"7^ CORNELL UNIVERSITY LIBRARY Cornell University Library JK216 .C15 1853 olin 3 1924 030 454 635 DATE DUE CT 2 ? ^^ Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030454635 DISQUISITION GOVERNMENT A DISCOUESE CONSTITUTION AND GOVERNMENT OF THE UNITED STATES. JOM C. CALHOUI. EDITED BY EIOHAKD K. CEALLE. NEW-YOEK: D. APPLETON AND COMPANY, 200 BEOADWAT. M.DQQC.LIII. l\ K-f. Entered, according to act of Congress, by JAMES E. CALHOUN, in the Clerk's Office of the District Court of the United States for the district of South Carolina. iaa^E ADVERTISEMENT. It may be proper to state, that the manuscripts from which the following work is published, were never revised or corrected ,, by their illustrious author. When, during his last illness, they were placed by him in the hands of the editor, he indulged the hope of regaining sufficient strength to perform this labor ; but it is scarcely aecessary to say that the expectation was never realized. The Disquisition on Grovernment had, indeed, been copied before his death ; but it is almost certain he never found time to examine the copy. The Discourse on the Constitution, &c. — with the exception of a few pages, — was in his own hand- writing, — on loose sheets, — bearing evident marks of interrupted and hurried composition. Indeed, there is reason to believe that the principal portion of it, if not the entire Work, was composed between the adjournment of Congress in the Spring of 1848, and its meeting in December, 1849. In preparing the manuscripts for the press, the editor has sedu- lously endeavored to preserve, not only the peculiar modes of expression, but the very words of the author ; — without regard to ornaments of style or rules of criticism. They who knew him well, need not to be told that, to these, he paid but slight respect- Absorbed by his subject, and earnest in his efforts to present the truth to others, as it appeared to himself, he regarded neither the arts nor the ornaments of meretricious elocution. He wrote as Vlli ADVERTISEMENT. he spoke, somfetitnes negligently, yet alway^s plainly and forcibly, and it is due to his own character, as well as to the public expec. tation, that his views should be presented in the plain and simple garb in which he left them. The granite statue, rough-hewn though it be, is far more imposing in its simple and stern; though rude proportionSjthan the plaster-cast,however elaborately wrought and gilded. Some few sentences have been transposed, — some repetitions omitted, — and some verbal inaccuracies, necessarily incident to hurried composition, corrected. With these excep. tions, and they are comparatively few, — the Work is as it came from the hands of the author ; and is given to the public with no other comment than that made by himself in a letter dated the 4th of November, 1849 — " I wish my .errors to be pointed out. I have set doWn only what I believed to be true ; without yielding an inch to the popular opinions and prejudices of the day. I "have not dilated, — but left truth, plainly announced, to battle its own way." FEBRUART23d, 1851. A DISaUISITION ON GOVEMMENT. In order to have a clear and just conception of the nature and object of government, it is iudispen- sable to understand correctly what that constitu- tion or law of our nature is, in which goyermnent originates; or, to express it more fully and accu- rately, — ^that'law, without which government would not, and with which, it must necessarily exist. Without this, it is as impossible to lay any solid foundation for the science of government, as it would be to lay one for that of astronomy, without a Kke understanding of that constitution or law of the material world, according to which the several bodies composing the solar system mutually act on each other, and by which they are kept in their re- spective spheres. The first question, accordingly, to be considered is, — ^What is that constitution or law of our nature, without which government would not exist, and with which its existence is necessary ? ' In considering this, I assume, as an incontestable I fact, that man is so constituted as to be a social be-y 2 A DISQUISITION ON GOVERNMENT, ' ing. His inclinations and wants, physical and mo\ .ral, irresistibly impel Mm to associate with Ms kind ;\ and lie has, accordingly, never been found, in any 1 \age or country, in any state other than the social./ In no other, indeed, could he exist ; and in no other, — were it possible for him to exist, — could he at- tain to a fall development of his moral and intel- lectual faculties, or raise himself, in the scale of be- ing, much above the level of the brute creation. I next assume, also, as a fact not less incontesta- ble, that, while man is so constituted as to make the social state necessary to his existence and the full development of his faculties, this state itself cannot exist without government. The assumption ► rests on universal experience. In no age or coun- try has any society or commumty ever been found, whether enlightened or savage, without government of some description. Having assumed these, as unquestionable phe- nomena of our nature, I shall, without further re- mark, proceed to the investigation of the primary and important question, — ^What is that constitution of our nature, which, while it impels man to associ- ate with his Mnd, renders it impossible for society ' to exist without government ? The answer will be found in the fact, (not less incontestable than either of the others,) that, while man is created for the social state, and is according- ly so formed as to feel what affects others, as well as what affects himself, he is, at the same time, so constituted as to feel more intensely what affects him directly, than what affects him indirectly A DISQUISITION ON GOVEENMENT. 3 through others ; or, to express it differently, he is so constituted, that his direct or individual affec- tions are stronger than his sympathetic or social feel- ings. I intentionally avoid the expression, selfish feelings, as applicable to the former; because, as commonly used, it implies an unusual excess of the individual over the social feelings, in the person to whom it is applied; and, consequently, something depraved and vicious. My object is, to exclude such inference, and to restrict the inquiry exclusive- ly to facts in their bearings on the subject under consideration, viewed as mere phenomena appertain- ing to our nature, — constituted as it is ; and which are as unquestionable as is that of gravitation, or any other phenomenon of the material world. In asserting that our individual are stronger than our social feelings, it is not intended to deny that there are instances, growing out of peculiar re- lations, — as that of a mother and her infant, — or re- sulting from the force of education and habit over peculiar constitutions, in which the latter have over- powered the former ; but these instances are few, and always regarded as something extraordinary. The deep impression they make, whenever they occur, is the strongest proof that they are regarded' as exceptions to some general and well understood law of our nature ; just as some of the minor pow- ers of the material world are apparently to gravi- tation. I might go farther, and assert this to be a phe- nomenon, not of our nature only, but of all animated existence, throughout its entire range, so far as our A DISQUISITION ON GOVEBNMBNT. lowledge extends. It -would, indeed, seem to be sentially connected with tlie great law of self-pre- rvation wMcli pervades all that feels, from man )wn to the lowest and most insignificant reptile or sect. In none is it stronger than in man. His cial feelings may, indeed, in a state of safety and )undance, combined with high intellectual and oral culture, acquire great expansion and force ; but )t so great as to overpower this aU-pervading and sential law of animated existence. But that constitution of our nature which makes feel more intensely what affects us directly than liat affects us indii'ectly through others, necessarily ids to conflict between individuals. Each, in con- quence, has a greater regard for his own safety or ippiness, than for the safety or happiness of others ; d, where these come in opposition, is ready to saori- e the interests of others to his own. And hence, e tendency to a universal state of conflict, be- ?-een individual and individual; accompanied by e connected passions of suspicion, jealousy, anger d revenge, — followed by insolence, fraud and cruel- ; — and, if not prevented by some controlling •wer, ending in a state of universal discord and nfusion, destructive of the social state and the ends r which it is ordained. This controlling power ierever vested, or by whomsoever exercised, is iVERNMENT. It follows, then, that man is so constituted, that ivemment is necessary to the existence of society, id society to his existence, and the perfection of 3 faculties. It follows, also, that government has its A DISQUISITION ON GOVERNMENT. 5 ori^ in this twofold constitution of his nature ; the sympathetic or spcial feelings constituting the remote, — and the individual or direct, the proximate cause. K man hadbeen differently constituted in either particular ; — if, instead of being social in his nature, he had been created without sympathy for his kind, and independent of others for his safety and exist- ence ; or if, on the other hand, he had been so cre- ated, as to feel more intensely what affected others than what affected himself, (if that were possible,) or, even, had this supposed interest been equal, — it is manifest that, in either case, there would have been no necessity for government, and that none would ever have existed. But, although society and government are thus intimately connected with and dependent on each other, — of the two society is the greater. It is the first in the order of things, and in the dignity of its object; that of society be- ing primary, — ^to preserve and perfect our race;) and that of government secondary and subordinate^ to preserve and perfect society. Both are, however, necessary to the existence and well-being of our race, and equally of Divine ordination, I have said, — ^if it were possible for man to be so constituted, as to feel what affects others more strongly than what affects himself, or even as strong- ly, — ^because, it may be well doubted, whether thfe stronger feeling or affection of individuals for them- selves, combined with a feebler and subordinate feel- ing or affection for others, is not, in beings of limited reason and faculties, a constitution necessary to their preservation and existence. K reversed, — if their 6 A DISQUISITION ON GOVERNMENT. feelings and affections were stronger for others than for themselves, or even as strong, the necessary re- sult would seem to be, that all individuality would be lost ; and boundless and remediless disorder and/ Vionfusion would ensue. For each, at the same mo- ment, intensely participating in all the conflicting emotions of those around him, would, of course, for- get himself and all that concerned him immediately, ia his officious intermeddling with the affairs of all others ; which, from his limited reason and faculties, ' he could neither properly understand nor manage. Such a state of things would, as far as we can see, lead to endless disorder and confusion, not less de- structive to our race than a state of anarchy. It would, besides, be remediless, — for government would be impossible ; or, if it could by possibility exist, its object would be reversed. Selfishness would have to be encouraged, and benevolence discouraged. In- dividuals would have to be encouraged, by rewards, •to become more selfish, and deterred, by punishments, from being too benevolent ; and this, too, by a gov- ernment, administered by those who, on the suppo- sition, would have the greatest aversion for selfish- ness and the highest admiration for benevolence. To the Infinite Being, the Creator of all, belongs exclusively the care and superintendence of the whole. He, in his infinite wisdom and goodness, has allotted to every class of animated beings its condition and appropriate functions; and has en- dowed each with feelings, instincts, capacities, and faculties, best adapted to its allotted condition. To man, he has assigned the social and political state, A DISQUISITION ON GOVERNMENT. 7 as best adapted to develop tlie great capacities and faculties, intellectual and moral, with which, he has endowed him; and has, accordingly, constituted him so as not only to impel him into the social state, but to make government necessary for his preservation and well-being. But government, although intended to protect and preserve society, has itself a strong tendency to disorder and abuse of its powers, as all experi- ence and almost every page of history testify. The cause is to be found in the same constitution of our nature which makes government indispensable. The powers which it is necessary for government to possess, in order to repress violence and preserve order, cannot execute themselves. They must be administered by men in whom, like others, the in- dividual are stronger than the social feelings. And hence, the powers vested in them to prevent injus- tice and oppression on the part of others, will, if left unguarded, be by them converted into instru- ments to oppress the rest of the community. That, by which this is prevented, by whatever name call- ed, is what is meant by constitution, in its most comprehensive sense, when applied to government. Having its origin in the same principle of our nature, constitution stands to government^ as govern- ment stands to society ; and, as the end for which society is ordained, would be defeated without gov- ernment, so that for which government is ordained would, in a great measure, be defeated without constitution. But they differ in this striking par- ticular. There is no difficulty in forming govern- 8 A DISQUISITION ON GOVERNMENT. ment. It is not even a matter of choice, whether there shall be one or not. Like breathing, it is not permitted to depend on our volition. Necessity -vvilly force it on all communities in some one form or an-/ other. Very different is the case as to constitution. Instead of a matter of necessity, it is one of the most difficult tasks imposed on man to form a con- stitution -worthy of the name ; while, to form a per- fect one, — one that would completely counteract the tendency of government to oppression and abuse, and hold it strictly to the great ends for which it is ordained, — has thus far exceeded human wisdom, and possibly ever will. From this, another striking difference results. Constitution is the con- trivance of man, while government is of Divine or- dination. Man is left to perfect what the wisdom of the Infinite ordained, as necessary to preserve the race. With these remarks, I proceed to the considera- tion of the important and difficult question : How is this tendency of government to be counteracted ? Or, to express it more fully, — How can those who are invested with the powers of government be pre- vented from employing them, as the means of aggran- dizing themselves, instead of using them to protect and preserve society? It cannot be done by insti- tuting a higher power to control the government, and those who administer it. This would be but to change the seat of authority, and to make this higher power, in reality, the government; with the same tendency, on the part of those who might control its powers, to pervert them into instruments A DISQUISITION ON GOVERNMENT. 9 of aggrandizement. Nor can it be done by limit- ing the powers of government, so as to make it too feeble to be made an instrument of abuse ; for, pass- mg by tbe difficulty of so limiting its powers, with- out creating a power higher than the government itself to enforce the observance of the limitations, it is a sufficient objection that it would, if prac- ticable, defeat the end for which government is or- dained, by making it too feeble to protect and preserve society. The powers necessary for this purpose will ever prove sufficient to aggrandize those who control it, at the expense of the rest of the conimunity. In estimating what amount of power would be requisite to secure the objects of government, we must take into the reckoning, what would be neces- sary to defend the community against external, as weU as internal dangers. Government must be> able to repel assaults from abroad, as well as to repress violence and disorders within. It must, not be overlooked, that the human race is not compre- hended in a single society or community. The limited reason and faculties of man, the great diver- sity of language,, customs, pursuits, situation and complexion, and the difficulty of intercourse, with various other causes, have, by their operation, formed a great many separate communities^ acting independ- ently of each other.- Between these there is the same tendency to conflict, — and from the same con- stitution of our nature, — as between men individual- ly; and even stronger, — ^because the sympathetic or social feelings are not so strong between different 10 A DISQUISITION ON GOVEENMENT. communities, as between individuals of the same community. So powerful, indeed, is tliis tendency that it has led to almost incessant wars betweer contiguous communities for plunder and conquest or to avenge injuries, real or supposed. So long as this state of things continues, exigen cies will occur, in which the entire powers and re sources of the community will be needed to defend its existence. When this is at stake, every othei consideration must yield to it. Self-preservation ii the supreme law, as well with communities as indi' viduals. And hence the danger of withholding from government the fuU command of the powei and resources of the state ; and the great difficulty of limiting its powers consistently with the protec- tion and. preservation of the community. And hence the question recurs, — By what means can gov- ernment, without being divested of the full com- mand of the resources of the community, be pre- vented from abusing its powers ? The question involves difficulties which, from the earliest ages, wise and good men have attempt- ed to overcome ; — ^but hitherto with but partial suc- cess. For this purpose many devices have been resorted to, suited to the various stages of intelli- gence and civilization through which our race has passed, and to the different forms of government to which they have been applied. The aid of su- perstition, ceremonies, education, religion, organic arrangements, both of the government and the community, has been, from time to time, appealed to. Some of the most remarkable of these devices A DISQUISITION ON GOVERNMENT. 11 whether regarded in reference to their wisdom and the skill displayed in their application, or to the per- manency of their effects, are to be found in the early dawn of civilization ; — in the institutions of the Egyp- tians, the Hindoos, the Chinese, and the Jews. The only materials which that early age afforded for the construction of constitutions, when intelligence was so partially diffused, were applied with consummate wisdom and skill. To their successful application may be fairly traced the subsequent advance of our race in civilization and intelligence, of which we now enjoy the benefits. For, without a constitu- tion, — ^something to counteract the strong tendency of government to disorder and abuse, and to give stability to political institutions, — there can be lit- tle progress or permanent improvement. In answering the important question under con- sideration, it is not necessary to enter into an ex- amination of the various contrivances adopted by these celebrated governments to counteract this tendency to disorder and abuse, nor to undertake to treat of constitution in its most comprehensive sense. "What I propose is far more limited, — ^to ex- plain on what principles government must be formed, in order to resist, by its own interior struc- ture, — (jr, to use a single term, orgj^m^fn,^ — the ten- dency to abuse of power. This structure, or organ- ism, is what is meant by constitution, in its strict and more usual sense ; and it is this which distin- guishes, what are called, constitutional governments from absolute. It i^ in this strict and more usual sense that I propose to use the term hereafter. 12 A DISQUISITION ON GOVEENMENT. How government, then, must be constructed, in order to counteract, througli its organism, tMs ten- dency on the part of those who make and execute the laws to oppress those subject to their operation, is the next question which claims attention. There is but one way in which this can possibly be done ; and that is, by such an organism as will furnish the ruled with the means of resisting suc- cessfully this tendency on the part of the rulers to oppression and abuse. Power can only be resisted by power, — and tendency by tendency.; Those who exercise power and those subject to its exercise, — the rulers and the ruled, — stand in antagonistic re- lations to each other. The same constitution of our nature which leads rulers to oppress the ruled, — regardless of the object for which government is ordained, — will, with equal strength, lead the ruled to resist, when possessed of the means of making peaceable and effective resistance. Such an organ- ism, then, as will furnish the means by which re- sistance may be systematically and peaceably made on the part of the ruled, to oppression and abuse of power on the part of the rulers, is the first and in- dispensable step towards formmg a constitutional government. And as this can only be effected by or through the right of suffrage, — (the right on the part of the ruled to choose their rulers at' proper intervals, and to hold them thereby responsible for their conduct,) — the responsibility of the rulers to the ruled, through the right of suffrage, is the indispensable and primary principle in ikefoundor tion of a constitutional government. When this A DISQUISITION ON GOVEBNMENT, 13 right is properly guarded, and the people sufficient- ly enKghtened to Understand their own rights and the interests of the community, and duly to appre- ciate the motives and co^duct of those appointed to make and execute the laws, it is all-sufficient to give to those who elect, effective control over those they have elected. I call the right of suffi^age the indispensaHe and primary principle ; for it would be a great and dan- gerous mistake to suppose, as many do, that it is, of itself, sufficient to form constitutional governments. To this erroneous opinion may be traced one of the causes, why so few attempts to form constitutional governments have succeeded ; and why, of the few vhich have, so small a number have had durable existence. It has led, not only to mistakes in the attempts to form such governments, but to their overthrow, when they have, by some good fortune, been correctly formed. So far from being, of itself, sufficient,^-ho-W-ever well guarded it might be, and however enlightened the people, — ^it would, unaided by other provisions, leave the government as abso-' lute, as it would be in the hands of irresponsible rulers ; and with a tendency, at least as strong, to- wards oppression and abuse of its powers ; as I shall next proceed to explain. liie right of suffrage,' of itself, can do no more than give complete control to those who elect, over the conduct of those they have elected. In doing this, it accomplishes all it possibly can accomplish. This is its aim, — and when this is attained, its end is fulfilled. It can do no more, however enlightened 14 A DISQUISITION ON GOVERNMENT, the people, or however widely extended or well guarded the right may be. The sum total, then, oi its effects, when most successful, is, to make those elected, the true and faithM representatives of those who elected them, — instead of irresponsible rulers, —as they would be without it ; and thus, by con- verting it into an agency, and the i-ulers into agents, to divest government of all claims to sovereignty, and to retain it unimpaired to the community. Bui it is manifest that the ri ght of suffr age, in making these changes, transfers, in reality, the actual con- trol over the government, from those who make and execute the laws, to the body of the community j and, thereby, places the powers of the' government as fuUy in the mass of the community, as they woul< be if' they, in fact, had assembled, made, and exe- cuted the laws themselves, without the iuterventioD of representatives or agents. The more perfectly it does this, the more perfectly it accomplishes its ends ; but in doing so, it only changes the seat oi authority, without counteracting, in the least, the tendency of the government to oppression and abuse of its powers. If the whole community had the same interests, so that the interests of each and every portion would be so affected by the action of the govern- ment, that the laws which oppressed or impover- ished one portion, would necessarily oppress and impoverish aU others, — or the reverse, — then the right of suffrage, of itself, would be all-sufficient to counteract the tendency of the government to op- pression and abuse of its powers; and, of course, A DISQUISITION ON GOVERNMENT. 15 ■would form, of itself, a perfect constitutional govern^ ment. The interest of all being the same, by sup- position, as far as the action of the government was concerned, all would have like interests as to what laws should be made, and how they should be exe- cuted. All strife and struggle would cease as to who should be elected to make and execute them. The only question would be, who was most fit; who the wisest and most capable of understanding the common interest of the whole. This decided, the election would pass off quietly, and without party discord; as no one portion could advance its own peculiar interest without regard to the rest, by elect- ing a favorite candidate. ^ But such is not the case. On the contrary, noth ing is more difficult than to equalize the action of the government, in reference to the various and di- versified interests of the community ; and nothing more easy than to pervert its powers into instru- ments to aggrandize and enrich one or more inter- ests by oppressing and impoverishing the others; and this too, under the operation of laws, couched in general terms ; — and which, on their face, appear fair and equal. Nor is, this the case in some .partic- ular communities only. It is so in all ; the small and the great,^ — the poor and the rich, — ^irrespective of pursuits, productions, or degrees of civilization ; — with, however, this difference, that the more ex- tensive and populous the country, the more diver- sified the condition and pursuits of its population, and the richer, more luxurious, and dissimilar the people, the more difficult is it to equalize the action 16 A DISQUISITION ON GOVERNMENT. of the government,— and the more easy for one por- tion of the community to pervert its powers to op- press, and plimder the other. Such being the case, it necessarily results, that the right of suffrage, by placing the control of the government in the community must, from the same constitution of our nature which makes govern- ment necessary to preserve society, lead to conflict among its different interests, — each striving to ob- tain possession of its powers, as the means of protect- ing itself against the others ; — or of advancing its respective interests, regardless of the interests of others. For this purpose, a struggle will take place between the various interests to obtain a majority, in order to control the government. If no one in- terest be strong enough, of itself, to obtain it, a combination will be formed between those whose interests are most alike; — each conceding some- thing to the others, until a sufficient number is ob- tained to make a majority. The process may be slow, and much time may be required before a com- pact, organized majority can be thus formed ; but formed it will be in time, even without preconcert or design, by the sure workings of that principle or constitution of our 'nature in which government itself originates. When once formed, the community will be divided into two great parties, — a major and minor, — between which there will be incessant struggles on the one side to retain, and on the other to obtain the majority, — and, thereby, the control of the government and the advantages it confers. A DISQUISITION ON GOVERNMENT. 17 So deeply seated, indeed, is this tendency to con- flict between the different interests or portions of the community, that it would result from the action of the government itself, even though it were pos- sible to find a community, where the people, were all of the same pursuits, placed in the same con- dition of life, and in every respect, so situated, as to be without inequality of condition or diversity of intereists. The advantages of possessing the con- trol of the powers of the government, and, thereby, of its honors and emoluments, are, of themselves, exclusive of all other considerations, ample to divide even such a community into two great hostile par- ties.. In order to form a just estimate of the full force of these advantages, — without reference to any other consideration, — it must be remembered, that government, — to fulfill the ends for which it is or- dained, and more especiffUy that of protection against external dangers,— must, in the present con- dition of the world, be clothed with powers suffi- cient to call forth the resources of the community, and be prepared, at all times, to command them promptly in every emergency, which may possibly arise. For this purpose large establishments are necessary, both civil and military, (including naval, where, from situation, that description of force may be required,) with all the means necessary for prompt and effective action, — such as fortifications, fleets, armories, arsenals, magazines, arms of all de- scriptions, with well-trained forces, in sufficient numbers to wield them with skill and energy, 2 18 A DISQUISITION 0:;^ government. whenever tlie occasion requires it. The adminis- tration and management of a government with such vast establishments must necessarily require a host of employees, agents, and officers ; — of whom many must be vested with high and responsible trusts, and occupy exalted stations, accompanied with much influence and patropage. To meet the necessary expenses, large sums must be collected and dis- bursed ; and, for this purpose, heavy taxes must be imposed, requiring a multitude of officers for their collection and disbursement. The whole united must necessarily place under the control of govern- ment an amount of honors and emoluments, suffi- cient to excite profoundly the ambition of the aspir- ing and the cupidity of the avaricious ; and to lead to the formation of hostile parties, and violent par- ty conflicts and struggles to obtain the control of the government. And what makes this evil reme- diless, through the right of suffrage of itself, however modified or carefully guarded, or however enlighten- ed the people, is the fact that, as far as the honors and emoluments of the government and its fiscal action are concerned, it is impossible to equalize it. The reason is obvious. Its honors and emoluments, however great, can fall to the lot of but a few, com- pared to the entire number of the community, and the multitude who will seek to participate in them. But, without this, there is a reason which renders it impossible to equalize the action of the government so far as its fiscal operation extends, — which I shall next explain. Few, comparatively, as they are, the agents and A DISQUISITION ON GOVERNMENT. 19 employees of the government constitute that por- tion of the community who are the exclusive reci- pients of, the proceeds of the taxes. Whatever amount is taken from the community, in the form of taxes, if not lost, goes to them in the shape of expenditures or disbursements. The two, — disburse- ment and taxation, — constitute the fiscal action of the government. They are correlatives. "What the one takes from the community, under the name of taxes, is transferred to the portion of the communi- ty who are the recipients, under that of disburse- ments. But, as the recipients constitute only a por- tion of the community, it follows, taking the two parts of the fiscal process together, that its action must be unequal between the payers of the taxes and the recipients of their proceeds. Nor can it be otherwise, unless what is collected from each indi- vidual in the shape of taxes, shall be returned to him, in that of disbursements ; which would make the process nugatory and absurd. Taxation may, indeed, be made equal, regarded separately from disbursement. Even this is no easy task ; but the two united cannot possibly be made equal. Such being the case, it must necessarily follow, that some one portion of the community must pay in taxes more than it receives back in disbursements ; while another receives in disbursements more than it pays in taxes. It is, then, manifest, taking the whole process together, that taxes must be, in effect, bounties to that portion of the community which receives more in disbursements than it pays in taxes ; whUe, to the other which pays in taxes more than 20 A DISQUISITION ON GOVERNMENT. it receives in disbursements, they are taxes in reali- ty, — burthens, instead of bounties. This conse- quence is unavoidable. It results from the nature of the process, be the taxes ever so equally laid, and the disbursements ever so fairly made, in reference to the public service. It is assumed, in coming to this conclusion, that the disbursements are made within the community. The reasons assigned would not be applicable if the proceeds of the taxes were paid in tribute, or ex- pended in foreign countries. In either of these cases, the burthen would fall on all, in proportion to the amount of taxes they respectively paid. Nor would it be less a bounty to the portion of the community which received back in disburse- ments more than it paid in taxes, because received as salaries for official services ; or payments to per- sons employed in executing the works required by the government ; or furnishing it with its various supplies ; or any other description of public employ- ment, — instead of being bestowed gratuitously. It is the disbursements which give additional, and, usually, very profitable and honorable employments to the portion of the community where they are made. But to create such employments, by dis- bursements, is to bestow on the portion of the com- munity to whose lot the disbursements may fall, a far more durable and lasting benefit,— one that would add much more to its wealth and population, than would the bestowal of an equal sum gratuitously : and hence, to the extent that the disbursements ex- ceed the taxes, it may be fairly regarded as a bounty. A DISQUISITION ON GOVERNMENT. 21 The very reverse is the case in reference to the por- tion which pays in taxes more than it receives in disbursements. With them, profitable employments are diminished to the same extent, and population and wealth correspondingly decreased. The necessary result, then, of the unequal fiscal action of the government is, to divide the commu- nity into two great classes ; one consisting of those who, in reality, pay the taxes, and, of course, bear exclusively the burthen of supporting the govern- ment ; and the other, of those who are the recipi- ents of their proceeds, through disbursements, and who are, in fact, supported by the government ; or, in fewer words, to divide it into tax-payers and tax- consumers. But the effect of this is to place them in an- tagonistic relations, in reference to the fiscal action of the government, and the entire course of policy therewith connected. For, the greater the taxes and disbursements, the greater the gain of the one and the loss of the other, — and vice versa ; and con- sequently, the more the policy of the government is calculated to increase taxes and disbursements, the more it will be favored by the one and opposed by the other. The effect, then, of every increase is, to enrich and strengthen the one^ and impoverish and weaken the other. This, indeed, may, be carried to such an extent, that one class or portion of the community may be elevated to wealth and power, and the other depressed to abject poverty and dependence, simply by the fiscal action of the government ; and 22 A DISQUISITION ON GOVERNMENT. this too, through disbursements only, — even under a system of equal taxes imposed for revenue only. If such may be the effect of taxes and disburse- ments, when confined to their legitimate objects, — that of raising revenue for the public service, — some conception may be formed, how one portion of the community may be crushed, and another ele- vated on its ruins, by systematically perverting the power of taxation and disbursement, for the pur- pose of aggrandizing and building up one portion of the community at the expense of the other. Thati it will be so used, unless prevented, is, from the constitution of man, just as certain as that it can %be so used ; and that, if not prevented, it must give rise to two parties, and to violent conflicts and struggles between them, to obtain the control of the government, is, for the same reason, not less certain. ISTor is it less certain, from the operation of all these causes, that the dominant majority, for the time, would have the same tendency to oppression and abuse of power, which, without the right of suffrage, irresponsible rulers would have. No rea- son, indeed, can be assigned, why the latter would abuse their power, which would not apply, with equal force, to the former. The dominant majority, for the time, would, in reality, through the right of suffrage, be the rulers — the controlling, governing, and irresponsible power ; and those who make and execute the laws would, for the time, be, in reality, but their representatives and agents. Nor would the fact that the former would con- stitute a majority of the community, counteract a A DISQUISITION ON GOVERNMENT. 23 tendency originating in the constitution of man; and wliicli, as such, cannot depend on the number hj whom the powers of the government may be wielded. Be it greater or smaller, a majority or minority, it must equally partake of an attribute inherent in each individual composing it; and, as in each the individual is stronger than the social feelings, the one would have the same tendency as the other to oppression and abuse of power. The reason applies to government in all its forms, — whether it be that of the one, the few, or the many. In each there must, of necessity, be a gov- erning and governed,- — -a ruling and a subject por- tion. The one implies the other ; and in all, the two bear the same relation to each other; — and have, on the part of the governing portion, the same tendency to oppression and abuse of power. Where the majority is that portion, it matters not how its powers may be exercised; — whether di- rectly by themselves, or indirectly, through repre- sentatives or agents. Be it which it may, the mi- nority, for the time, will be as much the governed or subject portion, as are the people in an aristo- cracy, or the subjects in a monarchy. The oidy difference in this respect is, that in the government of a majority, the minority may become the ma- jority, and the majority the minority, through the right of suffrage ; and thereby change their relative positions, without the intervention of force and revo- lution. But the duration, or uncertainty of the tenure, by which power is held, cannot, of itself, counteract the tendency inherent in government to 24 A DISQUISITION ON GOVERNMENT. oppression and abuse of power. On the contrary, the very uncertainty of the tenure, combined with the violent party warfare which must ever precede a change of parties under such governments, would rather tend to increase than diminish the tendency to oppression. As, then, the right of suffrage, without some other provision, cannot counteract this tendency of government, the next question for consideration is — What is that other provision ? This demands the most serious consideration ; for of all the ques- tions embraced in the science of government, it in- volves a principle, the most important, and the least understood ; and when understood, the most diffi- cult of application in practice. It Is, indeed, em- ~phatically, that principle which makes the consti- tution, in its strict and limited sense. From what has been said, it is manifest, that this provision must be of a character calculated to pre- vent any one interest, or combination of interests, from using the powers of government to aggrandize itself at the expense of the others. Here lies the evil: and just in proportion as it shall prevent, or fail to prevent it, in the same degree it will effect, or fail to effect the end intended to be accomplished. There is but one certain mode in which this result can be secured; and that is, by the adoption of some restriction or limitation, which shall so effec- tually prevent any one interest, or combination of interests, from obtaining the exclusive control of the government, as to render hopeless all attempts di- rected to that end. There is, again, but one mode A DISQUISITION ON GOVERNMENT. 25 in whidi this can be effected ; and tliat is, by taking the sense of each interest or portion of the commu- nity, which maybe unequally and injuriously affect-, ed by the action of the government, separately, through its own majority, or in some other way by which its voice may be fairly expressed ; and to re- quire the consent of each interest, either to put or to keep the government in action. This, too, can be accomplished only in one way, — and that is, by such an organism of the government, — and, if neces- sary for the purpose, of the community also,— as will, by dividing and distributing the powers of government, give to each division or in1j ,erest, through its appropriate ' organ, jeither a concurr ent voice in making_a nd execu ting the la ws, or a veto on thei exe cutio n. It is~onIy by"such an organism, that the assent of each can be made necessary to put the government in motion ; or the power made effectual to arrest its action, when put in motion ; — and it is only by the one or the other that the different in- terests, orders, classes, or portions, into which the community may be divided, can be protected, and all conflict and struggle between them prevented, — by rendering it impossible to put or to keep it in action, without the concurrent consent of all. Such an organism as this, combined with the right of suffrage, constitutes, in fact, the elements of constitutional government. The one, by render- ing those who make and execute the laws responsi- ble to those on whom they operate, prevents the rulers from oppressing the ruled; and the other, by making it impossible for any one interest or 26 A DISQUISITION ON GOVEENMENT. combination of interests or class, or order, or por- tion of the community, to-obtain exclusive control, .prevents any one of them from oppressing the other. It is clear, that oppression and abuse of power must come, if at all, from the one or the other quarter. From no other can they come. It follows, that the two, suffrage and proper organism com- bined, are sufficient to counteract the tendency of government to oppression and abuse of power ; and to restrict it to th6 fulfilment of the great ends for which it is ordained. In coming to this conclusion, I have assumed the organism to be perfect, and the different interests, portions, or classes of the community, to be suffi- ciently enlightened to understand its character and object, and to exercise, with due intelligence, the right of suffrage. To the extent that either may be defective, to the same extent the government would fall short of fulfilling its end. But this does not impeach the truth of the principles on which it rests. In reducing them to proper form, in apply- ing them to practical uses, all elementary princi- ples are liable to difficulties ; but they are not, on this account, the less true, or valuable. Where the organism is perfect, every interest will be truly and fully represented, and of course the whole commu- nity must be so. It may be difficult, or even impos- sible, to make a perfect organism, — but, although this be true, yet even when, instead of the sense of each and of all, it takes that of a few great and prominent interests only, it would still, in a great measure, if not altogether, fulfil the end intended A DISQUISITION ON GOVERNMENT. 27 by a constitution. For, in such case, it would re- quire so large a portion of the community, compared with the whole, to concur, or acquiesce in the action of the government, that the number to be plunder- ed would be too few, and the number to be aggran- dized too many, to afford adequate motives to op- pression and the abuse of its powers. Indeed, how- ever imperfect the organism, it must have more or less effect in diminishing such tendency. It may be readily inferred, from what has been stated, that the effect of organism is neither to su- persede nor diminish the importance of the right of suffrage ; but to aid and perfect it. The object of the latter is, to collect the sense of the commu- nity. The more fully and perf ectly it accomplishe s this, the more fully and perfectly it fulfils its end. But the most it can do, of itself, is to collect the_ se nse of the greater number ; J hat is, of the stronger interests, or combination of interests ; and to assume this to be the sense of the community. It is only when aided by a proper organism, that it can col- lect the sense of the entire community, — of each and all its interests; of each, through its appropriate organ, and of the whole, through all of them united. This would truly be the sense of the entire commu- nity; for whatever diversity each interest might have within itself, — as all would have the same in- terest in reference to the action of the government, the individuals composing each would be fully and truly represented by its own majority or appropriate organ, regarded in reference to the other interests. In brief, every individual of every interest might J8 A DISQUISITION ON GOVERNMENT. ;rust, with, confidence, its majority or appropriate )rgan, against that of every other interest. It results, from what has been said, that there ire two different modes in which the sense of the community may be taken ; one, simply by the right )f suffrage, unaided ; the other, by the right through I proper organism. Each collects the sense of the najority. But one regards numbers only, and con- siders the whole community as a unit, having but me common interest throughout ; and collects the sense of the greater number of the whole, as that of bhe community. The other, on the contrary, regards interests as well as numbers ; — considering the com- 33 unity as made up of different and conflicting inte- rests, as far as the action of the government is con- jerned ; and takes the sense of each, through its 3aajority or appropriate organ, and the united sense )f all, as the sense of the entire community. The former of these I shall call the numerical, or abso- lute majority; and the latter, the concurrent, or constitutional majority. I call it the constitutional oaajority, because it is an essential element in every constitutional government, — be its form what it may, 3o great is the difference, politically speaking, be- tween the two majorities, that they cannot be con- bunded, without leading to great and fatal errors ; md yet the distinction between them has been so jntirely overlooked, that when the term majority .8 used in' political discussions, it is applied exclu- sively to designate the numerical, — as if there were ao other. Until this distinction is recognized, and better understood, there will continue to be great A DISQUISITION ON GOVERNMENT. 29 liability to error in properly constructing constitu- tional governments, especially of the popular form, and of preserving them when properly constructed. Until then, the latter will have a strong tendency to slide, .first, into the government of the nume- rical majority, and, finally, into absolute govern- ment of some other form. To show that such must be the case, and at the same time to mark more strongly the difierence between the two, in order to guard against the danger of overlooking it, I pro- pose to consider the subject more at length. The first and leading error which naturally arises from overlooking the distinction referred to, is, to confound the numerical majority with the people ; and this so completely as to regard them as identi- cal. This is a consequence that necessarily results from considering the numerical as the only majori- ty. All admit, that a popular government, or de- mocracy, is the government of the people ; for the terms imply this. A perfect government of the kind would be one which would embrace the con- sent of every citizen or member of the community ; but as this is impracticable, in the opinion of those who regard the numerical as the only majority, and who can perceive no other way by which the sense of the people can be taken, — they are compelled to adopt this as the only true basis of popular government, in contradistinction to governments of the aristocratical or monarchical form. Being thus constrained, they are, in the next place, forced to regard the numerical majority, as, in effect, the entire people ; that is, the greater part as the whole ; and 30 A DISQUISITION ON GOVERNMENT. the government of the greater part as tlie govern- ment of the whole. It is thus the two come to be confounded, and a part made identical with the whole. And it is thus, also, that all the rights, powers, and immunities of the whole people come to be attributed to the numerical majority; and, among others, the supreme, sovereign authority of establishing and abolishing governments at pleasure. This radical eiTor, the consequence of confound- ing the two, and of regarding the numerical as the Dnly majority, has contributed more than any other 3ause, to prevent the formation of popular consti- tutional governments, — and to destroy them even ivhen they have been formed. It leads to the con- clusion that, in their formation and establishment, lothing more is necessary than the right of suf- xage, — and the allotment to each division of the ;ommunity a representation in the government, in proportion to numbers. If the numerical majority vere really the people ; and if, to take its sense tru- y, were to take the sense of the people truly, a government so constituted would be a true and per- fect model of a popular constitutional government; Lud every departure from it would detract from its xcellence. But, as such is not the case, — as the lumerical majority, instead of being the people, is luly a portion of them, — such a government, instead if being a true and perfect modol of the people's government, that is, a people self-governed, is but he government of a part, over a part, — the major iver the minor portion. But this misconception of the true elements of A DISQUISITION ON GOVERNMENT. 31 constitutional government does not stop here. It leads to others equally false and fatal, in reference to the best means of preserving and perpetuating them, when, from some fortunate combination of circum- stances, they are correctly formed. For they who fall into these errors regard the restrictions which organism imposes on the will of the numerical ma- jority as restrictions on the will of the people, and, therefore, as not only useless, but wrongful and mischievous. And hence they endeavor to destroy organism, under the delusive hope of making gov- ernment more democratic. Such are some of the consequences of confound- ing the two, and of regarding the numerical as the only majority. And in this may be found the rea- son why so few popular governments have been properly constructed, and why, of these few, so small a number have proved durable. Such must continue to be the result, so long as tJiese errors continue to be prevalent. There is another error, of a kindred character, whose influence contributes much to the same re- sults : I refer to the prevalent opinion, that a writ^ ten constitution, containing suitable restrictions on the powers of government, is sufiicient, of itself, without the aid of any organism, — except such as is necessary to separate its several departments, and render them independent of each other, — to coun- teract the tendency of the numerical majority to oppression and the abuse of power. A written constitution certainly has many and considerable advantages ; but it is a great mistake 32 A DISQUISITION ON GOVERNMENT. to suppose, that tlie mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted with the means of enforcing their oh- servance, will be sufficient to prevent the major and dominant party from abusing its powers. Being the party in possession of the government, they will, from the same constitution of man which makes government necessary to protect society, be in favor of the powers granted by the constitution, and op- posed to the restrictions intended to limit them. As the major and dominant party, they will have no need of these restrictions for their protection. The ballot-box, of itself, would be ample protection to them. JSTeeding no other, they would come, in time, to regard these limitations as unnecessary and improper restraints ; — and endeavor to elude them, with the view of increasing their power and influ- ence. The minor, or weaker party, on the contrary, would take the opposite direction ; — and regard them as essential to their protection against the dominant party. And, hence, they would endeavor to defend and enlarge the restrictions, and to limit and contract the powers. But where there are no means by which they could compel the major party to observe the restrictions, the only resort left them would be, a strict construction of the constitution, — that is, a construction which would confine these powers to the narrowest limits which the meaning of the words used in the grant would admit. To this the major party would oppose a liberal A DISQUISITION ON GOVERNMENT. 33 construction, — one wliicli would give to the words of the grant the broadest meaning of which they were susceptible. It would then be construction against construction ; the one to contract, and the other to enlarge the powers of the government to the ut- most. But of what possible avail could the strict construction of the minor party be, against the liberal interpretation of the major, when the one would have all the powers of the government to carry its construction into effect, — and the other be deprived of all means of enforcing its construction? In a contest so unequal, the result would not be doubtful. The party in favor of the restrictions would be overpowered. At first, they might command some respect, and do something to stay the march of encroachment ; but they would, in the progress of the contest, be regarded as mere abstractionists ; and, indeed, deservedly, if they should indulge the folly of supposing that the party in possession of the ballot-box and the physical force of the coun- try, could be successfully resisted by an appeal to reason, truth, justice, or the obligations .imposed by the constitution. For when thesejipf tjienoselves, shall exert s ufficient influence to stay the hand of power, thengOKernmeatmIlJ2a..Bo.longeiLneeessary_to_pro- tect society, nor constitutions needed to prevent government from abusing its powers. The end of the contest would be the subversion of the consti- tution, either by the undermining process of con- struction, — where its meaning would admit of pos- sible doubt, — or by substituting in practice what is called party-usage, in place of its provisions ; — 3 34 A DISQUISITION ON GOVERNMENT. or, finally, wlieii no other contrivance would sub- serve the purpose, by openly and boldly setting them aside. By the one or the other, the restric- tions would ultimately be annulled, and the gov- ernment be converted into one of unlimited powers. Nor would the division of government into se- parate, and, as it regards each other, iadependent departments, prevent this result. Such a division may do much to facilitate its operations, and to secure to its admiaistration greater caution and de- liberation ; but as each and all the departments, — and, of course, the entire government, — would be under the control of the numerical majority, it is too clear to require explanation, that a mere distri- bution of its powers among its agents or represen- tatives, could do little or nothing to counteract its tendency to oppression and abuse of power. To effect this, it would be necessary to go one step further, and make the several departments the or- gans of the distinct interests or portions of the com- munity ; and to clothe each with a negative on the others. But the effect of this would be to change the government from the numerical into the concur- TPTi t majorityL Having now explained the reasons why it is so difficult to form and preserve popular constitutional government, so long as the distinction between the two majorities is overlooked, and the opinion pre- vails that a written constitution, with suitable re- strictions and a proper division of its powers, is -suf- ficient to counteract the tendency of the numerical A DISQUISITION OUT GOVERNMENT. 35 majority to tlie abuse of its power, — I shall next proceed to explain, more fully, why the concurrent majority is an indispensable element in forming con- stitutional governments; and why the numerical majority, of itself, must, in all cases, make govern- ments absolute. The necessary consequence of taking the sense of the community by the concurrent majority is, as has been explained, to give to each interest or por- tion of the community a negative on the others. It is this mutual negative among its various conflicting interests, which invests each with the power of pro- tecting itself; — and places the rights and safety of each, where only they can be securely placed, under its own guardianship. Without this there can be no systematic, peaceful, or effective resistance to the natural tendency of each to come into conflict with the others : and without this there can be no con- stitution. It is this negative power, — the power of preventing or arresting the action of the govern- ment, — ^be it called by what term it may, — veto, in- terposition, nullification , check, or balance of power, — which, in fact, forms the constitution. They are all but different names for the negative power. In all its forms, and under all its names, it results from the concurrent majority. Without this there can be no negative ; and, without a negative, no constitu- tion. The assertion is true in reference to all con- stitutional governments, be their forms what they may. It is, indeed, the negative power which makes the constitution, — and the positive which makes the government. The one is the power of 36 A DISQUISITION ON GOVEENMENT. acting ; — and the otter the power of preventing or arresting action. The two, combined, make consti- tutional governments. But, as there can be no constitution without the negative power, and no negative power without the concurrent majority; — it follows, necessarily, that where the numerical majority has the- sole control of the government, there can be no constitution; as constitution implies limitation or restriction, — and, of course, is inconsistent with the idea of sole or ex- clusive power. And hence, the numerical, unmixed with the concurrent majority, necessarily forms, in all cases, absolute government. It is, indeed, the single, or one power ^ which ex- cludes the negative, and constitutes absolute govern- ment ; and not the nwmber in whom the power is vested. The numerical majority is as truly a single power, and excludes the negative as completely as the absolute government of one, or of the few. The former is as much the absolute government of the democratic, or popular form, as the latter of the monarchical or aristocratical. It has, accordingly, in common with them, the same tendency to oppres- sion and abuse of power. Constitutional governments, of whatever form, are, indeed, much more similar to each other, in their structure and charactei', than they are, respect- ively, to the absolute governments, even of their own class. All constitutional governments, of whatever class they may be, take the sense of the community by its parts, — each through its appropriate organ ; and regard the sense of all its parts, as the sense of A DISQUISITION ON GOVERNMENT. 37 the whole. They all rest on the right of suffirage, and the responsibility of rulers, directly or indirect- ly. On the contrary, all absolute governments, of whatever form, concentrate power in one uncon- trolled and irresponsible individual or body, whose will is regarded as the sense of the community. And, hence, the great and broad distinction be- tween governments is, — ^not that of the one, the few, or the many, — but of the constitutional and the absolute. From this there results another distinction, which, although secondary in its character, very strongly marks the difference between these forms of government. I refer to their respective conser- vative principle ; — ^that is, the principle by which they are upheld and preserved. This principle, in constitutional governments, is compromise ; — and in absolute governments, is force , — as will be next ex- plained. It has been already shown, that the same con- stitution of man which leads those who govern to oppress the governed, — ^if not prevented, — ^wiU, with equal force and certainty, lead the latter to resist oppression, when possessed of the means of doing so peaceably and successfully. But absolute gov- ernments, of all forms, exclude all other means of resistance to their authority, than that of force ; and, of course, leave no other alternative to the governed, but to acquiesce in oppression, however great it may be, or to resort to force to put down the government. But the dread of such a resort must necessarily lead the government to prepare to 38 A DISQUISITION ON GOVEENMENT. meet force in order to protect itself; and hence, of necessity, force becomes tlie conservative principle of all such governments. On the contrary, the government of the concur- rent majority, where the organism is perfect, ex- cludes the possibility of oppression, by giving to each interest, or portion, or order, — where there are established classes, — the means of protecting itself, by its negative, against all measures calculated to advance the peculiar interests of others at its ex- pense. Its effect, then, is, to cause the different in- terests, portions, or orders, — as the case may be, — ^to desist from attempting to adopt any measure calcu- lated to promote the prosperity of one, or more, by sacrificing that of others ; and thus to force them to unite in such measures only as would promote the prosperity of all, as the only means to prevent the suspension of the action of the government ; — and, thereby, to avoid anarchy, the greatest of all evils. It is by means of such authorized and effectual re- sistance, that oppression is prevented, and the ne- cessity of resorting to force superseded, in govern- ments of the concurrent majority; — and, hence, compromise, instead of force, becomes their conser- vative principle. It would, perhaps, be more strictly correct to trace the conservative principle of constitutional governments to the necessity which compels the different interests, or portions, or orders, to com- promise, — as the only way to promote their respec- tive prosperity, and to avoid anarchy, — rather than to the compromise itself. No necessity can be more A DISQUISITION OK GOVERNMENT. 39 urgent and imperious, than that of avoiding anar- chy. It is the same as that which makes govern- ment indispensable to preserve society ; and is not less imperative than that which compels obedience to superior force. Traced to this source, the voice of a people, — uttered under the necessity of avoid- ing the greatest of calamities, through the organs of a government so constructed as to suppress the ex- pression of all partial and selfish interests, and to give a fall and faithful utterance to the sense of the whole community, in reference to its common welfare, — ^may, without impiety, be called the voice of God. To call any other so, would be impious. In stating that force is the conservative princi- ple of absolute, and compromise of constitutional governments, I have assumed both to be perfect in their kind ; but not without bearing in mind, that few or none, in fact, have ever been so absolute as not to be under some restraint, and' none so perfect- ly organized as to represent fuUy and perfectly the voice of the whole community. Such being the case, all must, in practice, depart more or less from the principles by which they are respectively upheld and preserved ; and depend more or less for sup- port, on force, or compromise, as the absolute or the constitutional form predominates m their re- spective organizations. Nor, in stating that absolute governments ex- clude all other means of resistance to its authority than that of force, have I overlooked the case of gov- ernments of the numerical majority, which form, apparently, an exception. It is true that, in such 40 A DISQUISITION ON GOVERNMENT. governments, the minor and subject party, for the time, have the right to oppose and resist the major and dominant party, for the time, through the bal- lot-box; and may turn them out, and take their place, if they can obtain a majority of votes. But, it is no less true, that this would be a mere change in the relations of the two parties. The minor and subject party would become the major and domi- nant party, with the same absolute authority and tendency to abuse power ; and the major and dom- inant party would become the minor and subject party, with the same right to resist through the ballot-box ; and, if successful, again to change rela- tions, with like effect. But such a state of things must necessarily be temporary. The conflict be- tween the two parties must be transferred, sooner or later, from an appeal to the ballot-box to an ap- peal to force ; — as I shall next proceed to explain. The conflict between the two parties, in the gov- ernment of the numerical majority, tends necessari- ly to settle down into a struggle for the honors and emoluments of the government ; and each, in order to obtain an object so ardently desired, will, in the process of the struggle, resort to whatever measure may seem best calculated to effect this purpose. The adoption, by the one, of any measure, however objectionable, which might give it an advantage, would compel the other to follow its example. In such case, it would be indispensable to success to avoid division and keep united ; — and hence, from a neces- sity inherent in the nature of such governments, each party must be alternately forced, in order to insure A DISQUISITIOJS' ON GOVERNMENT. 41 victory, to resort to measures to concentrate the control over its movements in fewer and fewer hands, as the struggle became more and more vio- lent. This, in process of time, must lead to party- organization, and party caucuses and discipline ; and these, to the conversion of the honors and emolu- ments of the government into means of rewarding partisan services, in order to secure the fidelity and increase the zeal of the members of the party. The effect of the whole combined, even in the earlier stages of the process, when they exert the least per- nicious influence, would be to place the control of , the two parties in the hands of their respective ma- jorities ; and the government itself, virtually, under the control of the majority of the dominant party, for the time, instead of the majority of the whole community ; — where the theory of this form of gov- ernment vests it. Thus, in the very first stage of the process, the government becomes the government of a minority instead of a majority ; — a minority, usually, and under the most favorable circumstances, of not much more than one-fourth of the whole community. But the process, as regards the concentration of power, would not stop at this stage. The govern- ment would gradually pass from the hands of the majority of the party into those of its leaders ; as the struggle became more intense, and the honors and emoluments of the government the all-absorbing objects. At this stage, principles and policy would lose all influence in the elections; and cunning, falsehood, deception, slander, fraud, and gross ap- peals to the appetites of the lowest and most worth- 42 A DISQUISITION ON GOVERNMENT. less portions of tlie community, would take tlie place of sound reason and wise debate. After these have thoroughly debased and corrupted the com- munity, and all the arts and devices of party have been exhausted, the government would vibrate be- tween the two faction s (for such will parties have become) at each successive election. ]S"either would be able to retain power beyond some fixed term; for those seeking office and patronage would be- come too numerous to be rewarded by the offices and patronage at the disposal of the government ; and these being the sole objects of pursuit, the dis- appointed would, at the next succeeding election, throw their weight into the opposite scale, m the hope of better success at the next turn of the wheel. These vibrations would continue until confusion, corruption, disorder, and anarchy, would lead to an appeal to force ; — to be followed by a revolution in the form of the government. Such must be the end of the government of the numerical majority; and such, in brief, the process through which it must pass, in the regular course of events, before it can reach it. This transition would be more or less rapid, ac- cordiag to circumstances. The more numerous the population, the more extensive the country, the more diversified the climate, productions, pursuits and character of the people, the more wealthy, refined, and artificial their condition, — and the greater the amount of revenues and disbursements, — ^the more unsuited would the community be to such a govern- ment, and the more rapid would be the passage. A DISQUISITION ON GOVERNMENT. 43 On the other hand, it might be slow in its progress amongst small communities, during the early stages of their existence, with inconsiderable revenues and dis- bursements, and a population of simple habits ; pro- vided the people are sufficiently intelligent to exer- cise properly, the right of suflErage, and sufficiently conversant with the rules necessary to govern the de- liberations of legislative bodies. It is, perhaps, the only form of popular government suited to a peo- ple, while they remain in such a condition. Any other would be not only too complex and cumber- some, but unnecessary to guard against oppression, where the motive to use power for that purpose would be so feeble. And hence, colonies, from countries having constitutional governments, if left to themselves, usually adopt governments based on the numerical majority. But as population increases, wealth accumulates, and, above all, the revenues and expenditures become large, — ^governments of this form must become less and less suited to the condition of society; until, if not in the mean time changed into governments of the concurrent majority, they must end in an appeal to force, to be followed by a radical change in its structure and character; and, most probably, into monarchy in its absolute form, — as will be next explained. Such, indeed, is the repugnance between popular governments and force, — or, to be more specific, — mi- litary power, — that the almost necessary consequence of a resort to force, by such governments, in order to maintain their authority, is, not only a change of their "form, but a change into the most opposite, 44 A DISQUISITION ON GOVERNMENT. — that of absolute monarchy. The two are the op- posites of each other. From the natm-e of popular governments, the control of its powers is vested in the many ; while military power, to be efficient, must be vested in a single individual. When, then, the two parties, in governments of the numerical major- ity, resort to force, in their struggle for supremacy, he who commands the successful party will have the control of the government itself. And, hence, in such contests, the party which may prevail, will usually find, in the commander of its forces, a master, under whom the great body of the community will be glad to find protection against the incessant agi- tation and violent struggles of two corrupt factions, — ^looking only to power as the means of securing to themselves the honors and emoluments of the government. From the same cause, there is a like tendency in aristocratical to terminate in absolute governments of the monarchical form ; but by no means as strong, because there is less repugnance between military power and aristocratical, than between it and de- mocratical governments. A broader position may, indeed, be taken ; viz., that there is a tendency, in constitutional govern- ments of every form, to degenerate into their re- spective absolute forms ; and, in all absolute govern- ments, into that of the monarchical form. But the tendency is much stronger in constitutional govern- ments of the democratic form to degenerate into their respective absolute forms, than in either of the others ; because, among other reasons, the distinc- A DISQUISITION ON GOVERNMENT. 45 tion between the constitutional and absolute forms of aristocratical and monarchical governments, is far more strongly marked than in democratic governments. The effect of this is, to make the different orders or classes in an aristocracy, or mon- archy, far more jealous and watchful of encroach- ment on their respective rights ; and more resolute and persevering in resisting attempts to concentrate power in any one class or order. On the contrary, the line between the two forms, in popular govern- ments, is so imperfectly understood, that honest and sincere friends of the constitutional form not unfre- quently, instead of jealously watching and arresting their tendency to degenerate into their absolute forms, not only regard it with approbation, but em- ploy aU their powers to add to its strength and to increase its impetus, in the vain hope of making the government more perfect and popular. The nu- merical majority, perhaps, should usually be one of the elements of a constitutional democracy ; but to make it the sole element, in order to perfect the constitution and make the government more popu- lar, is one of the greatest and most fatal of politi- cal errors. Among the other advantages which governments of the concurrent have over those of the numeri- cal majority, — and which strongly illustrates their more popular character, is, — that they admit, with safety, a much greater extension of the right of suflVage. It may be safely extended in such gov- ernments to universal suffrage : that is, — to every male citizen of mature age. with few ordinary ex- 46 A DISQUISITION ON GOVERNMENT. ceptions ; but it cannot be so far extended in those of tlie numerical majority, without placing them ul- timately under the control of the mpre_ignorant and dependent portions of the commun ity. For, as the community becomes populous, wealthy, re- fined, and highly civilized, the difference between the rich and the poor wUl become more strongly marked ; and the number of the ignorant and de- pendent greater in proportion to the rest of the community. With the increase of this difference, 'the tendency to conflict between them will become stronger ; and, as the poor and dependent become more numerous in proportion, there will be, in gov- ernments of the numerical majority, no want of leaders among the wealthy and ambitious, to excite, ■ and direct them in their efforts to obtain the con/ \rol. The case is different in governments of the con- current majority. There, mere numbers have not the absolute control ; and the wealthy and intelli- gent being identified in interest with the poor and ignorant of their respective portions or interests of the community, become their leaders and protectors. And hence, as the latter would have neither hope nor inducement to rally the former in order to ob- tain the control, the right of suffrage, under such a government, may be safely enlarged to the extent stated, without incurring the hazard to which such enlargement would expose governments of the nu- merical majority. In another particular, governments of the con- current majority have greatly the advantage. I A DISQUISITION ON GOVERNMENT. 47 allude to the difference in their respective tendency, in reference to dividing or uniting the community. That of the concurrent, as has been shown, is to unite the community, let its interests be ever so diversified or opposed ; while that of the numerical is to divide it into two conflicting portions, let its interests be, naturally, ever so united and identi- fied. That the numerical majority will divide the community, let it be ever so homogeneous, into two great parties, which will be engaged in perpetual struggles to obtain the control of the government, has already been established. The great import- ance of the object at stake, must necessarily form strong party attachments and party antipathies ; — attachments on the part of the members of each to their respective parties, through whose efforts they hope to accomplish an object dear to all ; and an- tipathies to the opposite party, as presenting the only obstacle to success. In order to have a just conception of their force, it must be taken into consider?.tion, that the object to be won or lost appeals to the strongest passions of the human heart, — avarice, ambition, and rivalry. It is not then wonderful, that a form of government, which periodically stakes all ira honors and emolu- ments, as prizes to be contended for, should divide the community into two great hostile parties ; or that party attachments, in the progress of the strife, should become so strong among the members of each respectively, as to absorb almost every feeling of our nature, both social and individual ; or that 48 A DISQUISITION ON GOVERNMENT. their mutual antipalLies should be carried to such an excess as to destroy, almost entirely, all sympa- tliy between them, and to substitute in its place the strongest aversion. Nor is it surprising, that under their joint influence, the community should cease to be the common centre of attachment, or that each party should find that centre only in itself. It is thus, that, in such governments, devotion to party becomes stronger than devotion to countryj=the promotion ot the interests of partymorSTinportant than the promotion of the common good of the whole, and its triumph and ascendency, objects of far greater solicitude, than the safety and prosperity of the community. It is thus, also, that the numer- ical majority, by regarding the community as a unit, and having, as such, the same interests through- out all its parts, must, by its necessary operation, divide it into two hostile parts, waging, under the forms of law, incessant hostilities against each other. The concurrent majority, on the other hand, tends to unite the most opposite and conflicting in- terests, and to blenc" the whole in one common at-/' tachment to the country. By giving to each inte- rest, or portion, the power of self-protection, all strife and struggle between them for ascendency, is prevented; and, theroby, not only every feeling calculated to weaken the attachment to the whole is suppressed, but the individual and the social feel- ings are made to unite in one common devotion to country. Each sees and feels that it can best pro* ' mote its own prosperity by conciliating the goodl ' will, and promoting the prosperity of the othei-|| A DISQUISITION ON GOVEENMENT. 49 And hence, there will be diffused throughout the i whole community kind feelings between its differ- (] ent portions ; and, instead of antipathy, a rivalry lamongst them to promote the interests of each other, as far as this can be done consistently with the in- terest of all. Under the combined influence of these causes, the inter^ts of each would be merged in the common interests of the whole ; and thus, the community would become a unit, by becoming the common centre of attachment of all its parts. And hence, instead of faction, strife, and struggle for party ascendency, there would be patriotism, nationality, harmony, and a struggle only for supre- macy in promoting the common good of the whole. But the difference in their operation, in this re- spect, would not end here. Its effects would be as great in a moral, as I have attempted to show they would be in a political point of view. Indeed, pub- lic and private morals are so nearly allied, that it would be difficult for it to be otherwise. That which corrupts and debases the community, politi- cally, must also corrupt and debase it morally. The same cause, which, in governments of the nu- merical majority, gives to party attachments and antipathies such force, as to place party triumph and ascendency above the safety and prosperity of the community, will just as certainly give them suf- ficient force to ovei"power all regard for truth, jus- tice, sincerity, and moral obligations of every de- scription. It is, accordingly, found that, in the vio- lent strifes between parties for the high and glit- tering prize of governmental honors and emolu- 4 50 A DISQUISITIOISr ON GOVERNMENT. ments, — falsehood, injustice, fraud, artifice, slander, and breacti of faith, are freely resorted to, as legiti- mate weapons ; — followed by all their corrupting and debasing influences. In the government of the concurrent majority, on the contrary, the same cause which prevents such strife, as the means of- obtaining power, and which makes it the interest of each portion to con- ■ciliate and promote the interests of the others, would exert a powerful influence tdwards purifying and elevating the character of the government and ; the people, morally, as well as politically. The means of acquiring power, — or, more correctly, in- fluence, — in such governments, would be the re- verse. Instead of the vices, by which it is ac- quired in that of the numerical majority, the oppo- site virtues — truth, justice, integrity, fidelity, and all others, by which respect and confidence are in- spired, would be the most certain and effectual means of acquiring it. . Nor would the good efifects resulting thence be confined to those who take an active part in politi- cal affairs. They would extend to the whole com- munity. For of all the causes which contribute to form the character of a people, those by which power, influence, and standing in the government are most certainly and readily obtained, are, by far, the most powerful. These are the objects most eagerly sought of all others by the talented and aspiring; and the possession of which commands the greatest respect and admiration. But, just in proportion to this respect and admiration will be A DISQUISITION ON GOVERNMENT. 51 their appreciation by those, whose energy, intellect, and position in society, are calculated to exert the greatest influence in forming the character of a peo- ple. If knowledge, wisdom, patriotism, and virtue, be the most certain means of acquiring them, they will be most highly appreciated and assiduously cultivated ; and this would cause them to become prominent traits in the character of the people. But if, on the contrary, cunning, fraud, treachery, and party devotion be the most certain, they will be the most highly prized, and become marked fea- tures in their character. So powerful, indeed, is the\ operation of the concurrent majority, in this respect, that, if it were possible for a corrupt and degenerate community to establish and maintain a well-organ- ized government of the kind, it would of itself pu- rify and regenerate them ; while, on the other hand, a government based wholly on the numerical ma-i jority, would just as certainly corrupt and debas^ the most patriotic and virtuous people. So great is their difference in this respect, that, just as the one or the other element predominates in the construction of any government, in the same proportion will the character of the government and the people rise or sink in the scale of patriotism and virtue. Neither religion nor education can counteract the strong tendency of the numerical majority to corrupt and debase the people. ./ K the two be compared, in reference to the ends for which' government is ordained, the superiority of the government of the concurrent majority will not be less striking. These, as has been stated, 52 A DISQUISITION ON GOVERNMENT. are twofold; to protect, and to perfect society. But to preserve society, it is necessary to guard the\! community against injustice, violence, and anarchy witMn, and against attacks from without. If it faUi in either, it would fail in the primary end of gov-; 'ernment, and would not deserve the name. To perfect society, it is necessary to develops the faculties, intellectual and moral, with which man is endowed. But the main spring to their de- velopment, and, through this, to progress, improve- ment and civilization, with all their blessings, is the desire of individuals to better their condition. For, this purpose, liberty and security are indispensable. Liberty leaves each free to pursue the course he may deem best to promote his interest and happiness, as far as it may be compatible with the primary end for which government is ordained ; — while se- curity gives assurance to each, that he shall not be deprived of the fruits of his exertions to better his condition. These combined, give to this desire the strongest impulse of which it is susceptible. For, to extend liberty beyond the limits assigned, would be to weaken the government and to render it in- competent to fulfil its primary end, — the protection of society against dangers, internal and external. The effect of this would be, insecurity ; and, of in- security, — to weaken the impulse of individuals to better their condition, and thereby retard progress and improvement. On the other hand, to extend the powers of the government, so as to contract the sphere assigned to liberty, would have the same effect, by disabling individuals in their efforts to better their condition. A DISQUISITION ON GOVERNMENT. 53 Herein is to be found the principle whicli as- signs to power and liberty their proper spheres, and reconciles each to the other under all circum- stances. For, if power be necessary to secure to liberty the fruits of its exertions, liberty, in turn, repays power with interest, by increased popula- tion, wealth, and other advantages, which progress and improvement bestow on the community. By thus assigning to each its appropriate sphere, all conflicts between them cease ; and each is made to co-operate with and assist the other, in fulfilling the great ends for which government is ordained. But the principle, applied to different commu- nities, will assign to them different limits. It will assign a larger sphere to power and a more con- tracted one to liberty, or the reverse, according to circumstances. To the former, there must ever be allotted, under all circumstances, a sphere suffi- ciently large to protect the community against dan- ger from without and violence and anarchy within. The residuum belongs to liberty> More cannot be safely or rightly allotted to it. But some communities require a far greater amount of power than others to protect them against anarchy and external dangers; and, of course, the sphere of liberty in such, must be pro- portionally contracted. The causes calculated to enlarge the one and contract the other, are numer- ous and various. Some are physical ; — such as open and exposed frontiers, surrounded by powerful and hostile neighbors. Others are moral ; — such as the different degrees of intelligence, patriotism, and yir-_ 54 A DISQUISITION ON GOVERNMENT. tue among the mass of the community, and their I experience and proficiency in the art of self-govern-/ ' ment. Of these, the moral are, by far, the most i nfluenti al. A community may possess all the ne- cessary moral qualifications, in so high a degree, as to be capable of self-government under the most adverse circumstances; while, on the other hand, another may be so sunk in ignorance and vice, as to be incapable of forming a conception of liberty, or of living, even when most favored by circumstances, under any other than an absolute and despotic gov- ernment. The principle, in all communities, according to these numerous and various causes, assigns to pow- er and liberty their proper spheres. To allow to liberty, in any case, a sphere of action more extend- ed than this assigns, would lead to anarchy ; and > this, probably, in the end, to a contraction in- ' stead of an enlargement of its sphere. Liberty^ /then, when forced on a people unfit for it, would, in-' stead of a blessing, be a curse ; as it would, in its reaction, lead directly to anarchy, — the greatest of all curses. No people, indeed, can long enjoy mord /liberty than that to which their situation and ad-J tvanced intelligence and morals fairly entitle thenJ If more than this be allowed, they must soon fall into confusion and disorder, — to be followed, if not by anarchy and despotism, by a change to a form of government more simple and absolute; and, therefore, better suited to their condition. And hence, although it may be true, that a people may not have as much liberty as they are fairly entitled A DISQUISITION ON GOVERNMENT. 55 to, and are capable of enjoying, — yet the reverse is unquestionably true, — ^that no people can long pos- sess more than they are fairly entitled to. Liberty, indeed, though among the greatest of blessings, is not so great as that of protection ; in- asmuch, as the end of the former is the progress and improvement of the race, — whUe that of the latter** is its preservation and perpetuation. And hence, when the two come into conflict, liberty must, and ever ought, to yield to protection ; as the existence of the race is of greater moment than its improve- ment. It follows, from what has been stated, that it is| a great and dangerous error to suppose that all peo-f iple are equally entitled to liberty. It is a rewards 'i to be earned, not a blessing to be gratuitously lav-| ished on all alike; — a reward reserved for the in-|, itelligent, the patriotic, the virtuous and deserv'ug;f ;: — and not a boon to be bestowed on a people too. ignorant, degraded and vicious, to be capable eithey of appreciating or of enjoying it. Nor is it any disparagement to liberty, that such is, and ought to be the case. On the contrary, its greatest praise, — its proudest distinction is, that an all-wise Provi- dence has reserved it, as the noblest and highest re- ward' for the development of our faculties, moral and intellectual. A reward more appropriate than liberty could not be conferred on the deserving ; — nor a punishment inflicted on the undeserving more' just, than to be subject to lawless and despotic rule; This dispensation seems to be the result of some fixed law ; — and every effort to disturb or defeat it. 56 A DISQUISITION ON GOTEENMENT. by attempting to elevate a people in the scale of liberty, above the point to which they are entitled to rise, must ever prove abortive, and end in disap- pointment. The progress of a people rising from a lower to a higher point in the scale of liberty, is necessarily slow ; — and by attempting to precipitate, we either retard, or permanently defeat it. There is another error, not less great and dan- gerous, usually associated with the one which has just been considered. I refer to the opinion, that liberty and equality are so intimately united, that liberty cannot be perfect without perfect equality. ,' That they are united to a certain extent, — and] that equality of citizens, in the eyes of the law, is i essential to liberty in a popular government, is con- ceded. But to go further, and make equality of , \ condition essential to liberty, would be to destroy! ■ both liberty and progress. The reason is, that in- equality of condition, while it is a necessary conse- quence of liberty, is, at the same time, indispensar ble to progress. In order to understand why this is so, it is necessary to bear in mind, that the main spring to progress is, the desire of individuals to better their condition ; and that the strongest im- pulse which can be given to it is, to leave individu- als free to exert themselves in the manner they may deem best for that purpose, as far at least as it can be done consistently with the ends for which govern- ment is ordained, — and to secure to all the fruits of their exertions. Now, as individuals differ greatly from each other, in intelligence, sagacity, energy, perseverance, skill, habits of industry and economy. A DISQUISITION ON GOVERNMENT. 57 physical power, position and opportunity, — the ne- cessary eftect of leaving all free to exert themselves to better their condition, must be a corresponding in- equality between those who may possess these quali- ties and advantages in a high degree, and those who may be deficient in them. The only means by which this result can be prevented are, either to im- pose such restrictions on the exertions of those who may possess them in a high degree, as will place them on a level with those who do not ; or to deprive them of the fruits of their exertions. But to impose such restrictions on them would be de- structive of liberty, — while, to deprive them of the fruits of their exertions, would be to destroy the desire of bettering their condition. It is, indeed, this inequality of condition between the front and rear ranks, in the march of progress, which gives so strong an impulse to the former to maintain their position, and to the latter to press forward into their files. This gives to progress its greatest impulse. To force the front rank back to the rear, or attempt to push forward the rear into line with the front, by the interposition of the government, would put an end to the impulse, and effectually arrest the march of progress. These great and dangerous errors have their ori- gin in the prevalent opinion that all men are born free and equal; — than wtiehrTiothing can be more unfounded and- falser It rests upon the assumption of a fact, which is contrary to universal observation, ill whatever light it may be regarded. It is, indeed, diflScult to explain how an opinion so destitute of 58 A DISQUISITION ON GOVERNMENT. all sound reason, ever could have been so extensive- ly entertained, unless we regard it as being con- founded with another, which has some semblance of truth ; — but which, when properly understood, is not less false and dangerous. I refer to the asser- tion, that all men are equal in the state of nature ; meaning, by a state of nature, a state of individual- ity, supposed to have existed prior to the social and political state ; and in which men lived apart and independent of each other. If such a state ever did exist, all men would have been, indeed, free and equal in it ; that is, free to do as they pleased, and exempt from the authority or control of others — as, by supposition, it existed anterior to society and government. But such a state is purely hypotheti- cal. It never did, nor can exist; as it is inconsist- ent with the preservation and perpetuation of the race. It is, therefore, a great misnomer to call it tJie state of nature. Instead of being the natural state of man, it is, of aU conceivable states, the most opposed to his nature — most repugnant to his feel- ings, and most incompatible with his wants. His natural state is, the social and political — the one for which his Creator made him, and the only one in which he can preserve and perfect his race. As, then, there never was such a state as the, so called, state of nature, and never can be, it follows, that men, instead of being born in it, are born in the social and political state ; and of course, instead of being born free and equal, are born subject, not only to parental authority, but to the laws and institu- tions of the country where born, and under whose A DISQUISITION ON GOVEENMENT. 59 protection they draw their first breath. With these remarks, I return from this digression, to resume the thread of the discourse. It follows, from all that has been said, that the more_pe rfectly a government combines power and liberty, — that isjjthe_greater its ppjer^and-thfijuoxe enlarged and_s.ecurfi_JJie--li-berty- of individuals, the more perfectly it falfi ls the ends for which govern- ment is ordained. To show, then, that the govern- ment of~tite -concurrent majority is better calculated to fulfil them than that of the numerical, it is only necessary to explain why the former is better suited to combine a higher degree of power and a wider scope of liberty than the latter. I shall begin with the former. The concurrent majority, then, is better suited to enlarge and secure the bounds of liberty, because it is better suited to prevent government from pass- ing beyond its proper limits, and to restrict it to its primary end, — the protectio n of the community. But in doing this, it leaves, necessarily, a ll_ J)eyond it (^en and free to individual exertions ; and thus enlarges and secm^ the sphere of liberty to the greatest extent which the condition of the com- munity will admit, as has been explained. The ten- dency of government to pass beyond its proper limits is what exposes liberty to danger, and ren- ders it insecure ; and it is the strong counteraction of governments of the concurrent majority to this tendency which makes them so favorable to liberty. On the contrary, those of the numerical, instead of opposing and counteracting this tendency, add to it 60 A DISQUISITION ON GOVERNMENT. increased strength, in consequence of the violent party struggles incident to them, as has been fully explained. And hence their encroachments on lih- erty, and the danger to which it is exposed under such governments. So great, indeed, is the difference between the two in this respect, ihat liberty is little more than a name under all governments of the absolute form, including that of the numerical majority ; and can only have a secure and durable existence under those of the concurrent or constitutional form. The lat- ter, by giving to each portion of the community which may be unequally affected by its action, a negative on the others, prevents all partial or local legislation, and restricts its action to such measures as are designed for the protection and the gogd-of the whole. In doing this, it secures, at the same time, the rights and liberty of the people, regarded individually ; as each portion consists of those who, whatever may be the diversity of interests among themselves, have the same interest in reference to the action of the government. Such being the case, the interest of each indi- vidual may be safely confided to the majority, or voice of his portion, against that of all others, and, of course, the government itself It is only through an organism which vests each with a negative, in some one form or another, that those who have like interests in preventing the government from passing beyond its proper sphere, and encroaching on the rights and liberty of individuals, can co-operate peaceably and effectually in resisting the encroach- A BISQUISITION ON GOVERNMENT. 61 ments of power, and thereby preserve their rights and liberty. Individual resistance is too feeble, and the difficulty of concert and co-operation too great, unaided by such an organism, to oppose, successful- ly, the organized.power of government, with all the means of the community at its disposal ; especially in populous countries of great extent, where concert and co-operation are almost impossible. Even when the oppression of the government comes to be too great to be borne, and force is resorted to in order to overthrow it, the result is rarely ever followed by the establishment of liberty. The force sufficient to overthrow an oppressive government is usually sufficient to establish one equally, or more, oppres- sive in its place. And hence, in no governments, except those that rest on the principle of the con- current or constitutional majority, can the people guard their liberty against power ; and hence, also, when lost, the great difficulty and uncertainty of re- gaining it by force. It may be further affirmed, that, being more fa- vorable to the enlargement and security of liberty, governments of the concurrent, must necessarily be more favorable to progress, development, improve- ment, and civilization, — and, of course, to the increase of power which results from, and depends on these, than those of the numerical majority. That it is liberty which gives to them their greatest impulse, has already been shown; and it now remains to show, that these, in turn, contribute greatly to the increase of power. In the earlier stages of society, numbers and in- 62 A DISQUISITION ON GOVERNMENT. dividual prowess constituted the principal elements of power. In a more advanced stage, when commu- nities had passed from the barbarous to the civilized state, discipline, strategy, weapons of increased power, and money, — as the means of meeting in- creased expense, — became additional and important elements. In this stage, the effects of progress and improvement on the increase of power, began to be disclosed ; but still numbers and personal prowess were sufficient, for a long period, to enable barbarous nations to contend successfully with the civilized, — and, in the end, to overpower them, — as the pages of history abundantly testify. But a more advanced progress, with its numerous inventions and improve- ments, has furnished new and far more powerful and destructive implements of offence and defence, and greatly increased the intelligence and wealth, necessary to engage the skill and meet the increased expense required fo'r their construction and applica- tion to purposes of war. The discovery of gunpow- der, and the use of stesm as an impelling force, and their application to military purposes, have for ever settled the question of ascendency between civilized and barbarous communities, in favor of the former. Indeed, these, with other improvements, belonging to the present state of progress, have given to com- munities the most advanced, a superiority over those the least so, almost as great as that of the latter over the brute creation. And among the civilized, the same causes have decided the question of supe- riority, where other circumstances are nearly equal, in favor of those whose governments have given the A DISQUISITION ON GOVERNMENT. 63 greatest impulse to development, progress, and im- provement ; that is, to those whose liberty is the largest and best secured. Among these, England and the United States afford striking examples, not only of the effects of liberty in increasing power, but of the more perfect adaptation of governments founded on the principle of the concurrent, or con- stitutional majority, to enlarge and secure liberty. They are both governments of this description, as will be shown hereafter. But in estimating the power of a community, moral, as well as physical causes, must be taken into the calculation ; and in estimating the effects of lib- erty on power, it must not be overlooked, that it is, in itself, an important agent in augmenting the force of moral, as well as of physical power. It be- stows on a people elevation, self-reliance, energy, and enthusiasm ; and these combined, give to phy- sical power a vastly augmented and almost irresisti- ble impetus. These, however, are not the only elements of moral power. There are others, and among them harmony, unanimity, devotion to country, and a disposition to elevate to. places of trust and. power, those who are distinguished for wi°c|,oni and expe- rience. These, when the occasion requires it, will, without compulsion, and from their very nature, unite and put forth the entire force of the commu- nity in the most efficient manner, without hazard to its institutions or its liberty. All these causes combined, give to a community its maximum of power. Either of them, without s 64 A DISQUISITION ON GOVERNMENT. the other, would leave it comparatively feeble. But it cannot be necessary, after what has been tated, to enter into any further explanation or firgument in order to establish the superiority of governments of the concurrent majority over the numerical, in developing the great elements of moral power. So vast is this superiority, that the one, by its operation, necessarily leads to their de- velopment, Avhile the other as necessarily prevents it, — as has been fully shown. Such are the many and striking advantages of the concurrent over the numerical majority. Against the former but two objections can be made. The one is, that it is difficult of construction, which has already been sufficiently noticed ; and the other, that it would be impracticable to obtain the •con- currence of conflicting interests, where they were numerous and diversified ; or, if not, that the pro- cess for this purpose, would be too tardy to meet, with sufficient promptness, the many and dangerous emergencies, to which all communities are exposed. This objection is plausible; and deserves a fuller notice than it has yet received. The diversity of opinion is usually so great, on al- most all questic~s of policy, that it is not surprising, on a slight view of the subject, it should be thought impracticable to bring the various conflicting in- terests of a community to unite on any one line of policy;— or, that a government, founded on such a principle, would be too slow in its movements and too weak in its foundation to succeed in prac- tice. But, plausible as it may seem at the first A DISQUISITION ON GOVERNMENT. 65 glance, a more deliberate view will show, that this opinion is erroneous. It is true, that, when there ^ is no urgent necessity, it is difficult to bring those ./ who dijffer, to agree on any one line of action. Each will naturally insist on taking the course he may think best; — and, from pride of opinion, will be unwilling to yield to others. But the case is dif- ferent when there is an urgent necessity to unite on some common course of action ; as reason and ex- perience both prove. When something Tnibst be done, — and when it can be done only by the united consent of all, — the necessity of the case will force to a compromise ; — be the cause of that necessity what it may. On all questions of acting, necessity,, where it exists, is the overruling motive; and where, in such cases, compromise among the parties is an indispensable condition to acting, it exerts an overruling influence in predisposing them to acqui- esce in some one opinion or course of action. Expe- rience famishes many examples in confirmation of this important truth. Among these, the trial by jury is the most familiar, and on that account, will be selected for illustration. In these, twelve individuals, selected without dis- crimination, must unanimously concur in opinion, — under the obligations of an oath to find a true verdict, according to law and evidence; and this, too, not unfrequently under such great difficulty and doubt, that the ablest and most experienced judges and advocates differ in opinion, after care- ful examination. And yet, as impracticable as this mode of trial would seem to a superficial observer, 5 66 A DISQUISITION ON GOTERNMENT. it is found, in practice, not only to succeed, but to be the safest, the wisest and the best that human ingenuity has ever devised. When closely investi- gated, the cause will be found in the necessity, under which the jury is placed, to agree unanimously, in order to find a verdict. This necessity acts as th^ I predisposing cause of concurrence in some commorf opinion ; and with such efficacy, that a jury rarely!- fails to find a verdict. Under its potent influence, the jurors take their seats with the disposition to give a fair and impar- tial hearing to the arguments on both sides, — meet together in the jury-room, — not as disputants, but calmly to hear the opinions of each other, and to compare and weigh the arguments on which they are founded ; — and, finally, to adopt that which, on the whole, is thought to be true. Under the influ- ence of this disposition to Tiarmonize^ one after another falls into the same opinion, until unanimity is obtained. Hence its practicability ; — and hence, also, its peculiar excellence. Nothing, indeed, can be more favorable to the success of truth and jus- tice, than this predisposing influence caused by the necessity of being unanimous. It is so much so, as to compensate for the defect of legal knowledge, and a high degree of intelligence on the part of those who usually compose juries. If the necessity of imanimity were dispensed with, and the finding of a jury made to depend on a bare majority, jury- trial, instead of being one of the greatest improve- ments in the judicial department of government, would be one of the greatest evils that could be in- A DISQUISITION ON GOVERNMENT. 6? flicted on tte community. It would be, in suoli case, the conduit through which all the factious .feelings of the day would enter and contaminate justice at its source. But the same cause would act with still greater force in predisposing the various interests of the community to agree in a well organized government, founded on the concurrent majority. The necessity'' /for unanimity, in order to keep the government in ! motion, would be far more urgent, and would act under circumstances still more favorable to secure \it. It would be supei'fluous, after what has been stated, to add other reasons in order to show that no necessity, physical or moral, can be more imperi- ous than that of government. It is so much so that, to suspend its action altogether, even for an incon- siderable period, would subject the community to convulsions and anarchy. But in governments of the concurrent majority such fatal consequences can only be avoided by the unanimous concurrence or acquiescence of the various portions of the commu- nity. Such is the imperious character of the neces- sity which impels to compromise under governments of this description. But to have a just conception of the overpower- ing influence it would exert, the circumstances under which it would act must be taken into considera- tion. These will be found, on comparison, much more favorable than those under which juries act. In the latter case there is nothing besides the neces- sity of unanimity in finding a verdict, and the in- convenience to which they might be subjected in the 68 A DISQUISITION ON GOVERNMENT. event of division, to induce juries to agree, except the love of truth and justice, which, when not coun- teracted by some improper motive or bias, more or less influences all, not excepting the most depraved. In the case of governments of the concurrent ma- jority, there is, besides these, the love of country, than which, if not counteracted by the unequal and oppressive action of government, or other causes, few motives exert a greater sway. It comprehends, indeed, within itself, a large portion both of our in- dividual and social feelings ; and, hence, its almost boundless control when left free to act. But the government of the concurrent majority leaves it free, by preventing abuse and oppression, and, with them, the whole train of feelings and passions which lead to discord and conflict between different por- tions of the community. Impelled by the imperi-^ ous necessity of preventing the suspension of the action of government, with the fatal consequences to which it would lead, and by the strong additional impulse derived from an ardent love of country, | each portion would regard the sacrifice it might havei to make by yielding its peculiar interest to secure the common interest and safety of all, including its ," own, as nothing compared to the evils that would \ be inflicted on all, including its own, by pertina^' \iously adhering to a different line of action. So powerful, indeed, would be the motives for concur- ring, and, under such circumstances, so weak would be those opposed to it, the wonder would be, not that there should, but that there should not be a compromise. A DISQUISITION ON GOVERNMENT. 69 But to form a juster estimate of the full force of this impulse to compromise, there must be added that, in governments of the concurrent majority, each portion, in order to advance its own peculiar interests, would have to conciliate all others, by showing a disposition to advance theirs ; and, for this purpose, «ach would select those to represent it, whose wis- dom, patriotism, and weight of character, would command the confidence of the others. Under its influence, — and with representatives so well qualified to accomplish the object for which they were se- lected, — the prevailing desire would be, to promote the common interests of the whole ; and, hence, the competition would be, not which should yield the least to promote the common good, but which should yield the most. It is thus, that concession would cease to be considered a sacrifice, — would be- come a free-will offering on the altar of the country, and lose the name of compromise. And herein is to be found the feature, which distinguishes govern- ments of the concurrent majority so strikingly from those of the numerical. In the latter, each faction, in the struggle to obtain the control of the govern- ment, elevates to power the designing, the artful, and unscrupulous, who, in their devotion to party, — ^in- stead of aiming at the good of the whole, — aim ex- clusively at securing the ascendency of party. When traced to its source, this difference will be found to originate in the fact, that, in govern- ments of the concurrent majority, individual feelings are, from its organism, necessarily enlisted on the side of the social, and made to unite with them in 70 A DISQUISITION ON GOVERNMENT. f promoting the interests of tlie whole, as the "bestu way of promoting the separate interests of each;P while, in those of the numerical majority, the social are necessarily enlisted on the side of the individual, and made to contribute to the interest of parties, regardless of that of the whole. To effect the former, — to enlist the individual on the side of the social feelings to promote the good of the whole, is the greatest possible achievement of the science of government ; while, to enlist the social on the side of the individual to promote the interest of parties at the expense of the good of the whole, is the greatest blunder which ignorance can possibly commit. To this, also, may be referred the greater soli- dity of foundation on which governments of the concurrent majority repose. Both, ultimately, rest on necessity ; for force, by which those of the nu- merical majority are upheld, is only acquiesced in from necessity ; a necessity not more imperious, how- ever, than that which compels the different portions, in governments of the concurrent majority, to ac- quiesce in compromise. There is, however, a great difiference in the motive, the feeling, the aim, which characterize the act in the two cases. In the one, it is done with that reluctance and hostility ever incident to enforced submission to what is regarded as injustice and oppression ; accompanied by the desire and purpose to seize on the first favorable opportunity for resistance : — but in the other, will- ingly and cheerfully, under the impulse of an exalted patriotism, impelling all to acquiesce in whatever the common good requires. A DISQUISITION ON GOVERNMENT. 71 It is, then, a great error to suppose tliat the government of the concurrent majority is imprac- ticable ; — or that it rests on a feeble foundation. History furnishes many examples of such govern- ments ; — and among them, one, in which the princi- ple was carried to an extreme that would be thought impracticable, had it never existed. I refer to that of Poland. In this it was carried to such an ex- treme that, in the election of her kings, the concur- rence or acquiescence of every individual of the nobles and gentry present, in an assembly number- ing usually from one hundred and fifty to two hun- dred thousand, was required to make a choice ; thus giving to each individual a veto on his election. So, likewise, every member of her Diet, (the supreme legislative body,) consisting of the king, the senate, bishops and deputies of the nobility and gentry of the palatinates, possessed a veto on all its proceed- ings ; — thus making an unanimous vote necessary to enact a law, or to adopt any measure whatever. And, as if to carry the principle to the utmost ex- tent, the veto of a single member not only defeated the particular bill or measure in question, but pre- vented all others, passed during the session, from taking effect. Further, the principle could not be carried. It, in fact, made every individual of the nobility and gentry, a distinct element in the organ- ism ; — or, to vary the expression, made him an Es- tate of tlie Tcingdom. And yet this government lasted, in this form, more than two centuries ; embra- cing the period of Poland's greatest power and re- nown. Twice, during its existence, she protected 72 A DISQUISITION ON GOVERNMENT. Christendom, when in great danger, hj defeating the Turks under the walls of Vienna, and permar nently arresting thereby the tide of their conquests westward. It is true her government was finally subverted, and the people subjugated, in consequence of the extreme to which the principle was carried ; not, however, because of its tendency to dissolution /Voot weakness, but from the facility it afforded to pow- erful and unscrupulous neighbors to control, by then- intrigues, the election of her kings. But the fact, that a government, in which the principle was car- ried to the utmost extreme, not only existed, but existed for so long a period, in great power and splendor, is proof conclusive both of its practicabil- ity and its compatibility with the power and per- manency of government. Another example, not so striking indeed, but yet deserving notice, is furnished by the govern- ment of a portion of the aborigines of our own country. I refer to the Confederacy of the Six Na- tions, who inhabited what now is called the west- ern portion of the State of New- York. One chief delegate, chosen by each nation, — associated with six others of his own selection, — and making, in all, forty-two members, — constituted their federal, or general government. When met, they formed the council of the union, — and discussed and decided aU questions relating to the common welfare. As in the Polish Diet, each member possessed a veto on its decision ; so that nothing could be done without the united consent of all. But this, instead of mak- A DISQUISITION ON GOVERNMENT. 73 ing tlie Confederacy weak, or impracticable, had the opposite eflfect. It secured harmony in council and action, and with them a great increase of power. The Six Nations, in consequence, became the most powerful of all the Indian tribes within the limits of our country. They carried their conquest and authority far beyond the country they originally occupied. I pass by, for the present, the most distinguished of all these examples; — the Koman Republic; — where the veto, or negative power, was carried, not indeed to the same extreme as in the Polish govern- ment, but very far, and with great increase of power and stability ; — as I shall show more at large here- after. It may be thought, — and doubtless many have supposed, that the defects inherent in the govern- ment of the numerical majority may be remedied by a free press, as the organ of public opinion, — es- pecially in the more advanced stage of society,— so as to supersede the necessity of the concurrent ma- jority to counteract its tendency to oppression and abuse of power. It is not my aim to detract from the importance of the press, nor to underestimate the great power and influence' which it has given to public opinion. On the contrary, I admit these are so great, as to entitle it to be considered a new and important political element. Its influence is, at the present day, on the increase; and it is highly probable that it may, in combination with the causes which have contributed to raise it to its present im- portance, effect, in time, great changes, — social and 74 A DISQUISITION ON GOVERNMKNT. political. But, however important its present influ- ence may be, or may hereafter become, — or, how- ever great and beneficial the changes to which it may ultimately lead, it can never counteract the tendency of the numerical majority to the abuse of power, — nor supersede the necessity of the concur- rent, as an essential element in the formation of constitutional governments. These it cannot effect for two reasons, either of which is conclusive. The one is, that it cannot change that principle of our nature, which makes constitutions necessary to prevent government from abusing its powers, — and government necessary to protect and perfect society. I Constituting, as this principle does, an essential \ /part of our nature, — no increase of knowledge and intelligence, no enlargement of our sympathetic/ feelings, no influence of education, or modiflcatioi^ of the condition of society can change it. But so long as it shall continue to be an essential part of our nature, so long will government be necessary; and so long as this continues to be necessary, so long will constitutions, also, be necessary to counteract its tendency to the abuse of power, — and so long must the concurrent majority remain an essential element in the formation of constitutions. The press may do much, — by giving impulse to the progress of .knowledge and intelligence, to aid the cause of education, and to bring about salutary changes in the condition of society. These, in turn, may do much to explode political errors, — ^to teach how governments should be constructed in order to fulfil their ends ; and by what means they can be A DISQUISITION ON GOVERNMENT. 75 best preserved, when so constructed. They may, also, do mucli to enlarge the social, and to restrain the individual feelings; — and thereby to bring about a state of things, when far less power will be required by governments to guard against inter- nal disorder and violence, and external danger; and when, of course, the sphere of power may be greatly contracted and that of liberty proportion- ally enlarged. But all this would not change the nature of man ; nor supersede the necessity of gov- ernment. For so long as government exists, the possession of its control, as the means of directing its action and dispensing its honors and emolu- ments, will be an object of desire. While this con- tinues to be the case, it must, in governments of the numerical majority, lead to party struggles ; and, as has been shown, to all the consequences, which necessarily follow in their train, and, against which, the only remedy is the concurrent majority. The other reason is to be found in the nature of the influence, which the press politically exercises. It is similar, in most respects, to that of suf- frage. They are, indeed, both organs of public opinion. The principal difference is, that the one has much more agency in forming public opinion, while the other gives a more authentic and authori- tative expression to it. Regarded in either light, the press cannot, of itself, guard any more against the abuse of power, than sufirage ; and for the same reason. If what is called public opinion were always the opinion of the whole community, the press would, 76 A DISQUISITION ON GOVERNMENT. as its organ, be an effective guard against the abuse of power, and supersede the necessity of the con- current majority ; just as the right of suffrage would do, where the community, iu reference to the action of government, had but one interest. But such is not the case. On the contrary, what is called public opinion, instead of being the united opinion of the whole community, is, usually, nothing more than the opinion or voice of the strongest interest, or combination of interests ; and, not unfre- quently, of a small, but energetic and active por-j t tion of the whole. Public opinion, in relation to government and its policy, is as much divided and diversified, as are the interests of the community; and the press, instead of being the organ of the whole, is usually but the organ of these various and diversified interests respectively ; or, rather, of the parties growing out of them. It is used by them as the means of controlling public opinion, and of so moulding it, as to promote their peculiar inter- ests, and to aid in carrying on the warfare of party. But as the organ and instrument of parties, in gov- ernments of the numerical majority, it is as incom- petent as suffi.-age itself, to counteract the tendency to oppression and abuse of power; — and can, no more than that, supersede the necessity of the con- current majority. On the contrary, as the instru- ment of party warfare, it contributes greatly to increase party excitement, and the violence and virulence of party struggles ; and, in the same de- gree, the tendency to oppression and abuse of power. Instead, then, of superseding the necessity of the A DISQUISITION ON GOVERNMENT. 77 concurrent majority, it increases it, by increasing the violence and force of party feelings, — ^in like manner as party caucuses and party machinery ; of the latter of which, indeed, it forms an important part. In one respect, and only one, the government of the numerical majority has the advantage over that of the concurrent, if, indeed, it can be called an advantage. I refer to its simplicity and facility of construction. It is simple indeed, wielded, as it is, by a single power — the will of the greater num- ber — and very easy of construction. For this pur- pose, nothing more is necessary than universal suf- frage, and the regulation of the manner of voting, so as to give to the greater number the supreme con- trol over every department of government. But, whatever advantages simplicity and facility of construction may give it, the other forms of ab- solute government possess them in a still higher degree. The construction of the g-^vernment of the numerical majority, simple as it is, requires some preliminary measures and arrangements ; while the others, especially the monarchical, wUl, in its absence, or where it proves incompetent, force themselves on the community, ^nd hence, among other reasons, the tendency of all governments is, from the more complex and difficult of construction, to the more sim- ple and easily constructed ; and, finally, to absolute monarchy, as the most simple of all. Complexity and difficulty of construction, as far as they form objections, apply, not only to governments of the concurrent majority of the popular form, but to 78 A DISQUISITION ON GOVERNMENT. constitutional governments of every form. The least complex, and the most easily constructed of them, are much more complex and difficult of con- struction than any one of the absolute forms. In- deed, so great has been this difficulty, that their construction has been thie result, not so much of wisdom and patriotism, as of favorable combiaar tions of circumstances. They have, for the most part, grown out of tbe struggles between conflicting interests, wbich, from some fortunate turn, have ended in a compromise, by whicb both parties have been admitted, in some one way or another, to have a separate and distinct voice in the government. Where this has not been the case, they have been the product of fortunate circumstances, acting in conjunction witb some pressing danger, which forced their adoption, as the only means by which it could be avoided. It would seem that it has exceeded human sagacity deliberately to plan and construct constitutional governments, with a full knowledge of the principles on which they were formed; or to reduce them to practice without the pressure of some immediate and urgent necessity. Nor is it sur- prising that such should be the case ; for it would seem almost impossible for any man, or body of men, to be so profoundly and thoroughly acquaint ed with the people of any community which has made any considerable progress in civilization and wealth, with all the diversified interests ever accom- panying them, as to be able to organize constitu- tional governments suited to their condition. But, even were this possible, it would be difficult to find A DISQUISITION ON GOVERNMENT. 79 any community sufficiently enlightened and patriotic to adopt such a government, without the compul- sion of some pressing necessity. A constitution, to succeed, must spring from the bosom of the commu- nity, and be adapted to the intelligence and charac- ter of the people, and all the multifarious relations, internal and external, which distinguish one peo- ple from another. If it do not, it will prove, in practice, to be, not a constitution, but a cumbrous and useless machine, which must be speedily super- seded and laid aside, for some other more simple, and better suited to their condition. It would thus seem almost necessary that gov- ernments should commence in some one of the sim- ple and absolute forms, which, however well suited to the community in its earlier stages, must, in its progress, lead to oppression and abuse of power, and, finally, to an appeal to force, — to be suc- ceeded by a military despotism, — unless the con- flicts to which it leads should be fortunately adjusted by a compromise, which will give to the respective parties a participation in the control of the govern- ment ; and thereby lay the foundation of a consti- tutional government, to be afterwards matured and perfected. Such governments have been, emphati- cally, the product of circumstances. And hence, the difficulty of one people imitating the govern- ment of another. And hence, also, the importance of terminating all civil conflicts by a compromise, which shall prevent either party from obtaining com- plete control, and thus subjecting the other. Of the different forms of constitutional govern- 80 A DISQUISITION ON GOVERNMENT. ments, the popular is the most complex and difficult of construction. It is, indeed, so difficult, that ours, it is believed, may with truth be said to be the only one of a purely popular character, of any consider- able importance, that ever existed. The cause is to be found in the fact, that, in the other two forms, society is arranged in artificial orders or classes. Where these exist, the line of distinction between them is. so strongly marked as to throw into shade, or, otherwise, to absorb all interests which are for- eign to them respectively. Hence, in an aristocracy, all interests are, politically, reduced to two, — ^the nobles and the people ; and in a monarchy, with a nobility, into three, — the monarch, the nobles, and the people. In either case, they are so few that the sense of each may be taken separately, through its appropriate organ, so as to give to each a concurrent voice, and a negative on the other, through the usual departments of the government, without making it too complex, or too tardy in its movements to perform, with promptness and energy, all the necessarj" functions of government. The case is different in constitutional govern- ments of the popular form. In consequence of the absence of these artificial distinctions, the various natural interests, resulting from diversity of pur- suits, condition, situation and character of different portions of the people, — and from the action of the government itself,— -rise into prominence, and strug- gle to obtain the ascendency. They will, it is true, in governments of the numerical majority, ultimate- ly coalesce, and form two great parties ; but not so A DISQCriSITIOlSr ON GOTEENMENT. 81 closely as to lose entirely their separate ctaracter and existence. These they will ever be ready to re-assume, when the objects for which they coalesced are accomplished. To overcome the difficulties oc- casioned by so great a diversity of interests, an or- ganism far more complex is necessary. Another obstacle, difficult to be overcome, opposes the formation of popular constitutional governments. It is much more difficult to terminate the struggles between conflicting interests, by compromise, in ab- solute popular governments, than in an aristocracy or monarchy. In an aristocracy, the object of the people, in the ordinary struggle between them and the nobles, is not, at least in its early stages, to overthrow the nobility and revolutionize the government, — but to participate in its powers. Notwithstanding the op- pression to which they may be subjected, under this form of government, the people commonly feel no small degree of respect for the descendants of a long line of distinguished ancestors; and do not usually aspire to more, — ^in opposing the authority of the nobles, — than to obtain such a participation in the powers of the government, as will enable them to correct its abuses and to lighten their bur- dens. Among the nobility, on the other hand, it sometimes happens that there are individuals of great influence with both sides, who have the good sense and patriotism to interpose, in order to effect a compromise by yielding to the reasonable demands of the people ; and, thereby, to avoid the hazard of a final and decisive appeal to force. It is thus, by a 82 A DISQUISITION ON GOVERNMENT. judicious and timely compromise, tlie people, in such governments, may be raised to a participation in the administration sufficient for their protection, with- out the loss of authority on the part of the nobles. In the case of a monarchy, the process is some- what different. Where it is a military despotism, the people rarely have the spirit or intelligence to attempt resistance ; or, if otherwise, their resistance must almost necessarily terminate in defeat, or in a mere change of dynasty, — ^by the elevation of their leader to the throne. It is different, where the monarch is surrounded by an hereditary nobility. In a struggle between him and them, both (but es- pecially the monarch) are usually disposed to court the people, in order to enlist them on their respec- tive sides, — a state of things highly favorable to their elevation. In this case, the struggle, if it should be long continued without decisive results, would almost necessarily raise themito political im- portance, and to a participationin the powers of the government. The case is different in an absolute Democracy. Party conflicts between the majority and minority, in such governments, can hardly ever terminate in compromise. — The object of the opposing minority is to expel the majority from power; and of the majority to maintain their hold upon it. It is, on both sides, a struggle for the whole, — a struggle that must determine which shall be the governing, and which the subject party ; — and, in character, ob- ject and result, not unlike that between competi- tors for the sceptre in absolute monarchies. Its A DISQUISITION ON GOVERNMENT. 83 regular course, as lias been shown, is, excessive vio- lence, — an appeal to force, — ^followed by revolu- tion, — and terminating at last, in tlie elevation to su- preme power of tlie general of the successful party. And hence, among other reasons, aristocracies and monarchies more readily assume the constitutional form than absolute popular goverments. Of the three different fo'rms, the monarchical has heretofore been much the most prevalent, and, gen- erally, the most powerful and durable. This result is doubtless to be attributed principally to the fact that, in its absolute form, it is the most simple and easily constructed. And hence, as government is indispensable, communities having too little intelli- gence to form or preserve the others, naturally fall into this. It may also, in part, be attributed to another cause, already alluded to ; that, in its organ- ism and character, it is much more closely assimilat- ed than either of the other two, to military power ; on which all absolute governments depend for sup- port. And hence, also, the tendency of the others, and of constitutional governments which have been so badly constructed or become so disorganized as to require force to support them, — ^to pass into mil- itary despotism, — that is, into monarchy in its most absolute and simple form. And hence, again, the fact, that revolutions in absolute monarchies, end, al- most invariably, in a change of dynasty, — and not of the foi-ms of the govei*nment ; as is almost univer- sally the case in the other systems. But there are, besides these, other causes of a higher character, which contribute much to make V 84 A DISQUISITION OJST GOVERNMENT. monarchies the most prevalent, and, usually, th( most durable governments. Among them, the lead ing one is, they are the most susceptible of im provement; — that is, they can be more easily an( readily modified, so as to prevent, to a limited ex tent, oppression and abuse of power, without assum ing the constitutional form, in. its strict sense. I slides, almost naturally, into one of the most import ant modifications. I refer to hereditary descent When this becomes well defined and firmly estah lished, the community or kingdom, comes to be re garded by the sovereign as the hereditary possessioi of his family, — a circumstance which tends stronglj \to identify his interests with those of his subjects and thereby, to mitigate the rigor of the govern ment. It gives, besides, great additional security to his person ; and prevents, iu the same degree, nc only the suspicion and hostile feelings incident t( insecurity, — but invites aU those Mndly feelings which naturally spring up on both sides, betweei those whose interests are identified, — when there ii nothing to prevent it. And hence the strong feel ings of paternity on the side of the sovereign, — anc of loyalty on that of his subjects, which are oftei exhibited in such governments. There is another improvement of which it i readily susceptible, nearly allied to the preceding The hereditary principle not unfrequently extend to other families, — especially to those of the distin guished chieftains, by whose aid the monarchy wa established, when it originates in conquest. Whei this is the case, — and a powerful body of hereditar A DISQUISITION ON GOVERNMENT. 85 nobles surround the sovereign, they oppose a strong resistance to his authority, and he to theirs, — tend- ing to the advantage and security of the people. Even when they do not succeed in obtaining a par- ticipation in the powers of the government, they usually acquire sufficient weight to be felt and res- pected. From this state of things, such govern- ments usually, iu time, settle down on some fixed rules of action, which the sovereign is compelled to respect, and by which racreased protection and se- curity are acquired by all. It was thus the enlight- ened monarchies of Europe were formed, under which the people of that portion of the globe have made such great advances in power, iutelHgence, and civilization. To these may be added the greater capacity, which governments of the monarchical form have exhibited, to hold under subjection a large extent of territory, and a numerous population ; and which has made them more powerful than others of a different form, to the extent, that these constitute an element of power. All these causes combined, have given such great and decisive advantages, as to enable them, heretofore, to absorb, in the progress of events, the few governments which have, from time to time, assumed different forms ; — not excepting even the mighty Roman Republic, which, after attaining the highest point of power, passed, seemjngly under the operation of irresistible causes, into a military despotism. I say, heretofore, — for it remains to be seen whether they will continue to retain their ad- vantages, in these respects, over the others, under 86 A DISQUISITION ON GOVERNMENT. the^ reat'and gro wing s influence of public OEimoii, and tlie new and imposing form which popular' government has assumed with us. These have already effected great changes, and will probably effect still greater, — adverse to the monarchical form ; but, as yet, these changes have tended rather to the absolute, than to the constitU' tional form of popular government, — for reasons which have been explained. If this tendency should continue permanently in the same direction, the monarchical form must still retain its advan- tages, and continue to be the most prevalent. Should this be the case, the alternative will be between monarchy and popular government, in the form of the numerical majority, — or absolute demo- cracy ; which, as has been shown, is not only the most fugitive of all the forms, but has the strong- est tendency of all others to the monarchical. If, on the contrary, this tendency, or the changes referred to, should incline to the constitutional form of popular government, — and a proper organism come to be regarded as not less indispensable than the right of suffrage to the establishment of such gqvernments, — ^in such case, it is not improbable that, in the progress of events, the monarchical wiU cease to be the prevalent form of government. Whether they will take this direction, at least for a long timQ, wiH depend on the success of our gov- ernment, — and a correct understanding of the prin- ciples on which it is constructed. To comprehend more fully the force and bear- ing of public opinion, and to form a just estimate of A DISQUISITION ON GOVERNMENT. 87 the changes to which, aided by the press, it will probably lead, politically and socially, — ^it will be necessary to consider it in connection with the causes that have given it an influence so great, as to entitle it to be regarded as a new political element. They wlU, upon investigation, be found in the many discoveries and inventions made in the last few centuries. Among the more prominent of those of an ear- lier date, stand the practical application of the mag- netic power to the purposes of navigation, by the invention of the mariner's compass ; the discovery of the mode of making gunpowder, and its applica- tion to the art of war ; and the invention of the art of printing. Among the more recent are, the nu- merous chemical and mechanical discoveries and in- ventions, and their application to the various arts of production ; the application of steam to machinery of almost every description, especially to such as is designed to facilitate transportation and travel by land and water ; and, finally, the invention of the magnetic telegraph. i All these have led to important results. Through the invention of the mariner's compass, the globe has been circumnavigated and explored, and all who inhabit it, with but few exceptions, brought within the sphere of an all-pervading commerce, which is daUy diffusing over its surface the light and bless- ings of civilization. Through that of the art of print- ing, the finiits of observation and reflection, of dis- coveries and inventions, with aU the accumulated stores of previously acquired knowledge, are pre- 88 A DISQUISITION OK GOVERNMENT. served and widely dififiised. The application of gunpowder to tlie art of war, has for ever settled the long conflict for ascendency between civilization and barbarism, in favor of the former, and thereby guarantied that, whatever knowledge is now accu- mulated, or may hereafter be added, shaU. never agaia be lost. The numerous discoveries and inven- tions, chemical and mechanical, and the application of steam to machinery, have increased, many-fold, the productive powers of labor and capital ; and have, thereby, greatly increased the number, who may devote themselves to study and improvement, — and the amount of means necessary for commer- cial exchanges,' — especially between the more and the less advanced and civilized portions of the globe, — to the great advantage of both, but particularly of the latter. The application of steam to the pur- poses of travel and transportation, by land and water, has vastly increased the facility, cheapness and rapidity of both ; — diflfiising, with them, infor- mation and intelligence almost as quickly and as freely as if borne by the winds ; while the electrical wires outstrip them, in velocity — ^rivalling, iu rapid- ity, even thought itself. The joint effect cf all has been, a great increase and diffusion of knowledge ; and, with this, an im- pulse to progress and civilization heretofore unex- ampled in the history of the world, — accompanied by a mental energy and activity unprecedented. To all these causes, public opinion, and its organ, the press, owe their origin and great influence. Abeady they have attained a force in the more civil- A DISQUISITION ON GOVERNMENT. 89 ized portions of tlie globe sufficient to be felt by all govennnents, even the most absolute and despotic. But, as great as tbey now are, tbey have as yet at- tained nothing like their inaximum force. It is prob- able, that not one of the causes, which have contrib- uted to their formation and influence, has yet pro- duced its full effect ; while several of the most powerful have just begun to operate ; and many others, probably of equal or even greater force, yet remain to be brought to light. When the causes now in operation have pro- duced their full effect, and inventions and discov- eries shall have been exhausted, — if that may ever be, — ^they will give a force to public opinion, and cause changes, political and social,, difficult to be an- ticipated. What will be their final bearing, time only can decide with any certainty. That they will, however, greatly improve the condition of man ultimately, — ^it would be impious to doubt. It would be to suppose, that the all-wise and beneficent Be- ing, — ^the Creator of all, — ^had so constituted man, as that the employment of the high intellectual facul- ties, with which He has been pleased to endow him, in order that he might develop the laws that con- trol the great agents of the material world, and make them subservient to his use, — ^would prove to him the cause of permanent evil, — and not of per- manent good. K, then, such a supposition be inad- missible, they must, in their orderly and full devel- opment, end in his permanent good. But this can- not be, unless the ultimate effect of their action, politically, shall be, to give ascendency to that form 90 A DISQUISITION ON GOVERNMENT. of government best calculated to fulfil the ends fo wHcli government is ordained. For, so completel does the well-being of our race depend on good go-\ ernment, that it is hardly possible any change, th ultimate effect of which should be otherwise, couli prove to be a permanent good. It is, however, not improbable, that many am great, but temporary evils, wiU follow the change they have effected, and are destined to effect. I seems to be a law in the political, as well as in th material world, that great changes cannot be made except very gradually, without convulsions and revc lutions ; to be followed by calamities, in the begic ning, however beneficial they may prove to be in th end. The first effect of such changes, on long estal lished governments, will be, to unsettle the opinion and principles in which they originated, — and whicl have guided their policy, — ^before those, which th changes are calculated to form and establish, ari fairly developed and understood. The interval be tween the decay of the old and the formation aii( estabhshment of the new, constitutes a period o transition, which must always necessarily be one o uncertainty, confusion, error, and wild and fierc fanaticism. The governments of the more advanced and ci\ ilized portions of the world are now in the midst c this period. It has proved, and will continue to prov a severe trial to existing political institutions of ever form. Those governments which have not the sj gacity to perceive what is truly public opinion, — t distinguish between it and tK\ mere clamor of fai A DISQUISITION ON GOVERNMENT. 91 tion, or shouts of fanaticism,— and the good sense and firmness to yield, timely and cautiously, to the claims of the one, — and to resist, promptly and de- cidedly, the demands of the other, — are doomed to fall. Few will be able successfally to pass through this period of transition; and these, not without shocks and modifications, more or less considerable. It will endure until the governing and the governed shall better understand the ends for which govern- ment is ordained, and the form best adapted to ac- complish them, under all the circumstances in which communities may be respectively placed. I shall, in conclusion, proceed to exemplify the elementary principles, which have been established, by giving a brief account of the origin and charac- ter of the governments of Rome and Great Britain ; the two most remarkable and perfect of their re- spective forms of constitutional governments. The object is to show how these principles were applied, in the more simple forms of such governments ; pre- paratory to an exposition of the mode in which they have been applied in our own more complex system. It will appear that, in each, the principles are the same ; and that the difference in their appli- cation resulted from the different situation and so- cial condition of the respective communities. They were modified, in each, so as to conform to these ; and, hence, their remarkable success. They were applied to communities in which hereditary rank had long prevailed. Their respective constitutions originated in concession to the people ; and, through them, they acquired a participation in the powers of 92 A DISQUISITION ON GOVERNMENT. government. But witl. us, they were applied communities wtere all political rank and distinct; between citi^iens were excluded ; and where gove ment had its origin in the will of the people. But, however different their origin and charact it will be found that the object ia each was the sai ■ — ^to blend and harmonize the conflicting interests the community ; and the means the same, — taki the sense of each class or portion through its f propriate organ, and considering the concurre sense of all as the sense of the whole communi- Such being the fact, an accurate and clear conce tion how this was effected, in their more simi forms, will enable us better to understand how it-w accomplished in our far more refined, artificial, a: complex form. It is well known to all, the least conversant m their history, that the Roman people consisted of ti distinct orders, or classes, — the Patricians and t Plebeians ; and that the line of distinction was strongly drawn, that, for a long time, the right intermarriage between them was prohibited. Afl the overthrow of the monarchy and the expulsi of the Tarquins, the government fell exclusive under the control of the patricians, who, with th< clients and dependents, formed, at the time, a ve numerous and powerful body. At first, while the was danger of the return of the exiled family, tli treated the plebeians with kindness ; but, after itli passed away, with oppression and cruelty. It is not necessary, with the object in view, enter into a minute account of the various acts A DISQUISITION ON GOVERNMENT. 93 oppression and cruelty to wMcL. they were subjected. It is sufficient to state, that, according to tlie usages of war at tlie time, the territory of a conquered people became the property of the conquerors ; and that the. plebeians were harassed and oppressed by incessant wars, in which the danger and toil were theirs, while all the fruits of victory, (the lands of the vanquished, and the spoils of war,) accrued to the benefit of their oppressors. The result was such as might be expected. They were impoverished, and forced, from necessity, to borrow from the pa- tricians, at usurious and exorbitant interest, funds with which they had been enriched through their blood and toil ; and to pledge their all for repay- ment at stipulated periods. In case of default, the pledge became forfeited ; and, under the provisions of law in such cases, the debtors were liable to be seized, and sold or imprisoned by their creditors in private jaUs prepared and kept for the purpose. These savage provisions were enforced with the ut- most rigor against the indebted and impoverished plebeians. They constituted, indeed, an essential part of the system through which they were plundered and oppressed by the patricians. A system so oppressive could not be endured. The natural consequences followed. Deep hatred was engendered between the orders, accompanied by factions, violence, and corruption, which distract- ed and weakened the government. At length, an incident occurred which roused the indignation of the plebeians to the utmost pitch, and which ended in an open rupture between the two orders. 94 A DISQUISITION ON GOVERNMENT. An old soldier, wIlo had long served the countr and had fought with bravery in twenty-eight ba ties, made his escape from the prison of his credito — squalid, pale, and famished. He implored the pr tection of the plebeians. A crowd surrounded hin and his tale of service to the country, and tl cruelty with which he had been treated by h creditor, kindled a flame, which continued to ra^ until it extended to the army. It refused to coi tinue any longer in service, — crossed the Anio, an took possession of the sacred mount. The patriciai divided in opinion as to the course which should I pursued. The more violent insisted on an appes to arms, but, fortunately, the counsel of the mode: ate, which recommended concession and compr( mise, prevailed. Commissioners were appointed t treat with the army ; and a formal compact was ei tered into between the orders, and ratified by tl oaths of each, which conceded to the plebeians th right to elect two tribunes, as the protectors of thei order, and made their persons sacred. The numhc was afterwards increased to ten, and their election b centuries changed to election by tribes ; — a mode b which the plebeians secured a decided preponderanci Such was the origin of the tribunate ; — whicl in process of time, opened all the honors of the go^ ernment to the plebeians. They acquired the righ not only of vetoing the passage of all laws, but als their execution; and thus obtained, through the: tribunes, a negative on the entire action of the go^ ernment, without divesting the patricians of the control over the Senate. By this arrangement, tl A DISQUISITION ON GOVERNMENT. 95 government was placed under tlie concurrent and joint voice of the two orders, expressed through separate and appropriate organs ; the one possess- ing the positive, and the other the negative powers of the government. This simple change converted it from an absolute, into a constitutional govern- ment, — ^from a government of the patricians only, to that of the whole Eoman people, — and from an aristocracy into a repuhlic. In doing this, it laid the solid foundation of Eoman liberty and greatness. A superficial observer would pronounce a gov- ernment, so organized, as that one order should have the power of making and executing the laws, and another, or the representatives of another, the unlimited authority of preventing their enactment and execution, — ^if not wholly impracticable, at least, too feeble to stand the shocks to which all govern- ments are subject; and would, therefore, predict its speedy dissolution, after a distracted and inglo- rious career. How different from the result ! Instead of distraction, it proved to be the bond of concord and harmony; instead of weakness, of unequalled strength ; — and, instead of a short and inglorious career, one of great length and immortal glory. It moderated the conflicts between the orders; har- monized their interests, and blended them into one; substituted devotion to country in the place of devotion to particular orders; called forth the united strength and energy of the whole, in the hour of danger; raised to power, the wise and patriotic; elevated the Roman name above all 96 A DISQUISITION ON GOVERNMENT. others ; extended lier authority and dominion ovei tte greater part of the then known world, anc transmitted the influence of her laws and institu tions to the present day. Had the opposite conn, sel prevailed at this critical juncture ; had an appeal been made to arms instead of to concession and compromise, Rome, instead of being what she after- wards became, would, in all probability, have been as inglorious, and as little known to posterity as the insiguiflcant states which surrounded her, whose names and existence would have been long since consigned to oblivion, had they not been preserved in the history of her conquests of them. But for the wise course then adopted, it is not impro- bable, — ^whichever order might have prevailed, — that she would have fallen under some cruel and petty tyrant; — and, finally, been conquered by some of the neighboring states, — or by the Cartha- ginians, or the Gauls. To the fortunate turn wliich events then took, she owed her unbounded sway and imperishable renown. It is true, that the tribunate, after raising her to a height of power and prosperity never before equalled, finally became one of the instruments by which her liberty was overthrown : — ^but it was not untU she became exposed to new dangers, growing out of increase of wealth and the great extent of her dominions, against which the tribunate furnish- ed no guards. Its original object was the protec- tion of the plebeians against oppression and abuse of power on the part of the patricians. This, it thoroughly accomplished ; but it had no power to A DISQUISITION ON GOYEENMENT. 97 protect the people of the numerous and wealthy conquered countries from being plundered by con- suls and proconsuls. Nor could it prevent the plun- derers from using the enormous wealth, which they extorted from the impoverished and ruined pro- vinces, to corrupt and debase the people ; nor ar- rest the formation of parties, (irrespective of the old division of patricians and plebeians,) having no other object than to obtain the control of the government for the purpose of plunder. Against these formidable evils, her constitution famished no adequate security. Under their baneful influence, the possession of the government became the object of the most violent conflicts ; not between patricians and plebeians, — but between profligate and corrupt factions. They continued with increasing violence, until, finally, Rome sunk, as must every community under similar circumstances, beneath the strong grasp, the despotic rule of the chieftain of the success- ful party ; — the sad, but only alternative which re- mained to prevent universal violence, confusion and anarchy. The Republic had, in reality, ceased to exist long before the establishment of the Empire. The interval was filled by the rule of ferocious, cor- rupt and bloody factions. There was, indeed, a small but patriotic body of eminent individuals, who struggled, in vain, to correct abuses, and to re- store the government to its primitive character and purity ; — and who sacrificed their lives in their endea- vors to accomplish an object so virtuous and noble. But it can be no disparagement to the tribunate, that the great powers conferred on it for wise pur- 98 A DISQUISITION ON GOVERNMENT. poses, and whicli it had so fully accomplislied, sliouL be seized upon, duriag this violent and corrupt in terval, to overthrow the liberty it had established and so long nourished and supported. In assigning such consequence to the tribunate I must not overlook other important provisions o the Constitution of the Eoman government. Th Senate, as far as we are informed, seems to have beei admirably constituted to secure consistency anc steadiness of action. The power, — when the Repub lie was exposed to imminent danger, — ^to appoint i dictator, — vested, for a limited period, with ahnos boundless authority ; the two consuls, and the manne: of electing them ; the auguries ; the sibylline books the priesthood, and the censorship ; — all of wMcl appertained to the patricians, — were, perhaps indis pensable to withstand the vast and apparently irreg ular power of the tribunate ; — while the possessioi of such great powers by the patricians, made it ne cessary to give proportionate strength to the 011I3 organ through which the plebeians could act on tli< government with effect. The government was, in deed, powerfully constituted ; and, apparently, wel proportioned both in its positive and negative 01 gans. It was truly an iron government. Withou the tribunate, it proved to be one of the most op pressive and cruel that ever existed ; but with ii one of the strongest and best. The origin and character of the British govern ment are so well known, that a very brief sketcl with the object in view, will suffice. The causes which ultimately moulded it into it A DISQUISITION ON GOVERNMENT. 99 present form, commenced witli the Norman Con- quest. This introduced the feudal system, with its necessary appendages, a hereditary monarchy and nobility; the former in the line of the chief, who led the invading army ; — and the latter in that of his distinguished followers. They became his feuda- tories. The country, — ^both land and people, — (the latter as serfs,) was divided between them. Con- flicts soon followed between the monarch and the nobles, — as must ever be the case under such sys- tems. They were followed, in the progress of events, by efforts, on the part both of monarchs and nobles, to conciliate the favor of the people. They, in con- sequence, gradually rose to power. At every step of their ascent, they became more important, — and were more and more courted, — until at length their influence was so sensibly felt, that they were sum- moned to attend the meeting of parliament by del- egates ; not, however, as an estate of the realm, or constituent member of the body politic. The first summons came from the nobles ; and was designed to conciliate their good feelings and secure their co- operation in the war against the king. This was followed by one from him ; but his object was sim- ply to have them present at the meeting of parlia- ment, in order to be consulted by the crown, on questions relating to taxes and supplies ; not, indeed, to discuss the right to lay the one, and to raise the other, — for the King claimed the arbitrary authority to do both, — but with a view to facilitate their col- lection, and to reconcile them to their imposition. From this humble beginning, they, after a long 100 A DISQUISITION OK GOVERNMENT. struggle, accompanied by many vicissitudes, raisei themselves to be considered one of the estates of th realm ; and, finally, in their efforts to enlarge am secure what they had gained, overpowered, for time, the other two estates ; and thus concentrate; all power in a single estate or body. This, in effed made the government absolute, and led to conse quences which, as by a fixed law, must ever resid in popular governments of this form ; — ^namely :- to organized parties, or, rather, factions, contend ing violently to obtain or retain the control of tli government ; and this, again, by laws almost as uni form, to the concentration of all the powers of gov ernment in the hands of the military commander o the successful party. His heir was too feeble to hold the sceptre h had grasped ; and the general discontent with th result of the revolution, led to the restoration of tt old dynasty; without defining the limits betweei the powers of the respective estates. After a short interval, another revolution fol lowed, in which the lords and commons unite; against the king. This terminated in his overthrow and the transfer of the crown to a collateral brand of the family, accompanied by a declaration o rights, which defined the powers of the severa estates of the realm ; and, finally, perfected and ei tablished the constitution. Thus, a feudal monarch; was converted, through a slow but steady proc^ of many centuries, into a highly refined constiti tional monarchy, without changing the basis of ti original government. A DISQUISITION ON GOVERNMENT. 101 As it now stands, the realm consists of three estates ; the king ; the lords temporal and spiritual ; and the commons. The parliament is the grand council. It possesses the supreme power. It enacts laws, by the concurring assent of the lords and com- mons, — subject to the approval of the king. The executive power is vested iu the monarch, who is re- garded as constituting the first estate. Although irresponsible himself, he can only act through respon- sible ministers and agents. They are responsible to the other estates ; to the lords, as constituting the high court before whom aU the servants of the crown maybe tried for malpractices, and crimes against the realm, or official delinquencies ; — and to the commons, as possessing the impeaching power, and constituting the grand inquest of the kingdom. These provisions, with their legislative powers, — especially that of withholding supplies, — give them a controlling influence on the executive department, and, virtually, a participation in its powers ; — so that the acts of the government, throughout its entire range, may be fairly considered as the result of the concurrent and joint action of the three estates ; — and, as these embrace all the orders, — of the concur- rent and joint action of the estates of the realm. He would take an imperfect and false view of the subject who should consider the king, in his mere individual character, or even as the head of the royal family, — as constituting an estate. Regarded in either light, so far from deserving to be consider- ed as the First Estate, — and the head of the realm, as he is, — he would represent an interest too incon- 102 A DISQTJISITIOlSr ON GOVERNMENT. siderable to be an object of special protection. In- stead of this, lie represents what in reality is, habi- tually and naturally, the most powerful interest, all things considered, under every form of government in all civilized communities, — the tax-consuming irir terest / or, more broadly, the great interest which necessarily grows out of the action of the govern- ment, be its form what it may ; — ^the interest that Iwes hy the goverrmient. It is composed of the reci- pients of its honors and emoluments ; and may be pro- perly called, the government interest, or party ;— in contradistinction to the rest of the community,— or, (as they may be properly called,) the people or commons. The one comprehends all who are sup- ported by the government ; — and the other all who support the government : — and it is only because the former are strongest, all things being considered, that they are enabled to retain, for any considerable time, advantages so great and commanding. This great and predominant interest is naturally represented by a single head. For it is impossible, without being so represented, to distribute the hon- ors and emoluments of the government among those who compose it, without producing discord and con- flict: — and it is only by preventing these, that ad- vantages so tempting can be long retained. And, hence, the strong tendency of this great interest to the monarchical form ; — that is, to be represented by a single individual. On the contrary, the antagonis- tic iaterest, — that which supports the government, has the opposite tendency ; — a tendency to be re- presented by many ; because a large assembly can A DISQUISITION ON GOVEENMENT. 103 better judge, than one individual or a few, what burdens the community can bear ; — and how it can be most equally distributed, and easily collected. In the British government, the king constitutes an Estate, because he is the head and representative of this great interest. He is the conduit through which, aU the honors and emoluments of the govern- ment flow ; — while the House of Commons, accord- ing to the theory of the government, is the head and representative of the opposite — the great tax-pay- ing interest, by which the government is supported. Between these great interests, there is necessa- rily a constant and strong tendency to conflict; which, if not counteracted, must end in violence and an appeal to force, — ^to be followed by revolu- tion, as has been explained. To prevent this, the House of Lords, as one of the estates of the realm, is interposed ; and constitutes the conservative power of the government. It consists, in fact, of that portion of the community who are the prin- cipal recipients of the honors, emoluments, and other advantages derived from the government; and whose condition cannot be improved, but must be made worse by the triumph of either of the con- flicting estates over the other; and, hence, it is opposed to the ascendency of either, — and in favor of preserving the equilibrium between them. This sketch, brief as it is, is sufficient to show, that these two constitutional governments,— by far the most illustrious of their respective kinds, — con- form to the principles that have been established, alike in their origin and in their construction. The 104 A DISQUISITION ON GOVEENMENT. constitutions of botli origiaated in a pressure, occar sioned by conflicts of interests between hostile classes or orders, and were iatended to meet the pressing exigencies of the occasion ; neither party, it would seem, having any conception of the prin- ciples involved, or the consequences to follow, be- yond the immediate objects ia contemplation. It would, indeed, seem almost impossible for constitu- tional governments, founded on orders or classes, to originate in any other manner. It is difficult to conceive that any people, among whom they did not exist, would, or could voluntarily institute them, in order to establish such governments ; wMle it is not at all wonderful, that they should grow out of conflicts between different orders or classes when aided by a favorable combination of circumstances. The constitutions of both rest on the same prin- ciple; — an organism by which the voice of each order or class is taken through its appropriate organ ; and which requires the concurring voice of all to constitute that of the whole community. The effects, too, were the same in both ; — ^to unite and harmonize conflicting interests ; — ^to strengthen at- tachments to the whole community, and to moderate that to the respective orders or classes; to rally all, in the hour of danger, around the standard of their country; to elevate the feeling of national- ity, and to develop power, moral and physical, to an extraordinary extent. Yet each has its distin- guishing features, resulting from the difference of their organisms, and the circumstances in which they respectively originated. A DISQUISITION ON GOVEENMENT. 105 In the government of Great Britain, the three orders are blended in the legislative department ; so that the separate and concurring act of each is necessary to make laws ; while, on the contrary, in the Eoman, one order had the power of making laws, and another of annulling them, or arresting their execution. Each had its peculiar advantages. The Eoman developed more fuUy the love of coun- try and the feelings of nationality. " / am a Ro- man citizen^'' — ^was pronounced with a pride and elevation of sentiment, never, perhaps, felt before or since, by any citizen or subject of any community, in announcing the country to which he belonged. It also developed more fally the power of the community. Taking into consideration their re- spective population, and the state of the arts at the different periods, Rome developed more power, com- paratively, than Great Britain ever has, — vast as that is, and has been, — or, perhaps, than any other community ever did. Hence, the mighty control she acquired from a beginning so humble. But the British government is far superior to that of Rome, in its adaptation and capacity to embrace under its control extensive dominions, without subverting its constitution. In this respect, the Roman constitu- tion was defective ; — and, in consequence, soon began to exhibit marks of decay, after Rome had extended her dominions beyond Italy ; while the British holds under its sway, without apparently impairing either, an empire equal to that, under the weight of which the constitution and liberty of Romp were crushed. This great advantage it derives from its different 06 A' DISQUISITION ON GOVERNMENT. tructure, especially that of the executive depart- nent ; and the character of its conservative princi- )le. The former is so constructed as to prevent, in consequence of its unity and hereditary character, ;he violent and factious struggles to obtain the con- trol of the government, — and, with it, the vast pat- ronage which distracted, corrupted, and finally sub- p^erted the Eoman Kepublic. Agaiust this fatal disease, the latter had no security whatever ; while the British government, — ^besides the advantages it possesses, in this respect, from the structure of its executive department, — has, ia the character of its 3onservative principle, another and powerful securi- ty against it. Its character is such, that patronage, instead of weakening, strengthens it : — For, the great- er the patronage of the government, the greater will be the share which falls to the estate constitu- ting the conservative department of the govern- ment ; and the more eligible its condition, the greater its opposition to any radical change in its form. The two causes combined, give to the government a greater capacity of holding under subjection exten- sive dominions, without subverting the constitution Dr destroying liberty, than has ever been possessed by any other. It is difficult, indeed, to assign any iitnit to its capacity ia this respect. The most prob- ible which can be assigned is, its ability to bear increased burdens ; — the taxation necessary to meet the expenses incident to the acquisition and govern- ment of such vast dominions, may prove, in the end, 30 heavy as to crush, under its weight, the laboring md productive portions of the population. A DISQUISITION ON GOVERNMENT. 107 I have now finished the brief sketch I proposed,' of the origin and character of these two renowned governments ; and shall next proceed to consider the character, origin and structure of the Govern- ment of the United States. It diflfers from the Eo- man and British, more than they differ from each other ; and, although an existing government of recent origin, its character and structure are perhaps less understood than those of either. A DISCOURSE ON THE CONSTITUTION AND GOVERNMENT OF THE UNITED STATES. A DISCOUUSE ON THE CONSTITUTION AND GOVEENMENT OP THE UNITED STATES. OuKS is a system of governments, compounded of the separate governments of the several States com- posing the Union, and of one common government of all its members, called the Government of the United States. The former preceded the latter, which was created by their agency. Each was framed by written constitutions ; those of the seve- ral States by the people of each, acting separately, and in their sovereign character ; and that of the United States, by the same, acting m the same cha- racter, — ^but jointly instead of separately. All were formed on the same model. They all divide the powers of government into legislative, executive, and judicial ; and are founded on the great principle of the responsibility of the rulers to the ruled. The entire powers of government are divided between the two ; those of a more general character being specifically delegated to the United States ; and aU L12 ON THE CONSTITUTION AND GOVERNMENT )tliers not delegated, being reserved to tlie se\^eral States in their separate character. Each, within its ippropriate sphere, possesses all the attributes, and aerforms all the functions of government. Neither s perfect without the other. The two combined, brm one entire and perfect government. With ;hese preliminary remarks, I shall proceed to the jonsideration of the immediate subject of this dis- ;ourse. The Government of the United States was formed )y the Constitution of the United States ; — and ours s a democratic, federal republic. It is democratic, in contradistinction to aristo- sracy and monarchy. It excludes classes, orders, md all artificial distinctions. To guard against heir introduction, the constitution prohibits the granting of any title of nobility by the United 5tates, or by any State.* The whole system is, in- Leed, democratic throughout. It has for its funda- nental principle, the great cardinal maxim, that the )eople are the source of all power ; that the gov- irnments of the several States and of the United states were created by them, and for them; that he powers conferred on them are not surrendered, )ut delegated ; and, as such, are held in trust, and lot absolutely ; and can be rightfully exercised only a furtherance of the objects for which they were lelegated. It is federal as well as democratic. Federal^ on he one hand, in contradistinction to national^ and, * 1st Art. 9 and 10 Sec. OF THE UNITED STATES. 113 on the other, to a confederacy. In showing this, I shall begin with the former. It is federal, because it is the government of States united in a political union, in contradistinc- tion to a government of individuals socially united ; that is, by what is usually called, a social compact. To express it more concisely, it is federal and not na- tional, because it is the government of a community of States, and not the government of a single State or nation. That it is federal and not national, we have the high authority of the convention which framed it. General Washington, as its organ, in his letter sub- mitting the plan to the consideration of the Con- gress of the then confederacy, calls it, in one place, — " the general government of the Union ;" — and in another, — " the federal government of these States." Taken together, the plain meaning is, that the government proposed would be, if adopted, the government of the States adopting it, in their united character as members of a common Union ; and, as such, would be a federal government. These ex- pressions were not used without due consideration, and an accurate and full knowledge of their true import. The subject was not a novel one. The convention was familiar with it. It was much agi- tated in their deliberations. They divided, in refer- ence to it, in the early stages of their proceedings. At first, one party was in favor of a national and the other of a federal government. The former, in the beginning, prevailed ; and in the plans wliich they proposed, the constitution and government are 114 ON THE CONSTITUTION AND GOVERNMENT styled " National." But, finally, the latter gained the ascendency, when the term " National" was su- perseded, and " United States''' suhstituted in its place. The constitution was accordingly styled,— " The constitution of the United States of Ameri- ca /" — and the government, — " The government of the United States /" leaving out " America," for the sake of brevity. It cannot admit of a doubt, that the Convention, by the expression " United States," meant the States united in a federal Union ; for in no other sense could they, with propriety, call the government, " the federal goverrwnent of these States^ — and " the general government of the Union^'' — as they did in the letter referred to. It is thus clear, that the Convention regarded the different expres- sions, — "the federal government of the United States ;" — " the general government of the Union," — and, — " government of the United States," — as - meaning the same thing, — a federal, in contradistinc- tion to a national government. Assuming it then, as established, that they are the same, it is only necessary, in order to ascertain with precision, what they meant by '■'■federal gov- ernment^'' — to ascertain what they meant by " the government of the United States I'"' For this purpose it will be necessary to trace the expression to its origin. It was, at that time, as our history shows, an old and familiar phrase, — having a known and well- defined meaning. Its use commenced with the poli- tical birth of these States ; and it has been applied to them, in all the forms of government through which OF THE UNITED STATES 115 they have passed, without alteration. The style of the present constitution and government is precisely the style by which the confederacy that existed when it was adopted, and which it superseded, was designated. The instrument that formed the latter was called, — " Articles of Confederation cmd Perpe- tual Union" Its first article declares that the style of this confederacy shall be, " The United States of America;" and the second, in order to leave no doubt as to the relation in which the States should stand to each other in the confederacy about to be formed, declared, — "Each State retains its sove- reignty, freedom and independence ; and every pow- er, jurisdiction, and right, which is not, by this con- federation, expressly delegated to the United States iu Congress assembled." If we go one step further bact, the style of the confederacy will be found to be the same with that of the revolutionary government, which existed when it was adopted, and which it superseded. It dates its origin with the Declara- tion of Independence. That act is styled, — "The unanimous Declaration of the thirteen United States of America." And here again, that there might be no doubt how these States would stand to each other in the new condition in which they were about to be placed, it concluded by declaring, — "that these United Colonies are, and of right ought to be^ free and independent States;" "and that, as free and independent States, they have full power to levy war, conclude peace, contract alliances, and to do aU other acts and things which independent States may of right do." The " United States" is, 116 ON THE CONSTITUTION AND GOVERNMENT then, the baptismal name of these States, — received at their birth ; — by which they have ever since con- tinued to call themselves ; by which they have cha- racterized their constitution, government and laws ; — and by which they are known to the rest of the world. The retention of the same style, throughout every stage of their existence, affords strong, if not conclusive evidence that the political relation be- tween these States, under their present constitution and government, is substantially the same as under the confederacy and revolutionary government ; and what that relation was, we are not left to doubt ; as they are declared expressly to be "/V-ee, ind^endeni and sovereign States." They, then, are now united, and have been, throughout, simply as confederated States. If it had been intended by the members of the convention which framed the present constitu- tion and government, to make any essential change, either in the relation of the States to each other, or the basis of their union, they would, by retaining the style which designated them under the preced- ing governments, have practised a deception, utterly unworthy of their character, as sincere and honest men and patriots. It may, therefore, be fairly in- ferred, that, retaining the same style, they intended to attach to the expression, — " the United States," the same meaning, substantially, which it previous- ly had; and, of course, in calling the present gov- ernment, — " the federal government of these States," they meant by "federal," that they stood in the same relation to each other, — ^that their union rested, OF THE UNITED STATES. 117 without material change, on the same basis, — -as Tinder the confederacy and the revolutionary gov- ernment ; and that federal, and confederated States, meant substantially the same thing. It follows, also, that the changes made by the present constitution were not in the foundation, but in the superstruc- ture of the system. "We accordingly find, in confirma- tion of this conclusion, that the convention, in their letter to Congress, stating the reasons for the changes that had been made, refer only to the necessity which required a different '•'• orga/rdzatiorC'' of the government, without making any allusion whatever to any change in the relations of the States towards each other, — or the basis of the system. They state that, " the friends of our country have long seen and desired, that the power of making war, peace, and treaties ; that of levying money and regulating com- merce, and the correspondent executive and judicial authorities, should be fully and effectually vested in the Government of the Union : but the impropriety of delegating such extensive trusts to one body of men is evident ; hence results the necessity of a dAf- ferent organization.^'' Comment is unnecessary. We thus have the authority of the convention itself for asserting that the expression, " United States," has essentially the same meaning, when ap- plied to the present constitution and government, as it had previously ; and, of course, that the States have retained their separate existence, as independ- ent and sovereign communities, in all the forms of political existence, through which they have passed. Such, indeed, is the literal import of the expression. 118 ON THE CONSTITUTION AND GOVERNMENT — " the United States," — and tlie sense in wMci. it is ever used, when it is applied politically. — I say, po- UticaMy^ — because it is often applied, geographically, to designate tlie portion of this contiaent occupied by the States composing the Union, including terri- tories belonging to them. This application arose from the fact, that there was no appropriate term for that portion of this contiaent ; and thus, not un- naturally, the name by which these States are polit- ically designated, was employed to designate tie region they occupy and possess. The distinction is important, and cannot be overlooked ia discussing questions involving the character and nature of tie government, without causing great confusion and dangerous misconceptions. But as conclusive as these reasons are to prove that the government of the United States is federal, in contradistinction to national, it would seem, that they have not been sufficient to prevent the oppo- site opinion from being entertained. Indeed, this last seems to have become the prevailing one ; if we may judge from the general use of the term " nar tional," and the almost entire disuse of that of " federal." National, is now commonly apphed to " the general government of the Union," — and " the federal government of these States," — and all that appertains to them or to the Union. It seems to be forgotten that the term was repudiated by the con- vention, after full consideration ; and that it was carefuUy excluded from the constitution, and the letter laying it before Congress. Even those who know all this, — and, of course, how falsely the term OF THE UNITED STATES. 119 is applied, — have, for the most part, slided into its use without reflection. But there are not a few who so apply it, because they believe it to be a national government in fact ; and among these are men of distinguished talents and standing, who have put forth all their' powers of reason and eloquence, in support of the theory. The question involved is one of the first magnitude, and deserves to be in- vestigated thoroughly in all its aspects. With this impression, I deem it proper, — clear and conclusive as I regard the reasons already assigned to prove its federal character,' — to confirm them by historical references ; and to repel the arguments adduced to prove it to be a national government. I shall begin with the formation and ratification of the consti- tution. That the States, when they formed and ratified the constitution, were distinct, independent, and sovereign communities, has already been establish- ed. That the people of the several States, acting in their separate, independent, and sovereign char- acter, adopted their separate State constitutions, is a fact uncontested and incontestable ; but it is not more certain than that, acting in the same character, they ratified and adopted the constitution of the United States; with this difference only, that in making and adopting the one, they acted without concert or agreement ; but, in the other, with con- cert in making, and mutual agreement in adopting it. That the delegates who constituted the con- vention which framed the constitution, were ap- pointed by the several States, each on its own 120 ON THE CONSTITUTION- AND GOVERNMENT authority; that they voted in the convention by States ; and that their votes were counted by States, — are recorded and unquestionable facts. So, also, the facts that the constitution, when framed, was sub- mitted to the people of the several States for their respective ratification ; that it was ratified by tbem, each for itself; and that it was binding on each, only in consequence of its being so ratified by it. Until then, it was but the plan of a constitution, without any binding force. It was the act of rati- ' fication which established it as a constitution be- tween the States ratifying it; and only between them^ on the condition that not less than nine of the then thirteen States should concur in the ratification; — as is expressly provided by its seventh and last ar- ticle. It is in the following words : " The ratifica- tion of the conventions of nine States shaU be suffi- cient for the establishment of this constitution be- tween the States so ratifying the same." If addi- tional proof be needed to show that it was only binding between the States that ratified it, it may be found in the fact, that two States, North Caro- lina and Ehode Island, refused, at first, to ratify; and were, in consequence, regarded in the interval as foreign States, without obligation, on their parts, to respect it, or, on the part of their citizens, to obey it. Thus far, there can be no difference of opinion. The facts are too recent and too well established,— and the provision of the constitution too explicit, to admit of doubt. That the States, then, retained, after the ratifica- tion of the constitution, the distinct, independent, OF THE UNITED STATES. 121 and sovereign character in wMch they formed and ratified it, is certain ; unless they divested themselves of it by the act of ratification, or by some provision of the constitution. K they have not, the consti- tution must be federal, and not national; for it would have, in that case, every attribute necessary to constitute it federal, and not one to make it nar tional. On the other hand, if they have divested themselves, then it would necessarily lose its federal character, and become national. Whether, then, the government is federal or national, is reduced to a single question ; whether the act of ratification, of itself, or the constitution, by some one, or all of its provisions, did, or did not, divest the several States of their character of separate, independent, and sovereign communities, and merge them all in one great community or nation, called the American people ? Before entering on the consideration of this im- portant question, it is proper to remark, that, on its decision, the character of the government, as well as the constitution, depends. The former must, necessarily, partake of the character of the latter, as it is but its agent, created by it, to carry its powers into effect. Accordingly, then, as the con- stitution is federal or national, so must the govern- ment be ; and I shall, therefore, use them indiscri- minately in discussing the subject. Of all the questions which can arise under our system of government, this is by far the most impor- tant. It involves many others of great magnitude ; and among them, that of the allegiance of the citi- 122 ON THE CONSTITUTION AND GOVERNMENT zen ; or, in other words, the question to whom allegi- ance and obedience are ultimately due. What is the true relation between the two governments, — that of the United States, and those of the several States ? and what is the relation between the individuals re- spectively composing them ? For it is clear, if the States still retain their sovereignty as separate and independent communities, the allegiance and obedi- ence of the citizens of each would be due to their respective States ; and that the government of the United States and those of the several States would stand as equals and co-ordinates in their respective spheres ; and, instead of being united socially, their citizens would be politically connected through their respective States. On the contrary, if they have, by ratifying the constitution, divested themselves of their individuality and sovereignty, and merged themselves into one great community or nation, it is equally clear, that the sovereignty would reside ia the whole, — or what is called the American people ; and that allegiance and obedience would be due to them. Nor is it less so, that the government of the several States would, in such case, otand to that of the United States, in the relation of inferior and subor- dinate, to superior and paramount ; and that the in- dividuals of the several States, thus fused, as it were, into one general mass, would be united socially^ and not politicall/y. So great a change of condition would have involved a thorough and radical revolu- tion, both socially and politically, — a revolution much more radical, indeed, than that which followed the Declaration of Independence. OF THE UNITED STATES. 123 They who maintain that the ratification of the constitution effected so mighty a change, are bound to establish it by the most demonstrative proof. The presumption is strongly opposed to it. It has already been shown, that the authority of the con- vention which formed the constitution is clearly against it ; and that the history of its ratification, instead of supplying evidence in its favor, furnishes strong testimony in opposition to it. To these, others may be added ; and, among them, the pre- sumption drawn from the history of these States, in all the stages of their existence down to the time of the ratification of the constitution. In all, they formed separate, and, as it respects each other, inde- pendent communities; and were ever remarkable for the tenacity with which they adhered to their rights as such. It constituted, during the whole period, one of the most striking traits in their char- acter, — as a very brief sketch will show. During their colonial condition, they formed dis- tinct communities, — each with its separate charter and government, — and in no way connected with each other, except as dependent members of a com- mon empire. Their first union amongst themselves was, in resistance to the encroachments of the parent country on their chartered rights, — when they adopt- ed the title of, — "the United Colonies." Under that name they acted, until they declared their in- dependence ; — always, in their joint councils, voting and acting as separate and distinct communities ; — and not in the aggregate, as composing one commu- nity or nation. They acted in the same character in 14 ON THE CONSTITUTION AND GOVEENMENT jclaring independence ; by wMcli act they passed om their dependent, colonial condition, into that • free and sovereign States. The declaration was ade by delegates appointed by the several colonies, ich for itself, and on its own authority. The vote taking the declaration was taken by delegations, ach counting one. The declaration was announced ) be unanimous, not because every delegate voted )r it, but because the majority of each delegation id ; showing clearly, that the body itself, regarded as the united act of the several colonies, and not le act of the whole as one community. To leave doubt on a point so important, and in reference ) which the several colonies were so tenacious, the eclaration was made in the name, and by the an- lority of the people of the colonies, represented L Congress ; and that was followed by declaring lem to be, — " free and independent States." The act as, in fact, but a formal and solemn annunciation ) the world, that the colonies had ceased to be de- endent communities, and had become free and inde- endent States ; without involving any other change 1 their relations with each other, than those neces- irily incident to a separation from the parent coun- ry. So far were they from supposing, or intending bat it should have the effect of merging their exist- nce, as separate communities, into one nation, that hey had appointed a committee, — which was actu- lly sitting, while the declaration was under discus- ion, — to prepare a plan of a confederacy of the states, preparatory to entering into their new con- iition. In fulfilment of their appointment, this OF THE UNITED STATES. 125 committee prepared the draft of the articles of con- federation and perpetual miion, wMcIl afterwards was adopted by the governments of the several States. That it instituted a mere confederacy and union of the States has already been shown. That, in forming and assenting to it, the States were ex- ceedingly jealous and watchful in delegating power, even to a confederacy ; that they granted the powers delegated most reluctantly and sparingly ; that sev- eral of them long stood out, under all the pressure of the revolutionary war, before they acceded to it; and that, during the interval which elapsed between its adoption and that of the present con- stitution, they evinced, under the most urgent ne- cessity, the same reluctance and jealousy, in dele- gating power, — are facts which cannot be disputed. To this may be added another circumstance of no little weight, drawn from the preliminary steps taken for the ratification of the constitution. The plan was laid, by the convention, before the Con- gress of the confederacy, for its consideration and action, as has been stated. It was the sole organ and representative of these States in their confed- erated character. By submitting it, the conven- tion recognized and acknowledged its authority over it, as the organ of distinct, independent, and sovereign States, It had the right to dispose of it as it pleased ; and, if it had thought proper, it might have defeated the plan by simply omitting to act on it. But it thought proper to act, and to adopt the course recommended by the convention ; — which was, to submit it, — " to a convention of dele- 126 ON THE CONSTITUTION AND GOVERNMENT gates, ciiosen in each State, by tlie people thereoi for their assent and adoption." All this was h strict accord with the federal character of the con stitution, but whoUy repugnant to the idea of its be ing national. It received the assent of the States ii all the possible modes in which it could be obtained first, — ^in their confederated character, through iti only appropriate organ, the Congress ; next, in theii individual character, as separate States, through thei respective State governments, to which the Congresi referred it ; and finally, in their high character o independent and sovereign communities, through j convention of the people, called in each State, h] the authority of its government. The States actiaj in these various capacities, might, at every stage have defeated it or not, at their option, by giving or withholding their consent. With this weight of presumptive evidence, t( use no stronger expression, in favor of its federal in contradistinction to its national character, I shal next proceed to show, that the ratification of tb constitution, instead of furnishing proof against contains additional and conclusive evidence in it favor. "We are not left to conjecture, as to what wa meant by the ratification of the constitution, or it effects. The expressions used by the convention of the States, in ratifying it, and those used by th constitution in connection with it, afford ampl means of ascertaining with accuracy, both its meai ing and effect. The usual form of expressioi used by the former is : — " We, the delegates of th OF THE UNITED STATES. 127 State," (naming tlie State,) " do, in behalf of the people of the State, assent to, and ratify the said constitution." All use, "ratify," — and all, except North Carolina, use, " assent to." The delegates of that State use, " adopt," instead of " assent to ;" a variance merely in the form of expression, without, in any degree, affecting the meaning. Ratification was, then, the act of the several States in their sepa- rate capacity. It was performed by delegates ap- pointed expressly for the purpose. Each appointed its own delegates ; and the delegates of each, acted in the name of, and for the State appointing them. Their act consisted in, " assenting to," or, what is the same thing, " adopting and ratifying" the con- stitution. By turning to the seventh article of the consti- tution, and to the preamble, it wUl be found what was the effect of ratifying. The article expressly provides, that, " the ratification of the conventions of nine States, shall be sufficient for the establish- ment of this constitution, between the States so ratifying the same." The preamble of the constitu- tion is in the following words ; — " We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the gene- ral welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." The effect, then, of its ratification was, to ordain and establish the constitution; — and, thereby, to make, what was before but a plan, — " The constitu- 128 ON THE CONSTITUTION AND GOVERNMENT tion of the United States of America." AH this is clear. It remains now to show, lyy whom^ it was ordained and established ; for wJiom^ it was ordained and established ; for wJiat^ it was ordained and estab- lished ; and over whom, it was ordained and estab- lished. These will be considered in the order in which they stand. Nothing more is necessary, in order to show by whom it was ordained and established, than to ascertain who are meant by, — " We, the people of the United States ;" for, by their authority, it was done. To this there can be but one answer: — ^it meant the people who ratified the instrument ; for it was the act of ratification which ordained and established it. Who they were, admits of no doubt. The process preparatory to ratification, and the acts by which it was done, prove, beyond the possibility of a doubt, that it was ratified by the several States, through conventions of delegates, chosen in each State by the people thereof; and acting, each in the name and by the authority of its State : and, as all the States ratified it, — " We, the people of the Uni- ted States," — ^mean, — ^We, the people of the several States of the Union. The inference is irresistible. And when it is considered that the States of the Union were then members of the confederacy, — and that, by the express provision of one of its articles, " each State retains its sovereignty, freedom, and independence," the proof is demonstrative, that,— " We, the people of the United States of America," ,mean the people of the several States of the Union, OF THE UNITED STATES. 129 icting as free, independent, and sovereign States. This strikingly confirms what has been already- stated ; to wit, that the convention which formed the constitution, meant the same thing by the terms, — " United States," — and, " federal," — when applied to the constitution or government ; — and that the former, when used politically, always mean, — ^these States united as independent and sovereign commu- aities. Having shown, hy whom^ it was ordained, there w^ill be no difficulty in determining, fw wJiorn, it was ordained. The preamble is explicit; — it was ordained and established for, — " The United States of Amer- ica ;" adding, " America," in conformity to the style of the then confederacy, and the Declaration of In- dependence. Assuming, then, that the " United States" bears the same meaning in the conclusion of the preamble, as it does in its commencement, (and no reason can be assigned why it should not,) it follows, necessarily, that the constitution was or- dained and established /or the people of the several States, hy whom it was ordained and established. Nor Avill there be any difficulty in showing, for wJiat^ it was ordained and established. The pream- ble enumerates the objects. They are, — " to form a more perfect union, to establish justice, insure do- mestic tranquillity, provide for the common defence, promote the general welfare, and secure the bless- ings of liberty to ourselves and our posterity." To effect these objects, they ordained and established, to use their own language, — " the constitution for ■\ j-i o m Ti nc I 130 ON THE CONSTITUTION AND GOVERNMENT '' for," that it was intended to be their constitutioi and that the objects of ordaining and estabHshii it were, to perfect their union, to establish justi( among them — to insure their domestic tranquillit to provide for their common defence and generi welfare, and to secure the blessings of liberty 1 thejn and their posterity. Taken all together, : follows, from what has been stated, that the coi stitution was ordained and established hy the sevi ral States, as distinct, sovereign commwnities i an that it was ordained and established by them fo themsel/oe-s — for their common welfare and safety, a distinct and sovereign commv/iiities. It remains to be shown, over wliom, it was oi dained and established. That it was not over ih several States, is settled by the seventh article be yond controversy. It declares, that the ratificatioi by nine States shall be sufficient to establish tb constitution between the States so ratifying. "Be tween," necessarily excludes " over •'''' — as thatwhic] is bet/ween States cannot be over them. Eeason it self, if the constitution had been sUent, would hav( led, with equal certainty, to the same conclusion For it was the several States, or, what is the sam( thing, their people, in their sovereign capacity, wk ordained and established the constitution. But tb authority which ordains and establishes, is higiei than that which is ordained and established ; and, o: course, the latter must be subordinate to the former — and cannot, therefore, be over it. " Between," al ways means more than over ; — and implies in this case, that the authority which ordained and estab OF THE UNITED STATES. 131 lished the constitution, was the joint and united authority of the States ratifying it ; and that, among the effects of their ratification, it became a contract between them ; and, as a com-pact, binding on them ; — but only as such. In that sense the term, " be- tween," is appropriately applied. In no other, can it be. It was, doubtless, used in that sense in this instance ; but the question still remains, over whom, was it ordained and established ? After what has been stated, the answer may be readily given. It was over the government which it created, and all its functionaries in their official character, — and the in- dividuals composing and inhabiting the several States, as far as they might come within the sphere of the powers delegated to the United States. I have now shown, conclusively, by arguments drawn from the act of ratification, and the consti- tution itself, that the several States of the Union, acting in their confederated character, ordained and established the constitution; that they ordained and established it for themselves, in the same char- acter; that they ordained and established it foi their welfare and safety, in the like character ; thai they established it as a compact ietween them, and not as a constitution over them ; and that, as a com- pact, they are parties to it, in the same character, I have thus established, conclusively,, that thes€ States, in ratifying the. constitution, did not lose the confederated character which they possessed when they ratified it, as well as in all the preceding stages of their existence ; but, on the contrary, still retained it to the full. 132 ON THE CONSTITUTION AND GOVERNMENT Those who oppose this conclusion, and maintain the national character of the government, rely, m support of their views, mainly on the expressions, " we, the people of the United States," used in the first part of the preamble; and, "do ordain and establish this constitution for the United States of America," used in its conclusion. Taken together, they insist, in the first place, that, " we, the people," mean, the people in their individual character, as forming a single community ; and that, " the United States of America," designates them in their aggre- gate character, as the American people. In main- taining this construction, they rely on the omission to enumerate the States by name, after the word " people," (so as to make it read, " We, the people of New Hampshire, Massachusetts, &c.," as was done in the articles of the confederation, and, also, in signing the Declaration of Independence ;) — and, instead of this, the simple use of the general term "United States." However plausible this may appear, an explana- tion perfectly satisfactory may be given, why the expression, as it now stands, was used by the fram- ers of the constitution ; and why it should not re- ceive the meaning attempted to be placed upon it. It is conceded that, if the enumeration of the States after the word, " people," had been made, the expres- sion would have been freed from all ambiguity; and the inference and argument founded on the failure to do so, left without pretext or support. The omission is certainly striking, but it can be readi- ly explained. It was made intentionally, and solely OF THE UNITED STATES. 133 in tlie necessity of the case. TTie first draft of I constitution contained an enumeration of the ites, by name, after the word " people ;" but it be- ae impossible to retaia it after the adoption of seventh and last article, which provided, that I ratification by nine States should be sufficient to iblish the constitution as between tliem / and for •■ plain reason, that it was impossible to determine, ether all the States would ratify ; — or, if any ed, which, and how many of the number ; or, if e should ratify, how to* designate them. No al- native was thus left but to omit the enumeration, i to insert the " United States of America," in its .ce. And yet, an omission, so readily and so sat- Lctorily explained, has been seized on, as furnish- strong proof that the government was ordained I established by the American people, in the ag- gate, — and is therefore national. But the omission, of itself, would have caused no iculty, had there not been connected with it a two- 1 ambiguity in the expression as it now stands. e term " United States^'' which always means, in stitutional language, the several States in their federated character, means also, as has been wn, when applied geographically, the country upied and possessed by them. While the term jople," has, in the English language, no plural, L is necessarily used in the singular number, even 3n applied to many communities or states confed- bed in a common union, — as is the case with the ited States. Availing themselves of this double biffuity, and the omission to enumerate the States 134 ON THE CONSTITUTION AND GOVEBNMENT by name, the advocates of tlie national theory ol the government, assuming that, " we, the people, meant indi\dduals generally, and not people as form ing States ; and that " United States " was used in i geographical and not a political sense, made out ai argument of some plausibility, in favor of the con elusion that, " we, the people of the United Stata of America," meant the aggregate population of th( States regarded en masse, and not in their distinctiv* character as forming separate political communities But in this gratuitous assumption, and the conclusion drawn from it, they overlooked the stubborn fact, that the very people who ordained and established tk constitution, are identically the same who ratified it ; for it was by the act of ratification alone, that it was ordained and established, — as has been conclusively shown. This fact, of itself, sweeps away every ves- tige of the argument drawn fi'om the ambiguity of those terms, as used in the preamble. They next rely, in support of their theory, on the expression, — "ordained and established tliis constitution." They admit that the constitution, in its incipient state, assumed the form of a compact; but contend that, " ordained and established," as ap- plied to the constitution and government, are incom- patible with the idea of compact ; that, consequent- ly, the instrument or plan lost its federative charac- ter when it was ordained and established as a con- stitution ; and, thus, the States ceased to be parties to a compact, and members of a confederated union, and became fused into one common community, or nation, as subordinate and dependent divisions or OF THE UNITED STATES. 135 I do not deem it necessary to discuss the ques- tion whetlier there is any incompatibility between the terms, — " ordained and established," — and that of " compact," on which the whole argument rests ; although it would be no difficult task to show that it is a gratuitous assumption, without any foundation whatever for its support. It is sufficient for my purpose, to show, that the assumption is wholly inconsistent with the constitution itself; — as much so, as the conclusion drawn from it has been shown to be inconsistent with the opinion of the convention which formed it. Very little will be required, after what has been already stated, to establish what I propose. That the constitution regards itself m the light of a compact, stUl existing between the States, dfter it was ordained and established ; that it regards the union, then existing, as still existing; and the several States, of course, still members of it, in their original character of confederated States, is clear. Its se- venth article, so often referred to, in connection with the arguments drawn from the preamble, suffi- ciently establishes all these points, without adducing others ; except that which relates to the continu- ance of the union. To establish this, it wUl not be necessary to travel out of the preamble and the let- ter of the convention, laying the plan of the consti- tution before the Congress of the confederation. In enumerating the objects for which the constitution was ordained and established, the preamble places at the head of the rest, as its leading object, — "to form a more perfect union." So far, then, are the 136 ON THE CONSTITUTION AND GOVERNMENT terms, — " ordained and establisted," from being in- compatible with tiie union, or having the effect of destroying it, the constitution itself declares that it was intended, " to form a more perfect union." This, of itself, is sufficient to refute the assertion of their incompatibility. But it is proper here to remark, that it could not have been intended, by the expres- sion in the preamble, — " to form a more perfect union," — ^to declare, that the old was abolished, and a new and more perfect union established in its place :■ for we have the authority of the convention which formed the constitution, to prove that their object was to continue the then existing union.- In their letter, laying it before Congress, they say, — "In all our deliberations on this subject, we kept steadily in our view, that which appears to us, the greatest interest of every true American, the consol- idation of our union." " Our union," can refer to no other than the then existing union, — the old union of the confederacy, and of the revolutionary govern- ment which preceded it,^of which these States were confederated members. This must, of course, have been the union to which the framers referred in the preamble. It was this, accordingly, which the con- stitution intended to make more perfect ; just as the confederacy made more perfect, that of the re- volutionary government. Nor is there any thing in the term, " consolidation," used by the conven- tion, calculated to weaken the conclusion. It is a strong expression ; but as strong as it is, it certainly was not intended to imply the destruction of the union, as it is supposed to do by the advocates OF THE UNITED STATES. 137 of a national government ; for that would have been incompatible with the context, as well as with the continuance of the union, — which the sentence and the entire letter imply. Interpreted, then, in conjunction with the expression used ia the pream- ble, — " to form a more perfect union," — although it may more strongly intimate closeness of connection ; it can imply nothing incompatible with the pro- fessed object of perfecting the union, — still less a meaning and effect wholly inconsistent with the na- ture of a confederated community. For to adopt the interpretation contended for, to its full extent, would be to dest/roy the union, and not to consoli- date and perfect it. If we turn from the preamble and the ratifica- tions, to the body of the constitution, we shall find that it furnishes most conclusive proof that the gov- ernment is federal, and not national. I can discover nothing, in any portion of it, which gives the least countenance to the opposite conclusion. On the contrary, the instrument, in all its part.s, repels it. It is, throughout, federal. It every where recog- nizes the existence of the States, and invokes their aid to carry its' powers into execution. In one of the two houses of Congress, the members are elected by the legislatures of their respective States ; and in the other, by the people of the several States, not as composing mere districts of one great com- munity, but as distinct and independent communi- ties. General Washington vetoed the first act ap- portioning the members of the House of Representa- tives among the several States, under the first cen- 138 ON THE CONSTITUTION AND GOVEENMENT sus, expressly on the ground, that the act assumed as its basis, the former, and not the latter construc- tion. The President and Vice-President are chosen by electors, appointed by their respective States; and, finally, the Judges are appointed by the Presi- dent and the Senate; and, of course, as these are elected by the States, they are appointed through their agency. But, however strong be the proofs of its federal character derived from this source, that portion which provides for the amendment of the constitu- tion, furnishes, if possible, still stronger. It shows, conclusively, that the people of the several States still retain that supreme ultimate power, called sove- reignty ; — the power by which they ordained and established the con^itution ; and which can right- fully create, modify, amend, or abolish it, at its pleasure. Wherever this power resides, there the sovereignty is to be found. That it still continues to exist in the several States, in a modified form, is clearly shown by the fifth article of the constitu- tion, which provides for its amendment. By its pro- visions, Congress may propose amendments, on its own authority, by the vote of two-thirds of both houses ; or it may be compelled to call a convention to propose them, by two-thirds of the legislatures of the several States : but, in either case, they re- mam, when thus made, mere proposals of no validity, until adopted by three-fourths of the States, through their respective legislatures ; or by conventions, call- ed by them, for the purpose. Thus far, the several States, in ordaining and establishing the constitu- OF THE UNITED STATES. 139 tion, agreed, for their mutual convemence and ad- vantage, to modify, by compact, tlieir liigh. sover- eign power of creating and establishing constitu- tions, as far as it related to the constitution and government of the United States. I say, for their mutual convenience and advantage ; for without the modification, it would have required the separate consent of aU the States of the Union to alter or amend their constitutional compact ; in like manner as it required the consent of aU to establish it be- tween them ; and to obviate the almost insuperable difficulty of making such amendments as time and experience might prove to be necessary, by the unanimous consent of all, they agreed to make the modification. But that they did not intend, by this, to divest themselves of the high sovereign right, (a right which they still retain, notwith- standing the modification,) to change or abolish the present constitution and government at their plea- sure, cannot be doubted. It is an acknowledged principle, that sovereigns may, by compact, modify or qualify the exercise of their power, without im- pairing their sovereignty ; of which, the confederacy existing at the time, furnishes a striking illustration. It must reside, unimpaired and ui its plentitude, somewhere. And if it do not reside in the people of the several States, in their confederated charac- ter, where, — so far as it relates to the constitution and government of the United States, — can it be found ? Not, certainly, in the government ; for, ac- cording to our theory, sovereignty resides m the people, and not in the government. That it cannot iO ON THE CONSTITUTION AND GOVERNMENT e found in tlie people, taken in the aggregate, as )rming one community or nation, is equally certain, iut as certain as it cannot, just so certain is it, that must reside in the people of the several States : id if it reside in them at all, it must reside in them 3 separate and distinct coipmunities ; for it has een shown, that it does not reside in them in the ^gregate, as forming one community or nation, hese are the only aspects under which it is possi- le to regard the people ; and, just as certain as it 3sides in them, in that character, so certain is it lat ours is a federal, and not a national govem- lent. The theory of the nationality of the govern- lent, is, in fact, founded on fiction. It is of re- jnt origin. Pew, even yet, venture to avow it to s full extent ; while they entertain doctrines, hich spring from, and must necessarily terminate L it. They admit that ■ the people of the several tates form separate, independent, and sovereign )mmunities ; — and that, to this extent, the consti- ition is federal ; but beyond this, and to the ex- )nt of the delegated powers, — regarding them as irming one people or nation, they maintain that le constitution is national. Now, unreasonable as is the theory that it is holly national, this, if possible, is still more so ; •r the one, although against reason and recorded ?^idence, is possible ; but the other, while equally gainst both, is absolutely impossible. It involves le absurdity of making the constitution federal in jference to a class of powers, which are expressly OF THE UNITED STATES. 141 excluded from it; and, by consequence, from tlie compact itself, into wMcli the several States entered when they established it. The term, "federal," implies a league, — and this, a compact between sov- ereign communities ; and, of course, it is impossible for the States to be federal, in reference to powers expressly reserved to them in their character ot separate States, and not included in the compact. If the States are national at all, — or, to express it more definitely, — if they form a katiok at all, it must be in reference to the delegated, and not the reserved powers. But it has already been estab- lished that, as to these, they have no such charac- ter — no such existence. It is, however, proper to remark, that while it is impossible for them to be federal, as to their reserved powers, they could not be federal without them. For had all the powers of government been delegated, the separate consti- tutions and governments of the several States would have been superseded and destroyed ; and what is now called the constitution and government of the United States, would have become the sole consti- tution and government of the whole : — the effect of which, would have been to supersede and destroy the States themselves. The people I'espectively com- posing them, instead of constituting political com- munities, having appropriate organs to will and to act, — which is indispensable to the existence of a State, — would, in such case, be divested of all such organs ; and, by consequence, reduced into an unor- ganized mass of individuals, — as far as related to the respective States, — and merged into one com- 142 ON THE CONSTITUTION AND GOVERNMENT muBity or nation, having "but one constitution ai government as tlie organ, tlirougli wMcli to w and to act. The idea, indeed, of a federal constil tion and government, necessarily implies reserv and delegated powers, — ^powers reserved in part, be exercised exclusively by the States in their ori nal separate character ; — and powers delegated, 1 mutual agreement, to be exercised jointly by common council or government. And hence, cc solidation and disunion are, equally, destructive such government ; — one by merging the States co: posing the Union into one community or natio and the other, by resolving them into their origic elements, as separate and disconnected States. It is difficult to imagine how a doctrine so p( fectly absurd, as that the States are federal as to t' reserved, and national as to the delegated powei could have originated ; except through a misconce tion of the meaning of certain terms, sometim used to designate the latter. They are sometim called granted powers ; and at others, are said to 1 powers surrendered by the States. When thesfe e pressions are used without reference to the fact, th all powers, under our system of government, a trust powers, they imply that the States have parb with such as are said to be granted or surrendere absolutely and irrecoverably. The case is differe: when applied to them as trust powers. They th* become identical, in their meaning, with delegate powers ; for to grant a power in trust, is what meant by delegating it. It is not, therefore, surpri ing, that they who do not bear in mind that a OF THE UNITED STATES. 143 powers of govemraent are, with us, trust powers, should conclude that the powers said to be granted and surrendered by the States, "are absolutely trans- ferred from them to the government of the United States, — as is sometimes alleged, — or to the people as constituting one nation, as is more usually under- stood ; — and, thence, to infer that the government is national to the extent of the granted powers. But that such inference and conclusion are utterly unwarrantable, — that the powers in the constitution called granted powers, are, in fact, delegated pow- ers, — powers granted in trust, — ^and not absolutely transferred, — we have, in addition to the reasons just stated, the clear and decisive authority of the con- stitution itself. Its tenth amended article provides that " the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In order to understand the full force of this pro- vision, it is necessary to state that this is one of the amended articles, adopted at the recommendation of several of the conventions of the States, contempo- raneously with the ratification of the constitution, — in order to supply what were thought to be its de- fects ; — and to gua,rd against misconceptions of its meaning. It is admitted, that its principal object was to prevent the reserved from being drawn with- in the sphere of the granted powers, by the force of construction, — a danger, which, at the time, excited great, and, as experience has proved, just apprehen- sion. But in guarding against this danger, care was 144 ON THE CONSTITUTION AND GOVERNMENT also taken to guard against others, — and among tlien against mistakes, as to whom powers were grantee and to whom they were reserved. The former wa done by nsing the expression, "the powers not del( gated to the United States," which, by necessar implication means, that* the powers granted are dele gated to them in their confederated character ; — an( the latter, by the remaining portion of the article which provides that such powers " are reserved ti the States respectively, or to the people ;" — meaning clearly by, " respectively," that the reservation wa to the several States and people in their separat character, and not to the whole, as forming oni people or nation. They thus repudiate nationality applied either to the delegated or to reserved powers But it may be asked, — why was the reservatioi made both to the States and to the people ? Th^ answer is to be found in the fact, that, what ar called, " reserved powers," in the constitution of th United States, include all powers not delegated t( Congress by it, — or prohibited by it to the States The powers thus designated are divided into tw( distinct classes ; — those delegated by the people o the several States to their separate State govern ments, and those which they still retain, — not havinj delegated them to either government. Atnoni them is included the high sovereign power, by whid they ordained and established both ; and by whic' thej^ can modify, change or abolish them at pleasur< This, with others not delegated, are those whic are reserved to the people of the several States r< spectively. OF THE UNITED STATES. 145 But tlie article in its precaution, goes further ; — and takes care to guard against the term, "grant- ed," used in the first article and- first section of the constitution, which provides that, " all legislative powers herein granted^ shall be vested in a Congress of the United States;" — as well as against other terms of Kke import used in other parts of the instru- ment. It guarded against it, indirectly, by substi- tuting, " delegated," in the place of "granted; — and instead of declaring that the powers not " granted," are reserved, it declares that the powers not " dele- gated," are reserved. Both terms, — " granted," used in the constitution as it came from its framers, and " delegated," used in the amendments, — evidently refer to the same class of powers ; and no reason can be assigned, why the amendment substituted " delegated," in the place of " granted," but to free it from its ambiguity, and to provide against mis- construction. It is only by considering the granted powers, in their true character of trust or delegated powers, that all the various parts of our complicated system of government can be harmonized and explained. Thus regarded, it will be easy to perceive how the people of the several States could grant certain powers to a joint, — or, as its framers called it, — a general government, in trust, to be exercised for their common benefit, without an absolute surren- der of them ; — or without impairing their indepen- dence and sovereignty. Regarding them in the op- posite light, as powers absolutely surrendered and irrevocably transferred, inexplicable difficulties pre- 10 146 ON THE CONSTITUTION AND GOVERNMENT sent themselves. Among the first, is that whi( springs from the idea of divided sovereignty ; i volving the perplexing question, — ^how the peop of the several States can be partly sovereign, ai partly, Twt sovereign, — sovereign as to the reserve — and not sovereign, as to the delegated powers There is no diflS.ciilty in imderstanding how powei appertaining to sovereignty, may be divided; ai the exercise of one portion delegated to one set ( agents, and another portion to another: or ho sovereignty may be vested in one man, or in a fei or in many. But how sovereignty itself — ^the s preme power — can be divided, — how the peop of the several States can be partly sovereign, ai partly not sovereign — ^partly supreme, and partly n supreme, it is impossible to conceive. Sovereignl is an entire thing ; — to divide, is, — to destroy it. But suppose this difficulty surmounted ; — anothj not less perplexing remains. If sovereignty be su rendered and transferred, in part or entirely, by tl several States, it must be transferred to somebodj and the question is, to whom ? Not, certainly, \ the government, — as has been thoughtlessly asserte by some ; for that would subvert the fandamenti principle of our system, — that sovereignty resid( in the people. But if not to the government, must be transferred, — ^if at all, — to the people, ri garded in the aggregate, as a nation. But this : opposed, not only by a force of reason which cai not be resisted, but by the preamble and tent amended article of the constitution, as has just bee shown. K then it be transferred neither to the oi OF THE UNITED STATES. 147 nor the other, it cannot be transferred at all ; as it is impossible to conceive to wliom else the transfer could have been made. It must, therefore, and of course, remain unsurrendered and unimpaired in the people of the several States;^ — to whom, it is ad- mitted, it appertained when the constitution was adopted. Having now established that the powers dele- gated to the United States, were delegated to them in their confederated character, it remains to be explained in what sense they were thus delegated. The constitution here, as in almost all cases, where it is fairly interpreted, furnishes the explanation necessary to expel doubt. Its first article, already cited, affords it in this case. It declares that " all legislative power herein granted (delegated), shall be vested in the Congress of the United States ;" that is, in the Congress for the time being. It also de- clares, that " the executive power shall be vested in the President of the United States ;" — and that " the judicial power shall be vested in a Supreme Court, and such inferior courts, as Congress may, from time to time, ordain and establish." They are then delegated to the United States, by vesting them in the respective departments of the government, to which they appropriately belong ; to be exercised by the government of the United States, as their joint agent and representative, in their confederated character. It is, indeed, difficult to conceive how else it could be delegated to them; — or in what other way they could mutually participate in the exercise of the powers delegated. It has, indeed, 148 ON THE CONSTITUTION AND GOVERNMENT been construed by some to mean, that each Stat reciprocally and mutually, delegated to each othe the portion of its sovereignty embracing the del gated powers. But besides the difficulty of a d vided ' sovereignty, which it would involve, tt expression, "delegated powers," repels that co] s traction. K, however, there should still remain doubt, the articles of confederation would furnis conclusive proof of the truth of that constructio which I have placed upon the constitution; an( also, that not a particle of sovereignty was intende to be transferred, by delegating the powers coi ferred on the different departments of the goveri ment of the United States. I refer to its secon article, — so often referred to already. It declare as will be remembered, that, — " each State retail its sovereignty, freedom, and independence; an every power, jurisdiction, and right, which is no by this confederation, expressly delegated to tl United States in Congress assembled." The powei delegated by it were, therefore, delegated, like thoi of the present constitution, to the United State The only difference is, that " the United States," followed, in the articles of confederation, by tl words, — " in Congress assembled," — which are omi ted in the parallel expression in the amended arl cle of the constitution. But this omission is su plied in it, by the first article, and by others of similar character, already referred to ; and by ves ing the powers delegated to the United States, : the respective appropriate departments of the go ernment. The reason of the difference is plai OF THE UNITED STATES. 149 The constitution could not vest them in Congress alone ; — ^because there were portions of the dele- gated powers vested also in the other departments of the government : while the articles of confede- ration could, with propriety, vest them in Congress ; — as it was the sole representative of the confederacy. Nor could it vest them in the government of the United States ; for that would imply that the pow- ers were vested in the whole, as a unit ; — and not, as the fact is, in its separate departments. The con- stitution, therefore, in borrowing this provision from the articles of confederation, adopted the mode best calculated to express the same thing that was ex- pressed in the latter, by the words, — " in Congress assembled." That the articles of confederation, in delegating powers to the United States, did not in- tend to declare that the several States had parted with any portion of their sovereignty, is placed be- yond doubt by the declaration contained in them, that,—" each State retains its sovereignty, freedom, and independence ;" and it may be fairly inferred, that the framers of the constitution, in borrowing this expression, did not design that it should bear a different interpretation. If it be possible still to doubt that the several States retained their sovereignty and independence unimpaired, strong additional arguments might be drawn from various other portions of the instru- ment ;— especially from the third article, section third, which declares, that, — "treason against the United States, shall consist only in levying war against them or in adhering to their enemies, giving 150 ON THE CONSTITUTION AND GOVERNMENT them aid and comfort." It might be easily sIiot^ that, — " the United States," — mean here, — as th( do everywhere in the constitution, — ^the sever States in their confederated character; — ^that treasc against them, is treason against their joint sove eignty ; — and, of course, as much treason again each State, as the act would be against any one ( them, in its individual and separate character. Bi I forbear. Enough has already been said to pla( the question beyond controversy. Having now established that the constitution federal throughout, in contradistinction to nationa and that the several States still retain their sove eignty and independence unimpaired, one woul suppose that the conclusion would follow, irresistihl; in the judgment of all, that the government is als federal. But such is not the case. There are thos who admit the constitution to be entirely federa but insist that the government is partly federal, an partly national. They rest their opinion on tl authority of the " Federalist." That celebrate work comes to this conclusion, after exphcitly a( mitting that the constitution was ratified an adopted by the people of the several States, an not by them as individuals composing one entii nation; — that the act establishing the constitutio is, itself, a federal, and not a national act ; — ^that resulted neither from the act of a majority of tl people of the Union, nor from a majority of tl States ; but from the unanimous assent of the se^ eral States ; — differing no otherwise from their ord nary assent than as being given, not by their legi OF THE UNITED STATES. 151 latures, but by the people themselves ; — ^that they are parties to it ; — ^tbat each State, in ratifying it, was considered as a sovereign body, independent of all others, and is bound only by its own voluntary act ; — that, in consequence, the constitution itself is federal and not national ; — ^that, if it had been formed by the people as one nation or community, the will of the majority of the whole people of the Union would have bound the minority ; — that the idea of a national government involves in it, not only authority over individual citizens, but an inde- finite supremacy over all persons and things, so far as they are objects of lawful government; — that among the people consolidated into one nation, this supremacy is completely vested in the government ; that State governments, and all local authorities, are subordinate to it, and may be controlled, direct- ed, or abolished by it at pleasure ; — and, finally, that the States are regarded, by the constitution, as distinct, independent, and sovereign* How strange, after all these admissions, is the conclusion that the government is partly federal and partly national ! It is the constitution which determines the character of the government. It is impossible to conceive how the constitution can be eocclMSwel/y federal, (as it is admitted, and has been clearly proved to be,) and the government jpa/rtl/y federal and pa/rth/ national. It would be just as easy to conceive how a constitution can be exclu- sively monarchical, and the government partly * See Federalist, Nos. 39 and 40. 152 ON THE CONSTITUTION AND GOVERNMENT monarcMcal, and partly aristocratic or popular; and vice versa. Monarchy is not more strongly dis- tinguished from either, than a federal is from a national government. Indeed, these are even more adverse to each other ; for the other forms may he blended in the constitution and the government; while, as has been shown, and as is indirectly admit- ted by the work referred to, the one of these so excludes the other, that it is impossible to blend them in the same constitution, and, of course, in the same government. T say, indirectly admitted, for it admits, that a federal government is one to which States are parties, in their distinct, independent, and sovereign character ; and that, — " the idea of a national government involves in it, not only an authority over individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government;" — and, " that it is one, in which all local authorities are subordinate to the supreme, and may be controlled, directed, and abolished by it at pleasure." How, then, is it possible for institutions, admitted to be so utter- ly repugnant in their nature as to be directly destruc- tive of each other, to be so blended as to form a government partly federal and partly national? What can be more ov^ntradictious ? This, of itself, is sufficient to destroy the authority of the work on this point, — as celebrated as' it is, — without show- ing, as might be done, that the admissions it makes throughout, are, in like manner, in direct contradic- tion to the conclusions, to which it comes. But, strange as such a conclusion is, after such OF THE UNITED STATES. 153 admissions, it is not more strange than the reasons assigned for it. The first, and leading one, — that on which it mainly relies, — is drawn from the source whence, as it alleges, the powers of the gov- ernment are derived. It states, that the House of Representatives will derive its powers from the peo- ple of " America ;" and adds, by way of confirmar tion, " The people will be represented in the same proportion, and on the same principle, as they are in the legislatures of each particular State ;" — and hence concludes that it would be national and not federal. Is the fact so ? Does the House of Repre- sentatives reaUy derive its powers from the people of America ? — that is, from the people in the aggre- gate, as forming one nation ; for such must be the meaning, — to give the least force, or even plausibili- ty, to the assertion. Is it not a fundamental princi- ple, and universally admitted — admitted even by the authors themselves, — that all the powers of the government are derived from the constitution, — in- cluding those of the House of Representatives, as well as others ? And does not this celebrated work admit, — most explicitly, and in the fullest manner, — that the constitution derives aU its powers and authority from the people of the several States, act- ing, each for itself, in their independent and sover- eign character as States ? that they still retain the same character, and, as such, are parties to it ? and that it is a federal, and not a national, constitution ? How, then, can it assert, in the face of such admis- sions, that the House of Representatives derives its authority from the American people, in the aggre- 154 ON THE CONSTITUTION AND GOVERNMENT gate, as forming one people or nation? To ^ve color to tlie assertion, it affirms, tliat tlie people will be represented on tlie same principle, and in the same proportion, as they are in the legislature of each particular State. Are either of these pro- positions true ? On the contrary, is it not universal- ly known and admitted, that they are represented in the legislature of every State of the Union, as mere individuals, — and, by election districts, entirely subordinate to the government of the State ; — while the members of the House of Eepresentatives are elected — ^be the mode of election what it may — aa delegates of the several States, in their distinct, in- dependent, and sovereign character, as members of the Union, — and not as delegates from the States, con- sidered as mere election districts ? It was on this ground, as has been stated, that President Washing- ton vetoed the act to apportion the members, under the first census, among the several States ; and his opinion has, ever since, been acquiesced in. Neither is it true that the people of each State are represented in the House of Representatives in the same proportion as in their respective legisla- tures. On the contrary, they are represented in the former according to one uniform ratio or proportion among the several States, fixed by the constitution itself;* while in each State legislature, the ratio, fixed by its separate State constitution, is different in different States ; — and in scarcely any are they represented in the same proportion in the legislar • 1st Art., 2d Sec. of the Constitution. OF THE UNITED STATES. 155 tm-e, as in the House of Representatives. The only- point of uniformity in this respect is, that " the elec- tors of the House of Representatives shall have the qualifications requisite for electors of the most nu- merous branch of the State legislatures ;"* a rule which favors the federal, and not the national char- acter of the government. The authors of the work conclude, on the same affirmation, — and by a similar course of reasoning, — that the executive department of the govern- ment is partly national, and partly federal '.—federal^ so far as the number of electors of each Stat^, in. the election of President, depends on its Sena- torial representation ; — and so far as the final elec- tion, (when no choice is made by the electoral col- lege,) depends on the House of Representatives, — because they vote and count by States : — and nor tioTial, so far as the number of its electors depends on its representation in the Lower House. As the argument in support of this proposition is the same as that relied on to prove that the House of Repre- sentatives is national, I shall pass it by with a single remark. — ^It overlooks the fact that the electors, by an express provision of the constitution, are ap- pointed by the several States ;f and, of course, derive their powers from them. It would, therefore, seem, according to their course of reasoning, that the ex- ecutive department, when the election is made by the colleges, ought to be regarded as federal; — while, on the other hand, when it is made by the • 1st Art. 2d Sec. of the Con. t 2d Art. 1st Sec. of the Con. 156 ON THE CONSTITUTION AND GOVERNMENT House of Representatives, in the event of a failure on the part of the electors to make a choice, it ought to be regarded as national^ and not federal, as they contend. It would, indeed, seem to involve a strange confusion of ideas to make the same department partly federal and partly national, on such a process of reasoning. It indicates a deep and radical error somewhere in the conception of the able authors of the work, in reference to a question the most vital that can arise under our system of government. The next reason assigned is, that the govem- metit will operate on individuals composing the sev- eral States, and not on the States themselves. This, however, is very little relied on. It admits that even a confederacy may operate on individuals with- out Ibsing its character as such, — and cites the arti- cles of confederation in illustration ; and it might have added, that mere treaties, in some instances, operate in the same way. It is readily conceded that one of the strongest characteristics of a con- federacy is, that it usually operates on the states or communities which compose it, in their corporate capacity. When it operates on individuals, it de- parts, to that extent, from its appropriate sphere. But this is not the case with a federal government ; — as will be shown when I come to draw the line of distinction between it and a confederacy. The ar- gument, then, might be appropriate to prove that the government is not a confederacy, — but not that it is a national government. It next relies on the amending power to prove that it is partly national and partly federal. It OF THE UNITED STATES. 157 states that, — " were it wholly national, tlie supreme and ultimate authority would reside in a majority of the people of the whole Union ; and this author- ity would be competent, at all times, like that of a majority of every national society, to alter or abol- ish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to any alter- ation, that would be binding on all." It is remark- able how often this celebrated work changes its ground, as to what constitutes a national, and what a federal government ; — and this, too, after defining them in the clearest and most precise manner. It tells us, in this instance, that were the government wholly national, — the supreme and ultimate author- ity would reside in the people of the Union; and, of course, such a government must derive its author- ity from that source. It tells us, elsewhere, that a federal government is one, to which the States, in their distinct, independent and sovereign character, are parties; — and, of course, such a government must derive its authority from them as its source. A government, then, to be partly one, and partly the other, ought, accordingly, to derive its authority partly from the one, and partly from the other ; and no government could be so, which did not: — and yet we are told, at one time, that the constitution is federal, because it derived its authority, neither from the majority of the people of the Union, nor a majority of the States ; — implying, of course, that a government, which derived its authority from a majority of the States, would be national ; as well 158 ON THE CONSTITUTION AND GOVEENMENT as that which derived it from a majority of the p pie : — and, at another, that the election of the P sident by the House of Representatives would b federal act ; — although the House, itself, is natior because it derived its authority from the Ameri( people. And now we are told, that the amendi power is partly national, because three fourths the States, voting as States, without regard to pulation, can, instead of the whole, amend the C( stitution ; although the vote of a majority of 1 House of Representatives, taken by States, ma the election of the President, to that extent, fedei K we turn from this confusion of ideas, to its o clear conceptions of what makes a federal, and wl a national government, nothing is more evident tt that the amending power is not derived from, i exercised under the authority of the people of 1 Union, regarded in the aggregate, — but ft'om the S( eral States, in then- original, distinct and soverei character ; and that it is but a modification of t original creating power, by which the constituti was ordained and established, — and which requir the consent of each State to make it a party to it; and not a negation or inhibition of that power,— has been shown. In support of these views, it ( deavors to show, by reasons equally unsatisfactc and inconclusive, that the object of the conventi which framed the constitution was, to establish, firm national government." To ascertain the powi and objects of the convention, reference ought be made, one would suppose, to the commissic given to their respective delegates, by the save or THE UNITED STATES. Ic9 States, wticli were represented in it. If that had been done, it would have been found that no State gave the slightest authority to its delegates to form a national government, or made the least allusion to such government as one of its objects. The word, National^ is not even ijsed in any one of the com- missions. On the contrary, they designate the ob- jects to be, to revise the federal constitution, and to make it adequate to the exigencies of the Union. But, instead of to these, the authors of this work re- sort to the act of Congress referring the proposition for calling a convention, to the several States, in conformity with the recommendation of the Anna- polis convention ; — which, of itself, could give no authority. And further, — even in this reference, they obviously rely, rather on the preamble of the act, than on the resolution adopted by Congress, submitting the proposition to the State govern- ments. The preamble and resolution are in the fol- lowing words : — " Whereas, there is a provision, in the articles of confederation and perpetual union, for making alterations therein, by the assent of a Congress of the United States and of the legisla- tures of the several States, — and whereas, experi- ence has evinced that there are defects in the pre- sent confederation, — as a mean to the remedy of which, several of the States, and particularly the State of New- York, by express instruction to their delegates in Congress, have suggested a convention for the purpose expressed in the following resolu- tion, and such convention appearing to be the most probable mean of establishing, in the States, a firm National Government, 160 ON THE CONSTITUTION AND GOVERNMENT Resolved^ That, in the opinion of Congress, : expedient that, on the second Monday of May n a convention of delegates, who shall have been pointed by the several States, be held in Phila phia, for the sole and eatress purpose of revising articles of confederation / aj^d reporting to Cong and the several legislatures, such alterations ; provisions therein as shall render the federal i stiiution adequate to the exigencies of the gov( ment and the preservation of the Union." Now, assuming that the mere opinion of ( gress, and not the commissions of the delegi from the several States, ought to determine the ject of the convention, — is it not manifest, that i clearly iu favor, not of establishing a firm natic government, but of simply revising the articlei confederation for the purposes specified ? Can expression be more explicit than the declaral contained in the resolution, that the convention si be held, " for the sole and express purpose of re ing the articles of confederation ?" If to this it added, that the commissions of the delegates of several States, accord with the resolution, there be no doubt that the real object of the convenl was,— (to use the language of the resolution,)— render the federal constitution adequate to the igencies of the government and the preservatioi the Union ;" and not to establish a national coi tution and government in its place : — and, that s was the impression of the convention itself, the i (admitted by the work,) that they did establij federal, and not a national constitution, conclusii Droves. OF THE UNITED STATES. 161 How the distinguished and patriotic authors of this celebrated work fell, — against their own clear and explicit admissions, — into an error so radical and dangerous, — one which has contributed, more than all others combined, to cast a mist over our system of government, and to confound and lead astray the minds of the community as to a true conception of its real character, cannot be accounted for, without adverting to their history and opinions as connected with the formation of the constitution. The two principal writers were prominent members of the convention ; and leaders, in that body, of the party, which supported the plan for a national govern- ment. The other, although not a member, is known to have belonged to the same party. They all ac- quiesced in the decision, which overruled their fa- vorite plan, and determined, patriotically, to give that adopted by the convention, a fair trial ; with- out, however, surrendering their preference for their own scheme of a national government. It was in this state of mind, which could not fail to exercise a strong influence over their judgments, that they wrote the Federalist : and, on all questions connect- ed with the character of the government, due allow- ance should be made for the force of the bias, under which their opinions were formed. From all that has beein stated, the inference fol- lows, irresistibly, that the government is a federal, in contradistinction to a national government; — a government formed by the States; ordained and established by the States, and for the States ; — with- out any participation or agency whatever, on the 11 162 ON THE CONSTITUTION AND GOVERNMENT part of the people, regarded in the aggrega,te as forming a nation ; that it is tlirougliout, ia whole, and in every part, simply and purely federal, — ^"the federal government of these States," — as is accu- rately and concisely expressed hj General Wash- ington, the organ of the convention, ia his letter laying it before the old Congress ; — words carefully selected, and with a full and accurate knowledge of their import. There is, indeed, no such community, politically speaking, as the people of the United States, regarded in the light of, and as constituting one people or nation. There never has been any such, in any stage of their existence ; and, of course, they neither could, nor ever can exercise any agency, — or have any participation, in the formation of our system of government, or its administration. In all its parts, — including the federal as well as the separ rate State governments, it emanated from the same source, — the people of the several States. The whole, taken together, form a federal community ;— a community composed of States united by a poli- tical compact ; — and not a nation composed of indi- viduals united by, what is called, a social compact. I shall next proceed to show that it is federal, in contradistinction to a confederacy. It differs and agrees, but in opposite respects, with a national government, and a confederacy. It differs from the former, inasmuch as it has, for its basis, a confederacy, and not a nation ; and agrees with it in being a government : while it agrees with the latter, to the extent of having a confederacy for its basis, and differs from it, inasmuch as the OF. THE UNITED STATES. 163 powers delegated to it are carried into execution "by a government, — and not by a mere congress of de- legates, as is the case in a confederacy. To be more full and explicit; — a federal government, thougli based on a confederacy, is, to tlie extent of the pow- ers delegated, as mucli a government as a national government itself. It possesses, to tMs extent, all the authorities possessed by the latter, and as fully and perfectly. The case is different with a confede- racy ; for, although it is sometimes called a govern- ment^ — its Congress, or CouncU, or the body repre- senting it, by whatever name it may be called, is much more nearly allied to an assembly of diplomar tists, convened to deliberate and determine how a league or treaty between their several sovereigns, for certain defined purposes, shall be carried into execution; leaving to the parties themselves, to fur- nish their quota of means, and to co-operate in car- rying out what may have been determined on. Such was the character of the Congress of our confede- racy; and such, substantially, was that of similar bodies in aU confederated communities, which preceded our present government. Our system is the first that ever substituted a government in Heu of such bodies. This, in fact, constitutes its pecu- liar characteristic. It is new, peculiar, and impre- cedented. In asserting that such is the difference between our present government and the confederacy, which it superseded, I am -supported by the authority of the convention which framed the constitution. It is to be found in the second paragraph of their let- 164 ON THE CONSTITUTION AND GOVERNMENT • ter, already cited. After stating the great ext^ powers, •wMch. it was deemed necessary to del to tlie United States, — or as they expressed " the general government of the Union," — the graph concludes in the following words : " Bu impropriety of delegating such extensive trus one body of men, (the Congress of the confeder is evident ; and hence results the necessity of ferent organization." This " different organiza' consisted in substituting a government in pis the Congress of the confederation ; and was, in the great and essential change made by the coi tion. All others were, relatively, of little im ance, — consisting rather in the modification of it guage, and the mode of executing its powers, i necessary by it, — than in the powers thems( The restrictions and limitations imposed on powers delegated, and on the several States, much the same in both. The change, thougl only essential one, was, of itself, important, vii in relation to the structure of the system ; b was much more so, when considered in its c quences as necessarily implying and invo^ others of great magnitude ; as I shall next pn to show. It involved, in the first place, an impo change in the source whence it became necessa: derive the delegated powers, and the authorit which the instrument delegating them shoul ratified. Those of the confederacy were dei from the governments of the several States. ' delegated them, and ratified the instrument by m OF THE UNITED STATES. 165 they were delegated, through their representatives in Congress assembled, and duly authorized for the purpose. It was, then, their work throughout ; and their powers were fully competent to it. They possessed, as a confederate couucU, the power of making compacts and treaties, and of constituting the necessary agency to superintend their execution. The articles of confederation and union constituted, indeed, a solemn league or compact, entered into for the purposes specified ; and Congress was but the joiat agent or representative appointed to superin- tend its execution. But the governments of the several States could go no further, and were wholly deficient in the requisite power to form a constitu- tion and government in their stead. That could only be done by the sovereign power; and that power, according to the fundamental principles of our system, resides, not in the government, but ex- clusively in the people, — who, with us, mean the peo- ple of the several States ; — and hence, the powers delegated to the government had to be derived from them, — and the constitution to be ratified, and or- dained and established by them. How this was done has already been fally explained. It involved, in the next place, an important change in the character of the system. It had pre- viously been, in reality, a league between the gov- ernments of the several States ; or to express it more fully and accurately, between the States, through the organs of their respective governments / but it became a union, in consequence of being ordained and estab- lished between the people of the several States, by 166 ON THE CONSTITUTION AND GOVERNMENT ttemselves, and for themselves, in their cliarac sovereign and independent communities. I tliis important change wMch (to use the langu the preamble of the constitution) " formed a perfect union." It, in fact, perfected it. It not be extended farther, or be made more inti To have gone a step beyond, would have be consoli*date the States^ and not the Union;- thereby to have destroyed the latter. It involved another change, growing out c division of the powers of government, betwee United States and the separate States ; — ^reqi that those delegated to the former should be fully enumerated and specified, in order to pr collision between them and the powers reserv the several States respectively. There was e cessity for such great caution under the confed< as its Congress could exercise little power, e through .the States, and with their co-oper Hence the care, circumspection and precision, which the grants of powers are made in the cm the comparatively loose, general, and more i nite manner in which they are made in the otl It involved another, intimately connected the preceding, and of great importance. It en changed the relation which the separate gc ments of the States sustained to the body, \ represented them in their confederated char under the confederacy ; for this was essential! ferent from that which they now sustain t< government of the United States, their pr representative. The governments of the £ OF THE UNITED STATES. 161? sustained, to the former, the relation of superior to subordinate — of the creator to the creature ; while they now sustain, to the latter, the relation of equals and co-ordinates. Both governments, — that of the United States and those of the separate States, de- rive their powers from the same source, and were ordained and established by the same authority ; — the only difference being, that in ordaining and es- tablishing the one, the people of the several States acted with concert or ' mutual understanding ; — while, in ordaining and establishing the others, the people of each State acted separately, and without concert or mutual understanding ; — as has been fully explained. Deriving their respective powers, then, from the same source, and being ordained and es- tablished by the same authority, — ^the two govern- ments. State and Federal, must, of necessity, be equal in their respective spheres ; and both being ordained and established by the people of the States, respectively, — each for itself, and by its own sepa- rate authority, — the constitution and government of the United States must, of necessity, be the con- stitution and government of each ; — as much so as its own separate and indi\adual constitution and government; and, therefore, they must stand, in each State, in the relation of co-ordinate constitu- tions and governments. It is on this ground only, that the former is the constitution and government of all the States-: — not because it is the constitution and government of the whole, considered in the ag- gregate as constituting one nation, but because it is the constitution and government of each respective- 168 ON THE CONSTITUTION AND GOVERNMENT ly : for to suppose that they are the constitu and government of eacTi^ because of the wliole, wi be to assume, what is not true, that they were dained and established by the American peop] the aggregate, as forming one nation. This w< be to reduce the several States to subordinate local, divisions ; and to convert their separate stitutions and governments into mere charters subordinate corporations : when, in truth and \ they are equals and co-ordinates. It, finally, involved a great change in the n ner of carrying into execution the delegated po-w As a government, it was necessary to clothe it t the attribute of deciding, in the first instance the extent of its powers, — and of acting on indi uals, directly, in carrying them into execution; stead of appealing to the agency of the governm( of the States, — as was the case with the Cong of the confederacy. Such are the essential distinctions between a : eral government and a confederacy ; — and sucli part, the important changes necessarily involved substituting a government, in the place of the ( gress of the confederacy. It now remains to be shown, that the gov( ment is a republic ; — ^a republic," — or, (if the exp sion be preferred,) a constitutional democracy, contradistinction to an absolute democracy. It is not an uncommon impression, that the ^ ernment of the United States is a government ba simply on population ; that numbers are its o element, and a numerical majority its only cont OF THE UNITED STATES. 169 ling power. In brief, that it is an absolute democ- racy. No opinion can be more erroneous. So far from being true, it is, in all tbe aspects in wbicli it can be regarded, pre-eminently a government of the concurrent majority ; with an organization, more complex and refined, indeed, but far better calcu- lated to express the sense of the whole, (in the only mode by which this can be fully and truly done, — to wit, by ascertaining the sense of aU its parts,) than any government ever formed, ancient or mo- dern. Instead of population, mere numbers, being the sole element, the numerical majority is, strictly speaking, excluded, even as one of its elements ; as I shall proceed to establish, by an appeal to figures ; beginning with the formation of the constitution, regarded as the fundamental law which ordained and established the government ; and closing with the organization of the government itself, regarded as the agent or trustee to carry its powers into effect. I shall pass by the Annapolis convention, on whose application, the convention which framed the constitution, was called; because it was a partial and informal meeting of delegates from a few States ; and commence with the Congress of the confedera- tion, by whom it was authoritatively called. That Congress derived its authority from the articles of confederation; and these, from the unanimous agi'eement of all the States ; — and not from the nu- merical majority, either of the several States, or of their population. It voted, as has been stated, by delegations; each counting one. A majority of each delegation, with a few important exceptions. 170 ON THE CONSTITUTION AND GOVERNMENT decided the vote of its respective State. Each State, without regard to population, had thus an equal vote. The confederacy consisted of thirteen States ; and, of course, it was in the power of any seven of the smallest, as well as the largest, to defeat the call of the convention ; and, by consequence, ' the formation of the constitution. By the first census, taken in 1790 — three years after the call — the population of the United States amounted to 3,394,563, estimated in federal num- bers. Assuming this to have been the whole amount of its population at the time of the call, (which caa cause no material error,) the population of the seven smallest States was 959,801 ; or less than one third of the whole : so that, less than one third of the pop- ulation could have defeated the call of the conven- tion. The convention voted, in like manner, by States ; and it required the votes of a majority of the dele- gations present, to adopt the measure. There were twelve States represented, — Rhode Island being ah- sent ; — so that the votes of seven delegations were required ; and, of course, less than one third of the population of the whole, could have defeated the formation of the constitution. The j)lan, when adopted by the convention, had again to be submitted to Congress, — and to receive its sanction, before it could be submitted to the sev- eral States for their approval, — a necessary prelimi- nary to its final reference to the conventions of the people of the several States for their ratification. It had thus, of course, to pass again the ordeal of Con- OF THE UNITED STATES. 171 gress ; when the delegations of seven of the smallest States, representing less than one third of the popu- lation, could again have defeated, by refusing to submit it for their consideration. And, stronger still ; — when submitted, it required, by an express provision, the concurrence of nine of the thirteen, to establish it, between the States ratifying it ; which put it in the power of any four States, the smallest as well as the largest, to reject it. The four small- est, to wit : Delaware, Rhode Island, Georgia, and New Hampshire, contained, by the census of 1790, a federal population of only 336,948 — but a little more than one eleventh of the whole : but, as incon- siderable as was their population, they could have defeated it, by preventing its ratification. It thus appears; that the numerical majority of the popula- tion, had no agency whatever in the process of forming and adopting the constitution ; and that neither this, nor a majority of the States, constituted an element in its ratification and adoption. In the provision for its amendment, it prescribes, as has been stated, two modes: — one, by two thirds of both houses of Congress ; and the other, by a convention of delegates from the States, called by Congress, on the application of two thirds of their respective legislatures. But, in neither case can the proposed amendment become a part of the constitu- tion, unless ratified by the legislatures of three fourths of the States, or by conventions of the peo- ple of three fourths, — as Congress may prescribe ; so that, in the one, it requires the consent of two thirds of the States to propose amendments, — and. 172 ON THE CONSTITUTION AND GOVERNMENT in both cases, of three fourths to adopt and ratify them, before they can become a part of the consti- tution. As there are, at present, thirty States in the Union, it will take twenty to propose, and, of course, would require but eleven to defeat, a proposition to amend the constitution; or, nineteen votes in the Senate, — if it should originate in Congress, — and the votes of eleven legislatures, if it should be to call a convention. By the census of 1840, the fed- eral population of all the States, — including the three, which were then territories, but which have since become States,- — was 16,0'7'7,604. To this add Texas, since admitted, say 110,000 ; — making the ag- gregate, 16,187,604. Of this amount, the eleven smallest States (Vermont being the largest of the number) contained a federal population 'of but 1,638,521 : and yet they can prevent the other nine- teen States, with afederal population of 14,549,082, from even proposing amendments to the constitu- tion : while the twenty smallest, (of which Maiae is the largest,) with a federal population of 3,526,- 811, can compel Congress to call a convention to propose amendments, against the united votes of the other ten, with a federal population of 12,660,798. Thus, while less than one eighth of the population, may, in the one case, prevent the adoption of a pro- position to amend the constitution, — less than one fourth can, in the other, adopt it. But, striking as are these results, the process, when examined with reference to the ratification of proposals to amend, will present others still more so. Here the consent of three fourths of the States OF THE UNITED STATES, 173 is required ; whicli, with tlie present number, would make the concurrence of twenty-three States neces- sary to give effect to the act of ratification ; and, of course, puts it in the power of any eight States to defeat a proposal to amend. The federal popula- tion of the eight smallest is but 776,969 ; and yet, small as this is, they can prevent amendments, against the united votes of the other twenty-two, with a fed- eral population of 15,410,635 ; or nearly twenty times their number. But while so small a portion of the entire population can prevent an amendment, twenty-three of the smallest States, — with a federal population of only 7,254,400, — can amend the con- stitution, against the united votes of the other seven, with a federal population of 8,933,204. So that a numerical minority of the population can amend the constitution, against a decided numerical majority ; when, at the same time, one nineteenth of the pop- ulation can prevent the other eighteen nineteenths from amending it. And more than this : any one State, — Delaware, for instance, with a federal popu- lation of only 77,043, — can prevent the other twenty- nine States, with a federal population of 16,110,561, from so amending the constitution as to deprive the States of an equality of representation in the Sen- ate. To complete, the picture : — Sixteen of the smallest States, — that is, a majority of them, with a population of only 3,411,672, — a little more than one fifth of the whole, — can, in effect, destroy the government and dissolve the Union, by simply de- clining to appoint Senators ; against the united voice of the other fourteen States, with a population of 174 ON THE CONSTITUTION AND GOVERNMENT 12,775,932 ;— being but little less tlian four fiffclis of the whole. These results, resting on calculations, which ex- clude doubt, incontestably prove, — not only that the authority which formed, ratified, and even' amended the constitution, regulates entirely the numerical majority, as one of its elements, — but furnish addi- tional and conclusive proof, if additional were needed, that ours is a federal government ; — a gov- ernment made by the several States ; and 'that States, and not individuals, are its constituents. The States, throughout, in forming, ratifying and amend- ing the constitution, act as equals, without reference to population. Regarding the Government, apart from the Con- stitution, and simply as the trustee or agent to carry its powers into execution, the case is some- what difiPerent. It is composed of two elements: One, the States, regarded in their corporate charac- ter, — and the other, their representative popula- tion, — estimated in, what is called, "federal num- bers;" — which is ascertained, "by adding to the whole number of free' persons, including those bound to ser'sdce for a term of years, — and exclud- ing Indians not taxed, — three fifths of all others."* These elements, in different proportions, enter into, and constitute all the departments of the govern- ment ; as -mil be made apparent by a brief sketch of its organization. The government is divided into three separate • 1st Art. 2d Sec. of Con. OF THE UNITED STATES. 175 departments, tlie legislative, the executive, and the judicial. The legislative consists of two bodies, — the Senate, and the House of Kepresentatives. The two are called the Congress of the United States : and all the legislative powers delegated to the government, are vested in it. The Senate is composed of two members from each State, elected by the legislature thereof, for the term of six years ; and the whole number is divided into three classes ; of which one goes out at the expiration of every two years. It is the representative of the States, in their corporate character. The members vote per capita, and a majority decides all questions of a legislative character. It has equal power with the House, on all such questions, — except that it can- not originate " bills for raising revenue." In addi- tion to its legislative powers, it participates in the powers of the other two departments. Its advice and consent are necessary to make treaties and appointments ; and it constitutes the high tribunal, before which impeachments are tried. In advising and consenting to treaties, and in trials of impeach- ments, two thirds are necessary to decide. In case the electoral college fails to choose a Vice-President, the power devolves on the Senate to make the selection from the two candidates having the high- est number of votes. In selecting, the members vote by States, and a majority of the States decide. In such cases, two thirds of the whole number of Senators are necessary to form a quorum. The House of Representatives is composed of members elected by the people of the several 176 ON THE CONSTITUTION AND GOVERNMENT States, for the term of two years. The right voting for them, in eadi State, is confined to tho who are qualified to vote for the members of tl most numerous branch of its own legislature. T] number of members is fixed by law, under ea( census, — which is taken every ten years. They a apportioned among the several States, according ■ their population, estimated in federal numbers ; bi each State is entitled to have one. The House, i addition to its legislative powers, has the sole powi of impeachment ; as.well as of choosing the Preside] (in case of a failure to elect by the electoral cc lege) from the three candidates, having the grea est number of votes. The members, in such caa vote by States ; — the vote of each delegation, if n( equally divided, counts one, and a majority decide In all other cases they vote per capita^ and tl majority decides ; except only on a proposition \ amend the 'constitution. The executive powers are vested in the Pres dent of United States. He and the Vice-Presiden are chosen for the term of four years, by elector appointed ia such manner as the several States ma direct. Each State is entitled to a number, equi to the whole number of its Senators and Keprese': tatives for the time. The electors vote per capit in their respectiA-e States, on the same day throug. out the Union; and a majority of the votes of a the electors is requisite to a choice. In case of failure to elect, either in reference to the Preside) or Vice-President, the House or the Senate, as tl case may be, make the choice, in the maimer befo: OF THE UNITED STATES. 177 stated. K the House fail to choose before the fourth day of March next ensuing, — or in case of the removal from office, death, resignation, or inability of the President, — the Vice-President acts as Presi- dent. In addition to the ordinary executive pow- ers, the President has the authority to make trea- ties and appointments, by, and with the advice and consent of the Senate; and to approve or disap- prove all bills before they become laws ; as well as all orders, resolutions or votes, to which the con- currence of both houses of Congress is necessary, — except on questions of adjournment, — before they can take effect. In case of his disapproval, the votes of two thirds of both houses are necessary to pass them. He is allowed ten days (Sundays not counted) to approve or disapprove ; and if he fail to act within that period, the bill, order, reso- lution or vote, (as the case may be,) becomes as valid, to all intents and purposes, as if he had signed it; unless Congress, by its adjournment, prevent its return. The judicial power is vested in one Supreme Court, and such inferior courts, as Congress may es- tablish. The Judges of both are appointed by the President in the manner above stated; and hold their office during good behavior. The President, Vice-President, Judges, and all the civil officers, are liable to be impeached for trea- son, bribery, and other high crimes and misde- meanors. FrSm this brief sketch, it is apparent that the States, regarded in their corporate character, and 12 178 ON THE C03SrSTITUTI0N AND GOVERNMENT the population of the States, estimated in fi numbers, are the two elements, of which the emment is exclusively composed; and that th ter, in different proportions, into the formati all its departments. In the legislative they in equal proportions, and in their most distinc simpler form. Each, in that department, haa i propriate organ ; and each acts by its resp( majorities, — as far as legislation is concerned, bill, resolution, order, or vote, partaking of tl ture of a law, can be adopted without their co ring assent : so that each house has a veto oi other, in all matters of legislation. In the exec they are differently blended. The powers oi department are vested in a single functioi which made it impossible to give to them sep organs, and concurrent action. In lieu of thii two elements are blended in the constitution o: college of electors, which chooses the Presi( but as this gave a decided preponderance t( •element of population, — because of the gr number of which it was composed, — ^in order to l)at and to compensate this advantage, — and tc serve, as far as possible, the equipoise betweei two, the power was vested in the House, votii States, to choose him from the three candic having the largest number of votes, in case of £ ure of choice by the college ; and in case of a ure to select by the House, or of removal, d resignation, or inability, the Vice-President w£ thorized to act as President. • These provisions a preponderance, even more decided, to the < OF THE UNITED STATES. 179 element, in the eventual choice. This was still more striking as the constitution stood at its adop- tion. It originally provided that each elector should vote for two candidates, without designating which should be the President, or which the Vice-Presi- dent; the person having the highest number of votes to be the President, if it should be a majority of the whole number given.. If there should be more than one having such majority, — and an equal number of votes, — the House, voting by States, should choose between them, which should be Pre- sident : — ^but if none should have a majority, the House, voting in the same way, should choose the President from the five having the greatest number of votes ; the person having the greatest number of votes, after the choice of the President, to be the Vice-President. But in case of two or more having an equal number, the Senate should elect from among them the Vice-President. Had these provisions been left unaltered, and not superseded, in practice, by caucuses and party conventions, their effect would have been to give to the majority of the people of the several States, the right of nominating five candidates ; and to the ma- jority of the States, acting in their corporate charac- ter, the right of choosing from them, which should be President, and which Vice-President, The Pre- sident and Vice-President would, virtually, have been elected by the concurrent majority of the sev- eral States, and of their population, estimated in federal numbers ; and, in this important respect, the executive would have been assimilated to the legis- 180 ON THE CONSTITUTION AND GOVERNMENT lative department. But the Senate, in additic its legislative, is vested also with supervisory • ers in respect to treaties and appointments, tv give it a participation in executive powers,' to extent ; and a corresponding weight in the exe of two of its most important functions. The trc making power is, in reality, a branch of the making power ; and we accordingly find that ' ties as well as the constitution itself, and the ac Congress, are declared-to be the supreme law oi land. This important branch of the law-ma] power includes aU questions between the Un States and foreign nations, which may become subjects of negotiation and treaty; while the pointing power is intimately connected with performance of all its functions. In the Judiciary the two elements are bleni in proportions different from either of the otl The President, in the election of whom they both united, nomiuates the judges ; and the Sen which consists exclusively of one of the elem( confirms or rejects : so that they are, to a cer extent, concurrent in this department ; though States, considered in their corporate capacity, ma; said to be its predominant element. In the impeaching power, by which it was tended to make the executive and judiciary res; sible, the two elements exist and act separateh in the legislative department : — the one, constitu the impeaching power, resides in the House of ] resentatives ; and the other, the power that ■ and pronounces judgment, in the Senate : and 1 OF THE UNITED STATES. 181 althougli eating separately in their respective bo- dies, their joint and concurrent action is necessary to give effect to the power. It thus appears, on a view of the wholej that it was the object of the framers of the constitution, in organizing the government, to give to the two elements, of which it is composed, separate, but con- current action ; and, consequently, a veto on each other, whenever the organization of the department, or the nature of the power would admit : and when this could not be done, so to blend the two, as to make as near an approach to it, in effect, as possi- ble. It is, also, apparent, that the government, re- garded apart from the constitution, is the govern- ment of the concurrent, and not of the numerical majority. But to have an accurate' conception how it is calculated to act in practice ; and to establish, beyond doubt, that it was neither intended to be, nor is, in fact, the government of the numerical ma- jority, it will be necessary again to appeal to figures. That, in organizing a government with different departments, in each of which the States are repre- sented in a twofold aspect, in the manner stated, it was the object of the framers of the constitution, to make it more, instead of less popular than it would have been as a government of the mere numerical majo- rity — ^that is, as requiring a more numerous, instead of a less numerous constituency to carry its powers into execution, — may be* inferred from the fact, that such actually is the effect. Indeed, the necessary effect of the concurrent majority is, to make the government more popular ; — that is, to require more 182 ON THE CONSTITUTION AND GOVERNMENT wiUs to put it in action, than if any one of the jorities, of whicli it is composed, were its sole ment ; — as wUl be apparent by reference to fig If tlie House, wMch represents population, mated in federal numbers, had been invested the sole power of legislation, then six of the la States, to wit, New-York, Pennsylvania, Virg Ohio, Massachusetts and Tennessee, with a fee population of 8,216,279, would have had the pc of making laws for the other twenty-four, wi federal population of 7,971,325. On the other h if the Senate had been invested with the sole ] er, sixteen of the smallest States, — embracing ryland as the largest, — ^with a federal populatic 3,411,672, Would have had the power of legisla for the other fourteen, with a population of 12,'! 932. But the constitution, in giving each bo negative on the other, in all matters of legisla makes it necessary that a majority of each sh^ concur to pass a bill, before it becomes an act ; the smallest number of States and population which this can be effected, is six of the larger vo for it in the House of Eepresentatives, — and te the smaller, uniting with them in their vote, in Senate. The ten smaller, including New-Hamps as the largest, have a federal population of 1,; 575 ; which, added to that of the six larger, w make 9,572,852. So that no bUl can become a with less than the united vote of sixteen States, resenting a constituency containing a federal ulation of 9,572,852, against fourteen States, r( senting a like population of 6,614,752. OF THE UNITED STATES. 183 But, when passed, the bill is subject to the Pres- ident's approval or disapproval. If he disapprove, or, as it is usuaUj termed, vetoes it, it cannot be- come a law unless passed by two thirds of the mem- bers of both bodies. The House of Eepresenta- tives consists of 228, — two thirds of which is 162; — which, therefore, is the smallest number that can overcome his veto. It would take ten of the larger States, of which Georgia is the smallest, to make up that number ; — ^the federal population of which is 10,853,175 : and, in the Senate, it would require the votes of twenty States to overrule it ; — and, of course, ten of the larger united with ten of the smaller. But the ten smaller States have a federal population of only 1,346,575, — as has been stated, — which added to that of the ten larger, would give 12,199,748, as the smallest population by which his veto can be overruled, and the act become a law. Even then, it is liable to be pronounced unconstitu- tional by the judges, should it, in any case before them^ come in conflict with their views of the con- stitution ; — a decision which* in respect to individu- als, operates as an absolute veto, which can only be overruled by an amendment of the constitution. In all these calculations, I assume a full House, and full votes ; — and that members vote according to the will of their constituents. K the election of the President, by the electoral college, be compared with the passage of a bill by Congress, it will be found that it requires a smaller federal number to elect, than to pass a bill ; — result- ing from the fact that tie two majorities, in the one 184 ON THE OdNSTITUTION AND GOVEENMENT case, are united and blended together, insU acting concurrently, as in the other. There i present, 288 members of Congress, of which' Senators, and the others, members of the Ho- Kepresentatives ; and, as each State is entit appoint as many electors as it has members o: gress, there is, of course, the same number oi tors. One hundred and forty-five constitute a i ity of the whole ; and, of course, are necessar choice. Seven of the States of the largest say, New- York, Pennsylvania, Virginia, Ohio nessee, Kentucky and Indiana, combined with a medium size, say, New Hampshire, are entit that number; — and, with a federal populati 9,125,936, may overi'ule the vote of the other U two, with a population of 7,061,668 : so that a minority of States, with not a large major population, can elect a President by the elo' college,^ — against a very large majority of the S with a population not greatly under a majorit follows, therefore, that the choice of a Pres" when made by the electoral college, may b( popular in its character than when made by gress, — 'which cannot elect without a concurj-ei a federal population of upwards of nine and ; millions. But to compensate this great prepc ance of the majority leased on population, ovei based on the States, legarded in their corf character, in an election by the college of ele the provision giving to the House of Eeprei tives, voting by States, the eventual choice, it the college fail to elect, was adopted. Und( OF THE UNITED STATES. 185 operation, sixteen of the smallest States, witli a fed- eral population of 3,411,672, may elect the Presi- dent, against the remaining fourteen, with a federal population of l2,YT5,932 : — which gives a prepon- derance equally great to the States, without reference to population, in the contingency mentioned. From what has been stated, the conclusion fol- lows, irresistibly, that the constitution and the government, regarding the latter apart from the former, rest, throughout, on the principle of the con- current majority ; and that it is, of course, a Kepub- Hc; — a constitutional democracy, in contradistinc- tion to an absolute democracy ; and that, the theory which regards it as a government of the mere nu- merical majority, rests on a gross and groundless misconception. So far is this from being the case, the numerical majority was entirely excluded as an element, throughout the whole process of forming and ratifying the constitution : and, although admit- ted as one of the two elements, in the organization of the government, it was with the important quali- fication, that it should be the numerical majority of the population of the several States^ regarded in their corporate character, and not of the whole Union, regarded as one community. And further than this ; — it was to be the numerical majority, not of their entire population, but of their federal popu- lation ; which, as has been shown, is estimated ar- tificially, — by excluding two fifths of a large por- tion of the population of many of the States of the Union. Even with these important qualifications, it was admitted as the less prominent of the two. 186 ON THE CONSTITUTION' AND GOVERNMENT With tlie exception of the impeaching power, it has no direct participation in the functions of any department of the government, except the legisla- tive ; while the other element participates in some of the most important functions of the executive; and, in the constitution of the Senate, as a court to try impeachments, in the highest of the judicial func- tions. It was, in fact, admitted, not because it was the numerical majority, nor on the ground, that, as such, it ought, of right, to constitute one of its ele- ments, — much less the only one; — ^but for a very different reason. In the federal constitution, the equality of the States, without regard to popula- tion, size, wealth, institutions, or any other consider- ation, is a fundamental principle ; as much so as is the equality of their citizens, in the governments of the several States, without regard to property, ia- fluence, or superiority of any description. As, ia the one, the citizens form the constituent body; — so, in the other, the States. But the latter,, in form- ing a government for their mutual protection and welfare, deemed it proper, as a matter of fairness and sound policy, and not of right, to assign to it an increased weight, bearing some reasonable pro- portion to the different amount of means which the several States might, respectively, contribute to the accomplishment of the ends, for which they were about to enter into a federal union. For this pur- pose they admitted, what is called federal numbers, as one of the elements of the government about to be established ; while they were, at the same time^ so jealous of the effects of admitting it, with all its OF THE UNITED STATES. 1§7 restrictions, — ^that, ia order to guard effectually the other element, they provided that no State, without its consent, should be deprived of its equal suffi-age in the Senate ; so as to place their equality, in that important body, beyond the reach even of the amending power. I have now established, as proposed at the out- set, that the government of the United States is a democratic federal Republic; — democratic in con- tradistinction to aristocratic, and monarchical; — federal, in contradistinction to national, on the one hand, — and to a confederacy, on the other ; and a Republic — a government of the concurrent major- ity, in contradistinction to an absolute democracy — or a government of the numerical majority. But the government of the United States, with all its complication and refinement of organization, is but a part of a system of governments. It is the representative and organ of the States, only to the extent of the powers delegated to it. Beyond this, each State has its own separate government, which is its exclusive representative and organ, as to all the other powers of government ; — or, as they are usually called, the reserved powers. However cor- rect, then, our conception of the character of the government of the United States viewed by itself, may be, it must be very imperfect, unless viewed at the same time, in connection with the complicated system, of which it forms but a part. In order to present this more perfect view, it will be essential, first, to present the outlines of the entire system, so far as it may be necessary to show the nature and 188 ON THE CONSTITUTION AND GOVERNMENT character of the relation between the two — government of the United States and the sepai State governments. For this purpose, it will be pedient to trace, historically, the origin and for tion of the system itself, of which they constii the parts. I have already shown, that the present gov( ment of the United States was reared on the fc dation of the articles of confederation and perpet union ; that these last did but little more than fine the powers and the extent of the governm and the union, which had grown out of the exi^ cies of the revolution ; and that thesfe, agaia, 1 but enlarged and strengthened the powers and union which the exigencies of a common defe against the aggression of the parent country, ] forced the colonies to assume and form. WKi now propose is, to trace briefly downwards, ft the beginning, the causes and circumstances wl led to the formation, in all its parts, of our pres peculiar, complicated, and remarkable system governments. This may be readily done, — ^for have the advantage, (possessed by few people, m in past times, have formed and flourished under markable political institutions,) of historical counts, so full and accurate, of the origin, rise, i formation of our institutions, throughout aU tl stages, — as to leave nothing relating to either, vague and uncertain conjecture. It is known to all, in any degree familiar "w our history, that the region embraced by the oi nal States of the Union appertained to the ere OP THE UNITED STATES. 189 of Great Britain, at the time of its colonization; and that different portions of it were granted to certain companies or individuals, for the purpose of settle- ment and colonization. It is also known, that the thirteen colonies, which afterwards declared their independence, were established under charters which, while they left the sovereignty in the crown, and reserved the general power of supervision to the parent country, secured to the several colonies popular representation in their respective govern- ments, or in one branch, at least, of their legislatures, — with the general rights of British subjects. Al- though the colonies had no political connection with each other, except as dependent provinces of the same crown — they were closely bound together by the ties of a common origin, identity of language, similarity of religion, laws, customs, manners, com- mercial and social intercourse, — and by a sense of common danger ; — exposed, as they were, to the in- cursions of a savage foe, acting under the influence of a powerful and hostile nation. Li this embryo state of our political existence, are to be found all the elements which subsequently led to the formation of our peculiar system of governments. The revolution, as it is called, produced no other changes than those which were necessarily caused by the declaration of independence. These were, indeed, very important. Its first and necessary ef- fect was, to cut the cord which had bound the colonies to the parent country, — to extinguish all the authori- ty of the latter, — and, by consequence, to convert them into thirteen independent and sovereign States. 190 ON THE CONSTITUTION AND GOVEBNMENT I say, " independent and sovereign, " because, as the colonies were, politically and in respect to each otter, wholly independent, — ^the sovereignty of each, regarded as distinct and separate communities, be- ing vested in the British crown, — the necessary effect of severing the tie which bound them to it was, to devolve the sovereignty on each respectively, and, thereby, to convert them from dependent colo- nies, into independent and sovereign States. Thus, the region occupied by them, came to be divided into as many States as there were colonies, each in- dependent of the others, — as they were expressly declared to be ; and only united to the extent ne- cessary to defend their independence, and meet the exigencies of the occasion: — and hence that great and, I might say, providential territorial division of the country, into independent and sovereign States, on which our entire system of government rests. Its next effect was, to transfer the sovereignty which had, heretofore, resided in the British crown, not to the governments of, but to the people com- posing the several States. It could only devolve on them. The declaration of independence, by extinguishing the British authority in the several colonies, necessarily destroyed every department of their governments, except such as derived their authority from, and represented their respective people. Nothing, then, remained of their several governments, but the popular and representative branches of them. But a representative govern- ment, even when entire, cannot possibly be the seat ' of sovereignty, — ^the supreme and ultimate OF THE UNITED STATES. 191 power of a State. . The very term, " repre-sentabive^'' implies a superior in tlie individual or body repre- sented. Fortunately for us, the people of the several colonies constituted, not a mere mass of individuals, without any organic arrangements to express their sovereign will, or carry it into effect. On the contrary, they constituted organized com- munities, — \n. the full possession and constant exer- cise of the right of suffrage, under their colonial governments. Had they constituted a mere mass of individuals, — without organization, and unaccus- tomed to the exercise of the right of suffrage, it would have been impossible to have prevented those internal convulsions, which almost ever attend the change of the seat of sovereignty ; — and which so frequently render the change rather a curse than a blessing. But in their situation, and under its circumstances, the change was made without the least convulsion, or the slightest disturbance. The mere will of the sovereign communities, aided by the remaining fragments, — ^the popular branches of their several colonial governments, speedily ordained and established governments, each for itself; and thus passed, without anarchy, — without a shock, from their dependent condition under the colonial governments, to that of independence under those established by their own authority. Thus commenced the division between the con- stitution-making and the law-making powers ; — be- tween the power which ordains and establishes the fundamental laws ; — which creates, organizes and in- vests government with its authority, and subjects it 192 ON THE CONSTITUTION AND GOVERNMENT to restrictions ; — and tlie power ^that passes acts to carry into execution, tlie powers tlius delegated to government. The one, emanating from tlie people, as forming a sovereign com/rmjmity^ — creates tlie govern- ment ; — tlie other, as a representative appointed to execute its powers, enacts laws to regulate and con- trol tie conduct of tlie people, regarded as mdwi- duals. This division between the two powers, — thus necessarily incident to the separation from the parent country, — constitutes an element in our poh- tical system as essential to its formation, as the great and primary territorial division of independent and sovereign States. Between them, it was our good fortune never to have been left, for a moment, in doubt, as to where the sovereign authority was to be found ; or how, and by whom it should be ex- ercised: and, hence, the facility, the promptitude and safety, with which we passed from one state to the other, as far as internal causes were concerned. Our only difficulty and danger lay in the effort to resist the immense power of the parent country. The governments of the several States were thus rightfully and regularly constituted. They, in the course of a few years, by entering into articles of confederation and perpetual union, established and made more perfect the union which had been infor- mally constituted, in consequence of the exigencies growing out of the contest with a powerful enemy. But experience soon proved that the confederacy was wholly inadequate to effect the objects for which it was formed. It was then, and not until then, that the causes which had their origin in our OF THE UNITED STATES. 193 ■ embryo state, and whicli had, thus far, led to such happy results, fuUy developed themselves. The fail- ure of -the confederacy was so glaring, as to make it appear to all, that something must be done to meet the exigencies of the occasion : — and the great ques- tion which presented itself to all was ; — ^what should, or could be done? To dissolve the Union was too abhorrent to be named. In addition to the causes which had con- nected them by such strong cords of affection while colonies, there were superadded others, stUl more powerful, — resulting from the common dangers to which they had been exposed, and the common glory they had acquired, in passing successfully through the war of the revolution. Besides, all saw that the hope of reaping the rich rewards of their- successful resistance to the encroachment of the pa- rent country, depended on preserving the Union. But, if disunion was out of the question, consoli- dation was not less repugnant to their feelings and opinions. The attachments of all to their respective States and institutions, were strong, and of long standing, — since they were identifi(^d with their re- spective colonies ; and, for the most part, had sur- vived the separation from the parent country. Nor were they unaware of the danger to their liberty and property, to be apprehended from a surrender of their sovereignty and existence, as separate and independent States, and a consolidation of the whole into one nation. They regarded disunion and con- solidation as equally dangerous; and were, there- fore, equally opposed to both. 13 194 ON THE CONSTITUTION AND GOVERNMENT To change the form of government to an aristoc- racy or monarchy, was not to be thought of. The deepest feelings of the common heart were in op- position to them, and in favor of popular govern- ment. These changes or alterations being out of the question, what other remained to be considered? Men of the greatest talents and experience were at a loss for an answer. To meet the exigencies of the occasion, a convention of the States was called. When it met, the only alternative, in the opinion of the larger portion of its most distinguished mem- bers, was, the establishment of a iiational govern- ment ; which was but another name, in reality, for consolidation. But where wisdom and experience proved incompetent to provide a remedy, the neces- sity of doing something, combined with the force of those causes, which had thus far shaped our des- tiny, carried us successfully through the perilous juncture. In the hour of trial, we realized the pre- cious advantages we possessed in the two great and prime elements that distinguish our system of governments, — the division of the country, territo- rially, into independent and sovereign States, — and the division of the powers of government into con- ■Mitution and law-makm.g powers. Of the materials which they jointly furnished, the convention was enabled to construct the present system, — the only alternative left, by which we could escape the dire consequences attendant on the others; and which has so long preserved peace among ourselves, and protected us against danger from abroad. Each OF THE UNITED STATES. 195 contributed essential aid towards the accomplish- ment of this great work. To the former, we owe the mode of constituting the convention ; — as Avell as that of voting, in the formation and adoption of the constitution, — and, finally, in the ratification of it by the States : and to them, jointly, are we exclusively indebted for that peculiar form which the constitution and govern- ment finally assumed. It is impossible to read the proceedings of the convention, without perceiving that, if the delegates had been appointed by the people at large, and in proportion to population, no- thing like the present constitution could have been adopted. It would have assumed the form best suited to the views and interests of the more popu- lous and wealthy portions ; and, for that purpose, been made paramount to the existing State govern- ments : in brief, a consolidated, Tiational government would have been formed. But as the convention was composed of delegates from separate indepen- dent and sovereign States, it inyolved the necessity of voting by States, in framing and adopting the constitution ; and, — what is of far more importance, — ^the necessity of submitting it to the States for their respective ratifications ; so that each should be bound by its own act, and not by that of a ma- jority of the States, nor of their united population. It was this necessity of obtaining the consent of a majority of the States in convention, as, also, in the intermediate process, — and, finally, the unanimous approval of aE, in order to make it obligatory on all, which rendered it indispensable for the conven- 196 ON THE CONSTITUTION AND GOVERNMENT tion to consult the feelings and interests of all. This, united with the absolute necessity of doing something, in order to avert impending calamities of the most fearful character, impressed all with feel- ings of moderation, forbearance, mutual respect, con- cession, and compromise, as indispensable to secure the adoption of some measure of security. It was the prevalence of these impressions, that stamped their work with so much fairness, equity; and jus- tice, — as to receive, finally, the unanimous ratificar tion of the States ; and which has caused it to con- tinue ever since, the object of the admiration and attachment of the reflecting and patriotic. But the moderation, forbearance, mutual respect, concession, and compromise, superinduced by the causes referred to, could, of themselves, have effect- ed nothing, without the aid of the division between the constitution and the law-making powers. Fee- bleness and a tendency to disorder are inherent in confederacies ; and cannot be remedied, simply by the employment or modification of their powers. But as governments, according to our. conceptions, cannot ordain and establish constitutions ; — and as those of the States had already gone as far as they rightfully could, in framing and adopting the arti- cles of confederation and perpetual union, it would have been impossible to have called the present constitution and government into being, without in- voking the high creating power, which ordained and established those of the several States. There was none other competent to the task. It was, therefore, invoked ; and formed a constitution and OF THE UNITED STATES. 197 govemment for the United States, as it had formed and modelled those of the several States. The first step was, — ^the division of the powers of government ; — which was effected, by leaving subject to the ex- clusive control of the several States in their sepa- rate and individual character, all powers which, it was believed, they could advantageously exercise for themselves respectively, — ^without incurring the hazard of bringing them in conflict with each'other ; — and by delegating, specifically, others to the Unit- ed 'States, in the manner explained. It is this di- vision of the powers of the government into such as are delegated, specifically, to the common and joiut govemment of all the States, — ^to be exercised for the benefit and safety of each and all ; — and the reservation of all others to the States respectively, ^ — to be exercised through the separate govemment of each, which mates ours, a system of governments^ as has been stated. It is obvious, from this sketch, brief as it is, — taken in connection with what has been previously established, — that the two governments. General and State, stand to each other, in the first place, in the relation of parts to the whole ; not, indeed, in refer- ence to their organization or functions, — ^for in this respect both are perfect, — ^but in reference to their powers. As they divide between them the delegated powers appertaining to government, — and as, of course, each is divested of what the other possesses, — ^it necessarily requires the two united to consti- tute one entire govemment. That they are both paramount and supreme within the sphere of their 198 ON THE CONSTITUTION AND GOVERNMENT respective ■ powers ; — that they stand, within these limits, as equals, — and sustain the relation of co-or- dinate governments, has already been fully estah- lished. As co-ordinates, they sustain to each other the same relation which subsists between the differ- ent departments of the government — the executive, the legislative, and the judicial, — and for the same reason. These are co-ordinates; becausfe each, ia the sphere of its powers, is equal to, and indepen- dent of the others ; and because the three united make the government. The only difference is that, in the illustration, each department, by itself, is not a government, — since it takes the whole in connec- tion to form one ; while the governments of the several States respectively, and that of the United States, although perfect governments in themselves, and in their respective spheres, require to be united in order to constitute one entire government. They, in this respect, stand as principal and supplemea- tal ; — while the co-departments of each stand in the relation of parts to the whole. The opposite theory, which would make the constitution and gov- ernment of the United States the government of the whole, — and the government of each, hecame the government of the whole, — and not that of dl, because of eacA, — besides the objection already stated, would involve the absurdity of each State having only half a constitution, and half a govern- ment ; and this, too, while possessed of the supreme sovereign power. Taking all the parts together, the people of thirty independent and sovereign States, confederated by a solemn constitutional com- OF THE UNITED STATES. 199 pact into one great federal community, with a sys- tem of government, in all of wMch, powers are separated into the great primary divisions of the constitutioTi-makmg and the law-raaMag powers; those of the latter class being divided between the common and joint government of all the States, and the separate and local governments of each State respectively ; — and, finally, the powers of both dis- tributed among three separate and independent de- partments, legislative, executive, and judicial ; — pre- sents, in the whole, a political system as remarkable for its grandeur as it is for its novelty and refine- ment of organization. — For the structure of such a system — so wise, just, and beneficent, — ^we are far more indebted to a superintending Providence, that so disposed events as to lead, as if by an invisible hand, to its formation, than to those who erected it. Intelligent, experienced, and patriotic as they were, they were but builders under its superintending direction. Having shown in what relation the government of the United States and those of the separate States stand to each other, I shall next proceed to trace the line which divides their respective powers ; or, to express it in constitutional language, — which dis- tinguishes between the powers delegated to the United States, and those reserved to the States re- spectively, — ^with the restrictions imposed on each. In doing this, I propose to group the former under general heads, accompanied by such remarks as may be deemed necessary, in reference to the object in view. 200 ON THE CONSTITUTION AND GOVERNMENT In deciding what powers ought, and what ought not to be granted, the leading principle undoubted- ly was, to delegate those only which couM be more safely, or effectually, or beneficially exercised for the common good of aU the States, by the joint or general government of aE, than by the separate gov- ernment of each State ; leaving all others to the . several States respectively. The object was, not to supersede the separate governments of the States, — but to establish a joint supplemental government ; in order to do that, which either could not be done at all, or as safely and well done by them, as by a joint government of all. This leading principle embraced two great divisions of power, which may be said to comprehend all, or nearly all the dele- gated powers; either directly, or as a means to carry them into execution. One of them embraces all the powers appertaining to the relations of the States with the rest of the world, called then- foreign relations ; and the other, of an internal char- acter, embraces such as appertain to the exterior re- lations of the States with each other. It is clear that both come within the leading principle; as each is of a description which the States, in their separate character, are either incompetent to exer- cise at all, or if competent, to exercise consist- ently with their mutual peace, safety, and pros- perity. Indeed, so strong and universal has this opinion been, in reference to the powers appertain- ing to their foreign relations, that, from the Declara- tion of Independence to the present time, in all the changes through which they have passed, the Union OP THE UNITED STATES. 201 bas had exclusive charge of this great division of powers. To the rest of the world, the States com- posing this Union are now, and ever have been known in no other than their united, confederated character. Abroad, — to the rest. of the world, — they are but one. It is only at home, in their in- terior relations, that they are mcmy ; and it' is to this twofold aspect that their motto, " E plurih%is unum^'' appropriately and emphatically applies. So imperious was the necessity of union, and a com- mon government to take charge of their foreign relations, that it may be safely affirmed, not only that it led to their formation, but that, without it, the States never would have been united. The same necessity still continues to be one of the strongest bonds of their union. But, strong as was, and still is, the inducement to union, in order to preserve their mutual peace and safety within^ it was not, of itself, sufficiently strong to unite the parts composing this vast federal fabric ; nor, probably, is it, of itself, sufficiently strong to hold them together. This great division of authority appertains to the treaty-making power; and is vested in the Presi- dent and Senate. The power of negotiating treaties belongs exclusively to the former ; but he cannot make them without the advice and consent of the latter. When made, they are declared to be the supreme law of the land. The reason for vesting this branch of the law-making power exclusively in the President and Senate, to the exclusion of the House of Representatives, is to be traced to the ne- cessity of secrecy in conducting negotiations and 202 ON THE CONSTITUTION AND GOVERNMENT making treaties ; — as they often involve considera- tions calculated to have great weight, — but which cannot be disclosed without hazarding their success. Hence the objection to so numerous a body as the House of Eepresentatives participating in the exer- cise of the power. But to. guard against the dan- gers which might result from confiding the power to so small a body, the advice and consent of two thirds of the Senators present was required. There is a very striking difference between the manner in which the treaty-making and the law-mak- ing power, in its strict sense, are delegated, which deserves notice. The former is vested in the Presi- dent and Senate by a few general words, without enumerating or specifying, particularly, the power delegated. The constitution simply provides that, " he shall have power, by and with the advice and consent of the Senate, to make treaties ; provided two thirds of the Senators present concur ;" — while the legislative powers vested in Congress, are, one by one, carefully enumerated and specified. The reason is to be found in the fact, that the treaty- making power is vested, exclusivel/y^ in the govern- ment of the United States ; and, therefore, nothing more was necessary in delegating it, than to speci- fy, as is done, the portion or department of the gov- ernment in which it is vested. It was, then, not only unnecessary, but it would have been absurd to enumerate, specially, the powers embraced in the grant. Very different is the case in regard to legis- lative powers. They are divided between the Fed- eral government and the State governments ; which OF THE UNITED STATES. 203 made it absolutely necessary, in order to draw tlie line between the delegated and reserved powers, that the one or the other should be carefully enu- merated and specified ; and, as the former was intend- ed to be but supplemental to the latter, — and to embrace the comparatively few powers which could not be either exercised at all, — or, if at all, could not be so well and safely exercised by the sep- arate governments of the several States, — it was proper that the former, and not the latter, should be enumerated and specified. But, although the treaty-making power is exclusively vested, and with- out enumeration or specification, in the government of the United States, it is nevertheless subject to several important limitations. It is, in the first place, strictly limited to ques- tions inter alios / that is, to questions between us and foreign powers which require negotiation to adjust them. All such clearly appertain to it. But to extend the power beyond these, be the pretext •what it may, would be to extend it beyond its allot- ted sphere ; and, thus, a palpable violation of the constitution. It is, in the next place, limited by all the provisions of the constitution which inhibit cer- tain acts from being done by the government, or any of its departments ; — of which description there are many. It is also limited by such provisions of the constitution as direct certain acts to be done in a par- ticular way, and which prohibit the contrary ; of which a striking example is to be found in that which declares that, " no money shall be drawn from the treasury but in consequence of appropriations to be 204 ON THE CONSTITUTION AND GOVEENMBNT made by law." This not only imposes an important restriction on the power, but gives to Congress, as the law-making power, and to the House of Eepre- sentatives as a portion of Congress, the right to withhold appropriations ; and, thereby, an import- ant control over the treaty-making power, whenev- er money is required to carry a treaty into effect ; — which is usually the case, especially in reference to those of much importance. There still remains an- other, and more important limitation ; but of a more general and indefinite character. It can enter into no stipulation calculated to change the character of the government ; or to do that which can only be done by the constitution-making power ; or which is inconsistent with the nature and structure of the government, — or the objects for which it was formed. Among which, it seems to be settled, that it cannot change or alter the boundary of a State, — or cede any portion of its territory without its consent. Within these limits, all questions which may arise between us and other powers, be the subject matter what it may, fall within the limits of the treaty- making power, and may be adjusted by it. The greater part of the powers delegated to Congress, relate, directly or indirectly, to one or the other of these two great divisions ; that is, to those appertaining to the foreign relations of the States, or their exterior, relations with each other. The former embraces the power to declare war ; grant letters of marque and reprisals ; make rules concern- ing captures on land and water ; to raise and sup- port armies ; to provide and maintain a navy ; to OF THE UNITED STATES. 205 make rules for the government and regulation of the land and naval forces ; to regulate commerce with foreign nations and the Indian tribes ; and to exercise exclusive jurisdiction over all places pur- chased, with the consent of the States, for forts, magazines, dockyards, &c. There are only two which apply directly to the exterim" delations of the States with each other ; the power to regulate commerce between them, — and to establish post-offices and post-roads. But there are two others intimately connected with these re- lations ; — the one, to establish uniform rules of na- turalization, and uniform laws on the subject of bankruptcies, throughout the United States ; — and the other, to secure, for a limited time, to authors and inventors, the exclusive right to their respec- tive writings and discoveries. In addition, there is a class which relates to both. They consist of "the power to coin money, regulate the value thereof, and of foreign coins, and to fix the standard of weights and measures, — to provide for the punishment of counterfeiting the securities and current coin of the United States ; to provide for calling forth the militia, to suppress insurrections and repel invasions; to provide for organizing, arming and disciplining the militia, and for governing such parts of them as may be employ- ed in the service of the United States ; reserving to the States, respectively, the appointment of the offi- cers, and the authority of training the militia ac- cording to the discipline prescribed by Congress." The two first relate to the power of regulating com- 206 ON THE CONSTITUTION AND GOVERNMENT inerce; and tlie others, principally, to the war power. Indeed, far the greater part of the powers vested in Congress relate to them. These embrace all the powers expressly delegated to Congress ; — except, " the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general wel- fare of the United States ; — to establish tribunals in- ferior to the Supreme Court ; to provide for caUing forth the militia to execute the laws of the Union ; to exercise exclusive jurisdiction over such district, —not exceeding ten miles square, as may, by cession of particular States, and the acceptance of Congress, become the seat of government of the United States ; and to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested in the government of the United States, or in any department or officer thereof." It is apparent, that all these powers re- late to the other powers, and are intended to aid in carrying them into execution ; and as the others are embraced in the two great divisions of powers, of which the one relates to their foreign relations, and the other to their exterior relations with each other, it may be clearly inferred that the regulation of these relations constituted the great, if not the ex- clusive objects for which the government was or- dained and established. If additional proof be required to sustain this inference, it may be found in the prohibitory and miscellaneous provisions of the constitution. A large portion of them are intended, directly, to reg- OF THE UNITED STATES. 207 ulate the exterior relations of the States with each other, which would have required treaty stipulations between them, had they been separate communities, instead of being united in a federal union. They are, indeed, treaty stipulations of the most solemn character, inserted in the compact of union. And here it is proper to remark, that there is a material difference between the modes in which these two great divisions of power are regulated. The powers embraced by, or appertaining to foreign relations, are left to be regulated by the treaty-making power, or by Congress ; and, if by the latter, are enumerat- ed and specifically delegated. They embrace a large portion of its powers. But those relating to the exterior relations of the States among themselves, with few exceptions, are regulated by provisions in- serted in the constitution itself. To this extent, it is, in fact, a treaty, — under the form of a constitu- tional compact, — of the highest and most sacred character. It provides that no tax or duty shall be laid on articles exported from any State ; that no preference shall be given, by any regulation of com- merce or of revenue, to the ports of one State over those of another ; nor shall any vessel bound to, or from one State, be obliged to enter, clear, or pay duties in another ; that no State shall enter into any treaty, alliance, or confederation ; grant letters of marque and reprisal; coin money; emit bills of credit ; make any thing but gold or silver a tender in payment of debts, or pass any law impairing the obligation of contracts : — that no State shall, with- out the consent of Congress, lay any import or ex- 208 ON THE CONSTITUTION AND GOVERNMENT port duties, except what may be absolutely necessary for tbe execution of its inspection laws ; and that the net proceeds of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States ; and all such laws shall be subject to the revision and control of Congress; no State shall, without the consent of Congress, lay any duty on tonnage ; keep troops, or ships of war, in time of peace ; enter into any agree- ment or compact with another State or with a foreign power, or engage in war, unless actually in- vaded, or in such imminent danger as will not admit of delay ; that full faith and credit shall be given, in each State, to the public acts, records, and judi- cial proceedings of any other State ; that the citi- zens of each State shall be entitled to all the privi- leges and immunities of citizens of the several States ; that a person charged in any State, with trea- son,felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime ; that no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation thereof, be discharged from such service or labor ; but shall be delivered up on claim of the party to whom such labor may be due ; that the United States shall guarantee to each State in this Union a republican form of government, and shall protect each of them against invasion, — and, on application of the legislature, or of the execu- OF THE UNITED STATES. 209 tive, when the legislature cannot be convened, against domestic violence. The other prohibitory provisions, and those of a miscellaneous character, contained in the constitu- tion as ratified, provide against Congress prohibiting the emigration or importation of such persons as any of the States may choose to admit, prior to the year 1808 ; against the suspension of the writ of Hahecis Gorpue ; against passing bills of attainder, and ex post facto laws ; against laying a capitation or other direct tax, unless in proportion to population, to be ascertained by the census ; against drawing mo- ney out of the treasury, except in consequence of ap- propriations made by law ; against granting titles of nobility ; against persons holding office under the United States, accepting any present or emo- lument, office or title, from any foreign power, without the consent of Congress ; for defining and punishing treason against the United States; for the admission of new States into the Union ; for dis- posing of, and making rules and regulations respect- ing the territory and other property of the United States ; for the amendment of the constitution ; for the validity of existing debts and engagements against the United States under the constitution ; for the supremacy of the coustitution, and the laws of the United States which shall be made in pursu- ance thereof, and all treaties made, or which shall be made under the authority of the United States ; that the Judges in every State shall be bound there- by, any thing in the constitution or laws of any State to the contrary notwithstanding; and that 14 210 ON THE CONSTITUTION AND GOVERNMENT members of Congress and of tlie State legisla- tures, and the executive and judicial officers of tlie United States, and of tlie several States, shall be bound by oath, or affirmation, to support the con- stitution ; but that no I'eligious test shall be requir- ed to hold office under the United States. Twelve amendments, or, as they are commonly called, amended articles, have been added since its adoption. They provide against passing laws re- specting the establishment of religion, or abridging its free exercise ; for the freedom of speech and of the press ; for the right of petition ; for the right of the people to bear arms ; and against quartering soldiers in any house against the consent of the owner; against unreasonable searches, or seizures of persons, papers, and effects ; against issuing war- rants, but on oath or affirmation; against holding persons to answer for a capital, or other infamous crime, except on presentment or indictment of a grand jury ; for a public and speedy trial in all criminal prosecutions, by an impartial jury of the State and district where the offence is charged to have been committed ; for the right of jury trial in controversies exceeding twenty dollars ; against ex- cessive bail and fines, and against cruel and unusual punishments; against so construing the constitu- tion as that the enumeration of certain powers should be made to disparage or deny those not enu- merated ; against extending the judicial power of the United States to any suit, in law or equity, against one of the United States, by citizens of ano- ther State, or citizens or subjects of a foreign state ; OF THE UNITED STATES. 211 and for tte amendment of the constitution in refer- ence to the election of the President and Vice-Pre- sident. In addition, the amended article, already cited, provides that the powers not delegated to the United States, nor prohibited to the States, are re- served to the States respectively or to the people. It will be manifest, on a review of all the provi- sions, including those embraced by the amendments, that none of them have any direct relation to the immediate objects for which the union was formed; and that, with few exceptions, they are intended to guard against improper constructions of the consti- tution, or the abuse of the delegated powers by the government, — or, to protect the government itself in the exercise of its proper functions. i In delegating power to the other two depart- ments, the same general principle prevails. In- deed, in their very nature they are restricted, in a great measure, to the execution, each in its appro- priate sphere, of the acts, and, of course, the pow- ers vested in the legislative department ; and, in this respect, their powers are consequently limited to the two great divisions which appertain to this department. But where either of them have other vested powers, beyond what is necessary for this purpose, it will be found, when I come to enumer- ate them, that, if they have any reference at all to the division of power between the general govern- ment and those of the several States, they directly relate to those appertaining to one or the other of these divisions. The executive powers are vested ia the Presi- 212 ON THE CONSTITUTION AND GOVERNMENT dent. They embrace tlie powers belonging to him, as commander in chief of the army and navy of the United States, and the militia of the several States, when called into the actual service of the United States ; — the right of requiring the opinion, in writing, of the principal officers in each of the executive departments, upon any subject relating to the duties of their respective offices ; of grant- ing reprieves and pardons for offences against the United States,' — except in cases of impeachment; of making treaties, by and with the advice and consent of the Senate, — provided two thirds of the Senators present concur; of nominating and, by and with the advice and consent of the Senate, ap- pointing ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appoint- ments have not been otherwise provided for, and which shall be established by law, — reserving to Congress the right to invest, by law, the appoiat- ment of such inferior officers as they may think proper, — ^in the President alone, in the courts of law, or in the heads of departments; of receiving ambassadors and other public ministers ; of con- vening, on extraordinary occasions, both houses of Congress, or either of them ; and, in case of disa- greement between them, with respect to the time of adjournment, of adjourning them to such time as he may think proper ; of commissioning all the officers of the United States. In addition, it is made his duty to give to Congi'ess information of the state of the Union ; and to recommend to their OF THE UNITED STATES. 213 consideration, such, measures as lie may deem neces- sary and expedient ; to take care tliat tlie laws are faittfully executed ; and, finally, lie is vested witL. the power of approving or disapproving bills pass- ed by Congress, before they become laws, — which is called his veto. By far the greater part of these powers and duties appertain to him as chief of the executive department. The principal exception is, the treaty-making power ; which appertains exclusively to the foreign relations of the States, — ■ and, consequently, is embraced in that division of the delegated powers; as does, also, the appoint- ment of ambassadors, other ministers and consuls, and the reception of the two former. The other exceptions are merely organic, without reference to any one class or division of powers between the two co-ordinate governments. The judicial power of the United States is vested in the Supreme Court, and such inferior courts as Congress may, from time to time, ordain and establish. The judges hold their offices dur- ing good behavior ; and have a fixed salary which can neither be increased nor diminished during their continuance in office. Their power extends to all cases in law or equity, arising under the con- stitution, the laws of the United States, and trea- ties made, or which shall be made under their authority ; to all cases affecting ambassadors, other public ministers and consuls ; to all cases of admi- ralty and marine jurisdiction; to controversies to which the United States shall be a party ; to those between two or more States ; between citizens of 214 ON THE CONSTITUTIOSr AND GOVERNMENT different States ; between citizens of tlie same State, claiming lands under grants of different States ; and between a State and the citizens thereof, and foreign states, citizens or subjects. The fact that, in all cases, where the judicial power is extended beyond what may be regarded its appropriate sphere, it contemplates matters connected directly with .the foreign or external relations of the States, rather than those connected with their exterior relations with each other, — strikingly illustrates the posi- tion, — that the powers appertaining to the one or the other of these relations, and those necessary to carry them into execution, embrace almost all that have been delegated to the United States. Indeed, on a review of the whole, it may be safely asserted, not only that they embrace almost all of the pow- ers delegated, but that all of the general and mis- cellaneous provisions (excluding those, of course, belonging to the organism of government, whether they prohibit certain acts, or impose certain duties, — as well as those intended to protect the govern- ment, and guard against its abuse of power,) apper- tain, with few exceptions, to the one or the other of these divisions. For, if the principle which gov- erned in the original division or distribution of powers between the two co-ordinate governments, be that already stated; that is, to delegate such powers only as could not be exercised at all, or as well, or safely exercised by the governments of the States acting separately, and to reserve the resi- due, — it would be difficult to conceive what others could be embraced in them ; since there are none OF THE UNITED STATES. 215 delegated to either, wMcli do not appertain to tlie States in their relations witli each other, or in their relations with the rest of the world. As to all other purposes, the separate governments of the several States were far more competent and safe, than the general government of all the States. Their knowledge of the local interests and domestic institutions of these respectively, must be much more accurate, and the responsibility of each to their respective people much more perfect. This is so obvious, as to render it incredible, that they would have admitted the interference of a general government in their iaterior and local concerns, farther than was absolutely necessary to the regula- tion of their exterior relations with each other and the rest of the world ; — or that a general govern- ment should have been adopted for any other pur- pose. To this extent, it was manifestly necessary ; — but beyond this, it was not only not necessary, but clearly calculated to jeopard, in part, the ends for which the constitution was adopted ; — " to establish justice, insure domestic tranquUlity, and secure the blessings of liberty." Having, now, enumerated the delegated powers, and laid down the principle which guided in draw- ing the line between them and the reserved powers, the next question which offers itself for considera- tion is ; what provisions does the constitution of the United States, or the system itself, furnish, to pre- serve this, and its other divisions of power ? and whether they are sufficient for the purpose ? The great, original, and primary division, as has 216 ON THE CONSTITUTION AND GOVERNMENT been stated, is tliat of distinct, independent, and sovereign States. It is tlie basis of 'the whole sys- tem. The next in order is, the division into the constitution-makiag and the law-making powers- The next separates the delegated and the reserved powers, by vesting the one in the government of the United States, and the other in the separate governments of the respective States, as co-ordinate governments ; and the last, distributes the powers of government between the several departments of each. These divisions constitute the elements of which the organism of the whole system is formed. On their preservation depend its duration and suc- cess, and the mighty interests involved in both. I propose to take the divisions in the reverse order to that stated, by beginning with the last, and end- ing with the first. The question, then, is, — what provision has the constitution of the United States made to preserve the division of powers among the several depart- ments of the government? And this involves an- other ; whether the departments are so constituted, that each has, within itself, the power of self-protec- tion; the power, by which, it may prevent the others from encroaching on, and absorbing the por- tion vested in it, by the constitution? Without such power, the strongest would, in the end, inevi- tably absorb and concentrate the powers of the others in itself, as has been fully shown in the pre- liminary discourse ; — where, also, it is shown that there is but one mode in which this can be pre- vented ; and that is, by investing each division of OF THE UNITED STATES. 217 power, or the representative and organ of eacli, with, a veto, or something tantamount, in some one form or another. To answer, then, the question proposed, it is necessary to ascertain what provisions the constitution, or the system itself, has made for the exercise of this important power. I shall begin with the legislative department, which, in all popular governments, must be the most prominent, and, at least in theory, the strongest. Its powers are vested in Congress. To it, all the functionaries of the other two departments are re- sponsible, through the impeaching power ; while its members are responsible only to the people of their respective States ; — those of the Senate to them in their corporate character as States ; and those of the House of Representatives, in their individual cha- racter as citizens of the several States. To guard its members more effectually against the control of the other two departments, they are privileged from arrest ia all cases, except for treason, felony, and breach of the peace, — during their attendance on the session of their respective houses, — and in going to and returning from the same; and from being questioned, in any other place, for any speech or debate in either house. It possesses besides, by an express provision of the constitution, all the dis- cretionary powers vested in the government, whether the same appertain to the legislative, executive, or judicial departments. It is to be found in the 1st art., 8th sec, 18th clause ; which declares that Con- gress shall have power " to make all laws necessary and DroDer for carrvins' into execution the foregoing: 218 ON THE CONSTITUTION AND GOVERNMENT powers," (those vested in Congress,) " and all othi powers vested, by the constitution, in the gover ment of the United States, or in any department ( officer thereof." This clause is explicit. It includ all that are usually called " implied powers ;" th is, — powers to carry into effect those expressly del gated; and vests them expressly in Congress, i clearly, as to exclude the possibility of doubt. N* ther the judicial department, nor any officer of tl government can exercise any power not expressl and by name, vested in them, either by the consi tution, or by an act of Congress : nor can they exe cise any implied power, in carrying them into ex cution, without the express sanction of law. Tl effect of this is, to place the powers vested in tl legislative department, beyond the reach of the u dermining process of insidious construction, on tl part of any of the other departments, or of any < the officers of government. With all these pro\ sions, backed by its widely extended and appr priate powers, — ^its security, resulting from freedo: of speech in debate, — and its close connection an immediate intercourse with its constituents, the 1 gislative department is possessed of ample means i protect itself agaiast the encroachment on, and a sorption of its powers, by the other two depai ments. It remains to be seen, whether these, : their turn, have adequate means of protecting thei selves, respectively, against the encroachments each other ; — as well as of the legislative depai ment. I shall begin with the executive. Its powers are vested in the President. To pi OF THE UNITED STATES. 219 tect them, the constitution, in the first place, makes him independent of Congress, by providing, that he " shall, at stated times, receive for his services, a compensation, which shall be neither increased nor diminished during the period for which he shall have been elected ; and that he shall not receive, within that period, any other emolument from the United States, or any one of them."* He is, in the next place, vested with the power to veto, not -only all acts of Congress, — but it is also expressly provided that, " every order, resolution, or vote, to which the concurrence of the Senate and House of Eepresentatives may be necessary, (except on a question of adjournment,) shall be presented to the President of the United States ; and, before the same shall take effect, shall be approved by him ; or being disapproved by him, shall be repassed by two thirds of the Senate and House of Repre- sentatives, according to the rules and limitations prescribed in the case of a bill."f He is vested, in the next place, with the power of nominating and appointing, with the advice and consent of the Senate, all the ofl&cers of the govern- ment whose appointments are not otherwise pro- vided for by the constitution ; except such inferior officers as may be authorized, by Congress, to be appointed by the President alone, or by the courts of law, or heads of departments. I do not add the power of removing officers, the tenure of whose of- * 2d Art. 1st Sec. 6tli clause of the Constitution, f- 1 St Art. 7th See. 7th clause of the Constitution. 220 OK THE CONSTITUTIOK AND GOVERNMENT fice is not fixed by the constitution, wMcli has grown into practice ; because it is not a power vested in the President by the constitution, but belongs to the class of implied powers ; and as such, can only be rightfully exercised and carried into effect by the authority of Congress. He has, in the next place, the exclusive control of the administration of the government, with the vast patronage and influence appertaining to the distribution of its honors and emoluments ; a pat- ronage so great as to make the election of the Pres- ident the rallying point of the two great parties that divide the country ; and the successful candi- date, the leader of the dominant party in power, for the time. He is, besides, commander in chief of the army and navy ; and of the militia, when called into the service of the United States. These, combined with his extensive powers, make his veto (which requires the concurrence of two thirds of both houses to overrule it) almost as absolute as it would be with- out any qualification, — during the term for which he is elected. The whole combined, vests the exec- utive with ample means to protect its powers from being encroached on, or absorbed by the other de- partments. 'Nor are those of the judiciary less ample, for the same purpose, against the two other depart- ments. Its powers are vested in the courts of the United States. To secure the independence of the judges, they are appointed to hold their offices dur- mg good behavior ; and to receive for their ser- OF THE UNITED STATES. 221 vices, a compensation wMcli cannot be diminislied during their continuance in office. Besides these means for securing their independence, they have, virtually, a negative on the acts of the other depart- ments, — resulting from the nature of our system of government. This requires particular explanation. According to it, constitutions are of paramount au- thority to laws or acts of the government, or of any of its departments ; so that, when the latter come in conflict with the former, they are null and void, and of no binding effect whatever. From this fact it results, that, when a case comes before the courts of the United States, in which a question of conflict between the acts of Congress or any department may arise, the judges are bound, from the necessity of the case, to determine whether, in fact, there is any conflict or not ; and if, in their opinion, there be such conflict, to decide in favor of the constitu- tion ; and thereby, virtually, to annul or veto the act, as far as it relates to the department or govern- ment, and the parties to the suit or controversy. This, with the pro'V'isions to secure their independ- ence, gives, not only means of self-protection, but a weight and dignity to the judicial department never before possessed by the judges in any other govern- ment of which we have any certain knowledge. But, however ample may be the means possess- ed by the several departments to protect themselves against the encroachments of each other, regarded as independent and irresponsible bodies, it by no means follows, that the equilibrium of power, estab- lished between them by the constitution, will, neces- 222 ON THE CONSTITUTION AND GOVEENMENT sarily, remain undisturbed. For they are, in fact, neither independent nor irresponsible bodies. They are all representatives of the several States, either in their organized character of governments, or of their people, estimated in federal numbers ; and are under the control of their joint majority, — blended, however, in unequal proportions, in the several de- partments. In order, then, to preserve the equili- brium between the departments, it is indispensable to preserve that between the two majorities which have the power to control them, and to which they are all responsible, directly or indirectly. For it is manifest that if this equilibrium, established by the constitution, be so disturbed, as to give the ascend- ency to either, it must disturb, or would be calcu- lated to disturb, in turn, the equilibrium between the departments themselves; inasmuch as the weight of the majority which might gain it, would be thrown in favor of the one or the other, as the means of increasing its influence over the govern- ment. In order, then, to determine whether the equilibrium between the departments is liable to he disturbed, it is necessary to ascertain what provi- sions the constitution has made to preserve it be- tween the two majorities, in reference to the sever- al departments ; and to determine whether they are sufficient for the purpose intended. I shall, again, commence Math the legislative. In this department the two majorities or ele- ments, of which the government is composed, act separately. Each has its own organ ; one the Senate, and the other the Plouse of Eepresentatives : and OF THE UNITED STATES. 223 each has, through its respective organ, a negative on the other, in all -acts of legislation, which require their joint action. This gives to each complete and perfect means to guard against the encroachments of the other. The same is the case in the judiciary. There, the judges, in whom the powers of the de- partment are vested, are nominated by the Presi- dent, and, by and with the advice and consent of the Senate, appointed by him ; which gives each ele- ment also a negative on the other ; and, of course, like means of preserving the equilibrium establish- ed by the constitution between them. But the case is different in reference to the executive depart- ment. The two elements in this department are blend- ed into one, when the choice of a President is made by the electoral college ; — which, as has been stated, gives a great preponderance to the element repre- senting the federal population of the several States, over that which represents them in their organized character as governments. To compensate this, a stiU greater preponderance is given to the latter, in the eventual choice by the House of Representa- tives. But they have, in neither case, a veto upon the acts of each other ; nor any equivalent means to prevent encroachments, in choosing the individual to be vested, for the time, with the powers of the de- partment ; and, hence, no means of preserving the equilibrium, as established between them by the constitution. The result has been, — as it ever must be in such cases, — the ascendancy of the stronger element over the weaker. The incipient measure 224 ON THE CONSTITUTION AND GOVERNMENT to effect tHs was adopted at an early period. The first step was, to dimmish the numlber of candidates, from which the selection should be made, from the five, to the three highest on the list ; and, — in order to lessen the chances of a failure to choose by the elec- toral college, — to provide that the electors, instead of voting for two, without discriminating the offices, should designate which was for the President, and which for the Vice-President. This was effected m the regular way, by an amendment of the constitu- tion. Since then, the constitution, as amended, has been, in practice, supereeded, by what is called, the usage of pa/rties ; that is, by each selecting, infor- mally, persons to meet at some central point, to no- minate candidates for the Presidency and Vice-Pre- sidency, — with the avowed object of preventing the election from going into the House of Representa- tives; and, of course, by superseding the eventual choice on the part of this body, to abolish, in effect, one of the two elements of which the government is constituted, so far, at least, as the executive de- partment is concerned. As it now stands, the com- plex and refined machinery provided by the consti- tution for the election of the President and Vice- President, is virtually superseded. The nomination of the successful party, by irresponsible individuals makes, in reality, the choice. It is in this way that the provisions of the constitution, which intended to give equal weight to the two elements in the ex- ecutive department of the government, have been defeated ; and an overwhelming preponderance giv- en to that which is represented in the House of OF THE UNITED STATES. 225 Representatives, over that wMcli is represented in the Senate. But the decided preponderance of this element in the executive department, cannot fail greatly to disturb the equilibrium between it and the other two departments, as established by the constitution. It cannot but throw the weight of the more popu- lous States and sections on the side of that depai-t- ment, over which their control is the. most decisive ; and place the President, in whom its powers are vested for the time, more completely under their control. This, in turn, must place the honors and emoluments of the government, also, more under their control ; and, of course, give a corresponding influence over all who aspire to participate in them ; and especially over the members, for the time, of the legislative department. Even those, composing the judiciary, for the time, will not be unaffected by an influence so great and pervading. I come now to examine, what means the consti- tution of the United States, or the system itself provides, for preserving the division between the de- legated and reserved powers. The former are vest- ed in the government of the United States ; and the latter, where they have not been reserved to the people of the several States respectively, are vested in their respective State governments. The two, as has been established, stand in the relation of co- ordiaate governments ; that is, the government of the United States is, m each State, the co-ordinate of its separate government ; and taken together, the two make the entire government of each, and of all 15 226 ON THE CONSTITUTION AND GOVERNMENT the States. On tlie preservation of tliis peculiar and important division of power, depend tlie preser- vation of all the others, and the equilibrium of the entire system. It cannot be disturbed, without, at the same time, disturbing the whole, with all its parts. The only means which the constitution of the United States contains or provides for its preserva- tion, consists, in the first place, in the enumeration and specification of the powers delegated to the United States, and the express reservation to the States of all powers not delegated ; in the next, in imposing such limitations on both governments, and on the States themselves, in their separate character, as were thought best calculated to pre- vent the abuse of power, or the disturbance of the equilibrium between the two co-ordinate govern- ments ; and, finally, in prescribing that the mem- bers of Congress, and of the legislatures of the sev- eral States, and all executive and judicial officei-s • of the United States, and of the several States, : shall be bound, by oath or affirmation, to support Tfche constitution of the United States. These were, undoubtedly, proper and indispensable means ; but that they were, of themselves, deemed insufficient to preserve, undisturbed, this new and important partition of power between co-ordinate govern- ments, is clearly inferrible from the proceedings of the convention, and the writings and speeches of eminent individuals, pending the ratification of the constitution. No question connected with the for- mation and adoption of the constitution of the OF THE UNITED STATES. ., 227 United States, excited deeper solicitude, — or caused more discussion, than this important partition of power. The ablest men divided in reference to it, during these discussions. One side maintained that the danger was, that the delegated would* absorb the reserved ; while the other not less strenuously- contended, that the reserved would absorb the delegated powers. So widely extended was this diversity of opinion, and so deep the excitement it produced, that it contributed more than all other questions combined, to the organization of the two great parties, which arose with the formation of the constitution ; and which, finally, assumed the names of " Federal " and " MepvJMcan^'' In all these dis- cussions, neither side relied on the provisions of the constitution of the United States, just referred to, as the means of preserving the partition of power between the co-ordinate governments ; and there- by, of preventing either from encroaching on, and absorbing the powers of the other. Both looked to the co-ordinate governments, to control each other ; and by their mutual action and reaction, to keep each other in their proper spheres. The doubt, on one side, was, whether the delegated, were not too strong for the reserved powers ; and, on the other, whether the latter were not too strong for the former. One apprehended that the end would-be, coTisolidaUon • and the other, dissohMon. Both parties, to make out their case, appealed to the respective powers of the two ; compared their relative force, and decided accordingly, as the one or the other appeared the stroiiger. Both, in the 228 ON THE CONSTITUTION AND GOVERNMENT discussion, assumed, that those who might adminis- ter the two co-ordiaate governments, for the time, would stand in antagonistic relations to each other, and be ready to seize every opportunity to enlarge their own at the expense of the powers of the other; and rather hoped than believed, that this reciprocal action and reaction would prove so well balanced as to be sufficient to preserve the equili- brium, and keep each in its respective sphere. Such were the views taken, and the apprehen- sions felt, on both sides, at the time. They were both right, in looking to the co-ordinate govern- ments for the means of preserving the equilibrium between these two important classes of powers ; but time and experience have proved, that both mistook the source and the character of the danger to be apprehended, and the means of counteracting it; and, thereby, of preserving the equilibrium, which both believed to be essential to the preservation of the complex system of government about to be es- tablished. Nor is it a subject of wonder, that statesmen, as able and experienced as the leaders of the two sides were, should both fall into error, as to what would be the working of political ele- ments, whoUy untried; and which made so great an innovation in governments of the class to which ours belonged. It is clear, from the references so frequently made to previous confederacies, in order to determine how the government about to be es- tablished, would operate, that the framers of the constitution themselves, as weU as those who took an active part in discussing the question of its adop- OF THE UNITED STATES. 229 tion, were far from realizing the magnitude of the change which was made by it in governments of that form. Had this been fully realized, they would never have assumed that those who administered the government of the United States, and those of the separate States, would stand in hostile relations to each other ; or have believed that it would de- pend on the relative force of the powers delegated and the powers reserved, whether either would en- croach on, and absorb the other;— an assumption ^nd belief which experience has proved to be utter- ly unfounded. The conflict took, from the first, and has continued ever since to move in, a very different direction. Instead of a contest for power between the government of the United States, on the one side, and the separate governments of the several States, on the other, — ^the real struggle has been to obtain the control of the former; — a struggle in which both States and people have united : And the result has shown that, instead of depending on the relative force of the delegated and reserved powers, the latter, in all contests, have been brought in aid of the former, by the States on the side of the party in the possession and control of the gov- ernment of the United States, — and by the States on the side of the party in the opposition, in their efforts to expel those in possession, and to take their place. There must then be at all times, — except in a state of transition of parties, or from some ac- cidental cause, — a majority of the several States, and of their people, estimated in federal numbers, on the side of those in power ; and, of course, on 230 ON THE CONSTITUTION AND GOVERNMENT the side of the delegated powers and the govern- ment of the United States. Its real authority, therefore, instead of being limited to the delegated powers alone, must, habitually, consist of these, united with the reserved powers of the joint major- ity of the States, and of their population, estimated in federal numbers. Their united strength must necessarily give to the government of the United States, a power vastly greater, than that of all the co-ordinate governments of the States on the side of the party in opposition. It is their united strength, which makes it one of the strongest ever established ; greatly stronger than it could possibly be as a na- tional government. And, hence, all conclusions, drawn from a supposed antagonism between the de- legated powers, on the one hand, and the reserved powers, on the other, have proved, and must ever prove utterly fallacious. Had it, in fact, existed, there can now be no doubt, that the apprehensions of those, who feared that the reserved powers would encroach on and absorb the delegated, would have been realized, and dissolution, long since, been the fate of the system : for it was this very antagonism which caused the weakness of the confederation, and threatened the dissolution of the Union. The dif- ference between it and the present government, in this respect, results from the fact, that the States, in the confederation, had but few and feeble motives to form combinations, in order to obtain the control of its powers; because neither the State govern- ments, nor the citizens of the several States were subject to its control. Hence, they were more dis- OF THE UNITED STATES. 231 posed to elude its requisitions, and reserve their means for their own control and use, than to enter into combinations to control its councils. But very- different is the case in their existing confederated character. The present government possesses ex- tensive and important powers ; among others, that of carrying its acts into execution by its own au- thority, without the intermediate agency of the States. And, hence, the principal motives to get the control of the government, with all its powers and vast patronage ; and for this purpose, to form combinations as the only means by which it can be accomplished. Hence, also, the fact, that the pre- sent danger is directly the reverse of that of the confederacy. The one tended to dissolution, — the other tends to consolidation. But there is this dif- ference between these tendencies. In the former, they were far more rapid, — not because they were stronger, but because there were few or no impedi- ments in their way^ while in the latter, many and powerful obstacles are presented. In the case of the confederacy, the antagonistic position which the States occupied in respect to it, — and their indiffer- ence to its acts, after the acknowledgment of. their independence, led to a non-compliance with its re- quisitions; — and this, without any active measure on their parts, was sufficient, if left to itself, to have brought about a dissolution of the Union, from its weakness, at no distant day. But such is not the case under the present system of government. To form combinations in order to get the control of the government, in a country of such vast extent, — and 282 ON THE CONSTITUTION AND GOVERNMENT consisting of so many States, having so great a va- riety of interests, must necessarily be a slow pro- cess, and require much time, before they can be firmly united, and settle down into two organized and compact parties. But the motives to obtain this control are sufficiently powerful to overcome all these impediments ; and the formation of such parties is just as certain to result from the action of political affinities and antipathies, as the formation of bodies, where different elements in the material world, having mutual attraction and repulsion, are brought in contact. Nor is the organization of the government of the United States, which requires the concurrence of the two majorities to control it, — though intended for the purpose, — sufficient, of it- self, to prevent it. The same constitution of man, which would, in time, lead to the organization of a party, consisting of a simple majority, — if such had the power of control, — will, just as certainly, in time, form one, consisting of the two combined. The only difference is, that the one would be formed more easily, and in a shorter time than the other. The motives are sufficiently strong to overcome the impediments in either c use. In forming these ci imbinations, which, in fact, constitute the two pai'ties, circumstances must, of course, exert a powerful influence. Similarity of origin, lunguage, institutions, political principles, customs, ]:)ursuits, interests, color, and contiguity of situations, — all contribute to facilitate them: while their opposites necessarily tend to repel them, and, thuis, to form an antagonistic combination and OF THE UNITED STATES. 233 party. In a community of so great an extent as ours, contiguity becomes one of the strongest ele- ments in forming party combinations, and distance one of the strongest elements in repelling them. The reason is, that nothing tends more powerfully to weaken the social or sympathetic feelings, than re- moteness ; and, in the absence of causes calculated to create aversion, nothing to strengthen them more, than contiguity. We feel intensely the sufferings endured under our immediate observation; — when we would be almost indifferent, were they removed to a great distance from us. Besides, contiguity of situation usually involves a similarity of interests ; — especially, when considered in reference to those more remote, — which greatly facilitates the forma- tion of local combinations and parties in a country of extensive limits. If to this, we add other diversi- ties, — of pursuits, of institutions, origin, and the like, which not unusually exist in such cases, parties must almost necessarily partake, from the first, more or less, of a local character : and, by an almost neces- sary operation, growing out of the unequal fiscal ac- tion of the government, as explained in the preli- minary discourse, must become entirely so, in the end, if not prevented by the resistance of powerful causes. We accordingly find, that such has been the case with us, under the operation of the pre- sent government. From the first, they assumed, in some degree, this character ; and have since been gradually tending more and more to this form, un- til they have become, almost entirely, sectional. When they shall have become so entirely, — (which 234 ON THE COKSTITUTIOlSr AND GOVERNMENT must inevitably be tlie case, if not prevented, ) — • when the stronger shall concentrate in itself both the majorities which form the elements of the government of the United States, — (and this, it must shortly do,) — every barrier, which the consti- tution, and the organism of the government oppose to one overruling combination of interests, will have been broken down, and the government become as absolute, as would be that of the mere numerical majority ; unless, indeed, the system itself, shall be found to furnish some means sufficiently powerful to resist this strong tendency, inherent in govern- ments like ours, to absorb and consolidate all power in its own hands. What has been stated is sufficient to show, that no such means are to be found in the constitution of the United States, or in the organism of the government. Nor can they be found in the right of suffrage; for it is through its instrumentality that the party combinations are formed. Neither can they be found in the. fact, that the constitution of the United States is a written instrument ; for this, of itselfj cannot possibly enforce the limitations and restrictions which it imposes, as has been fuUy shown in the preliminary discourse. Nor can they be enforced, and the government held strictly to the sphere assigned, by resorting to a strict construction of the constitution; — ^for the plain reason, that the stronger party will be in favor of a liberal construc- tion ; and the strict construction of the minority can be of no avail against the liberal construction of the majority ;— as has also been shown in the OF THE UNITED STATES. 235 same discourse. Nor can they be found in the force of public opinion, — operating through the Press; for it has been, therein, also shown, that its opera- tion is similiar to that of the right of suffrage ; and that its tendency, with all its good effects in other respects, is to increase party excitement, and ' to strengthen the force of party attachments and party combinations, in consequence of its having become a party organ and the instrument of party warfare. Nor can the veto power of the President, or the power of the Judges to decide on the constitution- ality of the acts of the other departments, furnish adequate means to resist it, — however important they may be, in other respects, and in particular in- stances; — for the plain reason, that the party com- binations which are sufficient to control the two majorities constituting the elements of the govern- ment of the United States, must, habitually, control all the departments; — and make them all, in the end, the instruments of encroaching on, and absorb- ing the reserved powers; .especially the executive department, — since the provisions of the constitu- tion, in reference to the election of the President and Vice-President, have been superseded, and their election placed, substantially, under the control of the single element of federal numbers. But if none of these can furnish the means of effective resist- ance, it would be a waste of time to undertake to show, that freedom of speech, or the trial by jury, or any guards of the kind, however indispensable as auxiliary means, can, of themselves, furnish them. If, then, neither the constitution, nor any thing 236 ON THE CONSTITUTION AND GOVERNMENT appertaining to it, furnishes means adequate to pre- vent tlie encroachment of the delegated on the re- served powers, they must be found in some other part of the system, if they are to be found in it at all. And, further ; — if they are to be found there, it must be in the powers not delegated ; since it has been shown that they are not to be found in those delegated, nor in any thing appertaining to them ; — and the two necessarily embrace all the powers of the whole system. But, if they are to be found in the reserved powers, it must be in those vested in the separate governments of the several States, or in those retained by the people of the several States, in their sovereign character ; — that character in which they ordained and estab- lished the constitution and government; and, in Tvhich, they can amend or abolish it ; — since all the powers, not delegated, are expressly reserved, by the 10th Article of Amendments, to the one or the other. In one, then, or the other of these, or in both, the means of resisting the encroachments of the powers delegated to the United States, on those reserved to the States respectively, or to the people thereof, — and thereby to preserve the equilibrium between them, must be found, if found in the system at all. Indeed, in one constituted as ours, it would seem neither reasonable nor philosophical to 'look to the government of the United States, in which the delegated powers are vested, for the means of resisting encroachments on the reserved powers. It would not be reasonable ; because it would be to look for protection against danger, to the quarter OF THE UNITED STATES. 237 from wMch it was apprehended, and from whicli only it could possibly come. It would not be pMo- sophical; because it would be against universal analogy. All organic action, as far as our know- ledge extends, — whether it appertain to the material or political world, or be of human or divine mechan- ism, — is the result of the reciprocal action and re- action of the parts of which it consists. It is this which confines the parts to their appropriate spheres, and compels them to perform their proper func- tions. Indeed, it would seem impossible to produce organic action by a single power, — and that it must ever be the result of two or more powers, mutually acting and reacting on each other. And hence the political axiom, — that there can be no constitution, ■without a division of power, and no liberty without a constitution. To this a kindred axiom may be added; — ^that there can be no division of power, without a self-protecting power in each of the parts iuto which it may be di\dded; or in a superior power to protect each against the others. Without a division of power there can be no organism ; and without the power of self-protection, or a superior power to restrict each to its appropriate sphere, the stronger will absorb the weaker, and concentrate all power in itself. The members, then, of the convention, which framed the constitution, and those who took an active part in the question of its adoption, were not wrong in looking to this reciprocal action and re action, between the delegated and the reserved powers; — between the government of the United 238 ON THE CONSTITUTION AND OOVEBNMENT States and tlie separate governments of the several States, — as furnisliing the means of resisting the en- croachments of the one or the other; — however much they may have erred as to the iniode in which they would mutually act. No one, indeed, seems, at the time, to have formed any clear or definite conception of the manner in which, a division so novel, would act, when put into operation. All seem to have agreed that there would be conflict between the two governments. They differed only as to which would prove the stronger ; yet indulg- ing the hope that their respective powers were so well adjusted, that neither would be able to prevail over the other. Under the influence of this hope, and the diversity of opinion entertained, the framers of the constitution contented themselves with draw- ing, as strongly as possible, the line of separation between the two powers ; — leaving it to time and experience to determine where the danger lay ; to develop whatever remedy the system might furnish to guard against it ; — and, if it furnished none, they left it to those, who should come after them, to sup- ply the defect. We now have the benefit of these : Time and Ex2Derience have shown fully, where the danger lies, and what is its nature and character. They have established, beyond all doubt, that the antagonism relied on,- — as existing in theory, be- tween the government of the United States, on the one hand, and all the separate State governments, on the other, has proved to be, in practice, between the former, supported by a majority of the latter, and of their population, estimated in federal numbers, — OF THE UNITED STATES. 239 and a minority of the States and of their population, estimated in the same manner. And, consequently, that the government of the United States, instead of being the weaker, as was believed by many, has proved to be immeasurably the stronger ; especial- ly, since the two majorities constituting the elements of which it is composed, have centred in one of the two great sections which divide the Union. The effect has been, to give to this section entire and absolute control over the government of the United States ; and through it, over the other section, on all questions, in which their interests or views of policy may come in conflict. The system, in conse- quence of this, instead of tending towards dissolu- tion from weakness, tends strongly towards consoli- dation from exuberance of strength : — so strongly, that, if not opposed by a resistance proportionally powerful, the end must be its destruction, — either by the bursting asunder of its parts, in consequence of the intense conflict of interest, produced by being too closely pressed together, or by consolidating all the powers of the system in the government of the United States, or in some one of its departments, — to be wielded with despotic force and oppression. The present system must be preserved in its in- tegrity and full vigor ; for there can be no other means, — ^no other form of government, save that of absolute power, which can govern and keep the whole together. Disregarding this, the only alter- natives are, — a government in form and in action, absolute and irresponsible, — a consolidation of the system under the existing form, with powers equal- ly despotic and oppressive, — or a dissolution. 240 ON THE CONSTITUTION AND GOVERNMENT With these preliminary remarks, I shall next proceed to consider the question, — whether the reserved powers, if fully developed and brought into action, are sufficient to resist this powerful and dangerous tendency of the delegated, to encroach on them ? or, to express the same thing in a differ- ent form, — whether the separate government of a State, and its people in their sovereign character, to whom all powers, not delegated to the United States, appertain, can, — one or both, — rightfully oppose sufficient resistance to the strong tendency on the part of the government of the latter, to pre- vent its encroachment. I use the expression, — " a State and its people," — because the powers not delegated to the United States, are reserved to each State respectively, or to its people ; and, of course, it results that, whatever resistance the reserved powers can oppose to the delegated, most,, to be within constitutional limits, proceed from the government and the people of the several States, im their separate and individual character. The question is one of the first magnitude ; — and deserves the most serious and deliberate com^ sideration. I shall begin with considering, — what means the government of a State possesses, to pre- vent the government of the United States from encroaching on its reserved powers ? I shall, how- ever, pass over the right of remonstrating against its encroachments ; of adopting resolutions against them, as unconstitutional; of addressing the gov- ernments of its co-States, and calling on them to unite and co-operate in opposition to them ; and. of OP THE UNITED STATES. 241 instructing its Senators in Congress, and requesting its members of the House of Representatives, to op- pose thejga, — and other means of a like character ; not because they are of no av^ail, but because they are utterly impotent to arrest the strong and steady tendency of the government of the United States to encroach on the reserved powers ; however much they may avail, in particular instances. To rely on them to counteract a tendency so strong and stea- dy, would be as idle as to rely on reason and jus- tice, as the means to prevent oppression and abuse of power on the part of government, without the aid of constitutional provisions. Nothing short of a negative, absolute or in effect, on the part of the government of a State, can possibly protect it against the encroachments of the government of the United States, whenever their powers come in conflict. That there is, in effect, a mutual negative on the part of each, in such cases, is what I next propose to show. It results from their nature ; from the relations which subsist between them ; and from a law uni- versally applicable to a division of power. I will consider each in the order stated. That they are both governments, and, as such, possess all the powers appertaining to government, within the sphere of their respective powers, — the one as folly as the other, — cannot be denied. Nor can it be denied that, among the other attributes of government, they possess the right to judge of the extent of their respective powers, as it regards each other. In addition to this, it may be affirmed as 16 242 ON THE CONSTITUTION AND GOVERNMENT true, that governments, in full possession of all the powers appertaining to government, have the right to enforce their decisions as to the extent|0f their powers, against all opposition. But the case is dif- ferent in a system ofgovernments like ours, — where the powers appertaining to government are divid- ed, — a portion being delegated to one government, and a portion to another ; — and the residue retained by those who ordained and established both. In such case, neither can have the right to enforce its decisions, as to the extent of its powers, when a con- flict occurs between them in reference to it; be- cause it would be, in the first place, inconsistent with the relation in which they stand to each other as co-ordinates. The idea of co-ordinates, excludes that of superior and subordinate, and, necessarily, implies that of equality. But to give either the right, not only to judge of the extent of its own powers, but, also, of that of its co-ordinate, and to enforce its decision against it, would be, not only to destroy the equality between them, but to deprive one of an attribute, — ^appertaining to all govern- ments, — to judge, in the first instance, of the extent of its powers. The effect would be to raise one from an equal to a superior; — and to reduce the other from an equal to a subordinate ; and, by di- vesting it of an attribute appertaining to government, to sink it into a dependent corporation. In the next place, it would be inconsistent with what is meant by a division of power ; as this necessarily implies, that each of the parties, among whom it may be partitioned, has an equal right to its respec- OF THE UNITED STATES. 243 tive share, be it greater or smaller ; and to judge as to its extent, and to maintain its decision against its copartners. This is what constitutes, and what is meant by, a division of power. Without it, there could be no division. To allot a portion of power to one, and another portion to another, and to give either the exclusive right to say, how much was al- lotted to each, would be no division at all. The one would hold as a mere tenant at will, — to be de- prived of its portion whenever the other should choose to assume the whole. And, finally, because, no reason can be assigned, .why one should possess the right to judge of the extent of its powers, and to enforce its decision, which would not equally ap- ply to the other co-ordinate government. If one^ then, possess the right to enforce its decision, so, also, must the other. But to assume that both pos- sess it, would be to leave the umpirage, in case of conflict, to mere brute force ; and thus to destroy the equality, clearly implied by the relation of co- ordinates, and the division between the two govern- ments. In such case, force alone would determine which should be the superior, and which the subor- dinate ; which should have the exclusive right of judging, both as to the extent of its own powers and that of its co-ordinates ; — and which should be deprived of the right of jiidging as to the extent of those of either; — ^which should, and which should not possess any other power than that which its co- ordinate, — now raised to its superior, — ^might choose to permit it to exercise. As the one or the other might prove the stronger, consolidation or disunion 244 ON THE CONSTITUTION AND 'GOVERNMENT would, inevitably, be tbe consequence ; and which of the twain, no one who has paid any attention to the working of our system, can doubt. An assump- tion, therefore, which would necessarily lead to the destruction of the whole system in the end, , and the substitution of another, of an entirely different character, in its place, — must be false. But, if neither has the exclusive right, the effect, where they disagree as to the extent of their respec- tive powers, would be, a mutual negative on the acts of each, when they come into conflict. And the effect of this again, would be, to vest in each the power to protect the portion of authority allot- ted to it, against the encroachment of its co-ordinate government. Nothing short of this can possibly preserve this important division of power, on which rests the equilibrium of the entire system. The party, in the convention, which favored a national government, clearly saw that the separate governments of the several States would have the right of judging of the extent of their powers, as between the two governments, unless some provision should be adopted to prevent it. This is manifest from the many and strenuous efforts which they made to deprive them of the right, by vesting the government of the United States with the power to veto or overrule their acts, when they might be thought to come in conflict with its powers. These efforts were made in every stage of the proceedings of the convention, and in every conceivable form, — as its journals will show. The very first project of a constitution submitted OF THE UNITED STATES. 246 to the convention, (Gov. Randolph's,) contained a provision, " to grant power to negative all acts con- trary, in the opinion of the national legislature, to the articles, — or any treaty, subsisting under the power of the Union ; and to call forth the force of the Union, against, any member of the Union, fail- ing to fulfil its duttes, under the articles thereof." The next plan submitted, (Mr. Charles Pinck- ney's,) contained a provision that, — " the legislature of the United States shall have power to revise the laws that may be supposed to impinge the powers exclusively delegated, by this constitution, to Con- gress ; and to negative and annul such as do." The next submitted, (Mr. Patterson's,) provided that, " if any State, or body of men in any State, shall oppose, or prevent the carrying into execution, such a«ts, or treaties," (of the Union,) " the federal exec- utive shall be authorized to call forth the forces of the confederated States, or so much thereof, as shall fee necessary, to enforce or compel obedience to such acts, or the observance of such treaties." The com- mittee of the whole, to whom was referred Mr. Ran- dolph's project, reported a provision, that the juris- diction of the national judiciary should extend to all " questions, which involved the national peace and harmony." The next project, (Mr. Hamilton's,) —after declaring all the laws of the several States, which were contrary to the constitution and the laws of the United States, to be null and void, — provides, that, "the better to prevent such laws from being pfassed, the Governor, or President of each State, shall be appointed by the general gov- 246 ON THE CONSTITUTION AND GOVEENMENT ernment ; and shall have a negative upon the laws, about to be passed in the State of which he is Gov- ernor or President." This was followed by a motion, made by Mr. C. Pinckney, to vest in the legisls+ure of the United States the power, "to negative all laws, passed by the several States, in- terfering, in the opinion of the legislature, with the general interest and harmony of the Union ; pro- vided that two thirds of each house assent to the same." It is not deemed necessary to trace, through the journals of the convention, the history and the fate of these various propositions. It is sufficient to say, — that they were all made, and not one adopt- ed ; although perseveringly urged by some of the most talented and influential members of the body, as indispensable to protect the government of the United States, against the apprehended encroach- ments of the governments of the several States. The fact that they were proposed and so urged, proves, conclusively, that it was believed, even by the most distinguished members of the national party, that the former had no right to enforce its measures against the latter, where they disagreed as to the extent of their respective powers, — with- out some express provision to that effect ; while the refusal of the convention to adopt any such provi- sion, under such circumstances, proves, equally con- clusively, that it was opposed to the delegation of such powers to the government, or any of .its de- partments, legislative, executive, or judicial, in any form whatever. OF THE UNITED STATES. 247 But, if it be possible for doubt still to remain, the ratification of the constitution by the conven- tion of Virginia, and the 10th amended article, fur- nish proofs in confirmation so strong,, that the most skeptical will find it difficult to resist them. It is well known, that there , was a powerful opposition to the adoption of the constitution of the United States. It originated in the apprehen- sion, that it would lead to the consolidation of all power in the government of the United States ; — notwithstanding the defeat of the national party, in the convention, — and the refusal to adopt any of the proposals to vest it with the power to negative the acts of the governments Of the separate States. This apprehension excited a wide and deep dis- trust, lest the scheme of the national party might ultimately prevail, through the influence of its lead- ers, over the government about to be established. The alarm became so great as to threaten the defeat of the ratification by nine States, — ^the num- ber necessary to make the constitution binding between the States ratifying it. It ■ was particu- larly great in Virginia; — on whose act, all sides believed the fate of the instrument depended. Before the meeting of her convention, seven States had ratified. It was generally believed that, of the remaining States, North Carolina and Ehode Island would not ratify; and New- York was regarded so doubtful, that her course would, in all probability, depend on the action of Virginia. Her refusal, together with that of Virginia, would have defeated the adoption of the constitution. The- 248 ON THE CONSTITUTION AND GOVERNMENT struggle, accordingly, between the two parties in her convention, was long and ardent. The magni- tude of the question at issue, called out the ablest and most influential of her citizens on both sides ; and elicited the highest efforts of their talents. The discussion turned, mainly, on the danger of consolidation from construction ; and was conducted with such ability and force of argument, by the opponents of ratification, that it became necessary, in order to obtain a majority for it, to guard against such construction, by incorporating in the act of ratification itself, provisions to prevent it. The act is in the following words : " We, the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the general assembly, and now met in convention, having fully and freely investigated and discussed the proceedings of the federal convention, and being prepared as well as the most mature deliberation hath enabled us to decide thereon, do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby, re- mains with them and at their will: that, there- fore, no right, of any denomination, can be cancel- led, abridged, restrained, or modified, by the Con- gress, by the Senate, or House of Representatives, acting in any capacity, by the President or any department, or officer of the United States, except OF THE UNITED STATES. 249 in those instances in vvhich j)ower is given by the constitution for those purposes; and that among other essential rights, the liberty of con- science and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States. " With these impressions, — with a solemn appeal to the Searcher of hearts for the purity of our inten- tions, and under the conviction, that, whatsoever imperfections may exist in the constitution ought rather to be examined in the mode pi'escribed therein, than to bring the Union into danger by delay, with the hope of obtaining amendments, pre- vious to the ratification : We, the said delegates, in the name and behalf of the people of Virginia, do by these presents, assent to and ratify the consti- tution, &c." — concluding in the usual form. Such is the recorded constrilction, which that great and leading State placed on the constitution, in her act of ratification. That her object was to guard against the abuse of construction, the act it- self, on its face, and the discussions in her conven- tion abundantly prove. It was done effectually, as far as it depended on words. It declares that all powers granted by the constitution, are derived from the people of the United States ; and may be re-mmed by them when perverted to their injury or oppression ; and, that every power not granted^ re- mains with them, and at their will ; and that no right of any description can be cancelled, abridged, restrained or modified by Congress, the Senate, the House of Kepresentatives, the President, or any de- 250 ON THE CONSTITUTION AND GOVEENMENT partment, or officer of the United States. Lan- guage cannot be stronger. It guards tlie reserved powers against the government as a whole, and against all its departments and officers ; and in every mode by which they might be impaired; showing, clearly, that the intention was to place the reserved powers beyond the possible interference and control of the government of the United States. Now, when it is taken into consideration, that the right of the separate governments of the several States is as full and perfect to protect their own powers, as is that of the government of the United States to jjrotect those which are delegated to it ; and, of course, that it belongs to their reserved powers ; that all the attempts made in the conven- tion which framed the constitution, to deprive them of it, by vesting the latter with the power to over- rule the right, equally failed; that Virginia could not be induced to ratify without incorporating the true construction she placed on it in her act of rati- fication ; that, without her ratification, it would not, in all probability, have been adopted; and that it was accepted by the other States, subject to this avowed construction, without objection* on then' part; — it is difficult to resist the inference, that their acceptance, under all these circumstances, was an implied admission of the truth of her construc- tion ; and that it makes it as binding on them as if it had been inserted in the constitution itself. But her convention took the further precaution of having it inserted, in substance, in that instru- ment. Those who composed it were wise, experi- OF THE UNITED STATES. 251 enced, and patriotic men ; and knew full well, how difficult it is to guard against tlie abuses of construc- tion. They accordingly proposed, as an amend- ment of the constitution, the substance of her con- struction. It is in the following words : " That each State in the Union shall respectively retain every power, jurisdiction, and right, which is not, by the constitution, delegated to the Congress of the Uni- ted States, or to the departments of the federal government." This was modified and proposed, as an amendment, in the regular constitutional form ; and was ratified by the States. It constitutes the 10th amended article, which has already been quoted at length. It is worthy of note, that Mas- sachusetts, New Hampshire, aud South Carolina, proposed, when they ratified the constitution, amend- ments similar in substance, and with the same ob- ject: — clearly showing how extensively the alarm felt by Virginia, had extended ; and how strong the desire was to guard against the evil apprehended. Such, and so convincing are the arguments going to show, that the government of the United States has no more right to enforce its decisions against those of the separate governments of the several States, where they disagree as to the extent of their respective powers, than the latter have of enforc- ing their decisions in like cases. They both stand on equal grounds, in this respect. But as convinc- ing as are these arguments, there are many, who entertain a different opinion ; — and still affirm that the government of the United States possesses the right, fully, absolutely, and exclusively. 252 ox THE CONSTITUTION AND GOVERNMENT In support of this opinion, they rely, in the first place, on the second section of the sixth article, which provides that, — " This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under- the authority of the United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding." It is sufficient, in reply, to state, that the clause is declaratory; that it vests no new power whatever in the government, or in any of its departments. With- out it, the consti'tution and the laws made in pursu- ance of it, and the treaties made under its authority, would have been the supreme law 'of the land, as fully and perfectly as they now are ; and the judges in every State would have been bound thereby, any thing in the constitution or laws of a State, to the contrary notwithstanding. Their supremacy results from th^ nature of the relation between the federal government, and those of the several States, and their respective constitutions and laws. Where two or more States form a common constitution and government, the authority of these, within the limits of the delegated powers, must, of necessity, be su- preme, in reference to their respective separate con- stitutions and governments. Without this, there would be neither a common constitution and gov- ernment, nor even a confederacy. The whole would be, in fact, a mere nullity. But this supremacy is not an absolute supremacy. It is limited in extent OF THE UNITED STATES, 253 and degree. It does not extend beyond the dele- gated powers ; — all others being reserved to the States and the people of the States. Beyond these the constitution is as destitute of authority, and as powerless as a blank piece of paper ; and the mea- sures of the government mere acts of assumption. And, hence, the supremacy of laws and treaties is expressly restricted to such as are made in pursu- ance of the constitution, or under the authority of the United States; which can, in no case, extend beyond the delegated powers. There is, indeed, no power of the government without restriction ; not even that, which is called the discretionary power of Congress. I refer to the grant which authorizes it to pass laws to carry into effect the powers ex- pressly vested in it, — or in the government of the United States, — or in any of its departments, or offi- cers. This power, comprehensive as it is, is, never- theless, subject to two important restrictions ; one, that the law must be necessary, — and the other, that it must be proper. To understand the import of the former, it must be borne in mind, that no power can execute itself. They all require means, and the agency of govern- ment, to apply them. The means themselves may, indeed, be regarded as auxiliary powers. Of these, some are so intimately connected with the principal power, that, without the aid of one, or all of them, it could not be carried into execution; — and, of course, without them, the power itself would be nu- gatory. Hence, they are called implied powers; and it is to this description of incidental or auxiliary 254 ON THE CONSTITUTION AND GOVERNMENT powers, tliat Congress is restricted, in passing laws,- necessary to carry into execution tlie powers ex- pressly delegated. But the law must, also, be proper as well as ne- cessary, in order to bring it within its competency. To understand the true import of the term in this connection, it is necessary to bear in mind, that even the implied powers themselves are subject to im- portant conditions, when used as means to carry pow- ers or rights into execution. Among these the most prominent and important is, that they must be so carried into execution as not to injure others; and, as connected with, and subordinate to this, — that, where the implied powers, or means used, come in conflict with the implied powers, or means used by another, in the execution of the powers or rights vested in it, the less important should yield to the more important, — the convenient, to the useful; and both to health and safety ;— because it is proper they shoidd do so. Both rules are universal, and rest on Ij^he fundamental 'principles of morals. Such is the true import of the term " proper,' superadded to " necessary," when applied to this im- portant question. And hence, when a law of Con- gress, carrying into execution one of the delegated powers, comes into conflict with a law of one of the States, carrying its reserved powers into execution, it does not necessarily follow that the latter must yield to the former, because the laws made in pur- suance of the constitution, are declared to be the supreme law of the land: for the restriction im- posed by the term " proper," takes it out of the OF THE UNITED STATES. 255 power of Congress, even where the implied power is necessary, and brings it under the operation of those fundamental rules of universal acceptation, to determine which shall yield. Without this restric- tion, most of the reserved powers of the States, — and, among them, those relating to their internal police, including the health, tranquillity, and safety of their people — might be made abortive, by the laws passed by Congress, to carry into effect the delegated powers ; especially in regard to those reg- ulating commerce, and establishing post-offices and post-roads. The alterations finally made in this clause of the constitution, compared with it as originally report- ed by the committee on detail, deserve notice, — as shedding considerable light on its phraseology and objects. As reported by that committee, it was in the following words : — " The acts of the legislature of the United States, made in pursuance of this con- stitution, and all treaties made under the authority of the United States, shall be the supreme ^law of the several States, and of their citizens and inhabit- ants ; and the Judges of the several States shall be bound thereby, in their decisions ; any thing in the constitutions or laws of the several States to the contrary notwithstanding." After a long discussion of the plan of the constitution, 'as reported by this committee ; and after many alterations were made, the whole, as amended, was referred to the commit- tee of revision, or " sPyle^'' as it was also called. This particular clause had received no amendment ; and, of course, was referred as reported by the commit- 256 ON THE CONSTITUTION AND GOVEENMENT tee on detail. The committee of revision, or style, reported it back as it now stands. On comparing the two, it will be found, that the word " constitu- tion," which was omitted in the plan of the, commit- tee on detail, is added, as a part of the supreme law of the land ; that the expression, " the acts of the legislature of the United States," is changed into " laws of Congress," and " land" substituted in lieu of, " several States and of their citizens and inhabit- ants." These modifications of phraseology were, doubtless, introduced to make the clause conform to what was believed to be the views of the conven- tion, as disclosed in the discussion on the plan re- ported by the committee on detail, and to improve the manner of expression ; for such were plainly the objects of referring the plan, as amended, to the Qommittee of revision and style. " Constitution" was doubtless added, because, although a compact as be- tween the States, it is a law, — and the highest law,— in reference to the citizens and inhabitants of the several States, regarded individually. The substi- tution of " Congress," for " the legislature of the United States," requires no explanation. It is a mere change of phraseology. For the substitution of " land," in place of the " several States and then- citizens and inhabitants," no reason is assigned, so far as T can discover ; but one will readily suggest itself on a little reflection. As the expression stood in the plan reported by the committee on detail, the supremacy of the acts of the legislature of the United States, and of treaties made under their authority, was limited to the " several States, and their citizens OF THE UNITED STATES. 257 and inhabitants;" and, of course, would not have extended over the tmTitorial possessions of the United States ; or, as far as their authority might otherwise extend. It became necessary, therefore, to give them a wider scope ; especially after the word, " constitution," was introduced in connection with, " laws of the United States ;" as their autho- rity never can extend beyond the limits, to which it is carried by the constitution. As far as this ex- tends, their authority extends ; but no further. To give to the constitution and the laws and treaties made in pursuance thereof, a supremacy coexten- sive with these limits, it became necessary to adopt a more comprehensive expression than that reported by the committee on detail ; and, hence, in all pro- bability, the adoption of that substituted by the committee of revision and style ; — " the supreme law of the land," being deemed the more appropriate. Such are the limitations imposed on the authori- ty of the constitution, and laws of the United States, and treaties made under their authority, regarded as the supreme law of the land. To carry their supre- macy beyond this, — and to extend it over the re- served powers, in any form or shape, or through any channel, — be it the government itself or any of its departments, — would finally destroy the system by consolidating all its powers in the hands of the one or the other. The limitation of their supremacy, m degree, is not less strongly marked, than it is w extent. While they are supreme, within their sphere, over the constitutions and laws of the several States, — 17 258 ON THE CONSTITUTION AND GOVERNMENT the constitution of the United States, and all that appertains to it, are subordinate to the power which ordained and established it; — as much so, as are the constitutions of the several States, and all which appertains to them, to the same creative power. In this respect, as well as their supremacy in regard to each other, in their respective spheres, they stand on the same level. Neither has any advan- tage, in either particular, over the other. Those who maintain that the government of the United States has the right to enforce its deci- sions as to the extent of the powers delegated to it, against the decisions of the separate governments of the several States as to the extent of the re- served powers, in case of conflict between the two, — ^next rely, in support of their opinion, on the 2d sec. 3d art. of the constitution, — which is in the following words : " The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; — to all cases affecting ambassadors, other public ministers and consuls; — to all cases of admiralty and maritime jurisdiction ; — ^to contro- versies, to which the United States shall be a par- ty ; — to controversies between two or more States ; — between a State and the citizens of another State ; — between citizens of different States ; — between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof, and foreign states, citizens or subjects." OF THE UNITED STATES. 259 It will be sufficient, in reply, to show, tliat this section contains no provisions whatever, wMcli would authorize the judiciary to enforce the deter- mination of the government, against that of the government of a State, in such cases. It may be divided into two parts ; that which gives jurisdiction to the judicial power, in reference to the mibjecb 'matter^ and that which gives it juris- diction, in reference to the parties 1/itigcmt. The first clause, which extends it, " to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority," embraces the former; and the residue of the section, the latter. It is clear on its face, that the object of the clause was, to make the jurisdiction of the judicial power, commensurate with the authority of the constitution and the several departments of the government, as far as it related to cases arising under them, — and no farther. Nor is it less mani- fest that the word " cases,'''' being a well-defined technical term, is used in its proper legal sense ; — and embraces only such questions as are of a judicial character ; — that is, questions in which the parties litigant, are amenable to the process of the courts. NoAv, as there is nothing in the constitution which vests authority in the government of the United States, or any of its departments, to enforce its decision against that of the separate government of a State; and nothing in this clause which makes the several States amenable to its process, it is 260 our THE CONSTITUTION AND GOVERNMENT manifest that there is nothing in it, which can pos- sibly give the judicial power authority to enforce the decision of the government of the United States, against that of a separate State, where their respec- tive decisions come into conflict. If, then, there be any thing that authorizes it, it must be contained in the remainder of the section, which vests jurisdic- tion with reference to the parties litigant. But this contains no provision which extends the jurisdic- tion of the judicial power to questions involving such conflict between the two co-ordinate govern- ments, — either express or implied ; — as I shall next proceed to show. It will not be contended that either the govern- ment of the United States, or those of the separate States are amenable to the process of the courts; unless made so by their consent respectively; for no legal principle is better established than that, a government, though it may be plaintiff in a case, or controversy, cannot be made defendant, or, in any way, amenable to the process of the courts, without its consent. That there is no earpress provision in the section, by which, either of the co-ordinate governments can be made defendants, or amenable to the process of the courts, in a question between them, is manifest. If, then, there be any, it must be implied in some one of its provisions : and it is, accordingly, con- tended, that it is implied in the clause, which pro- vides that the judicial power shall extend, " to con- troversies to which the United States shall be a party." This clause, it is admitted, clearly extends OF THE UNITED STATES. 261 the jurisdiction of the judiciary to all controversies to wMcli the United States are a party, as plaintiff or defendant, by their consent. So far, it is not a matter of implication, but of express provision. But the inquiry is, does it go further, and, by im- plication, authorize them to make a State a de- fendant without its consent, in a question or contro- versy between it and them? It contains not a word or syllable that would warrant such an impli- cation ; and any construction which could warrant it, would authorize a State, or an individual, to make the United States a party defendant, in a con- troversy between them, without their consent. There is, not only nothing to warrant such con- struction, but much to show that it is utterly unwar- rantable. Nothing, in the first place, short of the strongest implication, is sufficient to authorize a con- struction, that would deprive a State of a right so important to its sovereignty, as that of not being held amenable to the process of the courts ; or to be made a defendant, in any case or controversy whatever, without its consent ; — more especially, in one between it and a coequal government, where the effect would necessarily be, to reduce it from an equal to a subordinate station. It would, in the next place, be contrary to the construction placed on a similar clause in the same section, by an authority higher than that of the ju- dicial, or of any other, or of all the departments of the government taken together. I refer to the last clause, which provides that the judicial power shall extend to controversies, " between a State or citi- 262 ON THE CONSTITUTION AND GOVERNMENT zens thereof, and foreign states, citizens or subjects." It would be muclL more easy to make out some- tMng like a plausible argument in support of tlie position, tliat a State miglit be made defendant and amenable to the process of the courts of the United States, under this clause, than under that in ques- tion. In the former, the States are not even named. They can be brought in only by implication, and then, by another implication, divested of a high sovereign right : and this, too, without any assign- able reason for either. Here they are not only named, but the other parties to the controversies are also named ; without stating which shall be plaintiif, or which defendant. This was left unde- fined ; and, of course, the question, whether the sev- eral States might not be made defendants as well as plaintiffe, in controversies between the parties, left open to construction ; — and in favor of the im- plication, a very plausible reason may be assigned. The clause puts a State and its citizens on the same ground. In the controversies, to which it extends the judicial power, the State and its citizens stand on one side, and foreign states, citizens and subjects, on the other. Now as foreign states, citizens, or subjects may, under its provisions, make the citizens of a State defendants, in a controversy between them, it would not be an unnatural inference, that the State might also be included. Under this con- struction, an action was, in fact, commenced in the courts of the United States, against one of the States. The States took the alarm ; and, in the high sovereign character, in which they ordained and OF THE UNITED STATES. 263 established the constitution, declared that it should "not be so construed, as to extend to any suit iu law or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign state."* K additional reasons could be thought necessary to sustain a conclusion supported by arguments so convincing, they might be found in the fact, that as long as the government has existed, — and as nume- rous as have been the questions between the United States and many of the several States, — the former never have attempted, in any of them, to bring the latter into the courts of the United States. If to this it be added, that all attempts made in the con- vention, to extend the judicial power, " to all' ques- tions, which involved the national peace and harmo- ny;" — or which might have the effect of subjecting the several States to its jurisdiction, failed, — ^the conclusion against all constructive efforts, having the same objects in view, and based on any one of the clauses of this section, is irresistible. It is, in the last place, contended, — that the Su- preme Court of the United States has the right to decide on the constitutionality of all laws ; and, in virtue of this, to decide, in the last resort, all ques- tions involving a conflict between the constitution of the United States and laws and treaties made in pursuance thereof, on the one side, and the consti- tutions and laws of the several States, on the other. It is admitted, that the court has the right, m * Amendments, Art. II. 264 ON THE CONSTITUTION AND GOVERNMENT all questions of a judicial character which may come before it, where the laws and treaties of the United States, and the constitution and laws of a State are in conflict or brought in question, to decide which is, or is not consistent with the constitution of the United States. But it is denied that this power is peculiar to it ; or that its decision, in the last resort, is binding on any but the parties to it, and its co- departments. So far from being peculiar to it, the right appertains, not only to the Supreme Court of the United States, but to all the courts of the sev- eral States, superior and inferior; and even to for- eign courts, — should a question be brought before them involving such conflict. It results, necessarily, from our system of government; where power is not only divided, but where constitutions and laws emanate from different authorities. Where this is the fact, it is the duty of the court to pronounce what is the law in the case before it ; — and, of course, — where there is conflict between different laws, — to pronounce which is paramount. Now, as the constitution of the United States is, within its sphere, supreme over all others appertaining to the system, it necessarily results, that where any law conflicts with it, it is the duty of the court, before which the question arises, to pronounce the consti- tution to be paramount. If it be the Supreme Court of the United States, its decision, — being that of the highest judicial tribunal, in the last re- sort, of the parties to the case or controversy, — is, of course, final as it respects them, — ^but only as it respects them. It results, that its decision is not OF THE UNITED STATES. 265 binding as between the United States and the sev- eral States, as neither can make tlie other defendant in any controversy between them. Others, who are forced by the strength of the argument to admit, that the judicial power does not extend to them, contend that Congress, the great organ of the government, has the right to decide, in the last resort, in all such controversies ; — or in all questions involving the extent of their respective powers. They do not pretend to derive this high power from any specific provision of the constitu- tion; they claim it to be a right incident to all governments, to decide as to the extent of its pow- ers ; and to enforce its decision by its own proper authority. It is manifest, that they who contend for this right to its full extent, overlook the distinction, in this respect, between -single governments, vested with all the powers appertaining to government, and co-ordinate governments, in a system where the powers of government are divided between two or more, as is the case with us. If it be admitted that the right belongs to both, and that co-ordinate gov- ernments, in this respect, stand on the same ground as single governments, — whatever right or pow- er in such case, belongs to the one, must necessarily belong to the other : and, if so, the result must be, where they differ as to the extent of their respec- tive powers, either a mutual negative on the acts of each other, — or the right of each to enforce its de- cision on the other. But it has already been estab- Hshed, that they have not the latter ; and hence, 266 CN THE CONSTITUTION ANB GOVEENMENT under any aspect in which, the question can be viewed, the same conclusion follows, — ^that where the two governments dififer as to the extent of their respective powers, a mutual negative is the conse- quence. The effect of this is, to make each, as against the other, the guardian and protector of the powers allotted to it, and of which it is the organ and rep- resentative. By no other device, could the separate governments of the several States, as the weaker of the two, prevent the government of the United States, as the stronger, from encroaching on that portion of the reserved powers allotted to them, and finally absorbing the whole ; except, indeed, by so organizing the former, as to give to each of the States a concurrent voice in making and administer- ing the laws ; and, of course, a veto on its action. The powers not delegated are expressly reserved to the respective States or the people ; that is, to the governments of the respective States and the people thereof; and by them only can they be protected and preserved. The reason has been fully explain- ed in the discourse on the elementary principles of government. But the several States, as weaker parties, can protect the portion not delegated, only in one of two ways ; ' either by having a concurrent voice in the action of the government of the United States ; or a negative on its acts, when they disa- gree as to the extent of their respective powers. One or the other is indispensable to the preserver tion of the reserved rights, — and to prevent the consolidation of all power in the government of the OF THE UNITED STATES. 267 United States, as the stronger. Why the latter was preferred by the convention which formed the constitution, may, probably, be attributed to the great number of States, and the belief that it was impossible so to organize the government, as to give to each a concurrent voice in its action, without ren- dering it too feeble and tardy to fulfil the ends for which it was intended. But, be this as it may, not having adopted it, no device remained, by which the reserved powers could be protected and pre- served, but the one which they, in effect, did adopt, — by refusing to vest the government of the United States with a veto on the acts of the separate gov- ernments of the several States, ia any form or man- ner whatever. But it may be alleged, that the effect of a mu- tual negative on the part of the two co-ordinate governments, where they disagree as to the extent of their respective powers, will, whUe it guards against consolidation on one side, — lead to collision and conflict between them on the other; — and, finally, to disunion. That the division of the powers of government between the two, without some means to prevent such result, would necessarily lead to collision and confiict, will not be denied. They are incident to every division of powers, of every description ; whether it be that of co-ordinate departments, co- ordinate estates or classes, co-ordinate governments, or any other division of power appertaining to our system, or to that of any other constitutional gov- ernment. It is impossible to construct one without 268 ON THE CONSTITUTION AND GOVERNMENT dividing the powers of government. But wherever, and however power may be divided, collision and conflict are necessary consequences, if not prevented. The more numerous and complex the divisions, the stronger the tendency to both, and the greater the necessity for powerful and effectual guards to pre- vent them. It is one of the evils incident to consti- tutional governments of every form. But we must take things as they are, with all their incidents, bad or good. The choice between constitutional and absolute governments, lies between the good and evil, incident to each. If the former be exposed to collision and conflict between its various parts, the latter is exposed to all the oppressions and abuses, ever incident to uncontrolled and irresponsible pow- er, in all its forms. With us the choice lies between a national, consolidated and irresponsible govern- ment of a dominant portion, or section of the coun- try,— and a federal, constitutional and responsible government, with all the divisions of powers indis- pensable to form and preserve such a government, in a country of such vast extent, and so great a di- versity of interests and institutions as ours. The advantages of both, without the evils incident to either, we cannot have. Their nature and character are too opposite and hostile to be blended in the same system. But while it is admitted that collision and con- flict may be necessarily incident to a division of powers, it is utterly denied, that the effects of the mutual negative between the two co-ordinate gov- ernments would contribute to either, or necessarily OP THE UNITED STATES. 269 ead to disunion. On the contrary, its effects would )e the very reverse. Instead of leading to either, t is an indispensable means to prevent the collision md conflict, which must necessarily arise between he delegated and reserved powers ; and which, if lot prevented, would, in the end, destroy the sys- em, either by consolidation or dissolution. Its aim md end is to prevent the encroachment of either )f the co-ordinate governments on the other. For his purpose it is the effectual, and the only effectual neans that can be devised. By preventing such mcroachments, it prevents collision and conflict be- ween them. These are their natural offspring : col- ision follows encroachment, — and conflict, colli- ion, in the order of events, — unless encroachment )e acquiesced in. In that case, the weaker would )e absorbed, and all power concentrated in the tronger. But it may be alleged, that, in preventing these, t would lead to consequences not less to be dread- id; — ^that a negative on the part of the govern- Qents of so many States, where either might disa- p'ee with that of the United States, as to the extent if their respective powers, would lead to such em- )arrassment and confusion, and interpose so many tnpediments in its way, as to render it incompetent fulfil the ends for which it was established. The bjection is plausible ; but it will be found, on inves- igation, that strong as the remedy is, it is not tronger than is required by the disease ; and that he system furnishes ample means to correct what- ver disorder it may occasion. 270 ON THE CONSTITUTION AND GOVEKNMKNT It may be laid down as a fundamental principle in ooiistructing constitutional governments, that a strong government requires a negative proportion- ally strong, to restrict it to its appropriate sphere ; and that, the stronger the government, — ^if the neg- ative be proportionally strong, the better the gov- ernment. It is only by making it proportionally strong, that an equilibrium can be established be- tween the positive and negative powers — the power of acting, and the power of restricting action to its assigned limits. It is difficult to form a conception of a constitutional government stronger than that of the United States ; and, consequently, of one re- quiring a stronger negative to keep it within its appropriate spher(^. Combining, habitually, as it neeessarily does, the united power and patronage of a majority of the States and of their population es- timated in federal numbers, in opposition to a minority of each, with notliing but their separate and divided power and patronage, it is, to the full as strong, if not stronger, than was the goverment of Rome, — with its powerfully constituted Senate, including its control of the auspices, the censorship, and tlie dictatorship. It will, of course, recpiire, in order to keep it within its pi-oper bounds, a nega- tive fully as strong in i)roportion, as the tribune- ship ; which, in its prime, consisted of ten members, (ilected by the plebeians, eaeh of whom, (as has been supposed by some, — but a majority of whom, all admit,) had a negative, not only on the acts of the Senate, but on their execution. As powerful as was this negative, experiment proved that it was not too OF THE UNITED STATES. 271 strong for the positive power of the government. If the circumstances be considered, under which the aegalive of the several States will be brought into iction, it will be found, on comparison, to be weaker in proportion, than the negative possessed by the tribuneship ; and far more effectually guarded in its possible tendencies to disorder, or the derangement af the system. In the first place, the negative of the tribunes extended to all the acts of the Senate, and to their execution ; and, — as it was a single government without limitation on its authority, — to all the acts af government. On the other hand, the negative of the governments of the several States extends only to the execution of such acts of the government of the United States, as may present a question involv- ing their respective powers ; which, relatively, are v'ery few, compared to the whole. In the next place, every tribune, or, at least, the majority of the college, possessed the power ; and was ordinari- ly disposed to exercise it, as they all represented the portion of the Roman people, which their veto was intended to protect against oppression and abuse of power on the part of the Senate. On the contrary, the habitual relation between the governments of the several States and the government of the United States for the time, is such, as to identify the majority of them, in power and interest, with the latter ; and to dispose them rather to enlarge and sustain its luthority, than to resist its encroachments, — which. From their position, they regard as extending, — and lot as contracting their powers. This limits the nega- 272 ON THE CONSTITUTION AND GOVERNMENT tive power of tte governments of the several States to the minority,, for the time : and even that minor- ity will have, as experience proves, a minority in its own limits, almost always opposed to its will, and nearly of equal numbers with itself, identified in views and party feelings, with the majority in possession of the control of the government of the United States ; and ever ready to counteract any opposition to its encroachments on the reserved porters. To this it may be added, that even the majority in this minority of the States, will, for the most part, be averse to making a stand against its encroachments ; as they, themselves, hope, in their turn, to gain the ascendency ; and are, therefore, naturally disinclined to weaken their party connec- tions with the minority in the States possessing, for the time, the control of the government, — and whose interest and feelings, aside from party ties, would be with the majority of their respective States. Such being the case, it is apparent that there will be far less disposition on the part of the governments of the several States to resist the encroachments of the government of the United States on their re- served rights,^ — ^or to make an issue with it, when they disagree as to the extent of their respective powers, —than there was in the tribunate of the Roman re- public to oppose acts, or the execution of acts, calcu- lated to oppress, or deprive their order of its rights. If to this it be further added, that the federal constitution provides, — not only that all the function- aries of the United States, but also those of the several States, including, expressly, the members of OF THE UNITED STATES. 278 their legislatures, and all their executive and judi- cial officers, — shall be bound, by oath or affirmation, to support the constitution ;— and that the decision of the highest tribunal of the judicial power is final, as between the parties to a case or controversy, — the danger of any serious derangement or disorder from the effects of the negative on the parts of the sepa- rate governments of the several States, must appear, not only much less than that from the Eoman tri- bunate, but very inconsiderable. The danger is, indeed, the other way ; — that the disposition on the part of the governments of the several States, to acquiesce in the encroachments of the government of the United States, will prove stronger than the disposition to resist; and the negative, compared with the positive power, will be found to be too feeble to preserve the equilibrium between them. But if it should prove otherwise, — and if, in conse- quence, any serious derangement of the system should ensue, there will be found, in the earliest and highest division of power, which I shall next pro- ceed to consider, ample and safe means of correct- ing them. I refer to that resulting from, and inseparably connected with the primitive territorial division of the country itself, — coeval with its settlement into se- parate and distinct communities ; and which, though, dependent at the first on the parent country, became, by a successful resistance to its encroachments on their chartered rights, independent and sovereign States. In them severally, — or to express it more precisely, in the people composing them, regarded 18 274 ON THE CONSTITUTION AND GOVERNMENT as independent and sovereign communities, the ulti- mate power of the whole system resided, and from them the whole system emanated. Their first act was, to ordain and establish their respective sepa- rate constitutions and governments, — each by itself, and for itself, — without concert or agreement with the others ; and their next, after the failure of the confederacy, was to ordain and establish the consti- tution and government of the United States, in the same way in every respect, as has been shown ; ex- cept that it was done by concert and agreement with each other. That this high, this supreme power, has never been either delegated to, or vested in the separate governments of the States, or the federal government, — and that it is, therefore, one of the powers declared, by the 10th article of amend- ments, to be reserved to the people of the respective States ; and that, of course, it still resides mth them, wiU hardly be questioned. It must reside somewhere. No oife will assert that it is extin- guished. But, according to the fundamental princi- ples of our system, sovereignty resides in the people, and not in the government ; and if in them, it must be in them, as the people of the several States ; for, politically speaking, there is no other known to the system. It not only resides in them, but resides in its plenitude, unexhausted and unimpaired. If proof be required, it will be found in the fact,— which cannot be controverted, so far as the United States are concerned, — that the people of the several States, acting in the same capacity and in the same way, in which they ordained and established the OF THE UNITED STATES. 275 federal constitution, can, by tlieir concurrent and united voice, change or abolish it, and establish ano- ther in its place ; or dissolve the Union, and resolve themselves into separate and disconnected States. A power which can rightfully do all this, must exist in full plenitude, unexhausted and unimpaired ; for no higher act of sovereignty can be conceived. But it does not follow from this, that the people of the several States, in ordaining and establishing the constitution of the United States, imposed no restriction on the exercise of sovereign power ; for a sovereign may voluntarily impose restrictions on his acts, without, in any degree, exhausting or impair- ing his sovereignty ; as is admitted by all writers on the subject. In the act of ordaining and estab- lishing it, they have, accordingly, imposed several important restrictions on the exercise of their sove- reign power. In order to ascertain what these are, and how far they extend, it will be necessary to as- certain, in what relation they stand to the constitu- tion ; and to each other in reference to it. They stand then, as to the one, in the rela- tion of superior to subordinate — the creator to the created. The people of the several States called it into existence, and conferred, by it, on the govern- ment, whatever power or authority it possesses. Re- garded simply as a constitution, it is as subordinate to them, as are their respective State constitutions ; and it imposes no more restrictions on the exercise of any of their sovereign rights, than they do. The case however is different as to the relations which the people of the several States bear to each other, 276 ON THE CONSTITUTION AND GOVERNMENT ill reference to it. Having ratified and adopted it, by mutual agreement, they stand to it in the rela-, tion of parties to a constitutional compact ; and, of course, it is binding between them as a compact^ and not on, or over them, as a constitution. Of all com- pacts that can exist between independent and sove- reign communities, it is the most intimate, solemn, and sacred, — whether regarded in reference to the closeness of connection, the importance of the ob- jects to be effected, or to the obligations imposed. Laying aside all intermediate agencies, the people of the several States, in their sovereign capacity, agreed to unite themselves together, in the closest jDOssible connection that could be formed, without merging their respective sovereignties into one com- mon sovereignty, — to establish one common govern- ment, for certain specific objects, which, regarding the mutual interest and security of each, and of all, they supposed could be more certainly, safely, and effectually promoted by it, than by their several separate governments ; pledging their faith, in the most solemn manner possible, to support the com- pact thus formed, by respecting its provisions, obey- ing all acts of the government made in conformity with them, and preserving it, as far as in them lay, against all infractions. But, as solemn and sacred as it is; and as high as the obligations may be which it imposes, — still it is but a compact and not a corir stitution^ — regarded in reference to tJie people of ilie several States, in their sovereign capacity. To use the language of the constitution itself, it was or- dained as a " constitution /or the United States,"— OF THE UNITED STATES. 277 not over tliem ; and established, not ove7% Ibut " be- tween the States ratifying it :" and hence, a State, acting in its sovereign capacity, and in the same manner in which it ratified and adopted the consti- tution, may be guilty of violating it as a compact^ but cannot be guilty of violating it as a law. The case is the reverse, as to the action of its citizens, re- garding them in their individual capacity. To them it is a law, — the supreme law within its sphere. They may be guUty of violating it as a law, or of violating the laws and treaties made in pursuance of, or under its authority, regarded as laws or treaties ; but cannot be guilty of violating it as a compact. The constitution was ordained and established over them, by their respective States, to whom they owed allegiance; and they are under the same obligation to respect and obey its autho- rity, within its proper sphere, as they are to respect and obey their respective State constitutions ; and for the same reason, viz. : that the State to which they owe allegiance, commanded it in both cases. It follows, from what has been stated, that the people of the several States, regarded as parties to the constitutional compact, have imposed restric- tions on the exercise of their sovereign power, by enteriog into a solemn obligation to do no act inconsistent with its provisions, and to uphold and support it within their respective limits. To this extent the restrictions go, — but no further. As parties to the constitutional compact, they retain the right, unrestricted, which appertains to such a relation in all cases w^ere it is not surrendered, to 278 ON THE CONSTITUTION AND GOVEENMENT judge as to the extent of tlie obligation imposed by the agreement or compact, — in the first instance, where there is a higher authority ; and, in the last resort, where there is none. The principle on which this assertion rests, is essential to the nature of contracts ; and is in accord with universal prac- tice. But the right to judge as to the extent of the obligation imposed, necessarily involves the right of pronouncing whether an act of the federal government, or any of its departments, be, or be not, in conformity to the provisions of the constitu- tional compact ; and, if decided to be inconsistent, of pronouncing it to be unauthorized by the consti- tution, and, therefore, null, void, and of no effect. If the constitution be a compact, and the several States, regarded in their sovereign character, be parties to it, all the rest follow as necessary conse- quences. It would be puerile to suppose the right of judging existed, without the right of pronounc- ing whether an act of the government violated the provisions of the constitution or not ; and equally so to suppose, that the right of judging existed, with- out the authority of declaring the consequence, to wit ; that, as such, it is null, void, and of no effect. And hence, those who are nn willing to admit the consequences, have been found to deny that the constitution is a compact ; in the face of facts as weU established as any in our political history, and in utter disregard of that provision of the constitu- tion, which expressly declares, that the ratification of nine States shall be sufficient to establish it " hetween the States so ratifying the samieP OF THE UNITED STATES. 279 But the right, with all these consequences, is not more certain than that possessed by the several States, as parties to the compact, of interposing for the purpose of arresting, within their respective hmits, an act of the federal government in viola- tion of the constitution ; and thereby of preventing the delegated from encroaching on the reserved powers. Without such right, all the others would be barren and useless abstractions, — and just as puerile as the right of judging, without the right of pronouncing an act to be unconstitutional, and, as such, null and void. Nor is this right more cer- tain, than that of the States, in the same character and capacity, to decide on the mode and measure to be adopted to arrest the act, and prevent the encroachment on the reserved powers. It is a right indispensable to all the others, and, without which, they would be valueless. These conclusions foUow irresistibly from incon- testable facts and well established principles. But the possession of a right is one thing, and the exer- cise of it another. Rights, themselves, must be exercised with prudence and propriety : when otherwise exercised, they often cease to be rights, and become wrongs. The more important the right, and the more delicate its character, the higher the obligation to observe, strictly, the rules of prudence and propriety. But, of all the rights appertaining to the people of the several States, as members of a common Union, the one in question, is by far the most important and delicate ; and, of course, requires, in its exercise, the greatest caution 280 ON THE CONSTITUTION AND GOVEENMENT and forbearance. As parties to the compact wMcli constitutes the Union, ttey are under obligations to observe its provisions, and prevent tbeir infrac- tion. In exercising tbe rigbt in question, they are bound to take special care that they do not themselves, violate this, the most sacred of obliga- tions. To avoid this, prudence and propriety require that they should abstain from interposing their authority, to arrest an act of their common government, unless the case, in their opinion, involve a clear and palpable infraction of the instrument. They are bound to go further, — and to forbear from interposing, even when it is clear and palpable, unless it be, at the same time, highly dangerous in its character, and apparently admit- ting of no other remedy ; and for the plain reason, that prudence and propriety require, that a right so high and delicate should be called into exercise, only in cases of great magnitude and extreme urgency. But even when, in the opinion of the people of a State, such a case has occurred ; — ^that nothing, short of the interposition of their autho- rity, can arrest the danger and preserve the consti- tution, they ought to interpose in good faith ; — not to weaken or destroy the Union, but to uphold and preserve it, by causing the instrument on which it rests, to be observed and respected; and to this end, the mode and measure of redi-ess ought to be exclusively directed and limited. In such a case, a State not only has the right, but is, in duty to itself and the Union, bound to interpose, — as the last resort, to arrest the dangerous infraction of the OF THE UNITED STATES. 281 constitution, — and to prevent the powers reserved to itself, from being absorbed by those delegated to the United States. That the right, so exercised, would be, in itself, a safe and effectual security against so great an evil, few will doubt. But the question arises, — Will prudence and propriety be sufficient to prevent the wanton abuse of a right, so high and delicate, by the thirty parties to the compact, — and the many others hereafter to be added to the number ? I answer, no. iNor can any one, in the least ac- quainted with that constitution of our nature which makes governments necessary, give any other an- swer. The highest moral obligations, — truth, j ustice, and plighted faith, — ^much less, prudence and pro- priety, — oppose, of themselves, but feeble resistance to the abuse of power. But what they, of them- selves, cannot effect, may be effected by other in- fluences of a far less elevated character. Of these, many are powerful, and well calculated to prevent the abuse of this high and delicate right. Among them may be ranked, as most prominent and power- ful, that which springs from the habitual action of a majority of the States and of their population, estimated in federal numbers, on the side of the federal government; — a majority naturally prone, and ever ready, — in all questions between it and a State, involving an infraction of the constitution, to throw its weight in the scale of the former. To this, may be added another, of no small force. I refer to that of party ties. Experience, as well as reason shows, that a government, operating as ours 282 OJSr THE CONSTITUTION AND GOVERNMENT does, must give rise to two great political parties, — wMch, althougli partaking, from the first, more or less of a sectional character, extend themselves, in unequal proportions, over the whole Union, — carry- ing with them, notwithstanding their sectional tendency, party sympathy and party attachment of such strength, that few are willing to break or weaken them, by resisting, even an acknow- ledged infraction of the constitution, of a nature alike oppressive and dangerous to their section. Both of these tend powerfully to resist the abuse of the right, by preventing it from being exercised imprudently and improperly. But I will not dwell on them, as they have been already considered in another connection. There are others, more espe- cially connected with the subject at present before us, which I shall next consider. The first may be traced to a fact, disclosed by ex- perience, that, in most of the States, the preponder- ance of neither party is so decisive, that the minori- ty may not hope to become the majority; and that, with this hope, it stands always ready to seize on any act of the majority, of doubtful propriety, as the means of turning it out of power and taking its place. Should the majority in any State, where the balance thus vibrates, venture to take a stand, and to interpose its authority, against the encroachment of the federal government on its reserved powers, it would be difficult to conceive a case, however clear and palpable the encroachment, or dangerous its character, in which the minority would not resist its action, and array itself on the side of the federal OF THE TTNITED STATES. 283 government. And there are very few, in whicli, with the aid of its power and patronage, backed by the numerous presses in its support, the minority would not succeed in overcoming the majority, — taking their place, and, thereby, placiag the State at the foot of the federal government. To this, another of great force may be added. The dominant party of the State, for the time, although it may be in a minority in the Union for the time, looks forward, of course, to the period when it will be in a majori- ty of the Union ; and have at its disposal all the honors and emoluments of the federal government. The leaders of such party, therefore, would not be insensible to the advantage, which their position, as such, would give them, to share largely in the dis- tribution. This advantage they would not readily jeopard, by taking a stand which would render them, not only odious to the majority of the Union, at the time, but unpopular with their own party in the other States, — as putting in hazard their chance to become the majority. Under such circumstances, it would require, not only a clear and palpable case of infraction, and one of urgent necessity, but high virtue, patriotism and courage to exercise the right of interposition ; — even if it were admitted to be clear and unquestionable. And hence, it is to be feared that, even this high right, combined with the mutual negative of the two co-ordinate govern- ments, will be scarcely sufficient to counteract the vast and preponderating power of the federal gov- ernment, and to prevent the absorption of the re- served by the delegated powers. 284 ON THE CONSTITUTION AND GOVEENMENT Indeed tlie negative power is always far weaker, in proportion to its appearance, ttan the positive. The latter having the control of the government, with all its honors and emoluments, has the means of acting on and influencing those who exercise the negative power, and of enlisting them on its side, unless it be effectually guarded: while, on the other hand, those who exercise the negative, have nothing but the simple power, and possess no means of in- fluencing those who exercise the positive power. But, suppose it should prove otherwise; and that the negative power should become so strong as to cause dangerous derangements and disorders in the system;- — -the constitution makes ample provi- sions for their correction, — ^whether produced by the interposition of a State, or the mutual negative, or conflict of power between the two co-ordinate governments. I refer to the amending power. Why it was necessary to provide for such a power; — what is its nature and character; — why it was modified as it is, — and whether it be safe, and suffi- cient to effect the objects intended, — are the ques- tions, which I propose next to consider. It is, as has already been explained, a funda- mental principle, in forming such a federal commu- nity of States, and estabhshing such a federal con- stitution and government as ours, that no State could be bound but by its separate ratification and adop- tion. The principle is essentially connected with the independence and sovereignty of the several States. As the several States, in such a community, with such a constitution and government, still re- OF THE UNITED STATES. 285 tained their separate independence and sovereignty, it followed, tliat the compact into wMch. they enter- ed, could not be altered or changed, in any way, but by the unanimous assent of all the parties, without some express provision authorizing it. But there were strong objections to requiring the consent of all to make alterations or changes in the constitu- tion. Those who formed it were not so vain as to suppose that they had made a perfect instrument ; nor so ignorant as not to see, however perfect it might be, that derangements and disorders, result- ing from time, circumstances, and the conflicting ele- ments of the system itself, would make amendments necessary. But to leave it, without making some special provision for the purpose, would have been, in effect, to leave it to any one of the States to pre- vent amendments ; which, in practice, would have been almost tantamount to leaving it without any power to amend; — ^notwithstanding its necessity. And, hence, the subject of making some special provision for amending the constitution, was forced on the attention of the convention. There was diversity of opinion as to what the nature and character of the amending power should be. All agreed that it should be a modification of the original creative power, which ordained and established the separate constitutions and govern- ments of the several States ; and, by which alone, the proposed constitution and government could be ordained and established : or, to express it different- ly and more explicitly, — that amendments should be the acts of the several States, voting as States, — 286 ON THE CONSTITUTION AND GOVERNMENT eacii counting one, — and not tlie act of the govern- ment. But there was great diversity of opinion as to what number of States should be required to concur, or agree, in order to make an amendment. It was first moved to require the consent of all the States. This was followed by a motion to amend, requiring i/wo thirds ; which was overruled by a con- siderable majority. It was then moved to require the concurrence of tliree fourths^ which was agreed to, and finally adopted without dissent. To understand fully the reasons for so modify ing the original creative power, as to require the concurrence of three fourths to make an amendment, it will be necessary to advert to another portion of the proceedings of the convention, intimately con- nected with the present question. I refer to that which contains a history of its action in regard to the number of States required to ratify the consti- tution, before it should become binding between those so ratifying it. It is material to state, that although the article in respect to ratifications, which grew out of these proceedings, stands last in the constitution, it was finally agreed on and adopt- ed before the article in rea:ard to amendments ; — and had, doubtless, no inconsiderable influence ia determiaing the number of States required for that purpose. There was, in reference to both, great diversity of opinion as to the requisite number of States. With the exception of one State, aU agreed that entire unanimity should not be required ; but the majority divided as to the number which should be OF THE UNITED STATES. 287 required. One of the most prominent leaders of tlie party, originally in favor of a national government, was in favor of requiring only a bare majority of the States. Another, not less distinguished, was in fa- vor of the same proposition ; but so modified as to require such majority to contain, also, a majority of the entire population of all the States ; and, in de- fault of this, as many additional States as would be necessary to supply the deficiency. On the other hand, the more prominent members of the party in favor of a federal government, inclined to a larger number. One of the most influential of these, moved to require ten States ; on which motion the conven- tion was nearly equally divided. Finally, the num- ber nine was agreed on ; — constituting three fourths of all the States represented in the convention, — and, as nearly as might be, of all the States at that time in the Union. Why the first propositions were rejected, and the last finally agreed on, requires explanation. The first proposition, requiring the ratification of all the States, before the constitution should become bind- ing between those so ratifying the same, was rejected, doubtless, because it was deemed unreasonable that the fate of the others should be made dependent on the will of a single State. The convention acted imder the pressure of very trying exigencies. The confederacy had failed ; and it was absolutely neces- sary that something should be done to save the credit of the Union, and to guard against confusion and anarchy. The plan of the constitution and govern- ment adopted, was the only one that could be agreed 288 our THE CONSTITUTION AND GOVERNMENT on ; and tlie fate of the country apparently rested on its ratification by the States. In such a state of things, it seemed to be too hazardous to put it in the power of a single State to defeat it. Nothing short of so great a pressure could justify an act which made so great a change in the articles of con- federation; — which expressly provided that no al- teration should be made in any of them, " unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legisla- tures of every State." The rejection of the other proposition, which required a mere majority of the States to make it binding as between the States so ratifying it, wiU scarcely require explanation. It exposed the States to the hazard of forming, not one, but two Unions ; or, if this should be avoided, — by forcing the other States to come in reluctantly, under the force of cir- cumstances, it endangered the harmony and duration of the Union, and the proposed constitution and government. It would, besides, have evinced too great an indifference to the stipulation contained hi the articles of the confederation just cited. It remains now to be explained why the particu- lar number, between these two extremes, was finally agreed on. Among other reasons, one, doubtless, is to be found in the fact, that the articles of the then existing confederation, required the consent of nine States to give validity to many of the acts of their Congress; — among which, were the acts declaring war, — granting letters of marque and reprisal in time of peace, and emitting bills, or borrowing money on OF THE UNITED STATES. 289 the credit of the United States. The object of re- quiring so great a number was, to guard against the abuses of these and the other great and delicate powers contained in the provision. A mere majority of the States, was too few to be intrusted with such powers ; and, to make the trust more safe, the con- sent of nine States was required ; which was within a small fraction of three fowrihs of the whole number at the time. The precedent, — and the same con- sideration which induced the legislatures of all the States to assent to it, in adopting the articles of con- federation, must have had, undoubtedly, much weight in determining what number of States should ratify the constitution, before it should become bind- ing between them. If the legislatures of all the States should have unanimously deemed it not un- reasonable, that the highest and most delicate acts of the old Congress, when agreed to by nine or more States, should be acquiesced in by the others, it was very natural that the members of the convention should think it not unreasonable to require an equal number to give validity to the constitution, as be- tween them ; — leaving it to the others to say whether they would ratify or not. Nine, or ih/ree fowrihs of the whole, were, unquestionably, regarded as a safe and sufficient guaranty against oppression and abuse, both in the highest acts of the confederacy, and in establishing the constitution between the States ratifying it. And it is equally certain that a smaller number was not regarded either as safe, or suffi- cient. The force of these precedents, combined with 19 290 ON THE CONSTITUTION AND GOVERNMENT tlie reasons for adopting them, must have had great ■weight in determining the proportional number which should be required to amend the constitu- tion. Indeed, after determining the proportion in the provision for the ratification of the constitu- tion, it would seem to follow, as a matter of course, that the same proportion should be required in the provision for amending it. It would be difficult to assign a reason, why the proportion should be different in the two cases ; and why, if three fowths should be required in the one, it should not also be required in the other. If it would have been unreasonable and improper in the one, that a few States J in proportion should, by their obstinacy, prevent the others from forming a constitution, — ^it would have been equally so, and for the same rea- son, that the like proportion should have the power to prevent amendments, however necessary they might be to the well working and safety of the system. So, again, if it would have been dangerous and improper, to permit a bare majority of the States, or any proportion less than that required to make the constitution binding as between the States ratifying, — it would have been no less so to permit such number or proportion to amend it. The two are, iadeed, nearly allied, and involve, throughout, the same principle; — and hence, the same diversity of opinion between the two parties in the convention, in reference to both, and the adoption of the same proportion of States in each. I say the same proportion, — ^for although nine States were rather less than tJiree fowrths of the OF THE UNITED STATES. 291 whole number Avhen the constitution was ratified, — this proportion of the States was required in order to amend it, (without regard to an inconsiderable fraction,) because of the facility of its application. But independently of these considerations, there were strong reasons for adopting that proportion in providing a power to amend. It was, at least, as necessary to guard against too much facility as too much difficulty, in amending it. If, to require the consent of all the States for that purpose would be, in effect, to prevent amendments which time should disclose to be, — or change of circumstances make necessary; — so, on the other hand, to require a bare majority only, or but a small number in pro- portion to the whole, would expose the constitution to hasty, inconsiderate, and even sinister amend- ments, on the part of the party dominant for the time. If the one would give it too much fixedness, the other would deprive it of all stability. Of the two, the latter would be more dangerous than the former. It would defeat the very ends of a con- stitution, regarded as a fundamental law. Indeed, it would involve a glaring absurdity to require the separate ratification of nine States to make the con- stitution binding as between them, — and to provide that a mere majority of States, or even a small one, when compared with the whole number, should have the power, as soon as it went into operation, to amend it as they pleased. It would be difficult to find any other proportion better calculated to avoid this absurdity, and, at the same time, the dif- ficulties attending the other extreme, than that 292 ON THE CONSTITUTION AND GOVEENMENT adopted by the convention. While it affords suffi- cient facility, it guards against too much, in amend- ing the constitution, — and thereby unites stability with the capacity of adjusting itself to all such changes as may become necessary ; and thus com- bines all the requisites that are necessary in the amending power. It hardly admits of a doubt, that these combined reasons, — the conviction that it possessed all the requisites for such a power, in a higher degree than any other proportion, — with the force of the two precedents above explained, induced the convention to adopt it. Possessing these, it possesses all the requisites, of course, to render the power at once safe in itself, and sufficient to effect the objects for which it was intended. It is safe ; because the proportion is suffi- ciently large to prevent a dominant portion of the Union, or combination of the States, from using the amending power as an instrument to make changes in the constitution, adverse to the interests and rights of the weaker portion of the Union, or a minority of the States. It may not, in this respect, be as perfectly safe as it would be in the unmodi- fied state in which it ordained and established the constitution; but, for all practical purposes, it is believed to be safe as an amending power. It is difficult to conceive a case, where so large a portion as three fourths of the States would undertake to insert a power, by way of amendment, which, in- stead of improving and perfecting the constitution, would deprive the remaining fourth of any right, essentially belonging to them as members of the OF THE UNITED STATES. 293 Union, or clearly intended to oppress them. There are many powers, which a dominant combination of States would assume by construction, and use for the purpose of aggrandizement, which they would not dare to propose to insert as amendments. But should an attempt be successfully made to engraft an amendment for such a purpose, the case would not be without remedy, as will be shown in the proper place. I say, as large a proportion as three fowths; — for the larger the proportion required to do an act, the less is the danger of the power being used for the purpose of oppression and aggrandizement. The reason is plain. With the increase of the proportion, the difficulty of so using it, is increased ; — while the inducement is diminished in the same proportion. The former is increased ; — ^because the difficulty of forming combinations for such purpose is increased with the increase of the number required to com- bine ; and the latter decreased, because the greater the number to be aggrandized, and the less the number, by whose oppression this can be effected, the less the inducement to oppression. And hence, by increasing the proportion, the number to be aggran- dized may be made so large, and the number to be oppressed so small, as to make the effort bootless ; — when the motive to oppress, as well as to abuse power wUl, of course, cease. But, while three fowrihs furnish a safe propor- tion against making changes in the constitution. Tinder the color of amendments, by the dominant portion of the Union, with a view to oppress the 294 ON THE CONSTITUTION AND GOVERNMENT weaker for its aggrandizeinent, tlie proportion is equally safe, in view of the opposite danger ; — as it furnishes a sufficient protection against the com- bination of a few States to prevent the rest from making such amendments as may become necessary to preserve or perfect it. It thus guards against the dangers, to which a less, or greater proportion might expose the system. It is not less sufficient than safe to effect the object iutended. As a modification of the power which ordained and established the system, its authority is above aU others, except itself in its simple and absolute form. Within its appropriate sphere, — that of a/mending the constitution, — all others are subject to its control, and may be modi- fied, changed and altered at its pleasure. "Within that sphere it truly represents the intention of the power, of which it is a modification, when it ordained and established the constitution, — as to the limits to which the system might be safely and properly .ex- tended, and beyond which it could not. The same wisdom, which saw the necessity of having as much harmony as possible, in ratifying the constitution, saw, also, the necessity of preserving it, after it went into operation; and therefore required the same proportion of States to make an amendment, as to ratify the instrument, before it could become binding between the States ratifying. It saw, that, if there was danger from too little^ there was also danger from too mxhcli union (if I may be allowed so to express myself) ;— and that, while one led to weakness, the other led to discord and alienation. OF THE UNITED STATES. 295 To guard against each, it so modified the amendiag power as to avoid both extremes, — and thus to pre- serve the equilibrium of the powers of the system as originally established, so far as human contriv- ance could. Thus the power which, in its simple and absolute form, was the creator, becomes, in its modified form, the preserver of the system. By no other device, nor in any other form, could the high functions ap- pertaining to this character, be safely and efficiently discharged ; — and by none other could the system be preserved. It is, when properly understood, the vis medicatrix of the system ; — ^its great repairing, healing, and conservative power ; — ^intended to rem- edy its disorders, in whatever cause or causes origi- nating ; whether in the original errors or defects of the constitution itself, — or the operation of time and change of circumstances, or in conflicts between its parts, — iucludiug those between the co-ordinate governments. By it alone, can the equilibrium of the various powers and divisions of the system be preserved ; as by it alone, can the stronger be pre- vented from encroaching on, and finally absorbing the weaker. For this purpose, it is, as has been shown, entirely safe and all-sufficient. In performing its high functions, it acts, not as a judicial power, but in the far more elevated and authoritative cha- racter of an amendmg power; — the only one in which it can be called into action at all. In this character, it can amend the constitution, by modify- ing its existing provisions ; — or, in case of a disputed power, whether it be between the federal govern- 296 ON THE CONSTITUTION AND GOVERNMENT ment and one of its co-ordinates, — or between the former and an interposing State, — by declariag, authoritatively, what is the constitution. Having now explained the nature and object of the amending power, and shown its safety and suffi- ciency, in respect to the object for which it was pro- vided ; — I shall next proceed to show, that it is the duty of the federal government to invoke its aid, should any dangerous derangement or disorder result from the mutual negative of the two co-ordinate gov- ernments, or from the interposition of a State, in its sovereign character, to arrest one of its acts, — ia case all other remedies should fail to adjust the dif- ficulty. In order to form a clear conception of the true ground and reason of this duty, it is necessary to premise, that it is difficult to conceive of a case, where a conflict of power could take place between the government of a State, or the State itself in its sovereign character, and the federal government, in which the former would not be in a minority of the States and of their population, estimated in federal numbers ; and, of course, the latter in a majority of both. The reason is obvious. If it were other- wise, the remedy would at once be applied through the federal government, — by a repeal of the act asserting the power, — and the question settled by yielding it to the State. Such being the case, the conflict, whenever it takes place, must be between the reserved and delegated powers; the latter, supported by a majority both of the States and of their population, claiming the right to exer- OF THE UNITED STATES. 297 cise the power, — and the former, by a State consti- tuting one of the minority, — (at least as far as it relates to the power in controversy,) — denying the claim. Now it is a clear and well established principle, that the party who claims the right to exercise a power, is bound to make it good, against the party denying the right ; and that, if there should be an authority higher than either provided, by which the question between them can be adjusted, he, in such case, has no right to assert his claim on his own au- thority, — but is bound to appeal to the tribunal ap- pointed, according to the forms prescribed, and to establish and assert his right through its authority. If a principle, so clear and well established, should, in a case like the one supposed, require con- firmation, — ^it may be found in the fact, that the powers of the federal government are all enumerat- ed and specified in the constitution ; — while those belonging to the States embrace the whole residuary mass of powers, not enumerated and specified. Hence, in a conflict of power between the two, the presumption is in favor of the latter, and against the former ; and, therefore, it is doubly bound to establish the power in controversy, through the ap- pointed authority, before it can rightfully undertake to exercise it. But as conclusive as these reasons are, there are others not less so. Among these, it may be stated, that the federal government, being of the party of the majority iu such conflicts, may, at pleasure, make the appeal to the amending power ; wMle the State, 298 ON THE CONSTITUTION AND GOVERNMENT being of the party of tlie minority, cannot possibly do so. The'reason is plain. To make it, requires, on the part of tlie State, more than a bare majority. It would then be absurd, to transfer the duty from the party of the majority, which has the power, to that of the minority, which has it not : — and this, too, when, with such a majority, the question of power could be settled in its favor, more easily and promptly, through the federal government itself. There is also another reason, — ^if not more con- clusive, yet of deeper import. The federal govern- ment never will make an appeal to the amending power, in a case of conflict, unless compelled ; — ^nor, indeed, willingly in any case, except with a view to enlarge the powers it has usurped by construction. The only means, by which it can be compelled to make an appeal, are the negative powers of the con- stitution; — and especially, so far as the reserved powers are concerned, — ^by that of its co-ordinates, — and State interposition. But to transfer the duty from itself to the States, would, necessarily, have the effect, so far as they are concerned, of leaving it in the full and quiet exercise of the contested power, until the appeal was made and finally acted on ; — instead of suspending the exercise of the power, un- til the decision was pronounced ; — as would be the case, if the duty were not transferred. In the lat- ter case, it would have every motive to exert itself to make the appeal, and to obtain a speedy and final action in its favor, if possible ; but in the former, it would be the reverse. The motive would be to use every effort to prevent a successful appeal. OF THE UNITED STATES, and to defeat action on it ; as, in the mean time, it would "be left in full possession of the power in question. Nor would it Have any difficulty in ef- fecting what it desired ; as it would be impossible for the State, even without opposition, to succeed in making an appeal, for the reason already as- signed. Its effect would be a revolution in the character of the system. It would virtually destroy the rela- tion of co-ordinates between the federal government and those of the several States, by rendering the negative of the latter, in case of conflict with it, of no effect. It would supersede and render substantially obsolete, not only the amending power, but the ori- ginal sovereign power of the several States, as par- ties to the constitutional compact, — ^by making them, also, of no effect ; and, thereby, elevate the federal government to the absolute and supreme au- thority of the system, with liberty to assume, by construction, whatever power the cupidity or ambi- tion of a dominant party or section might crave. It would, in a word, practically transform the federal, into a consolidated national government, against the avowed intention of its framers, — the plain meaning of the constitution itself, — and the understanding of the people of the States, when they ratified and adopted it. Such a result is, it- self, the strongest, the most conclusive argument against the position. If there were none other, this, of itself, would be ample to prove, that it is the duty of the federal government to invoke the action of the amending power, by proposing a declaratory 800 ON THE CONSTITUTION AND GOVERNMENT amendment affirming tlie power it claims, according to the forms prescribed in tlie constitution ; and, if it fail, to abandon tlie power. On the other hand, should it succeed in obtain- ing the amendment, the act of the government of the separate State which caused the conflict, and operated as a negative on the act of the federal gov- ernment, would, in all cases, be overruled ; and the latter become operative within its limits. But the result is, in some respects, different, — where a State, acting in her sovereign character, and as a party to the constitutional compact, has interposed, and de- clared an act of the federal government to be unau- thorized by the constitution, — and, therefore, null and void. In this case, if the act of the latter be predicated on a power consistent with the character of the constitution, the ends for which it was estab- lished, and the nature of our system of government ; — or, more briefly, if it come fairly within the scope of the amending power, the State is bound to ac- quiesce, by the solemn obligation which it contracted, in ratifying the constitution. But if it transcends the limits of the amending power, — be inconsistent with the character of the constitution and the ends for which it was established, — or with the nature of the system, — the result is different. In such case, the State is not bound to acquiesce. It may choose whether it will, or whether it will not secede from the Union. One or the other course it must take. To refuse acquiescence, would be tantamount to se- cession ; and place it as entirely in the relation of a foreign State to the other States, as would a posi- OF THE UNITED STATES. 301 tive act of secession. That a State, as a party to the constitutional compact, has the right to secede, — acting in the same capacity in which it ratified the constitution, — cannot, with any show of reason, be denied by any one who regards the constitution as a compact, — if a power should be inserted by the amending power, which would radically change the character of the constitution, or the nature of the system ; or if the former should fail to fulfil the ends for which it was established. This results, ne- cessarily, from the nature of a compact, — ^where the parties to it are sovereign ; and, of course, have no higher authority to which to appeal. That the effect of secession would be to place her in. the rela- tion of a foreign State to the others, is equally clear. Nor is it less so, that it would make her, (not her citizens indwidmalVyi) responsible to them, in that character. All this results, necessarily, from the nature of a compact between sovereign parties. In case the State acquiesces, whether it be where the power claimed is within, or beyond the scope of the amending power, it must be done, by rescinding the act, by which, she iaterposed her authority and declared the act of the federal government to be unauthorized by the constitution, — and, therefore^ mill and void ; and this too by the same authority which passed it. The reason is, that, until this is done, the act making the declaration continues bind- ing on her citizens. As far as they are concerned, the State, as a party to the constitutional compact, has the right to decide, in the last resort, — and, acting in the same character in which it ratified the 302 ON THE CONSTITUTION AND GOVERNMENT constitution, to determine to what limits its powers extend, and how far they are bound to respect and nLey it, and the acts made under its authority. They are bound to obey them, only, because the State, to which they owe allegiance, by ratifying, ordained and established it as its own constitution and government ; just in the same way, in which it ordained and established its own separate constitu- tion and government, — and by precisely the same authority. They owe obedience to both ; because their State commanded them to obey ; but they owe allegiance to neither ; since sovereignty, by a funda- mental principle of our system, resides in ih.Q people, and not in the government. The same authority which commanded ohedie'/ice, has the right, in both cases, to determine, as far as they are concerned, the extent to which they were bound to obey ; and this determination remains binding until rescinded by the authority which pronounced and declared it. I have now finished the discussion of the ques- tion, — What means does the constitution, or the sys- tem itself furnish, to preserve the division between the delegated and reserved powers ? In its progress, I have shown, that the federal government contains, within itself, or in its organization, no provisions, by which, the powers delegated could be prevented from encroaching on the powers reserved to the several States ; and that, the only means furnished by the system itself, to resist encroachments, are, the mutual negative between the two co-ordinate governments, where their acts come into conflict as to the extent of their respective powers ; and the OF THE UNITED STATES. 803 interposition of a State in its sovereign character, as a party to the constitutional compact, against an unconstitutional act of the federal government. It has also been shown, that these are sufficient to re- strict the action of the federal government to its appropriate sphere ; and that, if they should lead to any dangerous derangements or disorders, the amending power makes ample and safe provision for their correction. It now remains to be considered, what must be the result, if the federal government is left to operate without these exterior means of restraint. That the federal government, as the representa- tive of the delegated powers, supported, as it must habitually be, by a majority of the States and of their population, estimated in federal numbers, is vastly stronger than the opposing States and their popula- tion, has been shown. But the fact of its greater strength is not more certain than the consequence, — ■ that it will encroach, if left to decide in the last re- sort, on the extent of its own powers, and to enforce its own decisions, without some adequate means to restrict it to its allotted sphere. It would encroach ; because the dominant combination of States and population, which, for the time, may control it, would have every inducement to do so; since it would increase their power and the means of aggran- dizement. !N"or would their encroachments cease until all the reserved powers, — those reserved to the people of the several States in their sovereign char- acter, as well as those delegated to their respective separate governments, should be absorbed : because, §04 ON- THE CONSTITUTION AJSTD GOVERNMENT the same powerful motives wMdi induced tlie first step towards it, would continue, until tlie whole was concentrated in tlie federal government. The writ- ten restrictions and limitations of the constitution, would oppose no effectual resistance. They would all be gradually undermined hj the slow and certain process of construction ; which would be continued until the instrument itself, would be of no more force or validity than an ordinary act of Congress ; — ^nor would it be more respected. The opposing con- struction of the minority would become the subject of ridicule and scorn, — as mere abstractions ; — until all encroachments would cease to be opposed. Nor would the effects end with the absorption of the reserved powers. While the process was going on, it would react on the division of the powers of the federal govern- ment itself, and disturb its own equilibrium. The legislative department would be the first to feel its influence, and to cumulate authority, by encroach- ments ; since Congress, as the organ of the delegated powers, possesses, by an express provision of the constitution, all the discretionary powers of the government, Neither of the other two can consti- tutionally exercise any power, which is not either expressly delegated by the constitution, or provided for by law. So long, then, as Congress remained faithful to its trust, neither of the others could en- croach ; since the officers of both are responsible to it, through the impeaching power ; and hence the work of aggression must commence with it, or by its permission. But whatever encroachments it OF THE UNITED STATES. 305 miglit make, the benefit, in the end, would accrue, not to itself, but to the President, — as the head of the executive department. Every enlargement of the powers of the government which may be made, every measure which may be adopted to aggrandize the dominant combination which may control the government for the time, must necessarily enlarge, in a greater or less degree, his patronage and influ- ence. With their enlargement, his power to control the other departments of the government, and the organs of public opinion, and through them, the community at large, must increase, and in the same degree. With their increase, the motive to obtain possession of the control of the government, in or- der to enjoy its honors and emoluments, regardless of all considerations of principle or policy, would become stronger and stronger, until it would stand alone, the paramount and all-absorbing motive. And, — ^to trace further the fatal progress, — -just in proportion as this motive should become stronger, the election of the President would be, more and more, the all-important question, — until every other ■would be regarded as subordinate to it. But as this became more and more paramount to all others, party combinations, and party organization and dis- cipline, would become more concentrated and strin- gent; — their control over individual opinion and action more and more decisive; and, with it, the control of the President, as the head of the domi- nant party. When this should be increased to such a degree, that he, as its head, could, through party or- gans and party machinery, wield sufficient influence 20 306 OK THE CONSTITUTION AND GOVERNMENT over the constituents of the members of Congress, belonging to Ms party, as to make their election de- pendent, not on their fidelity to the constitution or to the country, but on their devotion and submis- sion to party and party interest, — his power would become absolute. They then would cease, virtually, to represent the people. Their responsibility would be, not to them, but to him ; or to those who might control and use him as an instrument. The Execu- tive, at this stage, would become absolute, so far as the party in power was concerned. It would con- trol the action of the dominant party as effectually as would an hereditary chief-magistrate, if in pos- session of its powers, — if not more so ; and the time would not be distant, when the President would cease to be elective ; when a contested election, or the paid corruption and violence attending an elec- tion, would be made a pretext, by the occupant, or his party, for holding over after the expiration of his term. Such must be the result, if the process of absorp- tion should be permitted to progress regularly, through all its stages. The causes which would con- trol the event, are as fixed and certain as any in the physical world. But it is not probable that they would be permitted to take their regular course, un- disturbed. In a country of such vast extent and diversity of interests as ours, parties, in all their stages, must partake, as I have already shown, more or less of a sectional character. The laws which control their formation, necessarily lead to this. Dis- tance, as has been stated, always weakens, and prox OF THE UNITED STATES. 307 iiaity — wliere there is no counteracting cause — al- ways strengthens the social and sympathetic feel- mgs. Sameness of interests and similarity of habits and character, make it more easy for those who are contiguous, to associate together and form a party than for those who are remote. In the early stages of the government, when principles bore a stronger sway, the eflFects of these causes were not so percept- ible, or their influence so great. But as party vio- lence increases, and party efforts sink down into a mere struggle to obtain the honors and emoluments of government, the tendency to appeal to local feel- ings, local interests, and local prejudices will become stronger and stronger, — until, ultimately, parties must assume a decidedly sectional character. When it comes to this, — and when the two majorities ■which control the federal government, come to cen- tre in the same section, and all the powers of the entire system, virtually to unite in the executive department, the dominant section will become the governing, and the other the subordinate section ; as much so as if it were a dependent province, with- out any real participation in the government. Its condition will be even worse ; for its nominal parti- cipation in the acts of government would afford it no means of protecting itself, where the interests of the dominant and governing section should come into conflict with its own, — whilst it would serve as a covering to disguise its subjection, and, thereby, induce it to bear wrongs, which it would not other- wise tolerate. In this state of things, discontent, alienation, and hostility of feelings would be engen- 308 ON THE CONSTITUTION AND GOVERNMENT dered between the sections ; to be followed by dis- cord, disorder, convulsions, and, not improbably, a disruption of the system. In one or the other of these results, it must ter- minate, if the federal government be left to decide, definitively and in the last resort, as to the extent of its powers. Having no sufficient counteraction, exterior to itself, it must necessarily move in the direction marked out by the inherent tendency be- longing to its character and position. As a consti- tutional, popular government, its tendency will be, in the first place, to an absolute form, under the con- trol of the numerical majority ; and, finally, to the most simple of these forms, that of a single, irrespon- sible individual. As a federal government, extend- ing over a vast territory, the tendency will be, ia the first place, to the formation of sectional parties, and the concentration of all power in the stronger section ; and, in the next, to conflict between the sections, and disrupture of the whole system. One or the other must be the end, in the case supposed. The laws that would govern are fijxed and certain. The only question w^ould be, as to which end^ and at what time. All the rest is as certain as the future, if not disturbed by causes exterior to the system. So strong indeed is the tendency of the govern- ment in the direction assigned, — if left to itself, — that nothing short of the most powerful negatives, exterior to itself, can effectually counteract and ar- rest it. These, from the nature of the system, can only be found in the mutual negative of the two co-ordinate governments, and the interposition of a OF THE UNITED STATES, 309 State, as has been explained ; — the one to protect the powers wMch the people of the several States delegated to their respective separate State gov- ernments; — and the other, to protect the powers which the people of the several States, in delega- ting powers to both of their co-ordinate govern- ments, expressly reserved to themselves respect- ively. The object of the negative power is, to pro- tect the several portions or interests of the commu- nity against each other. Ours is a federal communi- ty, of which States form the constituent parts. They reserved the powers not delegated to the federal or common government to themselves individually ; — but in a twofold character, as embracing separate governments, and as a several people in their sov- ereign capacity. But where the powers of govern- ment are divided, nothing short of a negative, — either positive, or in effect, — can protect those alot- ted to the weaker, against the stronger; — or the parts of the community against each other. The party to whom the power belongs, is the only party interested in protecting it ; and to such party only, can its defence be safely trusted. To intrust it, in this case, to the party interested in absorbing it, and possessed of ample power to do so, is, as has been shown, to trust the lamb to the custody of the wolf. Nor can any other, so appropriate, so safe or efScient, be devised, as the twofold negative pro- vided by the system. They are appropriate to the twofold character of the State, to which, the pow- ers not delegated, are reserved. That they are safe 310 ON THE CONSTITUTION AND GOVERNMENT and sufficient, if called into action, has been shown. All other provisions, without them, would be of little avail : — such as the right of suffrage, — written constitutions, — the division of the powers of the government into three separate and independent departments, — ^the formation of the people into individual and independent States, and the freedom of the press and of speech. These all have their value. They may retard the progress of the gov- ernment towards its final termination, — ^but with- out the two negative powers, cannot arrest it ; — nor can any thing, short of these, preserve the equili- brium of the system. Without them, every other power would be gradually absorbed by the federal government, or be superseded or rendered obsolete. It would remain the only vital power, and the sole organ of a consolidated community. If we turn now from this to the other aspect of the subject, where these negative powera are brought into full action in order to counteract the tendency of the federal government to supersede and absorb the powers of the system, the contrast will be striking. Instead of weakening the govern- ment by counteracting its tendencies, and restrict- ing it to its proper sphere, they would render it far more powerfoL A strong government, instead of being weakened, is greatly strengthened, by a cor- respondingly strong negative. It may lose some- thing in promptitude of action, in calling out the physical force of the country, but would gain vastly in moral power. The security it would afford to an the different parts and interests of the country, OF THE UNITED STATES. 311 — the assurance that the powers confided to it, would not be abused, — and the harmony and unanimity resulting from the conviction that no one section or interest could oppress another, would, in an emergency, put the whole resources of the Union, moral and physical, at the disposal of the government, — and give it a strength which never could be acquired by the enlargement of its powers beyond the limits assigned to it. It is, indeed, only by such confidence and unanimity, that a govern- ment can, with certainty, breast the billows and ride through the storms which the vessel of State must often encounter in its progress. The stronger the pressure of the steam, if the boiler be but pro- portionally strong, the more securely the bark buf- fets the wave, and defies the tempest. Nor is there any just ground to apprehend that the federal government would lose any power which properly belongs to it, or which it should desire to retain, by being compelled to resort to the amend- ing power, when this becomes necessary in conse- quence of a conflict between itself and one of its co-ordinates; or, in case of the interposition of a State. There can certainly be no danger of this, so long as the same feelings and motives which induced them voluntarily to ratify and adopt the constitution unanimously, shall continue to actuate them. While these remain, there can be no hazard in placing what all freely and unanimously adopt- ed, in the charge of three fourths of the States to protect and preserve. Nor can there be any just ground to apprehend that these feelings and motives 312 ON THE CONSTITUTION AND GOVERNMENT will undergo any change, so long as the constitution shall fulfil the ends for which it was ordained and established ; to wit : that each and all might enjoy, more perfectly and securely, liberty, peace, tran- quillity, security from danger, both internal and external, and all other blessings connected with their respective rights and advantages. It was a great mistake to suppose that the States would naturally stand in antagonistic relations to the fed- eral government ; or that there would be any dis- position, on their part, to diminish its power or to weaken its influence. They naturally stand in a reverse relation, — ^pledged to cherish, uphold, and support it. They freely and voluntarily created it, for the common good of each and of all, — and will cherish and defend it so long as it fulfils these ob- jects. If its safe-keeping cannot be intrusted to its creators, it can be safely placed in the custody of no other hands. But it cannot be confined to its proper sphere, and its various powers kept in a state of equili- brium, as originally established, but by the coun- teracting resistance of the States, acting in their twofold character, as has been explained and estab- lished. Nor can it fulfil its end without confining it to its proper sphere, and preserving the equili- brium of its various powers. "Without this, the federal government would concentrate all the pow- ers of the system in itself, and become an instru- ment in the hands of the dominant portion of the States, to aggrandize itself at the expense of the rest 5 — as has also been fully explained and estab- OF THE UNITED STATES. 813 lished. With the defeat of the ends for which it was established, the feelings and motives which induced the States to establish it, would gradually change ; and, finally, give place to others of a very different character. The weaker and oppressed portion would regard it with distrust, jealousy, and, in the end, aversion and hostility ; while the stronger and more favored, would look upon it, not as the means of promoting the common good and safety of each and all, but as an instrument to con- trol the weaker, and to aggrandize itself at its expense. As nothing but the counteracting resistance of the States can prevent this result, so nothing short of a fall recognition of this, the only means, by which they can make such resistance, and call it freely into action, — can correct the disorders, and avert the dangers which must ensue from an oppo- site and false conception of the system ; and thus restore the feelings and motives which led to the free and unanimous adoption of the federal consti- tution and government. With their restoration, the amending power may be safely trusted, as the pre- serving, repairing, and protecting power. There would be no danger whatever, that the government, under its action, would lose any power which pro- perly belonged to it, and which it ought to retain ; for there would be no motive or interest, on any side, to divest it of any power necessary to enable it to fulfil the ends for which it was established ; or to impair, unduly, the strength of the Union. In- deed, it is so modified as to afford an ample guaranty 314 OS THE CONSTITUTION AND GOVERNMENT that tlie Union would be safe in its custody ; — since it was designedly so constructed as to represent, at all times, the extent to which it might be safely carried, and beyond which it ought not to go. It may, indeed, in case of conflict between it and one of its co-ordinate governments, or an interposing state, modify and restrict the power in contest, in strict conformity with the design and the spirit of the constitution. For it may be laid down as a principle, that the power and action of the Union, instead of being increased, ought to be diminished, with the increase of its extent and population. The reason is, that the greater its extent, and the more numerous and populous the members composing it, the greater will be the diversity of interests, the less the sympathy between the remote parts, the less the knowledge and regard of each, for the interests of the others, and, of course, the less closeness of union, (so to speak,) consistently with its safety. The same principle, according to which it was pro- vided that there should not be more closeness of union than three fourths should agree to, equally applies in all stages of the growth and progress of the country ; to wit : that there should not be, at any time, more than the same proportion would agree to. It ought ever to be borne in mind that the Union may have too much power, and be too intimate and close ; as well as too little power, inti- macy, and closeness. Either is dangerous. If the latter, from weakness, exposes it to dissolution, the former, from exuberance of strength, and from the parts being too closely compressed together, exposes OF THE UNITED STATES. 315 it, at least equally, either to consolidation and des- potism, on the one hand,— or to rupture and destruc- tion, by the repulsion of its parts, on the other. The amending power, if duly called into action, would protect the Union against either extreme ; and there- by guard against the dangers to which it is on either hand exposed. It is by thus bringing all the powers of the sys- tem into active operation, — and only by this means, that its equilibrium can be preserved, and adjusted to the changes, which the enlargement of the IJnion, and its increase of population, or other causes, may require. Thus only, can the Union be preserved ; the government made permanent ; the limits of the country be enlarged ; the anticipations of the foun- ders of the system, as to its future prosperity and greatness, — be realized; and the revolutions and calamities, necessarily incident to the theory which would make the federal government the sole and exclusive judge of its powers, be averted. I have now finished the portion of this discourse which relates to the character and structure of the government of the United States ; — its various divi- sions of power, as well as those of the system of which it is a part, — and the means which they fur- nish to protect each division against the encroach- ment of the others. The government has now been in operation for more than sixty years ; and it re- mains to be considered, whether it has conform- ed, in practice, with its true theory ; and, if not, what has caused its departure ; and what must be the consequence, should its aberrations remain un- 316 ON THE CONSTITUTION AND GOVERNMENT corrected. I propose to consider these in tlie order stated. There are few who will not admit, that the gov- ernment has, in practice, departed, more or less, from its original character and structure ; — how- ever great may be the diversity of opinion, as to what constitutes a departure ; — a diversity caused by the different views entertained in reference to its character and structure. They who believe that the government of the United States is a national, and not a federal government, — or who believe that it is partly national and partly federal,^will, of course, on the question, — whether it has conformed to, or departed from its true theory, — form very different opinions from those who believe that it is federal throughout. They who believe that it is exclusively national, very logically conclude, accord- ing to their theory, that the government has the exclusive right, in the last resort, to decide as to the extent of its powers, and to enforce its decisions against all opposition, through some one or all of its departments: — while they who believe it to be exclusively federal, cannot consistently come to any other conclusion, than that the two governments, — federal and State, — are coequal and co-ordinate governments ; and, as such, neither can possess the right to decide as to the extent of its own powers, or to enforce its own decision against that of the other. The case is different with those who believe it to be partly national, and jDartly federal. They seem incapable of forming any definite or distinct opinion on the subject, — vital and important as it is. OF THE UNITED STATES. 317 Indeed, it is difficult to conceive how, with tlieii- views, any rational and fixed opinion can be formed on the subject: for, according to their theory, as far as it is national, it must possess the right con- tended for by those who believe it to be altogether national; and, on the other hand, as far as it is federal, it must possess the right, which those who believe it to be wholly federal contend for. But how the two can coexist, so that the government shall have the final right to decide on the extent of its powers, and to enforce its decisions as to one por- tion of its powers, and not as to the other, it is diffi- cult to imagine. Indeed, the difficulty of realizing their views extends to the whole theory. Enter- taining these different opinions, as to the true the- ory of the government, it follows, of course, that there must be an equal diversity of opinion, as to what constitutes a departure from it ; and, that, what one considers a departure, the other must, al- most necessarily, consider a conformity, — and, vice versa. When compared with these different views, the course of the government will be found to have conformed, much more closely, to the national^ than to ike, federal theory. At its outset, during the first Congress, it re- ceived an impulse in that direction, from which it has never yet recovered. Congress, among its ear- liest measures, adopted one, which, in effect, de- stroyed the relation of coequals and co-ordinates between the federal government and the govern- ments of the individual States ; without which, it is impossible to preserve its federal character. Indeed, 318 ON THE CONSTITUTION AND GOVERNMENT I miglit go furtlier, and assert with trutli, that with- out it, the former would, in effect, cease to be fede- ral, and become national. It would be superior, — and the individual governments of the several States, would become subordinate to it, — a relation inconsistent with the federal, but in strict conformity to the national theory of the government. I refer to the 25th section of the Judiciary Act, approved the 24th Sept., 1Y89. It provides for an appeal from, and revisal of a " final judgment or decree in any suit, in the highest courts of law or equity of a State, in which a decision in the suit could be had, where is drawn in question the validi- ty of a treaty or statute of, or an authority exercis- ed under, the United States, and the decision is against their validity ; or where is drawn in ques- tion the validity of a statute of, or an authority ex- ercised under, any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, — and the decision is in favor of their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty, — or statute of, or commission held under, the United States, and the decision is against such title, &c., specially set up by either, ;:on of the banking system in 183*7 ; and the overthrow of the party in 1840, which took the lead in introducing and support- ing it. But these were not its only evil consequences. It led to another, and, if possible, a deeper and more dangerous inroad on the principles and policy which brought Mr. Jefferson and the old State rights party into power. The act of the 3d March, 1833, already referred to, — thoroughly subjecting the judicial departments of the governments of the several States to the federal judiciary, was intro- duced, expressly, to enforce this grossly unconstitu- tional and outrageous act. It received the support and votes — as did the original act, — both of the na- tional and the democratic parties, (a few excepted, who still adhered to the creed of the old State rights party,) the latter taking the lead and direction in both instances. It was thus, from the identity of doctrine and of policy which distinguished both parties, in reference to the money power, that two of the most prominent articles in the creed of the republican party, by force of which Mr. Jefferson, as its leader, came into 368 ON THE CONSTITUTION AND GOVERNMENT power, were set aside ; and their dangerous oppo- sites, on account of whicli, Mr. Adams, as the head of the federal party, was expelled, were brought into full and active operation; — namely, — the right claimed by the latter for Congress, to pronounce upon what appertains to the general welfare, — and which is so forcibly condemned in the Virginia and Ken- tucky resolutions, and the report of Mr. Madison ; — ■ and the right of the federal jrT-'iciary to decide, in the last resort, as to the extent of the reserved as well as of the delegated powers. The one authorizes Congress to do as it pleases, — and the other endows the court with the power to enforce whatever it may do, — if its authority should be adequate, — and if not, to call in the aid of the Executive with the entire force of the country. Their joint effect is to give unlimited control to the government of the United States, not only over those of the several States, but over the States themselves ; in utter sub- version of the relation of co-ordinates, and in total disregard of the rights of the several States, as par- ties to the constitutional compact, to judge, in the last resort, as to the extent of the powers delega- ted; — a right so conclusively established by Mr. Madison, in his report. These measures greatly increased the power and patronage of the federal government ; and with them, the desire to obtain its control ; especially of the executive department, — which is invested mainly with the power of disposing of its honors and emolu- ments. As a necessary consequence of this, the presidential election became of more absorbing in- OF THE UNITED STATES. terest, — the struggle between the two parties more and more intense ; — and every means which promised success was readily resorted to, without the least regard to their bearing, morally or politically. To secure the desired object, the concentration of party action and the stringency of party discipline were deemed indispensable. And hence, contempora- neously with these measures, party conventions were, for the first time, called to nominate the candidates for the presidency and vice-presidency, — and party organijzation established all over the Union. And hence, also, for the first time, the power of removing from office, at the discretion of the President, so un- constitutionally conceded to him by the first Con- gress, was brought into active and systematic opera- tion, as the means of rewarding partisan ser.vices, and of punishing party opposition or party delin- quencies. In these measures the democratic party took the lead ; — but were soon followed by their opponents. There is, at present, no distinction be- tween them in this respect. The effects of the whole have been, to supersede the provision of the consti- tution, as far as it relates to the election of President and Vice-President, as has been shown ; to give a ' decided control over these elections to those who hold or seek office ; to stake all the powers and emoluments of the government as prizes, to be won or lost by victory or defeat ; and to make success in the election paramount to every other consideaation. But there is another cause that has greatly con- tributed to place the control of the presidential elec- tions in the hands of those who hold or seek office. 370 ON THE CONSTITUTION AND GOVERNMENT I allude, to what is called, the general ticket system ; which has become, with the exception of a single State, the universal mode of appointing electors to choose the President and Vice-President. It was adopted to prevent a division of the vote of the several States, in the choice of their highest officers ; and to make the election more popular, hj giving it, as was professed to be its object, to the people. The former of these ends it has effected, but it has utterly failed as to the latter. It professes to give the people, individually, a right which it was impossible to exer- cise, except in the very smallest class of States, and even in these, very imperfectly. To call on a hun- dred thousand voters, scattered over fifty or sixty thousand square miles, to make out a ticket of a dozen or more electors, is to ask them to do that which, individually, they cannot properly or success- fully do. Very few would have the information necessary to make a proper selection ; and even if every voter had such information, the diversity of opinion and the want of concentration on the same persons, would be so great, that it would be a matter of mere accident, who would have the majority. To * avoid this, a ticket must be formed by each party. But the few of each, who form the ticket, actually make the appointment of the electors ; for the peo- ple individually, have no choice, but to vote for the one or the other ticket, — or otherwise, virtually, to throw away their vote; — for there would be no chance of success against the concentrated votes of the two parties. Never was there a scheme better contrived to transfer power from the body of the OF THE UNITED STATES. 371 community, to those whose occupation is to get or told offices, and to merge the contests of party into a mere struggle for the spoils. It is due to the Democratic party to state that, while they took the lead, and are principally respon- sible for bringing about this state of things, they are entitled to the credit of putting down the Bank of the United States ; of checking extravagant expen- ditures on internal improvements ; of separating the government from the banks ; and, more recently, of opposing protective tariffs ; and of adopting the ad valorem principle in imposing duties on imports. These are all important measures ; and indicate a disposition to take a stand against the perversion of the money power. But, until the measures which led to these mischiefs, — and in the adoption of which they bore so prominent a part, — are entirely re- versed, nothing permanent will be gained. In the meanwhile the sectional tendency of parties has been increasing with the central tenden- cy of the government. They are, indeed, intimately connected. The more the powers of the system are centralized in the federal government, the greater will be its power and patronage ; proportionate with these, and increasing with their increase, will be the desire to possess the control over them, for the pur- pose of aggrandizement ; and the stronger this desire, the less will be the regard for principles, and the greater the tendency to unite for sectional objects ; — the stronger section with a view to power and aggrandizement, — the weaker, for defence and safety. Any strongly marked diversity wiU be sufficient to 872 ON THE CONSTITtrTION AND GOVERNMENT draw the line ; be it diversity of pursuit, of origin, of character, of habits, or of local institutions. The latter, being more deeply and distinctly marked than any other existing in the several States composing the Union, has, at all times, been considered by the wise and patriotic, as a delicate point, — and to be, with great caution, touched. The dangers connect- ed with this, began to exhibit themselves in the old Congress of the confederation, in respect to the ISTorth- Western Territory ; and continued down to the time of the formation of the present constitution. They constituted the principal difficulty in forming it; but it was fortunately overcome, and adjusted to the satisfaction of both parties. For a long period, nothing occurred to disturb this happy state of things. But in the session of 1819-20, a question arose that exposed the latent danger. The admission of the territory of Missouri, as a State of the Union, was resisted on the ground that its constitution did not prohibit slavery. The contest, after a long and angry discussion, was finally adjusted by a compromise, which admitted her as a slaveholding State, on condition that slavery should be prohibited in all the territories belonging then to the United States, lying north of 36° 80'. This compromise was acquiesced in by the people of the South; and the danger, apparently, and, as every one supposed, permanently removed. Experience, however, has proved how erroneous were their calculations. The disease lay deep. It touched a fanatical as well as a political cord. There were not a few in the northern portion of the Union, who OF THE UNITED STATES. 373 believed ttat slavery was a sin, as well as a great political evil ; and who remained quiet in reference to it, only because they believed that it was beyond their control ; — and that they were in no way re- sponsible for it. So long as the government was regarded as a federal govel-nment with limited powers, this belief of the sinfulness of slavery remained in a dormant state, — as it stUl does in reference to the institution in foreign countries ; but when it was openly proclaimed, as it was by the passage of the act of 1833, that the government had the right to judge, ia the last resort, of the extent of its powers; and to use the military and naval forces of the Union to carry its decisions into ex- ecution; and when its passage by the joint votes of both parties furnished a practical assertion of the right claimed in an outrageous case, the cord was touched which roused it into action. The effects were soon made visible. In two years thereafter, ia 1835, a systematic movement was, for the first time, commenced to agitate the question of abolition, by flooding the southern States with documents cal- culated to produce discontent among the slaves ; — and Congress, with petitions to abolish slavery in the District, of Columbia. The agitation was, however, at first, confined comparatively to a few ; and they obscure individu- als without influence. The great mass of the people viewed it with aversion. But here again, the same measure which roused it into action, mainly contri- buted to keep alive the agitation, and ultimately to raise a party (consisting, at first, of a few fanatics) 874 OlSr THE CONSTITUTION AND GOVERNMENT sufficiently numerous and powerful to exercise a controlling influence over the entire northern section of the Union. By the great increase of power and patronage which it conferred on the government, it contributed vastly to increase the concentration and intensity of party struggles, and to make the election of President the all absorbing question. The effect of this was, to induce both parties to seek the votes of every faction or combination by whose aid they might hope to succeed ; — ^flattering them in return, with the prospect of establishing the doctrines they professed, or of accomplishing the objects they de- sired. This state of things could not fail to give importance to any fanatical party, however small, which cared more for the object that united them, than for the success of either party; especially if it should be of a character to accord, in the abstract, with the feeling of that portion of the community generally. Each of the great parties, in order to secure their support, would, in turn, endeavor to conciliate them, by professing a great respect for them, and a disposition to aid in accomplishing the objects they wished to effect. This dangerous sys- tem of electioneering could not fail to increase the party, and to give it great additional strength ; to be followed, of course, by an increased anxiety on the part of those who desired its aid, to conciliate its favor ; thus keeping up the action and reaction of those fatal elements, from day to day, — the one, rising in importance, as its influence extended over the section — the other sinking in subserviency to its principles and purposes. OF THE UNITED STATES. 375 In the meantime, tlie same causes must needs contribute, in tlie otter section, to a state of things well calculated to aid this process. In proportion to the power and patronage of the government, would be the importance, to party success, of con- centration and intensity in party struggles : and in proportion to these, the attachment and devotion to party, where the spoils are the paramount object. In the same proportion also, would be the unwilling- ness of the two wings of the respective parties, in the different sections, to separate, and their desire to hold together ; and, of course, the disposition on the part of that in the weaker, to excuse and palli- ate the steps taken by their political associates in the stronger section, to conciliate the abolition party, in order to obtain its votes. Thus the section as- saulted would be prevented from taking any decid- ed stand to arrest the danger, while it might be safely and easily done ; — and seduced to postpone it, until it shall have acquired, — as it already has done, — a magnitude, almost, if not altogether, be- yond the reach of means within the constitution. The difficulty and danger have been greatly in- creased, since the Missouri compromise; and the other sectional measures, in reference to the recently acquired territories, now in contemplation (should they succeed), will centralize the two majorities that constitute the elements of which the government of the United States is composed, permanently in the northern section; and thereby subject the southern, on this, and on all other questions, in which their feelings or interest may come in conflict, to. its » — + — 1 376 ON THE CONSTITUTION AND GOVERNMENT Such lias been the practical operation of the gov- ernment, and such its effects. It remains to he con- sidered, what will be the consequence ? to what will the government of the numerical majority probably lead ? On this point, we are not without some expe- rience. The present disturbed and dangerous state of things are its first fruits. It is the legitimate re- sult of that long series of measures, (of which the acts of the 19th of May, 1828, and the 3d of March, 1833, are the most prominent,) by which the pow- ers of the whole system have been concentrated, virtually, in the government of the United States ; and thereby transformed it from its original federal character, into the government of the numerical ma- jority. To these fatal measures are to be attributed the violence of party struggles ; — the total disre- gard of the provisions of the constitution in respect to the election of the President ; the predominance of the honors and emoluments of the government over every other consideration ; the rise and growth of the abolition agitation ; the format,ion of geogra- phical parties ; and the alienation and hostile feel- ings between the two great sections of the Union. These are all the unavoidable consequences of the government of the numerical majority, in a country of such great extent, and with such diversity of in- stitutions and interests as distingufeh ours. They will continue, with increased and increasing aggre- gation, until the end comes. In a country of mode- rate extent, and with an executive department less powerfully constituted than in ours, this termina- OF THE UNITED STATES. 377 tion would be in an appeal to force, to decide the contest between the two hostile parties ; and in a monarchy, by the commander of the successful par- ty becoming master of both, and of the whole com- munity, as has been stated. But there is more un- certainty in a country of such extent as ours, and where the executive department is so powerfully constituted. The only thing that is certain is, that it cannot last. But whether it will end in a mon- archy, or in disunion, is uncertain. In the one or the other it will, in all probability, terminate if not prevented ; but in which, time alone can decide. There are powerful influences in operation ; — a part impelling it towards the one, and a part towards the other. Among those impelling it towards monarchy, the two most prominent are, the national tendency of the numerical majority to terminate in that form of government ; and the structure of the executive department of the government of the United States. The former has been fully explained in the prelimi- nary discourse, and will be passed over with the single remark, — ^that it will add great force to the impulse of the latter in the same direction. To un- derstand the extent of this force will require some explanation. The vast power and patronage of the depart- ment are vested in a single officer, the President of the United States. Among these powers, the most prominent,' as far as it relates to the present subject, are those which appertain to the administration of the government; to the office of commander in 378 ON THE CONSTITUTIOK AJSTD aOVEBNMENT cHief of the army and navy of the United States ; to the appointment of the officers of the govern- ment, with few exceptions ; and to the removal of them at his pleasure, — as his authority has been in- terpreted by Congress. These, and especially the latter, have made his election the great and absorb- ing object of party struggles ; and on this the ajp- peal to force will be made, whenever the violence of the struggle and the corruption of parties will no longer submit to the decision of the ballot-box. To this end it must come, if the force impelling it in the other direction should not previously prevail. If it comes to this, it will be, in all probability, in a contested election; when the question will be, Which is the President ? The incumbent, — if he should be one of the candidates, — or, if not, the can- didate of the party in possession of power ? or of the party endeavoring to obtain possession ? On such an issue, the appeal to force would make the candidate of the successful party, master of the whole, — and not the commander^ as would be the case under different circumstances. The contest would put an end, virtually, to the elective character of the department. The form of election might, for a time, be preserved ; but the ballot-box would be much less relied on for the de- cision, than the sword and bayonet. In time, even the form would cease, and the successor be appointed by the incumbent : — and thus the absolute form of a popular, would end in the absolute form of a mo- narchical government. Scarcely a possibility would exist of forming a constitutional monarchy. There OF THE UNITED STATES. 379 would be no material out of wMcli it could be form- ed ; and if formed, it would be too feeble, with sucli material as would constitute it, to liold in subjec- tion a country of such great extent and population as ours must be. Such will be the end to which the government, as it is now operating, must, in all probability, come, should the other alternative not occur, and nothing, in the meantime, be done to prevent it. It is idle to suppose that, operating as the system now does — with the increase of the country in extent, popula- tion and wealth, and the consequent increase of the power and patronage of the government, the head of the executive department can remain elective. The future is indeed, for the most part, uncertain ; but there are causes in the political world as steady and fixed in their operation, as any in the physical ; and among them are those, which, svhject to the d}Ove conditions, will lead to the result stated. Those impelling the government towards dis- union are, also, very powerful. They consist chief- ly of two ; the one, arising from the great extent of the country : — ^the other, from its division into separate States, having local institutions and inter- ests. The, former, under the operation of the nu- merical majority, has necessarily given to the two great parties, in their contest for the honors and emoluments of the government, a geographical char- acter ; for reasons which have been fully stated. This contest must finally settle down in a struggle on the part of the stronger section to obtain the permanent control ; and on the part of the weaker to preserve its 380 ON THE CONSTITUTION AND GOVERNMENT independence and equality as members of the Union. The conflict will thus become one between the States, occupying the different sections; — ^that is, between organized bodies on both sides; each, in the event of separation, having the means of avoid- ing the confusion and anarchy, to which the parts would be subject without such organization. This would contribute much to increase the power of re- sistance on the part of the weaker section against the stronger, in possession of the government. With these great advantages and resources, it is hardly possible that the parties occupying the weak- er section, would consent, quietly, under any circum- stances, to sink down from independent and equal sovereignties, into a dependent and colonial condi- tion; — and still less so, under circumstances that would revolutionize them internally^ and put their very existence, as a people, at stake. Never was there an issue between independent States that in- volved greater calamity to the conquered, than is involved in that between the States which compose the two sections of this Union. The condition of the weaker, should it sink from a state of indepen- dence and equality to one of dependence and sub- jection, would be more calamitous than ever before befell a civilized people. It is vain to think that, with such consequences before them, they will not resist ; especially when resistance mcuy save them, and cannot render their condition worse. That this will take place, unless the stronger section desists from its course, may be assumed as certain : and that — if forced to resist, the weaker section would OF THE UNITED STATES. 381 prove successful, and the system end in disunion, is, to say the least, highly probaWe. But if it should fail, the great increase of power and patronage which must, in consequence, accrue to the govern- ment of the United States, would but render cer- tain, and hasten the termination in the other alter- native. So that, at all events, to the one, or to the other, — to monarchy, or disunion it must come, if not prevented by strenuous and timely efforts. And this brings up the question, — How is it to be prevented? How can these sad alternatives be averted ? For this purpose, it is indispensable that the government of the United States should be restored to its federal character. Nothing short of a perfect restoration, as it came from the hands of its fram- ers, can avert them. It is folly to suppose that any popular government, except one strictly federal, ia practice, as well as in theory, can last, over a country of such vast extent and diversity of interests and institutions. It would not be more irrational to suppose, that it could last, without the responsibility of the rulers to the ruled. The tendency of the former to oppress the latter, is not stronger than is the tendency of the more powerful section, to op- press the weaker. Nor is the right of suffrage more indispensable to enforce the responsibility of the rulers to the ruled, than a federal organization, to compel the parts to respect the rights of each other. It requires the united action of both to pre- vent the abuse of power and oppression; and to constitute, really and truly, a constitutional govern- 882 ON THE CONSTITUTION" AND GOVERNMENT ment. To supersede either, is to convert it in fact, whatever may "be its theory, into an absolute govern- ment. But it cannot he restored to its federal charac- ter, without restoring the separate governments of the several States, and the States themselves, to their true position. From the latter the whole sys- tem emanated. They ordained and established all the parts ; first, by their separate action, their re- spective State governments; and next, by their concurrent action, with the indispensable co-opera- tion of their respective governments, they ordained and estabhshed a common government, as a supple- ment to their separate governments. The object was, to do that, by a common agent, which could not be as well done, or done at all, by their separate agencies. The relation, then, in which the States stand to the system, is that of the creator to the creature ; and that, in which ihe two governments stand to each other, is of coequals and co-ordi- nates — as has been fully established : — with the im- portant difference, in this last respect, that the sepa- rate governments of the States were the first in the order of time, and that they exercised an active and indispensable agency in the creation of the common government of all the States ; or, as it is styled, the government of the United States. Such is their true position ; — a position, not only essential in theory, in ihe formation of a federal gov- ernment — but to its preservation in practice. With- out it, the system could not have been formed, — and without it, it cannot be preserved. The super- OF THE UNITED STATES. 383 vision of tlie creating power is indispensable to tlie preservation of tlie created. But they no longer retain their true position. In the practical opera- tion of the system, they have both been superseded aaid reduced to subordinaate and dependent posi- tions : and this, too, by the power last in the order of formation, and which was brought into existence, as auxiliary to the first, — and through the aid of its active co-operation. It has assumed control over the whole; — and thus a thorough revolution has been effected, the creature taking the place of the creator. This must be reversed, and each restored to its true position, before the federal character of the government can be perfectly restored. For this purpose the first and indispensable step is to repeal the 25th sect, of the judiciary act, — the whole of the act of the 3d of March, 1833, and all other acts containing like provisions. These, by subjecting the judiciary of the States to the control of the federal judiciary, have subjected the separate governments of the several States, including all their departments and functionaries, — and, therfcT;y, the States themselves, to a subordinate and dependent condition. It is only by their repeal, that the former can be raised to their true relation as co- equals and co-ordinates, — and the latter can retain their high sovereign power of deciding, in the last resort, on the extent of the delegated powers, or of interposing to prevent their encroachment on the reserved powers. It is only by restoring these to their true position, that the government of the United States can be reduced to its true position, 384 ON THE CONSTITUTION AND GOVERNMENT as the coequal and co-ordinate of the separate gov- ernments of the several States, and restricted to the discharge of those auxiliary functions assigned to it by the constitution. But this indispensable and important step will have to be followed by several others, before the work of restoration will have been completed. One of the most important will be, the repeal of all acts by which the money power is carried beyond its constitutional limits, either ' in laying duties, or in making appropriations. The federal character of the government may be as effectually destroyed by encroaching on, and absorbing all the reserved pow- ers, as by subjecting the governments of the se- veral States themselves directly to its control. Either would make it, in fact, the sole and absolute power, and virtually, the government of the numer- ical majority. But of all the powers ever claimed for the government of the United States, that which invests Congress with the right to determine what objects belong to the general welfare, — ^to use the money power in the form of laying duties and taxes, and to make appropriations for the pur- pose of promoting such as it may deem to be of this character, is the most encroaching and comprehen- sive. In civilized communities, money may be said to be the universal means, by which all the opera- tions of governments are carried on. If, then, it be admitted, that the government of the United States has the right to decide, at its discretion, what is, and what is not for the common good of the coun- try, and to lay duties and taxes, and to appropriate OF THE UNITED STATES. 385 their proceeds to effect whatever it may determine to be for tlie common good, it would be difiBcult to assign any limits to its authority, or to prevent it from absorbing, finally, all the reserved powers, and thereby, destroying its federal character. But stOl more must be done to complete the work of restoration. The executive department must be rigidly restricted within its assigned limits, by divesting the President of all discretionary pow- ers, and confining him strictly to those expressly conferred on him by the constitution and the acts of Congress. According to the express provisions of the former, he cannot rightfully exercise any other. Nor can he be permitted to go beyond, and to assume the exercise of whatever power he may deem necessary to carry those vested in him into execution, without finally absorbing all the powers vested in the other departments and making him- self absolute. Having the disposal of the patron- age of the government, and the command of all its forces, and standing at the head of the dominant party for the time, he will be able, in the event of a contest between him and either of the other departments, as to the extent of their respective powers, to make good his own, against its construc- tion. There is still another step, connected with this, which will be necessary to complete the work of restoration. The provisions of the constitution in reference to the election of the President and Vice- President, which has been superseded in pracUce, must be restored. The virtual repeal of this provi- 25 386 ON THE CONSTITUTION AND GOVERNMENT sion, as already stated, has resulted in placing tte control of their election in the hands of the leaders of the office-seekers and office-holders; and this, with the unrestricted power of removal from office, and the vast patronage of the government, has made their election the all absorbing question ; and the possession of the honors and emoluments of the gov- ernment, the paramount objects in the Presidential contest. The effect has been, to increase vastly the authority of the President, and to enable him to ex- tend his powers with impunity, under color of the right conceded him, against the express provision of the constitution, of deciding what means are ne- cessary to carry into execution the powers vested in him. The first step in the enlargement of his au- thority, was to pervert the power of removal, (the intent of which was, to enable him to supply the place of an incompetent or an unworthy officer, with the view of better administering the laws,) into an instrument for punishing opponents and re- wardkig partisans. This has been followed up by other acts, which have greatly changed the relative powers of the departments, by increasing those of the executive. Even the power of making war, — and the unlimited control over all conquests, during its continuance, have, it is to be apprehended, pass- ed from Congress into the hands of the President. His powers, in consequence of all this, have accumu- lated to a degree little consistent with those of a chief magistrate of a federal republic ; and hence, the necessity for reducing them within their strict constitutional limits, and restoring the provisions of OF THE UNITED STATES. 387 the constitution in reference to his election, m order to restore the government completely to its federal character. ^ Experience may, perhaps, prove, that the provisions of the constitution in this respect are imperfect, — that they are too complicated and re- fined for practice ; and that a radipal change is ne- cessary in the organization of the executive depart- ment. If such should prove to be the case, the pro- per remedy would be, not to supersede them in practice, as has been done, but to apply to the pow- er which has been provided to correct all its defects and disorders. But the restoration of the government to its fed- eral character, however entire and perfect it may be, — will not, of itself, be sufficient to avert the evil alternatives, — to the one or the other of which it must tend, as it is now operating. Had its federal character been rigidly maintained in practice from the first, it would have been all sufficient, in itself, to have secured the country against the dangerous condition in which it is now placed, in consequence of a departure from it. But the means which may be sufficient to prevent disea,ses, are not usually suffi- cient to remedAj them. In slight cases of recent date, they may be ; — but additional means are ne- cessary to restore health, when the system has been long and deeply disordered. Such, at present, is the condition of our political system. The very causes which have occasioned its disorders, have, at the same time, led to consequences, not to be remov- ed by the means which would have prevented them. They have destroyed the equilibrium between the 388 ON THE CONSTITUTION AND GOVERNMENT two great sections, and alienated that mutual attacl.- ment between them, which led to the formation of the Union, and the establishment of a common gov- ernment for the promotion of the welfare of all. When the government of the United States was established, the two sections were nearly equal in respect to the two elements of which it is composed ; a fact which, doubtless, had much influence, in de- termining the convention to select them as the ba- sis of its construction. Since then, their equality in reference to both, has been destroyed, mainly through the action of the government established for their mutual benefit. The first step towards it occurred under the old Congress of the confederation. It was among its last acts. It took place while the convention, which formed the present constitution and government, was in session, and may be regard- ed as contemporaneous with it. I refer to the ordi- nance of 1787 ; which, among other things, contained a provision excluding slavery from the North- Wes- tern Territory ; that is, from the whole region lying between the Ohio and Mississippi rivers. The effect of this was, to restrict the Southern States, in that quarter, to the country lying south of it ; and to extend the Northern over the whole of that great and fertile region. It was literally to restrict the one and extend the other ; for the whole territory belonged to Virginia, the leading State of the for- mer section. She, with a disinterested patriotism rarely equalled, ceded the whole, gratuitously, to the Union, — with the exception of a very limited por- tion, reserved for the payment of her ofiicers and OF THE UNITED STATES. 389 soldiers, for services rendered in the war of the rev- olution. Tlie South received no equivalent for this magnificent cession, except a pledge inserted in the ordinance, similar to that contained in the constitu- tion of the United States, to deliver up fugitive slaves. It is probable that there was an under- standing among the parties, that it should be insert- ed in both instruments ; — as the old Congress and the convention were then in session in the same place ; and that it contributed much to induce the southern members of the former to agree to the or- dinance. But be this as it may, both, in practice, have turned out equally worthless. Neither have, for many years, been respected. Indeed, the act itself was unauthorized. The articles of confedera- tion conferred not a shadow of authority on Con- gress to pass the ordinance, — as is admitted by Mr. Madison ; and yet this unauthorized, one-sided act (as it has turned out to be), passed xa the last mo- ments of the old confederacy, was relied on, as a precedent, for excluding the South from two thirds of the territory acquired from France by the Louis- iana treaty, and the whole of the Oregon territo- ry; and is now relied on to justify her exclusion from all the territory acquired by the Mexican war, — and all that may be acquired, — ^in any manner, hereafter. The territory from which she has already been excluded, has had the effect to destroy the equilibrium between the sections as it originally stood ; and to concentrate, permanently, in the nor- thern section the two majorities of which the gov- ernment of the United States is composed. Should 390 ON THE CONSTITUTION AND GOVEENMENT she be excluded from the territory acquired from Mexico, it will give to the Northern States an. over- wjaelming preponderance in the government. M In the meantime the spirit of fanaticism, which had been long lying dormant, was roused into action by the course of the government, — as has been ex- plained. It aims, openly and directly, at destroying the existing relations between the races in the south- ern section ; on which depend its peace, prosperity and safety. To effect this, exclusion from the terri- tories is an important step ; and, hence, the union between the abolitionists and the advocates of ex- clusion, to effect objects so intiniately connected. All this has brought about a state of things hos- tile to the continuance of the Union, and the duration of the government. Alienation is succeeding to at- tachment, and hostile feelings to alienation; and these, in turn, will be followed by revolution, or a disruption of the Union, unless timely prevented. But this cannot be done by restoring the government to its federal character ; — however necessary that may be as a first step. What has been done cannot be un- done. The equilibrium between the two sections has been permanently destroyed by the measures above stated. The northern section, in consequence, will ever concentrate within itself the two majorities of which the government is composed ; and should the southern be excluded from all territories, now acquired, or to be hereafter acquired, it wlU soon have so decided a preponderance in the government and the Union, as to be able to mould the constitution to its pleasure. _ Against this, the restoration of the OF THE UNITED STATES. 391 federal character of the government can furnish no remedy. So long as it continues, there can be no safety for the weaker section. It places in the hands of the stronger and hostile section, the power to crush her and her institutions ; and leaves her no al- ternative, but to resist, or sink down into a colonial condition. This must be the consequence, if some effectual and appropriate remedy be not applied. The natui"e of the disease is such, that nothing can reach it, short of someorganicchange, — a change which s hall so mo dify the constitution, as to give to the weaker section, in some one form or another, a negatfvel)!! the a,ction of the government. Nothing short of this can protect the weaker, and restore harmony and trancLuillity to the Union, by arrest- ing, effectually, the tendency of the dominant and stronger section to oppress the weaker. When the constitution was formed, the impression was strong, that the tendency to conflict would be between the larger and smaller States ; and effectual provisions were, accordingly, made to guard against it. But experience has proved this to have been a mistake ; and that, instead of being, as was then supposed, the conflict is between the two great sections, which are s^Ji^ongly_ distinguished by their institutions, geo- graphical character, productions and pursuits. Had thirFeen then as clearly perceived as it now is, the same jealousy which so vigilantly watched and guarded against the danger of the larger States op- pressing the smaller, would have taken equal pre- caution to guard against the same danger between the two sections. It is for us, who see and feel it. 392 on THE CONSTITUTION AND GOVERNMENT to do, what the framers of the constitution would have done, had they possessed the knowledge, in this respect, which experience has given to us ; — that is, — provide agaiast the dangers which the system has practically developed ; and which, had they been foreseen at the time, and left without guard, would undoubtedly have prevented the States, forming the southern section of the confederacy, from ever agree- ing to the constitution ; and which, under like cir- cumstances, were they now out of, would for ever prevent them from entering into, the Union. How the constitution could best be modified, so as to effect the object, can only be authoritatively de- termined by the amending power. It may be done m various ways. Among others, it might be effect- ed through a^xeorganization of the executiyede- partment ; so that its powers, instead of being vested, as they now are, in a single officer, should be vested in two ; — to be so^elected, as that the two should be constituted the special organs and representatives of the respective sections, in the executive department of the government ; and requiring each to approve all the acts of Congress before they shall become laws. One might be charged with the administra- tion of matters connected with the foreign relations of the country ; — and the other, of such as were con- nected with its domestic institutions ; the selection to be decided by lot. It would thus effect, more simply, what was intended by the original provi- sions of the constitution, in giving to one of the majorities composing the government, a decided pre- ponderance in the electoral'college,— -and to the other OF THE UNITED STATES. 898 majority a still more decided influence in the even- tual choice, — in case the college failed to elect a President. It was intended to effect an eqnUibrinm between the larger and smaller States in this depart- ment, — ^but which, in practice, has entirely failed; and, by its failure, done much to disturb the whole system, and to bring about the present dangerous state of things. Indeed, it may be doubted, whether the framers of the constitution did not commit a great mistake, in constituting a single, instead of a plural executive. Nay, it may even be doubted whether a single chief magistrate,— invested with all the powers properly appertaining to the executive department of the government, as is the President,— is compatible with the permanence of a popular government ; especial- ly in a wealthy and populous community, with, a large revenue and a numerous body of officers and employees. Certain it is, that there is^ no ipstance of a popular government so constituted, which has 1^'endured, Even ours, thus far, famishes no e"^dence in its favor, and not a little against it; for, to it, the present disturbed and dangerous state of things which threatens the country with monarchy, or disunion, may be justly attributed. On the other hand the two most distinguished constitutional gov- ernments' of antiquity, both in respect to -perma- nence and power, had a dual executive. I refer to those of Sparta^nJ,.Qf-:RQmfi,- The former had two hereditary, and the latter two elective chiet magistrates. It is true, that England, from which ours in this respect, is copied, has a single heredita- 394: 0:S THE CO>"STITUTIOX A>T) GOTEICrM:ES~r ry head of the executive department of her govem- ment; — but it is not less true, that she has had many and arduous stmggles, to prevent her chief magis- trate from becoming absolute ; and that, to guard against it effectually, she was finally compelled to divest him, substantially, of the power of adminis- tering the government, by transferring it, practically, to a cabinet of responsible ministei's, who, by estab- lished custom, cannot hold office, unless supported by a majority of the two houses of Pai'liament. She has thus avoided the danger of the duef magis- trate becoming absolute; and contrived to unite, substantially, a single with a plural executive, in constituting that department of her govei-nnient. ^e have no such guard, and can have none such, without an entii'e chansre in the character of our government ; and her example, of course, famishes no evidence in favor of a single chief magistrate in a popular form of government like ours, — while the examples of former times, and our own thus far, furnish strong evidence against it. But it is objected that a plural executive neces- sarily leads to intrigue and discord among its mem- be^; and that it is inconsistent with prompt and efficient action. This may be true, when they are aJl elected by the same constituency ; and may be a good reason, where this is the case, for preferring a single executive, with all its objections, to a pluial executive. But the case is very different where they are elected by different constituencies, — Shaving confficting and hostile interests ; as would be the fact in the case under consideration. Here the two would OP THE UNITED STATES. 395 have to act, concurringly, in approving tlie acts of Congress,— and, separately, in the sphere of their respective .departments. <^The effect, in the latter case, would be, to retain all the advantages of a single executive, as far as the administration of the laws were concerned ; and, in the former, to insure harmony and concord between the two sections, and, through them, in the government.')^ For as no act of Congress could become a law without the assent of the chief magistrates representing both sections, each, in the. elections, would choose the candidate, who, in addition to being faithful to its interests, would best command the esteem and con- fidence of the other section. And thus, the presi-. dential election, instead of dividing the Union into hostile geographical pa,rties, the stronger struggling to enlarge its powers, and the weaker to defend its rights, — as is now the case, — would become the means of restoring harmony and concord to the country and the government. It would make the Union a union in truth, — a bond of mutual affec- tion and brotherhood ; — and not a mere connection used by the stronger as the instrument of dominion and aggrandizement, — and submitteSd to by the weaker only from the lingering remains of former attachment, and the fading hope of being able to restore the government to what it was originally intended to be, a blessing to all. v^ Such is the disease, — and such the character of the only remedy which can reach it. In conclusion, there remains to be considered, the practical question,— Shall it be applied? Shall 396 ON THE CONSTITUTION AND GOVERNMENT the only power wMcli can apply it be invoked for tlie purpose ? The responsibility of answering this solemn ques- tion, rests on the States composing the stronger section. Those of the weaker are in a minority, both of the States and of population ; and, of con- sequence, in every department of the government. They, then, cannot be responsible for an act which requires the concurrence of two thirds of both houses of Congress, or two thirds of the States to originate, and three fourths of the latter to consum- mate. "With such difficulties in their way, the States of the weaker section can do nothing, how- ever disposed, to save the Union and the govern- ment, without the aid and co-operation of the States composing the stronger section : but with their aid and co-operation both may be saved. On the lat- ter, therefore, rests the responsibility of invoking the high power, which alone can apply the remedy ; — and, if they fail to do so, of all the consequences which may follow. Having now finished what I proposed to say on the constitution and government of the United States, I shall conclude with a few remarks relative to the constitutions and governments of the indivi- dual States. Standing, as they do, in the relation of co-ordinates with the constitution and govern- ment of the United States, whatever may contri- bute to derange and disorder the one, must, neces- sarily contribute, more or l^ss, to derange and dis- order the other; and, thus, the whole system. And hence the importance, — viewed simply in re- OF THE UNITED STATES. 397 ference to the government of the United States, without talring into consideration those of the seve- ral States, — that the individual governments of each, as well as the united government of all, should assume and preserve the constitutional, instead of the absolute form of popular government, — that of the concurrent, instead of the numerical majority. It is much more difficult to give to the govern- ments of the States, this constitutional form, than to the government of the United States; for the same reason that it is more easy to form a constitu- tional government for a community divided into classes or orders, than for one purely popular. Artificial distinctions of every description, be they of States or Estates, are more simple and strongly marked than the numerous and blended natural distinctions of a community purely popular. But difficult as it is to form such constitutional gov- ernments for the separate States, it may be effected by making the several departments, as far as it may be necessary, the organs of the more strongly marked interests of the State, from whatever causes they may have been produced ; — and by such other devices, whereby the sense of the State may be taken by its parts, and not as a whole — by the con- current, and not by the numerical majority. It is only by the former that it can be truly taken. In- deed, the numerical majority often fails to accom- plish that at which it professes to aim, — to take truly the sense of the majority. It assumes, that by assigning to every part of the State a represen- tative in every department of its government, in 398 ON THE CONSTITUTION AND GOVERNMENT proportion to its population, it secures to eacli a weight in the government, in exact proportion to its population, under all circumstances. But sucli is not the fact, llie relative weight of population depends as much on circumstances, as on numbers. The concentrated population of cities, for example, would ever have, under such a distribution, far more weight in the government, than the same number in the scattered and sparse population of the country". One hundred thousand individuals concentrated in a city two miles square, would have much more influence than the same number scat- tered over two hundred miles square. Concert of action and/ combination of means would be easy in the one, and almost impossible in the other ; not to take into the estimate, the great control that cities have over thfe press, the great organ of public opinion. To distribute power, then, in proportion to population, would be, in fact, to give the control of the government, in the end, to the cities ; and to subject the rural and agricultural population to that description of population which usually congregate in them, — and ultimately, to the dregs of their pop- ulation. This can only be counteracted by such a distribution of power as would give to the rural and agricultural population, in some one of the two legislative bodies or departments of the government, a decided preponderance. And this may be done, in most cases, by allotting an equal number of mem- bers in one of the legislative bodies to each election district ; as a majority of the counties or election districts will usually have a decided majority of its OF THE UNITED STATES. 399 population engaged in agricultural or other rural pursuits. ^ If tHs should not be sufficient, in itself, to establish an equilibrium, — a maximum of repre- sentation might be established, beyond which the number allotted to each election district or city should never extend. Other means of a similar character might be adopted, by which, the diflferent and strongly mark- ed interests of the States, — especially those result- ing from geographical features, or the diversity of pursuits, might be prevented from coming into con- flict, and the one secured againts the control of the other. By these, and other contrivances suited to the peculiar condition of a State, its government might be made to assume the character of that of a concurrent majority, and have all the tranquillity and stability belon^g to such a form of govern- ment ; and thereby avoid the disorder and anarchy in which the government of the numerical major- ity must ever end. While the government of the United States continues, it will, indeed, require a much less perfect government on the part of a State, to protect it from the evils to which an imperfectly organized government would expose it, than if it formed a separate and independent cojnmunity. The reason is, that the States, as members of a Union, bound to defend each other against aU ex- ternal dangers and domestic violence, are relieved from the necessity of collecting and disbursing large amounts of revenue, which otherwise would be re- quired ; and are, thereby, relieved from that increas- ed tendency to conflict and disorder which ever ac- 400 ON THE OONSTITUTIOSr AND GOVEENMENT companies an increase of revenue and expenditures. In order to give a practical illustration of the mode in wHcli a State government may be organized, on tlie principle of the concurrent majority, I shall, in concluding this discourse, give a brief account of the constitution and government of the State of South Carolina. Its government, like that of all the other States, is divided into three departments, — the Legislative, Executive, and Judicial. Its executive powers, as in all the others, are vested in a single chief magis- trate. He is elected by the legislature, holds his office for two years, and is not again eligible for two years after the expiration of the term for which he was elected. His powers and patronage are very limited. The judges are, also, appointed by the legislature. They hold their office during good be- havior. The legislative department is, like that of all the other States, divided into two bodies, the Se- nate and the House of Representatives. The mem- bers of the former are divided into two classes, of which the term of one expires every other year. The members of the House are elected for two years. The two are called, whe'a convened, the General Assembly. In addition to the usual and appropriate power of legislative bodies, it appoints all the important officers of the State. The local officers are elected by the people of the respective districts (counties) to which they belong. The right of suffrage, with few and inconsiderable ex- ceptions, is universal. No convention of the people can be called, but by the concurrence of two thirds OF THE UNITED STATES. 401 of both houses ; — that is, — two thirds, respectively, of the entire representative body. Nor can the constitution be amended, except by an act of the General Assembly, passed by two thirds of both bodies of the whole representation ; and passed again, in like manner, at the first session of the as- sembly immediately following the next election of the members of the House of Representatives. But that which is peculiar to its constitution, and which distinguishes it from those of all the other States, is, the principle on which power is distributed among the different portions of the State. It is this, in- deed, which makes the constitution, in contradistinc- tion to the government. The elements, according to which power is distributed, are taxation, property, and election districts. In order to understand why they were adopted, and how the distribution has af- fected the operations of government, it will be ne- cessary to give a brief sketch of the political history of the State. The State was first settled, on the coast, by emi- grants from England and France. Charleston be- came the principal town ; and to it the whole poli- tical power of the colony, was exclusively confined, during the government of the Lords Proprietors,— although its population was spread over the whole length of its coast, and to a considerable distance inland, and the region occupied by the settlements, organized into parishes. The government of these was overthrown by the people, and the colony be- came a dependent on the Crown. The right of elect- ing members to the popular branch of the legisla- 26 402 ON THE CONSTITUTION' AND GOVERNMENT ture, wa& extended to the parishes. Under the more powerftil protection of the Crown, the colony greatly increased, and extended still further inland, towards the falls of the great rivers; — carrying with them the same organization. About the middle of the last century, a current of population flowed in from New Jersey, Pennsyl- vania, Maryland, Virginia, and North Caroliua, to the region extending from the falls of the rivers to the mountains, — now known as the upper country, in contradistinction to the section lying below. Be- tween the two settlements there was a wide unset- tled space ; and for a considerable length of time no political connection, and little intercourse existed be- tween them. The upper country had no represen- tation in the government, and no political existence as a constituent portion of the State, until a period near the commencement of the revolution. Indeed during the revolution, and until the formation of the present constitution, va 1790, its political weight was scarcely felt in the government. Even then, although it had become the most populous section, power was so distributed under the new constitution, as to leave it in a minority in every department of the government. Such a state of things could not long continue without leading to discontent. Accordingly, a spirit- ed movement or agitation commenced openly in 1794, the object of which was to secure a weight in the government, proportional to its population. Once commenced, it continued to increase with the growing population of that section, until its violence, and the OP THE UNITED STATES. 403 distraction and disorder wMcli it occasioned, con- vinced the reflecting portion of both sections, tliat the time had arrived when a vigorous effort should be made to bring it to a close. For this purpose, a successful attempt was made in the session of 1807. The lower section was wise and patriotic enough to propose an adjustment of the controversy, by giving to each an equal participation in the government ; and the upper section, as wisely and patriotically, waived its claims, and accepted the compromise. To carry it into execution, an act was passed during the session to amend the constitution, according to the form it prescribes; and again passed, in like manner, during the ensuing session, — an intervening election of the members of the House of Representa- tives having taken place, — and, thereby, became a part of the constitution as it now stands. The ob- ject intended to be effected will explain the pro- visions of the amendment ; and why it was necessary to incorporate in the constitution the three elements above stated. To effect this, the Senate, which consists of one member from each election district, except Charles- ton, which has two (one for each of its two parishes), remained unchanged. This, in consequence of the organization of the lower district into parishes, and these again into election districts, gave the lower section a decided preponderance in that branch of the legislature. To give the upper section a like preponderance in the House of Eepresentatives, it became necessary to remodel it. For this purpose, there were assigned to this branch of the legislature. 404 ON THE CONSTITUTION AND 60VEENMENT one hundred and twenty-four members ; — of whicli sixty-two were allotted to wMte population, and sixty-two to taxation ; to be distributed according to tlie election districts, — ^giving to eacli the number it would be entitled to under the combined ratios of the two elements. To ascertain this proportion, from time to time, a census of the population was ordered to be taken every ten years, and a calcula- tion made, at the same time, of the amount of the tax paid by each election district during the last ten years; in order to furnish the data on which to make the distribution. These gave to the upper section a preponderance, equally decisive, in the House of Representatives. And thus an equilibrium was established between the two sections in the legislative department of the government ; and, as the governor, judges, and all the important officers under the government are appointed by the legis- lature, — an equilibrium in every department of the government. By making the election districts the element of which one branch of the legislature is constituted, it protects the agricultural and rural interests against the preponderance, which, in time, the concentrated city population might otherwise acquire; — and by making taxation one of the elements of which the other branch is composed, it guards effectually against the abuse of the taxing power. The effect of such abuse would be, to give to the portion of the State which might be over- taxed, an increased weight in the government pro- portional to the excess ; — and to diminish, in the OF THE UNITED STATES. 405 same proportion, the weight of the section which might exempt itself from an equal share of the bm-den of taxation. The results which followed the introduction of these elements into the constitution, in the manner stated, were most happy. The government, — ^instead of being, as it was under the constitution of ITQO, the government of the lower section, — or becoming, subsequently, as it must have become, the govern- ment of the upper section, had numbers constituted the only element, — was converted into that of the concurrent majority, and made, emphatically, the government of the entire population, — of the whole people of South Carolina ; — and not of one portion of its people over another portion. The conse- quence was, the almost instantaneous restoration of harmony and concord between the two sections. Party division and party violence, with the distrac- tion and disorder attendant upon them, soon dis- appeared. Kind feelings, and mutual attachment between the two sections, took their place, — and have continued uninterrupted for more than forty years. The State, as far as its internal affairs are concerned, may be literally said to have been, during the whole period, without a party. Party organiza- tion, party discipline, party proscription, — and their offipring, the spoils jpriTiciple, have been unknown to the State. Nothing of the kind is necessary to produce concentration; as our happy constitution makes an united people, — with the exception of occasional, but short local dissensions, in reference to the action of the federal government ; — and even 406 ON THE CONSTITUTION AND GOVERNMENT the most violent of tliese ceased, almost instantly, with, the occasion which produced it. Such are the happy fruits of a wisely constituted Republic ; — and such are some of the means by which it may be organized and established. Ours, like all other well constituted constitutional governments, is the offepring of a conflict, timely and wisely compromised. May its success, as an example, lead to its imitation by others ; — until our whole system, — the united government of all the States, as well as the individual governments of each, — ^shall settle down in like concord and harmony. THE END.