cannot prevent anybeneficial measure, provided two*thirds of bothhouses concur in the opinion of its expediency# $hus,the part assigned to him by the constitution is strictlypreventative, and not creative' yet this preventativeis so modified as never to operate conclusively, butin those cases where it may be presumed thecongress have acted unadvisedly through haste oroversight% and we may safely conclude, that wherethe deliberate sense of two*thirds of both houses ofcongress shall induce them to persist in anymeasure to which the president shall have given hisnegative, it will neither militate with the constitution,nor with the interest of their constituents# $here isone instance /besides a uestion of ad)ournment0, inwhich his assent appears not to be reuired' this is,when two*thirds of both houses have concurred in

proposing to the states any amendment of theconstitution% in this case, the concurrence of two*thirds of both houses being reuired in the firstinstance, his assent is dispensed with, as his dissentwould be unavailing#

-et us now take a short view of the manner in whicha president of the !nited "tates is appointed#

5ach state shall, within thirty*four days prior to thefirst 4ednesday in December, in every fourth yearsucceeding the last election, appoint a number ofelectors eual to the whole number of

representatives and senators, to which such statemay be entitled in congress, who shall meet andgive their votes on that day, at such place in eachstate as the legislature thereof may direct, for twopersons, of whom one at least shall not be aninhabitant of such state' three lists of the votes shallbe made, one of which shall be sent by an express,and another by post, to the president of the senate'or, if there be no such officer at the seat ofgovernment, to the secretary of state' and the third,to the )udge of the district# $he president of thesenate shall, in the presence of both houses ofcongress, open the certificates on the second4ednesday in &ebruary next succeeding, and thevotes shall then be counted and the choiceascertained' the person having the greatest numberof votes, if they be a ma)ority of the whole number of electors appointed, shall be president, and theperson having the next greatest number of votesshall be vice*president# If the votes be eual for twopersons having such ma)ority, the house ofrepresentatives shall immediately choose by ballotone of them for president' but in such cases theyshall vote by states, each state having one vote' auorum for this purpose shall consist of a member,

or members from two*thirds of the states, and ama)ority of all the states be necessary to the choice#If no person have a ma)ority of the electors, thehouse shall in like manner choose the president fromthe five highest on the list# $he periods for which thepresident and vice*president are elected, shallalways commence on the fourth day of arch nextsucceeding such election# No senator orrepresentative, or person holding an office of trust orprofit under the !nited "tates, shall be an elector#

"uch are the precautions which the constitution hasprovided for securing the tranuility of elections' theindependence and integrity of the electors, and thewisdom of their choice' and such are the auxiliaryregulations established by congress for the samepurposes &+&# 5lectors have been differentlyappointed in the different states# In some they havebeen appointed immediately by the legislature' inothers they have been chosen by a general ticketthroughout the state' in others, the state has beendivided into districts, one elector being chosen bythe freeholders of each district# $his method was

adopted in Virginia at first' but on a late occasion ageneral ticket was preferred# $he reasons for thischange seem to have been, that the whole strengthof the state may be combined and united, instead ofbeing divided, as on a former occasion#

$he electors, we perceive, are to assemble on oneand the same day, in all the different states, at asmany different places, at a very considerabledistance from each other, and on that day are simplyto give their votes' no embarrassment can ariseamong them from the circumstance of an euality ofvotes, for different persons% they are to vote only ' not

to decide upon the result of their votes% they thendisperse, and return to their respective habitations,and occupations, immediately# No pretext can bebad for delay' no opportunity is furnished for intrigueand cabal# $he certificates of their votes are to beforwarded to different persons, and by differentconveyances% they are to be publicly opened, andcounted in the presence of the whole nationallegislature% there is no obligation of secrecy on theelectors to conceal their votes' they areconseuently known immediately, throughout thestate, long before the opening the certificates at thescat of government% should any fraud be attempted,it must immediately he detected% whilst theconstitution expressly incapacitates any man whomay be presumed to labour under any undue bias,from serving as an elector, in the first instance, thesalutary provisions which it contains, in otherrespects, seem to afford a sufficient guaranteeagainst the arts of ambition, and the venality ofcorrupt minds# $here is no room for the turbulence ofa Campus %artius, or a Polish Diet , on the onehand, nor for the intrigues of the sacred college, or aVenetian senate, on the other, unless, when itunfortunately happens, that two persons, having a

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ma)ority of the whole number of electors, in theirfavour, have likewise an eual number of votes' or,where by any other means, the election may devolveupon the house of representatives# $hen, indeed,intrigue and cabal may have their full scope% then,may the existence of the union be put in extremeha(ard% then might a bold and desperate party,having the command of an armed force, and of allthe resources of government, attempt to establishthemselves permanently in power, without the futureaid of forms, or the control of elections# !pon whatprinciple, we may ask, is it that state influence is inthis case permitted to operate in an inverseproportion to the ratio of population, and thuspredominate over it# !pon what principle is it, thatthat ratio which gives to all the citi(ens of the !nited"tates an eual voice in the election of a president,in the first instance, shall give to the representativeof the citi(ens of Delaware, in the second, a weighteual to nineteen representatives of the citi(ens ofVirginiaE 4hy then should the house ofrepresentatives vote by states on this greatoccasionE It is, perhaps, susceptible of proof, that if

the arts of corruption should ever be practised withsuccess, in the election of a president, it will arisefrom this circumstance' the votes of a fewindividuals, in this instance, more thancounterbalancing four times their number  &+'# Hadthe senate been associated with the other house inthe election, and each vote been separatelycounted, the mode of election might, at first view,appear less exceptionable% but their exclusion fromany participation in the election of a president, iscertainly founded upon the wisest policy% beingassociated with him in the exercise of his mostimportant powers, and being chosen for a much

longer period than the representatives, thepresumption of undue influence, where the contestmight be between a president in office, and anyother person, would be altogether unavoidable#

Nothing in the constitution prohibits the re*election of a president as often as the approbation of hiscountry may confer that distinction upon him# If hisre*election were to depend entirely upon a ma)orityof votes in the first instance, I should think theargument would be in favour of the principle# 2utwhat if a president of the !nited "tates should so far have lost the confidence of the people of therespective states, as not to have a ma)ority of thevotes of the state electors, in his favourE 4hat, if heshould so far have forfeited their esteem, as to bethe lowest of five candidates, on the list, neither ofwhom should have such a ma)ority, as to decide theelectionE "hould we not, in such a case, withindignation behold him continued in office, by thevotes of one fourth part of the house ofrepresentatives, against the other threeE $his mightbe sufficiently guarded against, by an amendment,providing that no president, for the time being,should ever be re*elected, unless he had not only

the greatest number of votes in his favour, but ama)ority of the votes of all the electors appointed# Ascorruption can only be dreaded on the part of badmen, and is always to be dreaded from them, apresident who may have lost the confidence of theciti(ens of the !nited "tates at large, would be thefirst person with whom the practice of corruption maybe expected to commence#

$he period for which a president is elected, as hasbeen already noticed, is four years# 2y many it isthought too long% it seems long enough to give himan opportunity of bringing to a mature conclusionany measures which he may have undertaken forthe good of the nation' and, it has been thoughtshort enough, for the people to displace him insufficient time, where his conduct may not havemerited approbation, on the one hand, orimpeachment, on the other# uch evil, however, maybe generated, and even matured, in the compass offour years#### 6f removal from office byimpeachment, no president will ever be in danger#2ut of this hereafter# I can see no inconvenience that

would result from more freuent elections' there maybe danger, if the constitution be not so amended asto provide for them#### $he convention of this stateproposed as an amendment to the constitution, thatno person should be capable of being president ofthe !nited "tates for more than eight years, in anyterm of sixteen years# It might have been better tohave selected the half of these periods, respectively#

$he powers, or more properly, the duties, of thepresident of the !nited "tates, are various andextensive' though happily abridged of many others,which are considered as inseparable from the

executive authority in monarchies% of these last, wehave had freuent occasion to notice such as aretransferred by the constitution to the congress of the!nited "tates' and of those which are assigned tothe president,

8# $he first is, $hat he shall be commander in chiefof the army and navy of the !nited "tates, and of themilitia of the several states, when called into theservice of the !nited "tates &+(, A power similar tothat of the king of 5ngland, and of the stadtholder ofHolland, before the late revolution' yet ualified, bysome important restrictions, which I believe were notto be found in either of those governments# As, first'he cannot make rules for the regulation andgovernment of the army and navy, himself, but theymust be governed according to regulationsestablished by congress &+)# 2ut notwithstanding thisprovision in the constitution, the act of ? ;ong# c# 97,authorised the president to make and establish suchrules for training and disciplining the corps ofvolunteers, authorised to be raised by that act, asshould be thought necessary to prepare them foractual service#### "econdly' the president of the!nited "tates hath not an unualified right to appoint

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what officers he pleases' but such appointment /ifthere be no provision to the contrary made by law0must be made with the advice and consent of thesenate% a restriction, perhaps of little importance,whilst the right of nomination, in all cases, and theright of filling up vacancies during the recess of thesenate, remain uncontrollably in his power' to whichmay be added, the authority given him by the act forraising a provisional army, /and perhaps someothers0 to appoint such officers as he may thinkproper in the recess of the senate' .the appointmentof field officers to be submitted to the advice andconsent of the senate, at their next subseuentmeeting'. leaving the appointment of all officers ofinferior rank to the discretion of the president, alone&+*# $he stadtholder of Holland derived his power andinfluence in great measure from a similar authority####

 A third and infinitely more important check, thaneither of the former, so long as elections continue asfreuent, as at present, is that no appropriation forthe support of an army can be made for a longerterm than two years, the period for which congress ischosen# $his puts it in the power of the people, by

changing the representatives, to give an effectualcheck to the power of the executive at the end ofthat period#### In 5ngland, the power of raisingarmies, ad libitum, is vested in the king, though he issaid to be dependent upon the parliament for theirsupport' a supply bill, which is always limited to oneyear, passes accordingly, every session# "hould it berefused, /a case which I believe has not happenedfor more than a century0, a dissolution would pavethe way, immediately, for a more complyingparliament# &ourthly' the militia of the several states,though sub)ect to his command when called intoactual service, can only be called into service by the

authority of congress, and must be governedaccording to law% the states, moreover, have theright of appointing the officers, and training themilitia, according to the discipline prescribed bycongress, reserved to them by the constitution# 2utwe have seen in what manner this very importantclause has been evaded, by the acts of ? ;ong# c#@7, and 97, authorising the president to acceptcompanies of volunteers, and to appoint theirofficers, c# A precedent, which if it be drawn intoauthority and practice in future, may be regarded assuperceding every part of the constitution, whichreserves to the states any effectual authority overtheir militia#

+# $he president has power to grant reprieves andpardons for offences against the !nited "tates,except in cases of impeachment# ;# !# "# Art# +# =#+#

$he power of granting pardons, says )udge2lackstone, is the most amiable prerogative of a kingof 5ngland' and is one of the great advantages ofmonarchy, above any other form of government% indemocracies, he adds, this power of pardon can

never subsist &++# It is happy for the people of America that many speculative notions concerningthe disadvantages and imperfections of democraticforms of government, have been found to bepractically false# In all the democratic states of North

 America, the power of pardoning is regularly vested/as in the federal government of the !nited "tates0in the supreme executive magistrate' and this flowerof monarchical prerogative has been found toflourish in a perfect republican soil, not less than init3s native climate# $he president of the !nited "tatesis not, like a governor of Virginia, constrained to actby advice of a council, but the power of pardoning isleft entirely to the dictates of his own bosom# $hecases in which it has been exercised, manifest thepropriety of the existence of such a power in everystate, whatever be the form of it3s government# Incases of impeachment, as the prosecution is carriedon by the representatives of the people, and the

 )udgment can only extend to removal from, anddisualification to hold or en)oy any office under the!nited "tates, in future, the constitution has wiselyprovided, that the same person in whom the right of

nomination to office is vested, shall not have thepower to remove that disualification, which the guiltof the offender has brought upon himself &+,# In5ngland, no pardon can be pleaded in bar of animpeachment' but the king may pardon afterconviction upon an impeachment &+-# He can not byan exercise of his prerogative avert the disgrace of aconviction' but he can avert it3s effects, and restorethe offender to his credit#

1# $he president hath power, by and with the adviceand consent of the senate, to make treaties,provided two thirds of the senators present concur'

and the treaties so made, constitute a part of thesupreme law of the land# ;# !# "# Art# +# =# +# and

 Art# @#

$reaties, as defined by <uffendorf &,, are certainagreements made by sovereigns, between oneanother, of great use both in war, and peace' ofthese, there are two kinds' the one such as reinforcethe observance of what by the law of nature we werebefore obliged to' as the mutual exercise of civility,and humanity, or the prevention of in)uries on eitherside' the second, such as add some newengagement to the duties of natural law' or at leastdetermine what was before too general andindefinite in the same, to some thing particular, andprecise &,1# 6f those which add some newengagement to those duties which natural lawimposes upon all nations, the most usual relate to, orin their operation may affect, the sovereignty of thestate' the unity of its parts, it3s territory, or otherproperty' it3s commerce with foreign nations, andvice versa' the mutual privileges and immunities ofthe citi(ens, or sub)ects of the contracting powers, orthe mutual aid of the contracting nations, in case ofan attack, or hostility, from any other uarter# $o all

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these ob)ects, if there be nothing in the fundamentallaws of the state which contradicts it, the power ofmaking treaties extends, and is vested in theconductors of states, according to the opinion ofVattel#

In our constitution, there is no restriction as to thesub)ects of treaties, unless perhaps the guarantee of a republican form of government, and of protectionfrom invasion, contained in the fourth article, may beconstrued to impose such a restriction, in behalf ofthe several states, against the dismemberment ofthe federal republic &,&# 2ut whether this restrictionmay extend to prevent the alienation, by cession, ofthe western territory, not being a part of any state,may be somewhat more doubtful# $he act of cessionfrom Virginia militates, expressly, against such analienation of that part of the western territory whichwas ceded by this state &,'# Nevertheless, it is said tohave been in contemplation soon after theestablishment of the federal government, to cede theright of pre*emption to the lands in that territory tothe Indians, who were then supposed to be in treaty

for the same with the crown of Great 2ritain# $hepresident, who had not authorised any such article,and who is said to have disapproved of it, insubmitting the treaty to the consideration of thesenate, called their attention particularly to that partof it' in conseuence of which it was re)ected, thoughwarmly supported in the senate, as has been said# Ifthe power of making such a dismemberment beuestionable at any rate, it is much more so, when itis recollected, that the constitution seems to havevested congress, collectively, and not any one or twobranches of it only, with the power to dispose of thatterritory &,(# $he effect of this extraordinary treaty, if it

had been ratified by the senate and the president,may easily be conceived# Great 2ritain, at that timenot a little disposed to enmity towards the !nited"tates, would no doubt have insisted upon such anacuisition of territory, made under the faith of atreaty between the !nited "tates and the Indians'and thus the !nited "tates might either have beendeprived of their territory by an unconstitutionaltreaty, or involved in a war for it3s preservation, bythe proceedings of a body, whose authority does notextend to a final decision upon a uestion, whetherwar be necessary and expedient# $his shews thecollision which may possibly arise between theseveral branches of the congress, in conseuence of this modification of the treaty*making power# &or,being entrusted to a branch of the congress only,without the possibility of control or check by theother branch, so far as respects the conclusion andratification of any treaty whatsoever, it may wellhappen, at some time or other, that the presidentand senate may overstep the limits of their )ustauthority, and the house of representatives be sotenacious of their own constitutional rights, as not toyield to the obligations imposed upon them by atreaty, the terms of which they do not approve &,)#

2ut the senate, in matters of treaty, are not onlywithout control, they may be said also to be withouteven the least shadow of responsibility in theindividuals who compose that body# In 5ngland, says

 )udge 2lackstone, lest this plenitude of authorityshould be abused to the detriment of the public, theconstitution hath interposed a check by means ofparliamentary impeachment, for the punishment ofsuch members as from criminal motives advise orconclude any treaty, which shall afterwards be

 )udged to derogate from the honour and interest ofthe nation# 2ut where shall we find this responsibilityin our constitutionE Does it arise from the power ofimpeachment vested in the house of representativesby the constitutionE# It has been solemnly decided,that a senator is not a civil officer of the !nited"tates, and therefore not liable to impeachment &,*# 5ven were it otherwise, the power of impeachmentwould, in the case we are now speaking of' benugatory, as will presently appear#### Does it consistthen in the power of impeaching the ambassador, bywhom it was concluded, or the president, by whom it

has been ratified, both of whom are unuestionablyimpeachable, I presumeE $he ambassador isappointed by the president, with the advice andconsent of the senate% it may be presumed that hisinstructions have been submitted to and approvedby them, though a different practice is said to havebeen established# If the treaty be ratified, and theminister be impeached for concluding it, because itis derogatory to the honour, the interest, or perhapsto the sovereignty and independence of the nation,who are to be his )udgesE $he senate by whom ithas been approved and ratified# If the president beimpeached for giving improper instructions to the

ambassador, and for ratifying the treaty concludedby him pursuant to his instructions, who are to be his

 )udgesE $he senate, to whom the treaty has beensubmitted, by whom it has been approved, and bywhose advice it has been ratified# $he ;onstitutionreuires, that a ma)ority of two*thirds of the senate,at least, must advise the conclusion of a treaty,before it can be ratified by the president' it likewisereuires that a ma)ority of two*thirds at least mustconcur in the )udgment in case of conviction# Auorum for the trial upon an impeachment,conseuently cannot possibly be formed, withoutcalling in some of those senators to be )udges, whohad either actually advised or dissented from theratification of the treaty &,+# ;an such )udges bedeemed impartialE If they can, from which class shalthey be chosen' from those who proposed there)ection of the treaty, or from those who advised itsfinal ratificationE "ophistry itself might be pu((led bythe dilemma#

$he &ederalist attempts to vindicate this part of theconstitution of the !nited "tates, with that seal andingenuity which runs through the work# .4hat otherbody, besides the senate,. he asks, .would be likely

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to feel confidence enough in its own situation topreserve unawed, and uninfluenced the necessaryimpartiality between an individual, accused, and therepresentatives of the people, his accusersE ;ouldthe supreme court have been relied on, asanswering this descriptionE It is much to be doubtedwhether the members of that tribunal would at alltimes be endowed with so eminent a portion offortitude, as would be called for in the execution ofso difficult a task' and it is still more to be doubted,whether they would possess the degree of credit andauthority, which might on certain occasions beindispensable towards reconciling the people to adecision that should happen to clash with anaccusation brought forward by their immediaterepresentatives &,,#. $he author seems to haveforgot, that senators may be discontinued from theirseats, merely from the effect of populardisapprobation, but that the )udges of the supremecourt can not# He seems also to have forgot, thatwhenever the president of the !nited "tates isimpeached, the constitution expressly reuires thatthe chief )ustice of the supreme court shall preside,

at the trial# Are all the confidence, all the firmness,and all the impartiality of that court supposed to beconcentrated in the chief )ustice, and to reside in hisbreast, onlyE If that court could not be relied on forthe trial of impeachments, much less would it seemworthy of reliance for the determination of anyuestion between the !nited "tates, and anyparticular state% much less to decide upon the lifeand death of a person whose crimes might sub)ecthim to an impeachment, but whose influence mightavert a conviction# Bet the courts of the !nited"tates are by the constitution regarded as the onlyproper tribunals, where a party convicted upon an

impeachment, may receive that condign punishment,which the nature of his crimes may reuire% for itmust not be forgotten, that a person convicted uponan impeachment, shall nevertheless be liable andsub)ect to indictment, trial, )udgment, andpunishment, according to law &,-# And all this in thosevery courts, which the &ederalist deems notsufficiently confident in their own situation topreserve unawed, and uninfluenced the necessaryimpartiality, to try him upon an impeachment# $heuestion then might be retorted% can it be supposedthat the senate, a part of whom must have beeneither particeps criminis, with the person impeached,by advising the measure for which he is to be tried,or must have )oined the opposition to that measure,when proposed and debated in the senate, would bea more independent, or more unpre)udiced tribunal,than a court composed of )udges holding theirofficers during good behaviour' and who couldneither be presumed to have participated in thecrime, nor to have pre)udged the criminalE 4isely,then, was it proposed by the convention of this state,and some others, that some tribunal other than thesenate should be provided for trying impeachments&-# In the state of Virginia, the trial of impeachmentsis to be in the general court of the commonwealth,

except when a )udge of that court may happen to heimpeached, in which case the trial is to be in thecourt of appeals% the fact, as in other cases, is to betried by a )ury' to be summoned from the differentcounties of that senatorial district, in which theaccused shall reside% and to prevent any undueinfluence front the sitting of the house of delegates,in whom the power of impeachment is vested, it iswisely provided, that no impeachment shall be triedduring a session of the general assembly &-1# Atribunal constituted upon similar principles for thetrial of impeachments in the federal government,would probably produce some degree ofresponsibility, where there now seems to be none#

I have chosen to consider the power of tryingimpeachments, which the constitution vests in thesenate, here, in order to place that of makingtreaties, which are to become a part of the supremelaw of the land, and in which that body has aprinciple agency' in a stronger point of view# $heunion of these powers, in that body' and the totalexemption of senators from an impeachment, seems

to render this part of the federal constitution, themost defective and unsound, of any part of thefabric#

+@1# De -olme, p# 87#+@7# 8 2lacks# Com# ++#+@?# ;# !# "# Art# 8# "ec# 1# Art# +# "ec# 7#+@@# ;# !# "# Art# + -# !# "# 8 ;ong# 8 "ess# c# 7, 9,8+, +># "ec# 1?# ? ;ong# c# ?+#+@9# ;# !# "# Art# +# "ec# 8#+@:# -# !# "# + ;ong# c# :#

+@# ;# !# "# Art# +# "ec# +#+9># 8 2lacks# Com# 8?7# De -olme on the 5nglish;onstitution, 898#+98# 8 2lacks# Com# 1>:#+9+# ;# !# "# Art# +# -# !# "# +# ;ong# c# :#+91# It may be demonstrated, that twentyrepresentatives, at the last election, of a presidentand vice*president, might have carried the electionagainst eighty*six% this supposes all the small statesto have voted together#+97# ;# !# "# Art# +# =# +#+9?# Ibid # Art# 8# =# :#+9@# -# !# "# ? ;ong# c# @7# $he establishment of alarge corps of officers, to be provisionally employed,might be compared to the establishment of the-egion of Honour, in &rance# $he corps ofvolunteers, the officers of which were likewise to beappointed by the president, alone, may be regardedin the same light# ;an it be doubted that suchdistinguished mark, of presidential favour, mustproduce correspondent effectsE en ambitious ofdistinctions, are rarely ungrateful to their patrons inpower#+99# 7 2lacks# Com# 1@, 19#+9:# ;# !# "# Art# 8# =# 1# Art# +# =# +#

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+9# 7 2lacks# Com# 1, 7>>#+:># "paven3s <uffendorf, vol# +# 17@#+:8# Grotius, 11, c#+:+# ;# !# "# Art# 7# "ec# 7#+:1# -# V# 5di# 897# c# 7>#+:7# ;# !# "# Art# 7# =# 1#+:?# 6n the +7th of arch, 89@, the house ofrepresentatives came to the following resolution.$hat the president of the !nited "tates hereuested to lay before this house a copy of theinstructions to the minister of the !nited "tates, whonegotiated the treaty with the king of Great 2ritain,communicated by his message of the first of arch,together with his correspondence and otherdocuments relative to the said treaty' excepting suchof said papers as any existing negotiation mayrender improper to be disclosed#.$he president answered, .$hat the power of makingtreaties is exclusively vested in the president, by andwith the advice and consent of the "enate, providedtwo*thirds of the senators present concur' and thatevery treaty so made, and promulgated,thenceforward becomes the law of the land#. .$hat

the necessity of caution and secrecy in foreignnegotiations, was one cogent reason for vesting thepower in that manner#. .$hat to admit a right in thehouse of representatives to demand, and to have, asa matter of course, all the papers respecting anegotiation with a foreign power, would be toestablish a dangerous precedent#. .$hat it beingperfectly clear to his understanding, that the assentof the house of representatives is not necessary tothe validity of a treaty' as the treaty with Great2ritain exhibits in itself all the ob)ects reuiringlegislative provision, and on these, the papers calledfor can throw no light' and as it is essential to the

due administration of the government, that theboundaries fixed by the constitution between thedifferent departments should be preserved# A )ustregard to the constitution, and to the duty of hisoffice, under all the circumstances of the case,forbad a compliance with their reuest#.6n the @th of April following, the house ofrepresentatives came to the following resolution%Cesolved, that it being declared by the secondsection of the second article of the constitution, thatthe president shall have power, by, and with theadvice and consent of the senate, to make treaties,provided two thirds of the senators present concur,the house of representatives do not claim anyagency in making treaties' but, that when a treatystipulates regulations on any of the sub)ectssubmitted by the constitution to the power ofcongress, it must depend for its execution, as tosuch stipulations, on a law or laws to be passed bycongress' and it is the constitutional right and duty of the house of representatives in all such cases, todeliberate on the expediency or inexpediency ofcarrying such treaty into effect, and to determine andact thereon, as in their )udgment may be mostconducive to the public good#.

.Cesolved, that it is not necessary to the propriety ofany application from this house to the executive forinformation desired by them, and which may relateto any constitutional functions of the house, that thepurposes for which such information may he wantedor to which the same may be applied, should bestated in the application#.+:@# "ee the trial of 4illiam 2lount, upon animpeachment, in which it was decided that a senatoris not a civil officer within the meaning of theconstitution of the !nited "tates, and therefore notliable to be impeached# anuary 9, and 8>, 89#+:9# A ma)ority of two thirds of the senate beingreuired to concur in opinion in both cases, and ama)ority of the senate being necessary to form auorum in all cases, such a ma)ority can never beformed on the trial of an impeachment without callingin at least two members of the former ma)ority of thesenate#+::# + Federalist , +8>#+:# ;# !# "# Art# 8# "ec# 1# And as a conviction uponan impeachment, is no bar to a prosecution upon anindictment, so perhaps, an acuittal may not be a

bar#+># Amendments proposed by the convention ofVirginia, Art# 8# New Bork and North ;arolina,proposed amendments to the like effect#+8# ;onstitution of Virginia Art# 8@# 89# -# V# 5di#897# c# 9+#

Volume 1 — Appendix

Note D

[Section 1) 9 Executi4e 5o6e!# /cont.0%

2ut, to return to the treaty*making*power, it appearsto be somewhat extraordinary, that that branch of thefederal government, who are by the constitutionreuired to concur, in a declaration of war, beforeany such declaration can be made, should be whollyprecluded from voting at all, upon a uestion ofpeace#### $hey are )udges of the causes of war' ofthe existence of those causes' of the resources, andability of the states to prosecute and support a war'of the expediency of applying those resources to theobtaining redress, or satisfaction for the in)uryreceived' in short, of every possible circumstance

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that can induce the nation to incur the ha(ard, orexpence of a war% and yet, if through timidity,venality, or corruption, the president, and two thirdsof a ma)ority of the senate can be prevailed upon torelinuish the prosecution of the war, and conclude atreaty, the house of representatives have not powerto prevent, or retard the measure' although it shouldappear to them, that the ob)ect for which the warhath been undertaken, hath not been attained, andthat it was neither relinuished from necessity, orinability to prosecute it, with effect#

$hese ob)ections are not intended, to extend to theagency which the president and senate may have, inthe formation of a treaty' nor to the principle thattreaties with foreign nations should be regarded as apart of the supreme law of the land#### $he honourand peace of the nation certainly reuire that it3scompacts should be duly observed, and carried intoeffect with perfect good faith# And though it may bethe result of sound discretion to confide theformation of a treaty, in the first instance, to thepresident and senate, only' yet the safety of the

nation seems to reuire that the final ratification ofany compact, which is to form a part of the supremelaw of the land, should, as well as other laws of thefederal government, depend upon the concurrentapprobation of every branch of the congress, beforethey acuire such a sanction as to becomeirrevocable, without the consent of a foreign nation'or without ha(arding an imputation against thehonour and faith of the nation, in the performance ofit3s contracts#

It may not be improper here to add something on thesub)ect of that part of the constitution, which

declares that treaties made by the president andsenate shall be a part of the supreme law of theland% acts of congress made pursuant to the powersdelegated by the constitution are to be regarded inthe same light# 4hat then is the effect of a treatymade by the president and senate, some of thearticles of which may contain stipulations onlegislative ob)ects, or such as are expressly vestedin congress by the constitution, until congress shallmake a law carrying them into effectE Is congressbound to carry such stipulations into effect, whetherthey approve or disapprove of themE Have they nonegative, no discretion upon the sub)ectE $heanswer seems to be, that it is in some respects, aninchoate act# It is the law of the land, and bindingupon the nation in all it3s parts, except so far asrelates to those stipulations# It3s final fate, in case ofrefusal on the part of congress, to carry thosestipulations into effect, would depend on the will ofthe other nation# If they were satisfied that the treatyshould subsist, although some of the originalconditions should not be fulfilled on our part, thewhole, except those stipulations embracinglegislative ob)ects, might remain a treaty# 2ut if theother nation chose not to be bound, they would be at

liberty to say so, and the treaty would be defeated&-&# And this construction seems to be consonant withthat resolution, of the house of representatives &-',wherein they declare, .$hat when a treaty stipulatesregulations on any of the sub)ects submitted by theconstitution to the power of congress, it must dependfor it3s execution, as to such stipulations, on a law orlaws to be passed by congress' and it is theconstitutional right and duty of the house ofrepresentatives, in all such cases, to deliberate onthe expediency, or inexpediency, of carrying suchtreaty into effect, and to determine and act thereon,as in their )udgment, may be most conducive to thepublic good#.#### A contrary construction would renderthe power of the president and senate paramount tothat of the whole congress, even upon thosesub)ects upon which every branch of congress is, bythe constitution, reuired to deliberate &-(# -et it besupposed, for example, that the president andsenate should stipulate by treaty with any foreignnation, that in case of war between that nation andany other, the !nited "tates should immediatelydeclare war against that nation% ;an it be supposed

that such a treaty would be so far the law of the landas to take from the house of representatives theirconstitutional right to deliberate on the expediency orinexpediency of such a declaration of war, and todetermine and act thereon, according to their own

 )udgmentE

7# and ?# $he president shall nominate, and by andwith the advice and consent of the senate, shallappoint ambassadors, other public ministers, andconsuls% and he shall receive ambassadors, andother public ministers# ;# !# "# Art# +# =# +, 1#

$he intercourse with foreign nations reuiring thatambassadors should be sent from one to another,the appointment of such ministers, is by ourconstitution vested in the same departments ofgovernment as the treaty making power' theexclusive right of nomination being vested in thepresident' the senate in this case, as in other casesof appointment in which they have any concurrence,having simply the right of approving, or of re)ecting, ifthey think proper' but they cannot propose any otherperson in the room of him whom they may re)ect'they may prevent the appointment of an agent inwhom they have not a proper degree of confidence,but they cannot substitute a more fit one in his stead

$he president, alone, has authority to receive foreignministers' a power of some importance, as it maysometimes involve in the exercise of it, uestions ofdelicacy' especially in the recognition of authoritiesof a doubtful nature# A scruple is said to have beenentertained by the president of the !nited "tates, asto the reception of the first ambassador from the&rench republic# 2ut it did not prevent, or retard hisreception, in that character#### $hese powers are

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respectively branches of the royal prerogative in5ngland#

@# $he president shall, moreover, nominate, and byand with the advice and consent of the senate, shallappoint )udges of the supreme court, and all otherofficers of the !nited "tates, whose appointmentsare not otherwise provided for by the constitution,and which shall be established by law# 2ut congressmay, by law, vest the appointment of such inferiorofficers as they think proper, in the president alone,in the courts of law, or in the heads of departments#;# !# "# Art# +# =# +# And the president shallcommission all the officers of the !nited "tates####Ibid # =# 1#

 Although the authority of the president of the !nited"tates, does not extend, as has been alreadyremarked, to the creation of offices, by his ownauthority, it is nevertheless astonishing to view thenumber to which he has been authorised in hisdiscretion, to give existence# In the army, navy, andvolunteer corps, only, this discretionary power, with

which congress have from time to time most liberallyvested him, must have amounted to the appointmentof several thousand officers &-)# If to these we addthe civil officers whose appointments depend eitherupon the president, alone' or upon his nomination orinfluence in the senate' we shall find that theinfluence and patronage of that department arealready as great, and probably greater than anyfriend to his country could wish to see them &-*# It ishowever, still more encreased by the next clause#

9# $he president shall have power to fill up allvacancies that may happen during the recess of the

senate, by granting commissions, which, shall expireat the end of their next session#

$he act of ? ;ong# c# 8?1, authorised the presidentto make appointments to fill any vacancies in thearmy and navy which may have happened duringthat session of the senate# And this without anyreservation of the right of the senate to approve, orre)ect, at a succeeding session# $his was among themanifold acts of that period for encreasing the power of the president, far beyond the limits assigned bythe constitution' limits already sufficiently large forevery beneficial purpose# $he right of nomination tooffice in all cases where the senate are to beconsulted upon the appointment, being theundoubted privilege of the president under theconstitution, should he persist in the nomination of aperson to office after the senate have re)ected him,there is no constitutional control over him, by whichhe may be compelled to nominate any other person#$he office then may be kept vacant through thisdisagreement between them# 2ut if it should havehappened that the office became vacant during therecess of the senate, and the vacancy were filled bya commission which should expire, not at the

meeting of the senate, but at the end of theirsession, then, in case such a disagreement betweenthe president and the senate, if the president shouldpersist in his opinion, and make no other nominationthe person appointed by him during the recess of thesenate would continue to hold his commission, untilthe end of their session so that the vacancy wouldhappen a second time during the recess of thesenate, and the president conseuently, would havethe sole right of appointing a second time' and theperson whom the senate have re)ected, may beinstantly replaced by a new commission# And thus itis evidently in the power of the president to continueany person in office, whom he shall once haveappointed in the recess of the senate, as long as hemay think proper# A circumstance which renders thepower of nomination, and of filling up vacanciesduring the recess of the senate, too great, to reuireany further extention# 5ven the control of electionsloses it3s force, in great measure, in such cases% theinfluence of a president, and the activity and (eal ofhis parti(ans encreasing in proportion to the numberof offices which he has power to fill, and to the

measure of obligation which the persons preferredby his favour, may suppose they owe to him, for thedistinction#

<erhaps these inconveniencies might have beenavoided, if the constitution had reuired more thanone person to have been put in nomination by thepresident for those offices, where the concurrence ofthe senate is reuired to complete the appointment,or, that in case of disagreement between thepresident and senate, two thirds of the latter mightappoint, without a previous nomination by thepresident, in case be should decline any further

nomination, after the first had been re)ected#

:# $he president shall, from time to time, give tocongress information of the state of the union, andrecommend to their consideration such measures,as he may )udge necessary and expedient# He mayalso on extraordinary occasions convene bothhouses, or either of them' and in case ofdisagreement between them with respect to the timeof ad)ournment, he may ad)ourn them to such timeas he shall think proper# ;# !# "# Art# +# "ec# 1#

 As from the nature of the executive office itpossesses more immediately the sources, andmeans of information than the other departments ofgovernment' and as it is indispensably necessary towise deliberations and mature decisions, that theyshould be founded upon the correct knowledge offacts, and not upon presumptions, which are oftenfalse, and always unsatisfactory' the constitution hasmade it the duty of the supreme executivefunctionary, to lay before the federal legislature, astate of such facts as may be necessary to assisttheir deliberations on the several sub)ects confidedto them by the constitution# And as any

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inconveniencies resulting from new laws, or for thewant of adeuate laws upon any sub)ect, moreimmediately occur to those who are entrusted withthe administration of the government, than to others,less immediately concerned therein' it is likewiseprovided, that the first magistrate of the union shouldrecommend to the consideration of congress suchmeasures as he shall )udge necessary, and proper#2ut this power of recommending any sub)ect to theconsideration of congress, carries no obligation withit# It stands precisely on the same footing, as amessage from the king of 5ngland to parliament'proposing a sub)ect for deliberation, not pointing outthe mode of doing the thing which it recommends#$his is considered by De -olme &-+, as one of thefavourable peculiarities of the 5nglish constitution,uniting the advantages of originating laws in selectassemblies, with the freedom of the legislature, asvested in the representatives of the people# In&rance, under the present constitution, all lawsoriginate with the executive department% than which,there can not exist a stronger characteristic of adespotic government#

$he power of the president to convene either or bothhouses of congress, was a provision indispensablynecessary in a government organi(ed as the federalgovernment is by the constitution# 6ccasions mayoccur during the recess of congress, for taking themost vigorous and decisive measures to repel in)ury,or provide for defence% congress, only, is competentto these ob)ects% the president may thereforeconvene them for that purpose# 6r it may happenthat an important treaty hath been negotiated duringthe recess of the senate, and their advice thereuponbe reuired, without delay, either, that the ratification

may be exchanged in due time, or for some otherimportant reason# 6n such extraordinary occasionsas these, if there were not a power lodged in thepresident to convene the senate, or the congress, asthe case might reuire, the affairs of the nation mightbe thrown into confusion and perplexity, or worse#$he power of ad)ourning congress, in case of adisagreement between the two houses, as to thetime of ad)ournment, was likewise necessary toprevent any inconvenience from that source, as, istoo obvious to reuire any further remarks upon it#

# Ninthly' the president, as was observed,elsewhere is sub modo a branch of the legislativedepartment' since every bill, order, resolution, orvote, to which the concurrence of both houses ofcongress is necessary, must be presented to him forhis approbation, before it can take effect &-,# If heapprove it, the measure is immediately final% if hedisapprove, it must be sent back to congress forfurther consideration, as has been already shewn#$he importance which the executive departmentderives from this share in the legislative, hath beensufficiently discussed in its proper place, being here

brought into view again, merely for the sake ofmethod#

8># -astly' it is the duty of the president to take carethat the laws be faithfully executed' and, in thewords of his oath, .to preserve, protect, and defendthe constitution of the !nited "tates &--#.

$he obligation of oaths upon the consciences ofambitious men has always been very slight, as thegeneral history of mankind but too clearly evinces#

 Among the Comans, indeed, they were held in greatsanctity during the purer ages of the republic, butbegan to be disregarded as the nation approachedto a state of debasement, that fitted them for slavery'# Among christian princes, they seem only to havebeen calculated for the worst, instead of the bestpurposes '1% monarchs having long exercised, andseeming to claim, not less than the successors of "t#<eter, a kind of dispensing power on this sub)ect, inall cases affecting themselves# A due sense ofreligion must not only be wanting in such cases, butthe moral character of the man must be wholly

debased, and corrupted# 4hilst these remainunsullied, in the !nited "tates, oaths may operate insupport of the constitution they have adopted, but nolonger# After that period an oath of office will servemerely to designate its duties, and not to secure thefaithful performance of them' or, to restrain thosewho are disposed to violate them#

$he right of issuing proclamations is one of theprerogatives of the crown of 5ngland# No suchpower being expressly given by the federalconstitution, it was doubted, upon a particularoccasion, whether the president possessed any

such authority under it% 2oth houses of congressappear to have recogni(ed the power as one thatmay be constitutionally exercised by him '&#Independent of such authority, we might perhaps be

 )ustified, in concluding that the obligation upon thepresident to take care that the laws be faithfullyexecuted, drew after it this power, as a necessaryincident thereto# $he commencement ordetermination of laws is freuently made to dependupon events, of which the executive may bepresumed to receive and communicate the firstauthentic information% the notification of such factsseems therefore to be the peculiar province and dutyof that department# If the nation be in a state of warwith another nation, acts of hostility are )ustifiable, onthe part of our citi(ens towards theirs' if a truce heconcluded' such acts are no longer to be permitted#$he fact that such a truce has been made, must beannounced by the competent authority' and the lawarising from the promulgation of this fact, accordingto the rules of war and peace, among civili(ednations, is such, as to give to the proclamation theapparent effect of a new law to the people# 2ut this isnot really the case' it is the established law ofnations which operates upon the fact disclosed by

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the proclamation, vi(# $hat a truce has beenconcluded between the two nations, who werebefore at war# 2ut if a proclamation should en)oinany thing to be done, which neither the law ofnations, nor any previous act of the legislature, norany treaty or compact should have made a duty,such in)unction would not only be merely void, but aninfringement of the constitution ''# <roclamationsare then only binding, when they reinforce theobservance of a duty, en)oined by law, but connectedwith some particular fact, which it may be the duty of the executive to make known#

$he president of the !nited "tates may be removedfrom office on impeachment for, and conviction oftreason, bribery, or other high crimes andmisdemeanors% and the chief )ustice of the !nited"tates shall preside at his trial# ;# !# "# Art# +, "ec#7# Art# 8, "ec# 1#

$he exclusion of the vice*president in such cases,from his ordinary constitutional seat, as president ofthe senate, seems to have been both necessary and

proper, not only in order to remove all suspicion ofundue bias upon the mind of any member of thecourt' /since in case of conviction, the duties of theoffice of the president would devolve immediatelyupon the vice*president0 but because it ispresumable, that whenever a president may heactually impeached, he would be instantlyincapacitated thereby from discharging the duties ofhis office, until a decision should take place' in whichcase also, the duties of the office of president, mustdevolve upon the vice*president# achiavel ascribesthe ruin of the republic of &lorence, to the want ofthis mode of proceeding by impeachment against

those who offend against the state# If the want of aproper tribunal for the trial of impeachments canendanger the liberties of the !nited "tates, somefuture achiavel may, perhaps, trace theirdestruction to the same source#

In 5ngland, as we have more than once hadoccasion to remark, the law will not suppose the kingcapable of doing wrong# His person is sacred' he isabove the reach of the laws, none having power toaccuse, or to )udge him# $he people must be drivento a total violation, and subversion of theconstitution, before he can be made responsible forthe most flagrant act of tyranny, or abuse ofauthority# 6ur constitution, on the contrary, considersthe president as a man, and fallible' it contemplatesthe possibility of his being not only corrupt, but, inthe highest degree criminal' even to the commissionof treason, against the government which he isappointed to administer# How such a case mayhappen, will be the sub)ect of future inuiry# "uffice itto say, the constitution supposes it, and hasprovided, however inadeuately, for his punishment#

$he administration of the federal government, fromit3s first institution, has repeatedly given rise todoubts in my own breast, whether some importantamendments are not necessary for the preservationof the liberty of the people of the !nited "tates, thenecessary and proper independence of the severalstates, and the union of the confederacy# $helimitations which the constitution has provided to thepowers of the president, seem not to be sufficient torestrain this department within it3s proper bounds, or,to preserve it from acuiring and exerting more thana due share of influence# $o this cause it may beattributed, that in addition to the very extensivepowers, influence, and patronage which theconstitution gives to the president of the !nited"tates, congress have, from time to time, with aliberal hand, conferred others still more extensive'many of them altogether discretionary, and notunfreuently uestionable, as to theirconstitutionality# $hese circumstances but too well

 )ustify the remark, that if a single executive do notexhibit all the features of monarchy at first, like theinfant Hercules, it reuires only time to mature it3s

strength, to evince the extent of it3s powers# ;rescitocculto velut arbor avo#

!nder the former confederation, the !nited "tates incongress assembled, had authority to appoint acommittee to sit in the recess of congress, to bedenominated .a committee of the states,. and toconsist of one delegate from each state% and toappoint one of their number to preside, provided thatno person should be allowed to serve in the office ofpresident more than one year, in any term of threeyears# $his committee, or any nine of them, wereauthorised to execute, in the recess of congress,

such of the powers of congress, as the !nited "tatesin congress assembled, by the consent of ninestates, might from time to time think expedient tovest them with' provided that no power be delegatedto the said committee, for the exercise of which, bythe articles of confederation, the voice of nine statesin the congress of the !nited "tates assembled, wasreuisite '(# An executive constituted somewhatupon this plan, composed of a member from eachstate, would, I conceive, have been more consistentwith the principles of a federal union% it might havebeen so modified, as that a smaller number/consisting of one member from each uarter of theunion,0 might execute ah the powers which are nowvested in the president alone, whilst the wholeshould be consulted upon all points to which theadvice and consent of the senate is now reuired bythe constitution# $he senate might then have beendivested entirely of it3s executive powers, andconfined to such as might properly be vested in asecond branch of the legislature "uch anarrangement would have removed many of thoseob)ections which now apply to the union oflegislative, executive, and )udiciary powers, in thatbody, I well know that there are many ob)ections to a

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numerous executive% but I conceive them to be fewer in a federal, than in a national government# 6ne ofthe principal ob)ections to the former congress, asan executive body, seems to have arisen from theplurality of members from the states, whose unitedvoice was often necessary to give the state a vote# If the delegates from the same state were euallydivided upon any uestion, the state had no vote#

 And as this not unfreuently happened in thedelegations from several states, upon the sameuestion, the result was, that no determination couldbe had thereupon, for want of a sufficient number ofstates, voting either in the affirmative or negative#2ut where the representation from a state isconfined to an individual, the former of theseinconveniencies could never happen, and the lattervery rarely# How far experience, under the formerarticles of confederation, might have prompted or

 )ustified the preference given by the convention to asingle executive, I cannot pretend to )udge#

++# Debates on the treaty making power, p# 17?#+1# Cesolution of the house of representatives,

 April @, 89@#+7# "uch a doctrine appears to have beenstrenuously advocated in congress, some years ago#"ee debates on the treaty making power% arch and

 April 89@# <hiladelphia, printed 89@#+?# $he commission*officers for an army of :?,>>>men /including the volunteer corps which wereauthorised to be raised by the president0 wouldamount to more than than 7,?>># "ee the acts of ?;ong# c# 9 and 7:# "ec 1# c# ?@# "ec# +# c# @7# "ec#+# 9# c# 97# "ec# +# 7# c# :8# c# 1# "ec# 9# :# c# 8+:#

"ec# # c# 819# "ec +# @# c# 8?1, with many others#+@# "ee the speech of r# Gallatin on the foreignintercourse bill' by which it appears that thepatronage of the executive /even before the passageof the law mentioned in the last note,0 amounted inarch, 89:, to the enormous sum of two millions of dollars, annually# It probably is not less at this day,notwithstanding the immense changes that havebeen made#+9# 6n the 5nglish ;onstitution, 2# +# c# 7#+:# ;# !# "# Art# 8# "ect, 9#+# ;# !# "# Art# +# "ect# 8, 1#1>># ontesuieu3s Spirit of Laws, Vol# 8# p#891#Grotius, p#181#1>8# Vattel, p# 17:# c# Grotius, 11>#1>+# $he occasion here alluded to, was thepresident3s proclamation of neutrality in une, 891#$his was merely an admonition, to the people of the!# "tates, of the duty imposed on them by the law of nations, and an annunciation of the fact that we wereat peace with all nations# 2oth houses of congress intheir addresses to the president approved of theproclamation, 1 ;ong# 8 "ession#1>1# $he proclamation of the two former presidentsrecommending fasting and prayer, were of this

nature' they were an assumptton of power notwarranted by the constitution, or rather prohibited, bythe true spirit of the third article of amendments#"ome persons excused the act as amounting only tothe advice of the president as an individual# 4hythen was it clothed with all the forms of authority, theseal of the !nited "tates, and the attestation of thesecretary of stateE1>7# Articles of confederation and perpetual union,

 Art# , and 8>#

Volume 1 — Appendix

Note D

[Section 1* 9 ;udicil 5o6e!#%

III# $he constitution and powers of the )udiciarydepartment of the federal government have beeneually the sub)ect of applause and censure' ofconfidence and )ealousy ')# $he unexceptionablemode of appointing the )udges, and theirconstitutional independence '* of every other branch

of the government merit an eulogium, which allwould have concurred in bestowing on this part ofthe constitution of the !nited "tates, had not thepowers of that department been extended to ob)ectswhich might ha(ard the tranuility of the union inattempting to secure it# No one doubted thenecessity and propriety of a federal )udiciary, wherean ultimate decision might be had upon suchuestions as might arise under the law of nations,and eventually embroil the American nation withother sovereign powers% nor was it doubted thatsuch a tribunal was necessary to decide suchdifferences as might possibly arise between theseveral members of the confederacy, or betweenparties claiming lands under grants from differentstates# 2ut the ob)ects of the federal )urisdiction wereoriginally far more numerous' extending to .all casesin law and euity arising under the constitution, thelaws of the !nited "tates, and treaties made, or tobe made, under their authority' to all cases affectingambassadors, other public ministers and consuls' toall cases of admiralty# and maritime )urisdiction' tocontroversies to which the !nited "tates shall be aparty' and between two or more states' between astate and citi(ens of another state' between citi(ens

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of different states' between citi(ens of the samestate claiming lands under grants of different states'and between a state, or the citi(ens thereof, andforeign states, citi(ens or sub)ects '+#. .$heseob)ects,. a writer on the sub)ect remarks, .are sonumerous, and the shades of distinction betweencivil causes are oftentimes so slight, that it is morethan probable the state )udicatories will be whollysuperceded' for in contests about )urisdiction, thefederal court, as the most powerful, will ever prevail',#. $his conclusion will not appear to be ill*founded,if we advert to the ingenious fictions which havebeen from time to time adopted in the courts ofGreat 2ritain, in order to countenance the claim of

 )urisdiction '-# 2ut more solid ob)ections seemed toarise from the want of a sufficient security for theliberty of the citi(en in criminal prosecutions% thedefect of an adeuate provision for the trial by )ury incivil cases, and the burthens and mischiefs whichmight arise from the re*examination of facts, upon anappeal# $hese ob)ections, however, seem to becompletely removed by the amendments proposedby the first congress, and since ratified, and made a

part of the constitution '1# Another importantob)ection has been likewise in some degreeobviated, by the act of 8 ;ong# 8 "ess# c# +># =# 88 ,which declares, that no district or circuit court shallhave cogni(ance of any suit upon a promissory note,or other chose in action in favour of an assignee,except in cases of foreign bills of exchange, unless asuit might have been prosecuted in such court if noassignment had been made% it is, however, to bewished, that this provision had formed a part of theamendments to the constitution, which wereproposed at the same session, since the ob)ection,upon constitutional grounds, still remains% more

especially, as a very serious attempt was madeduring the last session of the sixth congress torepeal this legislative provision# 2ut the grandob)ection, that the states were made sub)ect to theaction of an individual, still remained for severalyears, notwithstanding the concurring dissent ofseveral states at the time of accepting theconstitution '11# Nor was it till after several of thestates '1& bad actually been sued in the federalcourts, that the third congress proposed anamendment, which declares, .that the )udicial powerof the !nited "tates shall not be construed to extendto any suit in law or euity commenced orprosecuted against one of the !nited "tates, by theciti(ens of another state, or by the citi(ens orsub)ects of a foreign state#. $his amendment havingbeen duly ratified now forms a part of the federalconstitution# It is well calculated to secure the peaceof the confederacy from the dangers which theformer power might have produced, had anycompulsory method been adopted for carrying intoeffect the )udgment of a federal court against a state,at the suit of an individual# 2ut whilst the propriety ofthe amendment is acknowledged, candor reuires afurther acknowledgment, that in order to render the

 )udicial power completely efficacious, both in the

federal and in the state governments, some modeought to be provided, by which a pecuniary right,established by the )udicial sentence of a courtagainst a state, or against the government of the!nited "tates, may be enforced# It is believed, thatinstances might be adduced, where, although suchrights have been )udicially established, the claimantshave not received any benefit from the )udgment intheir favour, because the legislature have neglected/perhaps wilfully0 to provide a fund, or make thenecessary appropriation reuired by the constitution,for the discharge of the debt# In this instance, theconstitutions both of the federal and stategovernments seem to stand in need of reform '1'#&or what avails it, that an impartial tribunal havedecided, that a debt is due from the public to anindividual, if those who hold the purse*strings of thegovernment, may nevertheless refuse the paymentof a )ust debtE

2ut whatever ob)ection may be made to the extent ofthe )udicial power of the federal government' in otherrespects, as it is now organi(ed, and limited by the

constitution itself, by the amendments beforementioned, and by the act referred to, it seemsworthy of every encomium, that has ever beenpronounced upon the )udiciary of Great 2ritain, towhich it3s constitution is in no respect inferior' being,indeed, in all respects assimilated to it, with theaddition of a constitutional, instead of a legalindependence, only# 4hatever then has been saidby 2aron ontesuieu, De -olme, or udge2lackstone, or any other writer, on the securityderived to the sub)ect from the independence of the

 )udiciary of Great 2ritain, will apply at least asforcibly to that of the !nited "tates# 4e may go still

further# In 5ngland the )udiciary may beoverwhelmed by a combination between theexecutive and the legislature# In America /accordingto the true theory of our constitution,0 it is renderedabsolutely independent of, and superior to theattempts of both, to control, or crush it% &irst, by thetenure of office, which is during good behaviour'these words /by a long train of decisions in 5ngland,even as far back as the reign of 5dward the third0 inall commissions and grants, public or private,importing an office, or estate for the life of thegrantee, determinable only by his death, or breach ofgood behaviour  '1(# "econdly, by the independenceof the )udges, in respect to their salaries, whichcannot be diminished#

$hirdly, by the letter of the constitution which definesand limits the powers of the several coordinatebranches of the government' and the spirit of it,which forbids any attempt on the part of either tosubvert the constitutional independence of theothers# -astly, by that uncontrollable authority in allcases of litigation, criminal or civil, which, from thevery nature of things is exclusively vested in thisdepartment, and extends to every supposable case

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which can affect the life, liberty, or property of theciti(ens of America under the authority of the federalconstitution, and laws, except in the case of animpeachment#

$he American constitutions appear to be the first inwhich this absolute independence of the )udiciaryhas formed one of the fundamental principles of thegovernment# Doctor Cutherforth considers the

 )udiciary as a branch only, of the executive authority'and such, in strictness, perhaps, it is in othercountries, it3s province being to advise the executive,rather than to act independently of it% thus when$itius demands a debt, or a parcel of land of"empronius, the )udgment of the court is, it3s adviceto the executive, to whom the execution of the lawsappertains, to levy the debt for the plaintiff, or puthim in possession of the lands which he claims, or todismiss his demand as un)ust and ill founded# "oalso if $itius be accused of treason, murder, or othercrime' and be thereof convicted, the )udgment of thecourt, is it3s advice in what manner he shall bepunished according to law' which advice is to be

carried into effect by the executive officer# 6r if he beacuitted, the )udgment of the court is it3s advice thathe be discharged from his confinement, and fromfurther prosecution# In this sense it is, that the )udgesof the courts of law in 5ngland are reckoned amongthe number of the king3s councils, they being hisadvisers in all cases where the sub)ect matter is of alegal nature '1)# 2ut in the !nited "tates of America,the )udicial power is a distinct, separate,independent, and co*ordinate branch of thegovernment' expressly recognised as such in ourstate bill of rights, and constitution, anddemonstrably so, likewise, by the federal

constitution, from which the courts of the !nited"tates derive all their powers, in like manner as thelegislative and executive departments derive theirs#$he obligation which the constitution imposes uponthe )udiciary department to support the constitutionof the !nited "tates, would be nugatory, if it weredependent upon either of the other branches of thegovernment, or in any manner sub)ect to theircontrol, since such control might operate to thedestruction, instead of the support, of theconstitution# Nor can it escape observation, that toreuire such an oath on the part of the )udges, onthe one hand, and yet suppose them bound by actsof the legislature, which may violate the constitutionwhich they have sworn to support, carries with itsuch a degree of impiety, as well as absurdity, as noman who pays any regard to the obligations of anoath can be supposed either to contend for, or todefend#

$his absolute independence of the )udiciary, both ofthe executive and the legislative departments, whichI contend is to be found, both in the letter, and spiritof our constitutions, is not less necessary to theliberty and security of the citi(en, and his property, in

a republican government, than in a monarchy% if inthe latter, the will of the prince may be considered aslikely to influence the conduct of )udges createdoccasionally, and holding their offices only during hispleasure, more especially in cases where a criminalprosecution may be carried on by his orders, andsupported by his influence' in a republic, on theother hand, the violence and malignity of party spirit,as well in the legislature, as in the executive,reuires not less the intervention of a calm,temperate, upright, and independent )udiciary, toprevent that violence and malignity from exertingitself .to crush in dust and ashes. all opponents toit3s tyrannical administration, or ambitious pro)ects#"uch an independence can never be perfectlyattained, but by a constitutional tenure of office,eually independent of the frowns and smiles of theother branches of the government# udges ought notonly to be incapable of holding any other office at thesame time, but even of appointment to any but a

 )udicial office# &or the hope of favour is always morealluring, and generally more dangerous, than thefear of offending# In 5ngland, according to the

principles of the common law, a )udge cannot holdany other office' and according to the practice therefor more than a century, no instance can, I believe,be shewn, where a )udge has been appointed to anyother than a )udicial office, unless it be the honorarypost of privy counsellor, to which no emolument isattached# And even this honorary distinction isseldom conferred but upon the chief )ustice of theking3s bench, if I have been rightly informed '1*# $othis cause, not less than to the tenure of their officesduring good behaviour, may we ascribe that pre*eminent integrity, which amidst surroundingcorruption, beams with genuine lustre from the

5nglish courts of )udicature, as from the sun throughsurrounding clouds, and mists# $o emulate both theirwisdom and integrity is an ambition worthy of thegreatest characters in any country#

If we consider the nature of the )udicial authority, andthe manner in which it operates, we shall discoverthat it cannot, of itself, oppress any individual' for theexecutive authority must lend it3s aid in everyinstance where oppression can ensue from it3sdecisions% whilst on the contrary, it3s decisions infavour of the citi(en are carried into instantaneouseffect, by delivering him from the custody andrestraint of the executive officer, the moment that anacuittal is pronounced# And herein consists one ofthe great excellencies of our constitution% that noindividual can be oppressed whilst this branch of thegovernment remains independent, and uncorrupted'it being a necessary check upon the encroachments,or usurpations of power, by either of the other# $hus,if the legislature should pass a law dangerous to theliberties of the people, the )udiciary are bound topronounce, not only whether the party accused hathbeen guilty of any violation of it, but whether such alaw be permitted by the constitution# If, for example,

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a law be passed by congress, prohibiting the freeexercise of religion, according to the dictates, orpersuasions of a man3s own conscience or abridgingthe freedom of speech, or of the press' or the right of the people to assemble peaceably, or to keep andbear arms' it would, in any of these cases, be theprovince of the )udiciary to pronounce whether anysuch act were constitutional, or not' and if not, toacuit the accused from any penalty which might beannexed to the breach of such unconstitutional act# If an individual be persecuted by the executiveauthority, /as if any alien, the sub)ect of a nation withwhom the !nited "tates were at that time at peace,had been imprisoned by order of the president under the authority of the alien act, ? ;ong# c# 9?0 it is thenthe province of the )udiciary to decide whether therebe any law that authorises the proceedings againsthim, and if there be none, to acuit him, not only ofthe present, but of all future prosecutions for thesame cause% or if there be, then to examine it3svalidity under the constitution, as before*mentioned#$he power of pardon, which is vested in theexecutive, in it3s turn, constitutes a proper check

upon the too great rigor, or abuse of power in the )udiciary department# 6n this circumstance,however, no great stress ought to be laid' since incriminal prosecutions, the executive is in the eye ofthe law, always plaintiff' and where the prosecutionis carried on by it3s direction, the purity of the

 )udiciary is the only security for the rights of theciti(en# $he )udiciary, therefore, is that department of the government to whom the protection of the rightsof the individual is by the constitution especiallyconfided, interposing it3s shield between him and thesword of usurped authority, the darts of oppression,and the shafts of faction and violence# -et us see in

what manner this protection, is thus confided to the )udiciary department by the constitution#

I# &irst, then' the )udicial power of the !nited "tatesextends to all cases in law and euity, arising underthe constitution, the laws of the !nited "tates, andtreaties made by their authority# +# No person shallbe deprived of life, liberty, or property, /and these arethe ob)ects of all rights0 without due process of law'which is the peculiar province of the )udiciary tofurnish him with# 1# No person shall be held toanswer for any crime, unless on presentment orindictment of a grand )ury, except in cases arising inthe land or naval forces, or in the militia, when inactual service, in time of war or public danger# 7# Incriminal cases the accused shall have a speedy andpublic trial, by an impartial )ury of the state anddistrict, where the crime shall be committed# ?# Heshall be informed of the nature and cause of hisaccusation# @# He shall be confronted by thewitnesses against him' and 9, "hall havecompulsory process for obtaining witnesses in hisfavour  '1+# :# He shall not be compelled to be awitness against himself# # He shall not be sub)ect,for the same offence, to be twice put in )eopardy of

life or limb# 8># He shall have the aid of counsel forhis defence# 88# His person, house, papers, andeffects, shall be free from search or sei(ure, exceptupon warrants issued upon probable cause,supported by oath or affirmation, and particularlydescribing the place to be searched, and the person,or things to be sei(ed# 8+# 5xcessive bail shall notbe reuired of him# 81 $he benefit of the writ ofhabeas corpus shall not be denied him, unless incase of actual invasion, or rebellion, the public safety/of which congress are to )udge, and suspend thebenefit accordingly0 may reuire the suspension ofthat privilege generally, and not in his particularcase, only# 87# 5xcessive fines shall not be imposed,nor unusual punishments inflicted on him# 8?# Hisprivate property shall not be taken for the public usewithout )ust compensation# 8@# He shall not beconvicted upon any charge of treason, unless on thetestimony of two witnesses, at least, to the sameovert act, or on confession in open court# In all theserespects, the constitution, by a positive in)unction,prescribes the duty of the )udiciary department '1,' extending it3s powers, on the one hand, so far as to

arrest the hand of oppression from any otheruarter' and on the other prescribing limits to it3sauthority, which if violated would be good cause ofimpeachment, and of removal from office# $hus if theprivilege of the writ of habeas corpus should besuspended by congress, when there was neither aninvasion, nor rebellion in the !nited "tates, it wouldbe the duty of the )udiciary, nevertheless, to grant thewrit, because the act of suspension in that case,being contrary to the express terms of theconstitution, would be void# 6n the other hand, if thebenefit of the writ of habeas corpus, should begranted to any person, contrary to the provisions of

an act for suspending it, during the time of aninvasion or rebellion, this would be a good groundfor impeaching a )udge who should conduct himselfin that manner# "o, if a )udge were to instruct a )uryupon the trial of a person for treason, that he mightbe convicted upon the testimony of a single witness,if such instruction were advisedly, and corruptlygiven, /and not the mere effect of mistake andmisapprehension0 it would furnish a good ground forimpeachment, and removal of such )udge from hisoffice# And any other gross misconduct of a )udge inthe execution of his office may be punished in likemanner#

$hat absolute independence of the )udiciary, forwhich we contend is not, then, incompatible with thestrictest responsibility' /for a )udge is no moreexempt from it than any other servant of the people,according to the true principles of the constitution'0but such an independence of the other co*ordinatebranches of the government as seems absolutelynecessary to secure to them the free exercise oftheir constitutional functions, without the hope ofpleasing, or the fear of offending# And, as from thenatural feebleness of the )udiciary it is in continual

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 )eopardy of being overpowered, awed, or influencedby it3s coordinate branches, who have the custody of the purse and sword of the confederacy' and asnothing can contribute so much to it3s firmness andindependence as permanancy in office, this ualitytherefore may be )ustly regarded as anindispensable ingredient in it3s constitution' and ingreat measure as the citadel of the public )ustice andthe public security '1-# Nor was it imagined that therewas more than one opinion, upon this sub)ect, in the!nited "tates, until a recent event proved thecontrary '&# It was supposed that there could not bea doubt that those tribunals in which )ustice is to bedispensed according to the constitution and laws ofthe confederacy' in which life, liberty and propertyare to be decided upon' in which uestions mightarise as to the constitutional powers of theexecutive, or the constitutional obligation of an act of the legislature' and in the decision of which the

 )udges might find themselves constrained by duty,and, by their oaths, to pronounce against theauthority of either, should be stable and permanent'and not dependent upon the will of the executive or

legislature, or both, for their existence# $hat withoutthis degree of permanence, the tenure of officeduring good behaviour, could not secure to thatdepartment the necessary firmness to meetunshaken every uestion, and to decide as )usticeand the constitution should dictate without regard toconseuences# $hese considerations induced anopinion which it was presumed was general, if notuniversal, that the power vested in congress to erectfrom time to time, tribunals inferior to the supremecourt, did not authorise them, at pleasure, todemolish them# 2eing built upon the rock of theconstitution, their foundations were supposed to

partake of it3s permanancy, and to be euallyincapable of being shaken by the other branches ofthe government# 2ut a different construction of theconstitution has lately prevailed' it has beendetermined that a power to ordain and establish fromtime to time, carries with it a discretionary power todiscontinue, or demolish# $hat although the tenure of office be, during good behaviour, this does notprevent the separation of the office from the officer,by putting down the office' but only secures to theofficer his station, upon the terms of good behaviour,so long as the office itself remains#### <ainful indeedis the remark, that this interpretation seemscalculated to subvert one of the fundamental pillarsof free governments, and to have laid the foundationof one of the most dangerous political schisms thathas ever happened in the !nited "tates of America#

In all cases affecting ambassadors, other publicministers and consuls, and those in which a stateshall be a party, the supreme court of the !nited"tates shall have original )urisdiction# $his, Ipresume, was intended to give the greater solemnityas as well as dispatch to the decision of suchimportant cases, by taking away all unnecessary

delays, by appeal# 2ut congress appears to haveconsidered, that it was not necessary that thesupreme court should have original )urisdiction, butthat it might, in the discretion of congress, beinvested with it in those cases '&1# 2y theconstitution, originally, the supreme court might havehad appellate )urisdiction, both as to law and fact, inall cases# 2ut, the ninth article of amendmentsprovides that no fact tried by a )ury, shall beotherwise re*examined in any court of the !nited"tates, than according to the rule of the commonlaw# A provision which has removed one of the mostpowerful ob)ections made to this department#

$he organi(ation of the federal courts will form thesub)ect of a future note' in which also will beattempted to give the student a view of the statecourts#

1>?# $he papers in the Federalist , on the sub)ect ofthe )udiciary of the !nited "tates, are, in general,

eual to any that will be found in that publication#"ee vol# 8# p# 87>, and vol# +, p# +>, c#1>@# ;# !# "# Art# +# "ec# +# Art# 1# "ec# 8#1>9# ;# !# "# Att# 1# "ec# +#1>:# Centinel , p# 8?#1># "ee 1 2lacks# Com# p# 78, ??#18># Amendments to ;# !# "# Art# @, 9, :, , 8>#188# $he several conventions of assachussetts,New Hampshire, Chode*Island, New Bork, Virginia,and North ;arolina, proposed amendments in thisrespect#18+# assachussetts, Virginia, and Georgia, weresued by individuals in the federal courts#

181# 2y the constitution of the !nited "tates, .nomoney can be drawn from the treasury, but inconseuence of appropriations made by law# Howshall an individual having a )udgment against the!nited "tates, in his favour, recover his money, if thelegislature chuse to keep him out of itE $he caseseems to be eually as bad in the stategovernments#187# 1 ;ess 71# 5dw# 1# O 1 Inst# 889# $he barons othe excheuer were the only )udges in 5ngland,who, at the time "ir 5dward ;oke wrote, held theiroffice during good behaviour, or for life# $he studentwill likewise find the import of these words solemnlyargued and decided, by that great man -ord ;hiefustice Holt, and his associates' 8 "hower3sCeports, 7+@, ?>@, to ?1@, ??9# $heir )udgment wasaffirmed in parliament# "hower3s ;ases in<arliament, 8?:#18?# 8 2lacks# Com# ++# 8 Inst# 88># 1 Inst# 8+?#18@# uch is it to be regretted that a similar conducttowards the )udges of the courts of the !nited"tates, has not prevailed in the federal government#

 Already have we seen two chief )ustices of the!nited "tates, whose duties cannot, certainly, beperformed in foreign parts, appointed envoys to

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distant nations, and still holding their offices in thesupreme court of the federal government' officesaltogether incompatible, yet held at the same time inmanifest violation of every constitutional principle#&or surely nothing is more incompatible with thenature of the federal government, than to supposean office of such high trust and responsibility to havebeen intended as a sine cure' much less that it couldhave been intended as the means of extendingexecutive influence, or of shielding the presidentagainst the effect of an impeachment# &or whatcould more effectually strengthen the hands of anusurping president, than the power of sending intoan honourable exile, the very officer whom theconstitution expressly reuires to preside at his trial,in case of his impeachmentE $o preserve the lustreof )udicial purity, perfectly unsullied, it seemsnecessary, by an express amendment of theconstitution, to disualify the federal )udges fromappointment to any other than a )udicial office' sincesuch appointments have a natural tendency to excitehopes, and secure compliance, from the prospect orexpectation of additional emolument, accumulated

honours, or greater pre*eminence of station#189# 6n the trial of r# $homas ;ooper, in thefederal circuit court in <ennsylvania, for a libelagainst the president of the !nited "tates, under thesedition law, it is said, that r# ;ooper applied to thecourt for a subpoena to summon the president as awitness in his behalf, and that the court refused togrant one# !pon what principle the application wasrefused, /notwithstanding this article0 I have neverbeen able to obtain satisfactory information# $hecase was certainly delicate, and might have beenperplexing#18:# "ee ;# !# "# Art# 1# Art# 8# =# # Amendments to

;# !# "# Art# @, 9, :, , 8>#18# Federalist , vol# + No# 9:#1+># "ee the act of 9 ;ong# repealing the act of thepreceeding congress for the more convenientorgani(ation of the courts of the !nited "tates, andthe debates thereon#1+8# -# !# "# 8 ;ong# 8 "ess# c# +># "ect# 81# In thecase of r# Cavara the Genoese consul, whopleaded to the )urisdiction of the circuit court, thecourt overruled his plea# 4ilson and <eters )udges,contra Iredel )udge, who was for sustaining it# +#Dallas3s Ceports, +9#

Volume 1 — Appendix

Note D

[Section 1+ 9 <i#cellneou# 5!o4i#ion#%

It now only remains to examine some miscellaneousarticles, which have either not yet been noticed, orhave been but slightly mentioned#

8# No money shall be drawn from the treasury, but inconseuence of appropriations made by law#

 All the expences of government being paid by thepeople, it is the right of the people, not only, not to betaxed without their own consent, or that of theirrepresentatives freely chosen, but also to be actuallyconsulted upon the disposal of the money whichthey have brought into the treasury' it is thereforestipulated that no money shall be drawn from thetreasury, but in conseuence of appropriations,previously made by law% and, that the people may

have an opportunity of )udging not only of thepropriety of such appropriations, but of seeingwhether their money has been actually expendedonly, in pursuance of the same' it is further provided,that a regular statement and account of the receiptsand expenditures of all public money shall bepublished from time to time '&&# $hese provisionsform a salutary check, not only upon theextravagance, and profusion, in which the executivedepartment might otherwise indulge itself, and itsadherents and dependents' but also against anymisappropriation, which a rapacious, ambitious, orotherwise unfaithful executive might he disposed tomake# In those governments where the people aretaxed by the executive, no such check can beinterposed# $he prince levies whatever sums hethinks proper' disposes of them as he thinks proper'and would deem it sedition against him and hisgovernment, if any account were reuired of him, inwhat manner he had disposed of any part of them#"uch is the difference between governments, wherethere is responsibility, and where there is none#

Bet even this excellent regulation has aninconvenience attending it, which was formerlyhinted at# According to the theory of the Americanconstitutions, the )udiciary ought to be enabled to

afford complete redress in all cases, where a manmay have a )ust claim for compensation for anyin)ury done him, or for any service which he mayhave rendered another, in expectation of a )ustrecompence# According to the laws of Virginia, if aclaim against the commonwealth be disallowed orabated by the auditor of public accounts, any personwho may think himself aggrieved thereby maypetition the high court of chancery, or the districtcourt held at Cichmond, according to the nature ofhis case, for redress' and such court shall proceed

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to do right thereon' and a like petition shall beallowed in all other cases to any person who isentitled to demand against the commonwealth anyright in law or euity '&'# 2ut although redress is thusintended to be afforded in such cases, yet it seemsto be held, that the treasurer can not pay the moneyfor which the claiment may have obtained a

 )udgment, or decree, until the general assemblyhave passed a law making an appropriation, for thatpurpose, if no law authorising such payment bepreviously passed# 2ut whatever doubt there may beupon the sub)ect, under the laws of the state, itseems to be altogether without a uestion, that noclaim against the !nited "tates /by whateverauthority it may be established,0 can be paid, but inconseuence of a previous appropriation made bylaw' unless, perhaps, it might be considered asfalling properly under the head of contingent chargesagainst the government# An interpretation which maybe somewhat strained, and which the executivedepartment of the government, to which themanagement of the fund appropriated for contingentcharges is committed, might be as little disposed to

admit, as congress might be to pass a law making aspecific appropriation#

2oth the constitution and laws of the !nited "tatesappear, then, to be defective upon this sub)ect'inasmuch, as they neither provide in what manner a

 )ust claim against the !nited "tates, which mayhappen to be disallowed by the auditor andcomptroller of the treasury, shall be )udiciallyexamined '&(' nor for the payment of any )ust claimwhich might be )udicially established, withoutsubmitting it to the discretion of congress, whetherthey will make an appropriation for that purpose# As

the congress are supposed, in all pecuniary cases,to have the same common interest with theirconstituents, they can hardly be considered in anyother light than as parties, whenever a demand ismade against the public# $hey cannot then bepresumed to be altogether as impartial )udges insuch cases, as those who are sworn to do eualright to all persons, without distinction% and althoughthe practice has been to petition them for anydisputed claim against the !nited "tates, cases mayarise where such a petition might be highly improper,and yet the nature of the case be such, as to entitlethe party to obtain redress according to the dictatesof moral obligation# A )udicial court is, according tothe true spirit of the constitution, the proper place inwhich such a right should be enuired into, and fromwhich redress might be finally obtained% and that,without impediment from any other department ofthe government# $his might be effected by anamendment, declaring, that no money shall bedrawn from the treasury but in conseuence ofappropriations made by law' or, of a )udicialsentence of a court of !nited "tates#

+# &ull faith and credit shall be given in each state tothe public acts, records, and )udicial proceedings ofevery other state# And congress may by generallaws, prescribe the manner in which the same shallbe proved, and the effect thereof '&)# $he act of 8;ong# + "ess# c# 88, accordingly declares, that theacts of the legislature of the several states shall beauthenticated by having the seal of their respectivestates affixed thereto' that the records and )udicialproceedings of the courts of any state, shall beproved or admitted in any other court within the!nited "tates, by attestation of the clerk, and theseal of the court annexed, if there be a seal, togetherwith a certificate of the )udge, chief )ustice, orpresiding magistrate, as the case may be, that suchattestation is in due form# And records and )udicialproceedings so authenticated, shall have such faithin every court within the !nited "tates, as they haveby law or usage in the courts of the state, fromwhence they may be taken# $he propriety andnecessity of such a provision to be made betweenmembers of an extensive confederacy, are tooobvious to escape observation# A similar provision

was accordingly made by the former articles ofconfederation and perpetual union, Art# 7#

1# $he citi(ens of each state shall be entitled to allthe privileges and immunities of citi(ens of theseveral states '&*#

$his article, with some variation, formed a part of theconfederation% we have in another place supposed,that the states retain the power of admitting aliens tobecome deni(ens of the states respectively,notwithstanding the several acts of congressestablishing an uniform rule of naturali(ation# 2ut

such deni(ens, not being properly citi(ens, wouldnot, I apprehend, be entitled to the benefit of thisarticle in any other state# $hey would still beregarded as aliens in every state, but in that of whichthey may be deni(ens# ;onseuently, an alienbefore he is completely naturali(ed, may be capableof holding lands in the state, but not of holding themin any other#

7# A person charged in any state with treason, felonyor other crime, who shall flee from )ustice and befound in another state, shall, on demand of theexecutive authority of the state from which he fled,be delivered up to be removed to the state having

 )urisdiction of the crime '&+#

$his article likewise formed a part of the formerconfederation, and was necessary to cement andsecure the harmony of the union# $he act of 89:7, c#1?# FV# -# 5di# 897, c# 88:# provided for the mode ofcarrying it into execution' but a different provision ismade by the act of + ;ong# ?8#### 5ither mode maybe adopted, I apprehend, according to the nature ofthe case# If the party accused be already in custodyof the law, by virtue of process from the state courts,

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he may, on demand of the executive authority of thestate from whence he fled, be sent thither in custodyby order of the general court, or warrant of any two

 )udges thereof in vacation% if he be not already incustody, the act of congress makes it the duty of theexecutive authority of the state to which he flees,upon a copy of an indictment found, or affidavitmade before a magistrate of any state, charging himwith any crime, to cause him to be arrested andsecured, and notice to be given to the executiveauthority making the demand, or his agent, and thefugitive to be delivered up# 2ut if no agent appear,within six months from the time of the arrest, theprisoner may be discharged#

?# No person held to service in one state, under thelaws thereof, and escaping into another state, shall,in conseuence of any law or, regulation therein, bedischarged from such service or labour, but shall bedelivered up on claim of the party to whom suchservice is due '&,#

$his necessary provision had not a place in the

former articles of confederation' in conseuence ofwhich numberless inconveniencies were felt by theciti(ens of those states, where slavery prevails, fromthe escaping of their slaves into other states, whereslavery was not tolerated by law, and where it wassupposed no aid ought to be given to any otherperson claiming another as his slave# $he act of +;ong# c# 18, prescribes the mode of proceeding insuch cases' authorising the master to sei(e hisslave, and making it the duty of the district )udge ofthe !nited "tates, and of the magistrates of the stateto aid him therein' and imposing a penalty of fivehundred dollars upon any person obstructing him#

@# $he !nited "tates shall guarantee to every statein the union a republican form of government, andshall protect each of them against invasion' and onapplication of the legislature, or of the executive/when the legislature cannot be convened0, againstdomestic violence# ;# !# "# Art# 7# "ec# 7#

It is an observation of the enlightened ontesuieu,that mankind would have been at length obliged tosubmit to the government of a single person, if theyhad not contrived a kind of constitution, by which theinternal advantages of a republic might be unitedwith the external force of a monarchy' and thisconstitution is that of a confederacy of smallerstates, to form one large one for their commondefence# 2ut these associations ought only to beformed, he tells us, between states whose form ofgovernment is not only similar, but also republican#$he spirit of monarchy is war, and the enlargementof dominion' peace and moderation is the spirit of arepublic# $hese two kinds of government cannotnaturally subsist together in a confederate republic#Greece, he adds, was undone, as soon as the kingsof acedon obtained a seat among the Amphictions

'&-# If the !nited "tates wish to preserve themselvesfrom a similar fate, they will consider the guaranteecontained in this clause as a corner stone of theirliberties ''#

$he possibility of an undue partiality in the federalgovernment in affording it3s protection to one part ofthe union in preference to another, which may beinvaded at the same time, seems to be providedagainst, by that part of this clause which guaranteessuch protection to each of them# "o that every statewhich may be invaded must be protected by theunited force of the confederacy# It may not he amissfurther to observe, that every pretext forintermeddling with the domestic concerns of anystate, under colour of protecting it against domesticviolence is taken away, by that part of the provisionwhich renders an application from the legislative, orexecutive authority of the state endangered,necessary to be made to the federal government,before it3s interference can be at all proper# 6n theother hand, this article secures an immenseacuisition of strength' and additional force to the aid

of any of the state governments, in case of aninternal rebellion or insurrection against authority###$he southern states being more peculiarly open todanger from this uarter, ought to be particularlytenacious of a constitution from which they mayderive such assistance in the most critical periods#

1++# ;# !# "# Art# 8, "ec# #1+1# -# V# 5di# 897, c# :?#1+7# It hath been said on the floor of the house ofrepresentatives of the !nited "tates, .that it had

been repeatedly decided, that the !nited "tateswould not permit themselves to be brought into theirown courts#. $he editor had supposed that thatclause of the constitution, which declares that .the

 )udicial power shall extend to all cases, in law andeuity, arising under the constitution,. c# hadprescribed a different rule of decision# Nor can he,even now, form a different opinion upon the sub)ect'believing that there is as much reason that a legal oreuitable claim against the !nited "tates, shouldreceive a )udicial discussion, and decision, as anysimilar claim which might be made on their behalf#

 And though he doubts, as to the mode in which a )udicial enuiry into the )ustice of a pecuniary claimagainst them may be instituted, yet he cannot doubtthat the constitution meant to afford the right to everyciti(en of the !nited "tates#1+?# ;# !# "# Art# 7#1+@# ;# !# "# Art# 7#1+9# Ibid #1+:# ;# !# "# Art# 7#1+# Spirit of Laws, 2# # c# l and +#11># 6n this sub)ect, see Federalist , vol# +# p# @> to@7#

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Volume 1 — Appendix

Note D

[Section 1, 9 <i#cellneou# 5!o4i#ion# /cont.0%

9# All debts contracted, and engagements enteredinto, before the adoption of the constitution, aredeclared to be as valid against the !nited "tatesunder the same, as under the confederation# $hisdeclaration was probably inserted for the

satisfaction, as well as the security of the publiccreditors, both foreign and domestic# $he articles ofconfederation contained a similar stipulation inrespect to the bills of credit emitted, moniesborrowed, and debts contracted, by or under theauthority of congress, before the ratification of theconfederation# $hese declarations are merelyacknowledgments of that which moral obligationimposed upon the !nited "tates as a duty# It mightseem as if this act prohibited the making of any actof limitation in bar of such debts' but a differentinterpretation has been given to it by congress# -# !#"# + ;ong# + "ess# c# @#

:# $he ratification of the conventions of nine stateswas declared to be sufficient for establishing theconstitution between the states ratifying the same#

$his article may now be regarded of littleimportance, the constitution having been ratified byall the members of the former confederacy#### Had itbeen otherwise, after nine states had ratified theconstitution, it might have been a uestion of somedelicacy, in what relation those which failed to ratify,stood to the others which had# $he adoption of theconstitution the establishing a new form ofgovernment by nine states only, would have been an

undoubted breach of the articles of confederation, ontheir parts ''1% the remaining states might, at theirelection, have considered the confederacy asdissolved, or not# If they considered it as dissolved,they would have stood in the relation of other foreignstates# If as still existing, they would have had a rightto insist upon the performance of all mutualstipulations on the part of the other states, so longas they continued to perform their own, with goodfaith# $he &ederalist advances a different opinion ''&% 

Happily for the !nited "tates it is now unnecessaryto discuss the uestion any further#

# $he constitution, and the laws of the !nited"tates, made in pursuance of it' and all treatiesmade, and to be made, under the authority of the!nited "tates, shall be the supreme law of the land'and the )udges in every state shall be bound therebyany thing in the constitution or laws of any state tothe contrary notwithstanding '''#

It may seem very extraordinary, that a people )ealousof their liberty, and not insensible of the allurementsof power, should have entrusted the federalgovernment with such extensive authority as thisarticle conveys% controlling not only the acts of theirordinary legislatures, but their very constitutions,also#

$he most satisfactory answer seems to be, that thepowers entrusted to the federal government being alpositive, enumerated, defined, and limited toparticular ob)ects' and those ob)ects such as relate

more immediately to the intercourse with foreignnations, or the relation in respect to war or peace, inwhich we may stand with them' there can, in theserespects, be little room for collision, or interferencebetween the states, whose )urisdiction may beregarded as confided to their own domesticconcerns, and the !nited "tates, who have no rightto interfere, or exercise a power in any case notdelegated to them' or absolutely necessary to theexecution of some delegated power# $hat, as thiscontrol cannot possibly extend beyond those ob)ectsto which the federal government is competent, underthe constitution, and under the declaration contained

in the twelfth article, so neither ought the laws, oreven the constitution of any state to impede theoperation of the federal government in any casewithin the limits of it3s constitutional powers# $hat alaw limited to such ob)ects as may be authorised bythe constitution, would, under the true constructionof this clause, be the supreme law of the land' but alaw not limited to those ob)ects, or not madepursuant to the constitution, would not be thesupreme law of the land, but an act of usurpation,and conseuently void# A further answer seems alsoto be, that without this provision the constitutioncould not have taken effect in those states where thearticles of confederation were sanctioned by theconstitution' nor could it be supposed that theconstitution of the !nited "tates would possess anystability so long as it was liable to be affected by anyfuture change in the constitution of any of the states#6ther reasons are assigned by the &ederalist, forwhich I shall refer the student to that work ''(#

8># $he senators and representatives in congress,and the members of the several state legislatures,and all executive and )udicial officers of the !nited

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states, and of the several states, shall be bound byoath or affirmation to support the constitution '')#

$hat all those who are entrusted with the executionof the powers vested in the federal government,should, under the most solemn sanction, be boundto the due execution of the trusts reposed in them,could not be doubted# 2ut the propriety of reuiring asimilar engagement from the members of the statelegislatures, and the other public functionaries in theseveral states, was doubted# 2ut it should beremembered, that the members and officers of thestate governments will have an essential agency ingiving effect to the federal government# $he electionof the senate depends upon the immediate agencyof the state legislatures# In some of the states theelectors for president and vice*president are chosenin the same manner# In all, the legislature must directthe mode in which they shall be appointed# $heelection of representatives must probably dependupon them also for aid' at least until congress, shallpass a general law upon the sub)ect# $he )udges ofthe state courts will not unfreuently have to decide

according to the constitution and laws of the !nited"tates# Decisions ought to be uniform, whether hadin the federal courts, or the state courts# $hisuniformity can only be obtained by uniformity ofobligation# $he executive authority of the states willalso have an immediate agency in the appointmentof senators, in case of vacancy during the recess ofthe legislature% in issuing writs of election to fill upvacancies in the house of representatives' in givingeffect to the laws for calling the militia into theservice of the !nited "tates' in officering the militia,and a variety of other occasions, all of which reuirethat no adverse spirit, nor doubts of authority, or

obligation, should be permitted to counteract, orretard the necessary operations of the federalgovernment#

88# -astly the fifth article provides the mode by whichfuture amendments to# the constitution may beproposed, discussed, and carried into effect, withoutha(arding a dissolution of the confederacy, orsuspending the operations of the existinggovernment# And this may be effected in twodifferent modes% the first on recommendation fromcongress, whenever two thirds of both houses shallconcur in the expediency of any amendment# $hesecond, which secures to the states an influence incase congress should neglect to recommend suchamendments, provides, that congress shall, onapplication from the legislatures of two thirds of thestates, call a convention for proposing amendments'which in either case shall be valid to all intents andpurposes as part of the constitution, when ratified bythe legislatures of three fourths of the several states,or by conventions in three fourths thereof, as the oneor the other mode, of the ratification may beproposed by the congress# 2oth of these provisionsappear excellent# 6f the utility and practicability of

the former, we have already had most satisfactoryexperience# $he latter will probably never beresorted to, unless the federal government shouldbetray symptoms of corruption, which may render itexpedient for the states to exert themselves in orderto the application of some radical and effectualremedy# Nor can we too much applaud aconstitution, which thus provides a safe, andpeaceable remedy for its own defects, as they mayfrom time to time be discovered# A change ofgovernment in other countries is almost alwaysattended with convulsions which threaten its entiredissolution' and with scenes of horror, which determankind from any attempt to correct abuses, orremove oppressions until they have becomealtogether intolerable# In America we mayreasonably hope, that neither of these evils need beapprehended' nor is there any reason to fear thatthis provision in the constitution will produce anydegree of instability in the government' the modeboth of originating and of ratifying amendments, ineither mode which the constitution directs, mustnecessarily be attended with such obstacles, and

delays, as must prove a sufficient bar against light,or freuent innovations# And as a further securityagainst them, the same article further provides, thatno amendment which may be made, prior to the yearone thousand eight hundred and eight, shall, in anymanner, affect those clauses of the ninth section ofthe first article, which relate to the migration orimportation of such persons as the states may thinkproper to allow' and to the manner in which directtaxes shall be laid% and that no state, without itsconsent shall be deprived of its eual suffrage in thesenate#

 Among the amendments proposed by the severalstate conventions, some appear to have beenproposed only for greater precaution, and securityagainst misconstruction, or an undue extension ofthe powers vested in the federal government' whilstothers seem to have been calculated to remedysome radical defects in the system ''*# $he mostimportant of those which have not yet received theapprobation of both houses of congress may notimproperly be brought into view in this place,although we have occasionally offered someremarks upon several of them in other parts of thisessay#

8# $hat some tribunal other than the senate beprovided for trying impeachments of senators#### $hisamendment seems to be the more necessary inconseuence of the decision in 4illiam 2lount3scase, that a senator is not a civil officer, andtherefore not impeachable# 6n this sub)ect we havealready spoken somewhat at large#

+# $hat some reform be made, in the mode ofchoosing a president of the !# "tates in those cases

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where the election may now devolve upon the houseof representatives#

$he necessity of such a reform, and the danger towhich the federal union, may be exposed if it be noteffected, have been brought into full view by thestruggle between two parties almost euallybalanced, at the election of a president of the !#"tates in the year 8:>8# 6n this sub)ect also, wehave offered some remarks elsewhere# I shall onlyadd, that sound policy dictate that no presidentshould be capable of being re*elected, that had not ama)ority of the whole number of votes of the stateelectors, in his favour' and that no preponderanceought to be given to the vote of one member of thehouse of representatives over that of another#

1# $hat all commercial treaties, and such wherebyany cession of territory or of )urisdiction, or the rightof fishing upon the coasts of the !nited "tates, or ofthe ad)acent continent and islands, be made sub)ectto the final ratification of congress, before they shallbe deemed conclusive, on the part of the !nited

"tates#

7# $hat the )udiciary power of the !nited "tates benot construed to extend to any civil suit, where thecause of action was not originally cogni(able in thefederal courts' nor to any crime or misdemeanorwhatsoever, which is not defined, and thepunishment thereof prescribed, either in theconstitution of the !nited "tates, or in some act ofcongress, made pursuant thereto' except the samebe committed out of the )urisdiction of any particularstate, and within the exclusive )urisdiction of thefederal government#

$he reasons for some further limitation of the )udicialpower of the !nited "tates have been repeatedlytouched upon, already' some further reasons will beoffered hereafter in the tract, upon the authority andobligation of the common law of 5ngland, in the!nited "tates# At the conclusion of the latter thestudent will find the sentiments of the generalassembly of Virginia, upon that important sub)ect, asconnected with the extent of the )udicial power of the!nited "tates' expressed in the most nervouslanguage, that a )ust apprehension of the fatalconseuences to be expected from the doctrine, thatthe common law of 5ngland has been adopted asthe law of the federal government, could dictate#

?# $hat the articles which relate to direct taxes, andexcises, might if possible be so modified as toremove the ob)ections which have been made tothem, by the several states#

@# $hat the exclusive power of legislation over theseat of government, c# be limited to suchregulations as respect the police and goodgovernment thereof#

9# $hat congress shall not alter, modify, or interferein, the time, place, or manner, of holding electionsfor senators or representatives, except when thelegislature of any state may neglect, or refuse, or bedisabled by invasion or rebellion, to prescribe thesame#

:# $hat no standing army, or regular forces, be keptup in time of peace, except for the necessaryprotection and defence of forts, dock yards, andarsenals, without consent of two thirds of bothhouses of congress#

# $hat congress shall not have power to grantmonopolies, or to erect any companies withexclusive advantages of commerce#

8># $hat the president shall not command an army inperson, without the consent, or desire of congress#

88# $hat congress shall not declare war, without theconsent of two thirds of both houses#

8+# $hat no law for the regulation of commerce, ornavigation act, shall be made, unless with theconsent of two*thirds, of the members of bothhouses#

81# $hat the state legislatures may have power torecal, when they think it expedient, their senators,and to send others in their stead#

87# $hat the senators and representatives incongress shall be ineligible to any post or placeunder the !nited "tates during the term for which

they were elected#### $o which I will take the liberty ofsuggesting#### .or for one year thereafter#.

$he practical exercise of the federal government hasevinced the indispensable necessity of anamendment upon this sub)ect# It cannot be made toostrict, or too rigorous#### $he man who seeks a seatin congress, with the hopes by that means to retireupon a lucrative office, will be a venal sycophanttowards those who have the power of fulfilling hiswishes# 4e have seen that the most ready road topreferment in the federal government has beenfound to pass through the two houses of congress'offices have /almost invariably0 been conferred onthose, who have been the most distinguishedsupporters and promoters of the extension of thepower and influence of the executive% thatemployments /lucrative in their nature0 have beenoccasionally carved out for them, even during thetime for which they have been elected ''+# He thatcan doubt that political corruption unavoidablysprings from such a source, may, if he pleases,doubt that animal putrefaction is produced by thecombined action of air, heat, and moisture# 2utneither the real philosopher, nor the enlightened

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politician, will feel a doubt upon either of theseuestions#

I have now finished the survey of the constitution ofthe !nited "tates, which I proposed making in thisessay# Attached, from principle, and confirmed in thatattachment from past experience, to a federal unionof the American "tates, and to the principles of ademocratic government, I have probably regardedwith a )ealous eye those parts of the constitutionwhich seem to savour of monarchy, or aristocracy, or tend to a consolidated, instead of a federal, union ofthe states# I have been eually (ealous in myendeavours to point out the excellencies of theconstitution, as to expose it3s defects% a sincereattachment to the former will always lead aningenuous mind to a candid investigation, andcorrection of the latter# Happily for us, and for ourcountry, this correction has been found to bepracticable without ha(ard, without tumult, andwithout the smallest interruption to the ordinarycourse of administering the government# $o shut oureyes against this inestimable advantage which we

possess, beyond any other nation in the universe,would be an unpardonable act of ingratitude to thatdivine being, under whose providence we haveaccomplished the great work of our independence,and the establishment of free government, in everystate, and an union of the whole upon such a solidfoundation, as nothing but our own folly, orwickedness, can undermine# $he man who firstespies any defect, or decay in the fabric, should,therefore, be the first to point it out' that it may beamended, before the in)ury which it may haveoccasioned is too great to be repaired# $hose who,perceiving the defect, deny that it exists' or wilfully

obstruct the amendment, are the real enemies of theconstitution% it3s real friends ought to pursue adifferent conduct# Governments of force may bepreserved for a time by an obstinate perseverance inthe same course, however pernicious% but agovernment of the people hath no foundation but theconfidence of the people% if that be withdrawn, thegovernment inevitably falls#

$he very elaborate and masterly discussion of the

truly interesting to every American citi(en, as thefederal government of the !nited "tates#

118# $he articles of this confederation shall beinviolably observed by every state, and the unionshall be perpetual' nor shall any alteration at anytime hereafter be made in any of them' unless suchalteration be agreed to in a congress of the !nited"tates, and be afterwards confirmed by thelegislatures of every state# ;onfederation, Art# 81#11+# "ee Federalist , vol# II# p# @@#111# ;# !# "# Art# @#117# Federalist , Vol# I# No# 11# Vol# II# No# 77#11?# ;# !# "# Art# @#11@# $he following amendments were proposed byone or more of the following states' vi(# Virginia,New*Bork, North*;arolina, assachusetts, NewHampshire, Chode*Island, or "outh*;arolina, inconvention' or may be found in an address to thepeople of aryland, or in the proceedings atHarrisburg in <ennsylvania# $he whole being

collected in ;arey3s useum, Vol 1, 7, 9, and :, towhich I must here refer the student#119# $he mission of a senator, during a recess ofcongress, to visit the western posts, with a salary ofeight dollars a day, and his expences paid, mayserve as an instance of this practice#