IHE ZO-5 yC-NRLP .U ^i^^> -T^Tr'trip.i^rci^. ONSTEUCTION POWERb gi:^ , 'LKTB REF I'ilK LLTRA i.'uClKl\E.S Il£S£»£C IN Over .the Signature of ^^ One. of the FugtAc. rO WHICff ARE PREF , THE V.'ISU X\^ mca>ij ant rj ^nose &u;f(:.i w/i'j are lo'j •' '"?// endeavour io show ^ from o , THAT THKttf; IS IW OVi?. h . -■ \ aOWD^TlOK/' — /f/e/», ** He >fT;ST MAVT5 REAP TT^r : i'Ct-.'Vt: TiJAT TKx; pr., = > v.rO A DAJ5rGEROi;'s A l\ .HI) TH\T lO.V OP Kl • .' Od reitisie.d b\ these disorganizing proceedings take place in the midst of a clamour against the usurpations of Congress ! The man who can, without deep anxiety, behold this awful state of things — the rumblings of this fierce earthquake, which is being prepar- ed to swallow up the hopes entertained of the triumphant success of our governmental experiment, by the wise and the good, not merely in this country, but in Europe, is unworthy of the name of freeman, or the enjoyment of the blessings of liberty. He ought to live and die in an eastern despotism. What may be the result, is in the womb of time. If the nullifying citizens succeed in their projects, they will necessarily lead to a severance of the Union — and it would betray gross ignorance of human nature and of history, to expect that we should, in that case, long escape a border or civil war. " The day, the awful day, big, with the fate'^ of republican government, that dissolves the Union, will be a day of solemn jubilee to the despots and tyrants of the Old World,, and of sackcloth and ashes to the friends of the human race. The most zealous, ardent, and influential advocates of the ultra doc- trines of state rights, are Governor Hamilton and Mr. M'DuJffie. How many years have elapsed since they commenced the crusade in defence of those doctrines I know not — probably five or six. Be this as it may, it is only ten years since [in 1821] both these gentlemen were among, the most ardent opposers of the doctrines they now uphold so zealously! How long after 1821, it was before they changed their sentiments, I am ignorant. But.one thing is highly probable, their conversion has been very recent and very sudden. Fortunately for the nation, in regard to this ''vexed question,'^ their formerly-cherished, but now repudiated opinions, are on record. The change in the views of the authors, works no change in the opinions. If they were then true, as they appear to be, they will be eternally true, not merely at present, but through the vast range of distant ages. Mr. M'Duffie, in a pamphlet signed ''One of the People," now be- fore me, entered into full detail, on this mighty subject, and in a man- ner that reflects credit on his head and heart. Many of his views are so profound, and display such consummate knowledge of the sinister workings of the human passions, and their fell operation as displayed in the foul and ensanguined pages of history, that they are worthy to be placed along side some of the luminous reflections of Tacitus, which have been the admiration of the world for sixteen centuries. Nevei? was a case more fully made out than he has made out his case of the causes that produced the disaffection, and the alarm about tlie danger of "state rights," that prevailed in 1821. A single page is abundantly suf- ficient to settle the question, and to trace the insurrectionary movements to which he referred, to " the ambition of men of inferior talentSy^ who" wished to increase the power and consequence of the state go- vernments," for their personal aggrandizement. PREFATORY OBSERVATIONS. I have thought that I could not employ a few hours more advan- tageously to the citizens of this rising empire, than in making ex- tracts of the leading topics of Mr. M'Duffie's Essay, in order that they may be compared with the doctrines he holds at present. It will then be easy to discover whether the spectre which he laid in the ** vasty deep," in 1821, and which he has recently conjured up anew, to terrify the nation, be a creature of the imagination, or in reality a *' monsirum horrendum, ingens, informey" against which we ought all to sally forth armed cap 4 pie, in defence of state rights, and in deadly hosti- lity to consolidation. The introductory advertisement, written by James Hamilton, Esq. (the present Governor of South Carolina,) sufficiently explains the cir- cumstances, which, happily for the nation, gave rise to this luminous' defence of the noblest institutions that ever the sun shone on. I am well aware of the hostility and obloquy that this publication is likely to call forth. To be ignorant of this result, would argue that I had lived a very long life, quoad hoc, to little purpose. Before I enter- ed the lists, I had *' counted the costs," and prepared myself for the consequences. Whatever may be the result, I could never engage in a more glorious cause than the defence of the welfare and happiness of thirteen millions of people and their posterity. HAMILTON. Philadelphia, Nov. 14, 1831. P. S. When Governor Hamilton was, some months since, reproach- ed with the great inconsistency of his conduct on this subject, he pleaded his youth and inexperience, in 1821. Governor Hamilton was, at that period, if am rightly informed, about thirty-five years of age. On this defence I might make large comments — but I forbear. Let the justifi- cation pass for what it is worth. A few words by waj'- of N. B. By this publication it appears that, Governor Ss^fer and Mr. M'Duffie, have changed their opinions on"^ this all-important subject of state rights, liberal construction of the con- stitution, consolidation, &c. &c. It further appears, by a recent publi- cation, that Mr. Calhoun and Judge Cooper, have likewise changed opinions, on the subject of the tariff, and Mr. Calhoun on that of in- ternal improvement. These four gentlemen are among the leaders of the nullifiers in South Carolina. How far gentlemen, whose opinions are so liable to change, and to take a direction diametrically opposite, can be safe guides, deserves the most serious consideration. Three of them, at least, cannot plead youth to justify the errors of their early heresies, if heresies they were. Defence of a Liberal Construction of the Powers of Congress^ DEFENCE OF A LIBERAL CONSTRUCTION OF THE POWERS OF CONGRESS. WRITTEN BY G. M'DUFFIE, ESQ. JULY, 182L *• We have more cause of apprehension from the states than from the general govern- ment — or in other words, there is in our system a greater tendency to disunion, than to consolidation." — One of the People- Extracts from an Essay, entitled << National and State Rights con- sidered.^^ By the Hon. George M'Duffie, under the signature of ^' One of the People.'' In reply to the " Trio;'' to ivhich are pre- fixed extracts from the prefatory advertisement, which accompanied its republication. By Major James Hamilton. ADVERTISEMEJTT, In preserving the subjoined Essays from the fugitive columns of a newspaper, and in placing them in a form more permanent and endur- ing, we conceive we are paying no more than a just homage to the sacred principles they inculcate, and to the genius which has given them an illustration so powerful and impressive. It may be not altogether unnecessary to acquaint the reader with the causes, which led originally to the publication of the Letters of ''One jof the People." In July last, a series of Numbers, entitled the ^'Prospect before us, as seen through the Signs of the Times, by the Trio," made their appearance in a Milledgeville Gazette. The ostensible scope of these dissertations was, to show that the pre- sent administration is conducted on principles altogether subversive of the Republicanism of 1801, and in direct violation of a just and legiti- mate construction of the Constitution of the United States. To "sustain Ihe&e two propositions, it may be readily conceived that assertions the Tnost sweeping, that assumptions the most gratuitous, were resorted to, without reference to the change which the events of fifteen years must make in the policy of a great and growing empire, or to the fresh lights, which the experience of our government is perpetually afford- ing, for a just and infallible interpretation of its theory. The basis of the argument in which the "Trio" indulge, is in con- tending, "for a strict and literal construction of the Constitution," and in affirmiiig an absolute negation of every thing wearing the aspect of an 'Hmplied power." This construction, as their own reasoning proves, would limit the sphere of our National Charter merely to those suicidal efforts, which in the end would have produced its dis- solution, as a matter of inevitable consequence. To these views the "Triumvirate" added the tocsin of "State Sovereignty;" a note which has been sounded in " the Ancient Dominion," with such an ill-omened blast, but with no variety, by them, to relieve its dull and vexatious dissonance. It is against these doctrines, to support which the authority of the highest names has been brought forward, the most criminal examples Trrittcn by G. M'Duffie, Esq. July, 1821. 5 cited, the most popular prejudices addressed, that "One of the Peo- ple" has taken tlte field. The argument of " One of the People" is now presented in an unbroken succession, familiar to the most ordinary, and gratifying to the most comprehensive understanding. The truths that are unfolded are in their nature essentially imperishable. Whatever may be the fate of our National Charter, whether our descendants are long destined to admire and worship that solidity which may give duration to its exist- ence, and those proportions that now confer grandeur on its design, or, in a far different mood, to mourn over the ruins of so fair a fabric, equivalent testimony will be afforded of the sacredness of the principles that are here inculcated, of their faithful conservation in the first case, or q/* ^Ae disastrous and desolating violation and neglect they luill have sus- tained in the last. Before we conclude, it would be unjust not to confess, that in spite of the criminal sophisms which the "Trio'^ have scattered with no unsparing hand throughout their dissertations, they have claims to our gratitude, in being the efficient cause in the occasion which produced these Essays. There is a species of compensation to the world for the most reckless career of folly and of vice, in the high and impressive energy with which genius and worth rebuke their extravagance and li- centiousness. To the profligacy of Shaftesbury, we owe the exquisite poem of ''Absalom and Achitophel :" and but for the flies which wan- toned in the evening tide of Pope's declining life, we should have lost the amber of the ''Dunciad," in which they are embalmed. Charleston, {S. C.) October \st, 1821. TO THE "TRIO." It is abundantly apparent, from the whole tenor and spirit of your speculations, that you aim to impair the confidence which the Nation so unanimously and justly reposes in Mr. Monroe's administration, by exciting an alarm for the safety of state rights. I trust the im- portance of the subject will excuse me to my Fellow-Citizens, for ad- dressing you in a graver style than the tone and character of your essays would otherwise deserve. In the face of the uniform tenor of our experience under the present Constitution of the United States, you affect to entertain all those idle and chimerical apprehensions for the state sovereignties, lohich once animorted the zeal of wiser and better men. Now, if you will attentively follow me through the investigation which I propose to make into the theory of our complex system of government, I think I can make it clear, even to your understanding, that your fears are perfectly visionary, having no shadow of foundation, either in the organization of the general government, or the experience of its operation. I have already adverted incidentally, to the fact, that the general and state governments are organized upon precisely the , sjune principles. The general government is as truly the government 6 Defence of a Liberal Construction of the Powers of Congress^ of the whole people, as a state government is of part of the people. Its Constitution, in the language of its preamble, was ordained and es- tablished by "Me People of the United States.^' The ''most nume- rous branch" of the National Legislature, the House of Representatives, is elected in the same way, and by precisely the same persons, that elect the corresponding branches of the State Legislature. At the end of every two years, these National Representatives depend upon the people for their re-election. The other branch of the National Legis- lature, the Senate, is chosen by the State Legislatures, because ''the people of the United States" delegated that power to them, and not hy virtue of any inherent right ivhich they possess as states. For the moment the people met in convention, all the elements of political )ower returned to them to receive a new modification and distribution, "nfcheir sovereign will. At the end of six years the Senators cease to such, and depend for their re-appointment upon the power that created them. The President of the United States is elected for the term of four years by a College of Electors, to be appointed " in such manner" as the State Legislatures shall respectively direct. It appears, then, that the "joeojo/e," "in order to form a more perfect union, es- tablish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of lib- erty to themselves and their posterity," created the whole mass of political powers that constitute the general government, reserving to themselves, by the elective franchise, the immediate control over the whole mass of delegated powers. What security, then, did the Con- vention, or in other words, "the People of the United States," pro- vide, to restrain their functionaries from usurping powers not delegated, and from abusing those with which they are really invested ? Was it by the discordaiit clamours and lawless resistance of the state rulers, that they intended to '^ insure domestic tranquillity, and form a more perfect union?^' Was it by the officious interference of their inferior agents, appointed for no other purposes than those indicated by the state constitutions, that they intended to "insure a salutary con- trol over their 5Wj»er£or agents?^'' No ; the constitution will tell you what is the real security they have provided. It is the responsibility of the officers of the general government, not to the state authorities, but to themselves, the people. This, and this alone, is the great con- servative principle which lies at the foundation of all our political in- stitutions, and sustains the great and glorious fabric of our liberty. This great truth ought to be kept in constant and lively remembrance by every American. It is the very life and soul of republican freedom ; and no statesman is worthy to minister at her sacred altar, who does not distinctly perceive, and deeply feel it. The state governments, too, are the absolute creatures of the people ; and have no political powers not delegated to them by their respective constitutions, and consistent with the constitution of the United States, The states, as political bodies, have no original, inherent rights. That they HAVE SUCH rights IS A FALSE, DANGEROUS, AND ANTI-REPUBLICAN ASSUMPTION, WHICH LURKS AT THE BOTTOM OP ALL THE REASONING IN FAVOUR OP STATE RIGHTS. The tie of responsibility is as necessary WriUen by G, M'Dvffie, Esq, July^ 1821. 7 to bind the state rulers to their appropriate sphere of duty, as it is to bind, in like manner, the officers of the general government. What, then, is the true question so much agitated, under the imposing names of ** state rights,'' and ^^consolidated empire," and who are the real parties to the issue involved in it? I answer emphatically, the true que^ion is, lohether the general government shall be controlled by the people ^of the states, or the rulers of the states; and the parties litigant are the people of all the states, and the rulers of particular states. Upon the issue thus presented, one would imagine there could be little diversity of opinion amongst intelligent and considerate men, as to the verdict that ought to be pronounced. What are the argu- ments necessarily implied in the assumption, (I hope never to see the day when I shall have to say, usurpation) of the state authorities; They say in effect to the people, (the very people, too, by a portion of whom they are created) "you have not sufficient virtue, intelligence, and vigilance, to control and restrain your agents of the general gov- ernment. They are making most alarming strides in the usurpation, not, to be sure, of your rights, but of ours; and yet you are so blind as not to perceive, or so torpid as not to regard it. For these weighty reasons, us thereunto moving, we the rulers of certain states, by virtue of certain original, inherent powers in us existing, do adjudge and de- termine that you the people, by reason of a certain ' apathy and torpor,' that 'rages' with 'violence,' in defiance of all our 'usual remedies,'* are incapable of self-government ; and we do, therefore, out of mere pity for your weakness and incompetency, and from the consciousness of our own infallibility, resume to ourselves the supervision and con- trol of the general government, which we find you unworthy to ex- ercise.^^ To this modest address from their "high-mightinesses," the state authorities, I beg leave, as ^' one of the jjeople,^^ to make the fol- lowing reply, in the name and in behalf of all my fellow-citizens : "We beg leave to inform your 'mightinesses,' that we still think our- selves capable of attending to our own business, and would respect- fully suggest that you might find sufficient employment in attending to the affairs we have committed to your charge, without interfering with those matters which we have confided to other agents. In ourselves exists the exclusive right of supervising and controlling the conduct of all our agents, and for the better ordering of your future deportment, be it known to you, that we shall watch over your actions, with pre- cisely the same vigilance that we do the actions of our agents of the general government. As the business committed to these latter agents is of greater importance, and of a wider range than that committed to you, w6 of course select the most intelligent and virtuous men to per- form it. Your attempt to control them, is therefore peculiarly unbe- coming and arrogant. When the officers of the general government do any act which we think unauthorized by our letter of instructions, or wrong in itself, we shall discard them from our service, in the same manner that, for similar reasons, we shall certainly discard you. But as long as we continue them in office, and approve of their conduct, * The language of the " Trio," 8 Defence of a Liberal Construction of the Powers of Congress, their acts are ours, and any attempt on your part to resist them, is an attempt to resist the power that created you." In this brief reply I think every American, who regards the integrity and harmony of the Union as necessary to the enjoyment of practical freedom, will readily and heartily concur. But the assumption of the state authorities will ajipear still more glaring and unwarrantable^ when we reflect, that whatever is assumed as a ^^ state right,^^ pertains equally to every state in the Union, separately and individually. For ex- ample, a question arises between the general government and the gov- ernment of a particular state, as to the extent of their respective powers. Take a case that has already occurred. The National Legislature char- ter a bank to answer certain great national purposes. The National Judiciary decide that the act creating the corporation is constitutional and valid. The state authorities decide that the act of incorporation is unconstitutional and void, and attempt, by a Legislative Act, to destroy the bank. Here you see the government of a single state rising up against the government of all the states, and attempting to resist that government. Now let me ask you, which of the parties to this contest is the more worthy of the confidence of the people of the Unit- ed States, the general government, which is created by them all, and responsible to them all, or the state government, created by and respon- sible to not more than one twentieth or thirtieth part of their number ? If we can more safely trust the rulers of our choice, than those who are not the rulers of our choice, the question is answered. For to the citizens of all the other states, except the one which I have supposed to be engaged in the contest, the government of the contesting state is perfectly alien; as much so as the British Parliament. There cannot be a greater political absurdity than to suppose our liberties are in greater danger from those functionaries whom we elect and control, than from those whom we do not elect and control. I have already stated that the erroneous proposition, that the states, as such, have cer- tain original, inherent rights, lies in ambush at the bottom of all the reasonings in favour of state rights ; and I will now add another pro- position, equally erroneous, which seems to be involved in the argu^ Tnents of those who are jjerpetually warning us to beware of the ge-' neral government, and fly to the state governments for refuge. Their reasonings assume that the general government is alien to the people, who originally created it, and whose living energies continue ally sustain it. Now, the functionaries of the general government, with all their grandeur and splendid projects, at which you pretend to be so much alarmed, can, in a moment as it were, be hurled from their stations, in a peaceable, constitutional mode, and by the very people whose liberties you suppose are unsafe in their custody. Are you aware that you are preaching up the same doctrines that the '* Holy Alliance" of Europe are attempting to seal with blood ? To assert that the general government will prostrate the liberties of the people, is to assert that our republican experiment will fail, and that our constitution is founded upon false principles. In other words, that the people are not capable of governing themselves. For my own part, I can consci- entiously say, (and I stand upon constitutional ground when I say so,) JVritten by G, M'Duffie^ Esq, July, 1821. 9 that / have, as a citizeii of the Union, precisely as much confidence in the general government, as I have in the governm,ent of m.y own state, and infinitely more than I can or ought to have in the gov- ernment of the other states, I think too highly of the people of the United States, to suppose that they will tolerate any encroachments of the national government, that shall endanger their liberty, ^s to those: imaginary rights, that are by some supposed to exist in the states,- in contradistinction to the people of the states, I neither understand nor regard them. They are mere sounds, used by misguided or de- signing men, for the advancement of their popularity in particular sections of the Unio7i. While the rights and liberties of the people are safe, (and they must be, while they are true to themselves) all the ends of government are accomplished. Thus have I endeavoured ta convince you, from the organization of the general government, and its responsibility to the people, that it is as safe ai depository of the rights^ of all the people, as the state governments are of the rights of part of them. But as strong prejudices and apprehensions do exist in some of the states on this subject, I will endeavour to trace these prejudices to their origin. I think they are to be ascribed to two causes: large states,- and men whose ambition exceeds their talents. All history proves that in a mere confederacy of states, the largest and most powerful member will ultimately attain such an ascendency as to govern the whole. It is equally clear, that in proportion as the confederacy approaches ta the form of one common national government, the ascendency of the largest members will be diminished. At the time our present consti^ tution was adopted, Virginia was, in all that constitutes political pow- er, decidedly the largest state in the Union. Accordingly, in that State, the most violent and persevering opposition was made to the present constitution of the general government: and since we have be- come a united people, the politicians of Virginia have been most loudly clamorous about state rights, and have given the tone topar- ticular factions in other states, on the subject. The ather cause which I have assigned for the prevalence of the false doctrines I am considering, is in some measure connected with the cause just men- tioned. AMBITIOUS MEN OF INFERIOR TALENTS, FIND- ING THEY HAVE NO HOPE TO BE DISTING.UISHED IN THE COUNCILS OF THE NATIONAL GOVERNMENT, NA- TURALLY WISH TO INCREASE THE POWER AND CONSE- QUENCE OF THE STATE GOVERNMENTS, THE THEA- TRES IN WHICH THEY EXPECT TO ACQUIRE DISTINC- TION. It is not, therefore, a regard for the rights of the people, and a real apprehension that those rights are in danger, that have caused so much to be said on the subject of prostrate state sovereign- ties and consolidated empire. It is the ambition of that class of politicians, who expect to figure only in the state councils, and of those states who are too proud to acknowledge any superior ; an ambition and a pride of the most alarming and dangerous tendency, which, if not discountenanced by moderate and reflecting men, may at some future day dissolve our happy union, and sweep away, in a tide B 10 Defence of a Liberal Construction of the Powers of Congress, of civil blood, all that constitutes the happiness of individuals or the glory of a nation. I will now proceed to show, in a few words, that from an experience of the actual operation of the general government, we have as little cause to apprehend danger as from the principles of its organization. Have we not as a nation enjoyed all the happiness which it is in the power of government to confer? Where is the man that has felt the oppressive arm of the general government? In the whole history of its progress you cannot point to one solitary act of oppression. It has w^rested from no man his property ; it has deprived no man of his liberty. But we have seen its salutary and protective energies directed against a foreign foe. We have seen the pride of that haughty foe humbled by the victorious arms of the republic. We have seen our wrongs avenged ; our rights vindicated, and our national character exalted ; all by the "eneral government. And seeing all this, we have rejoiced that it is the government of our choice. On the other hand, we have been in- volved in great embarrassments by the refractory and unconstitu- tional proceedings of some of the states. In the very war which raised the character of the general government so much in the coafidence and affections of the people, the refusal of the Governor of one of the Eas- tern States to obey the call of the President, threatened to throw the country into the most alarming condition, and to paralyze the very arm to which we all looked for protection. Rest assured, then, the gene- ral government is not an object of dread. Our ancestors did not create it to be an object of terror to the people, but '* to secure the blessings of liberty to themselves and their posterity." — They reared it as a durable monument, which should carry their names, in glory, to future ages. They will not be deceived. As long as there shall be a heart to feel for freedom, and a head capable of understanding its prin- ciples, those who organized the general government will be hallowed as the wisest of statesmen and the best of patriots. And I am well assured that the government they created, will not be the less evincive of the wisdom of its framers, because it departs from the principle of a mere confederacy. I shall show, that its admirable balance can be jeopardized only by the eccentric and centrifugal tendencies of the States. But I will first offer some additional views tending to show that the fears you profess to entertain, that the general government will pros- trate the state sovereignties, are wholly unfounded either in the nature of things, or the history of nations. — That there is, in reality, no such danger, will be apparent to any man at all familiar with the history of human ambition, who will attentively consider the nature of the pow- ers which, under our federative system, fall to the share of the state governments. — For it can be conclusively shown, that these constitute precisely the class of political powers that has the least attractions for ambition, and which, even the most despotic governments, possessing extensive territories, have voluntarily thrown off, as inglorious incum- brances, and committed to local or provincial authorities. The powers of the state governments are limited to those measures of local regula- tion, which, taken together, constitute the internal police of the respec- mittm by G. M'lhiffie, Esq. July, 1821. 11 tive states. They establish the rules of property ; fix and define the rights of persons; and provide for the security of both by appropriate civil remedies, and criminal sanctions administered and enforced by their judicial tribunals. The subjects embraced within the scope of these regulations, though highly important in the estimate of national happiness, have nothing of that imposing and attractive splendour which can dazzle the minds of ambitious rulers. Cast your eyes into history, that bloody record of the sufferings of the people, and the sins of their rulers. Survey with attention those mighty wastes, through \vhich Ambition has held his lofty career, and in which he has reared his proudest and bloodiest trophies. And when you have done so, con- sult the record to ascertain the objects that stimulated, and the means that facilitated, those mighty and desolating achievements. Was that ambitious Conqueror, who waves his iron sceptre over the trembling and subject nations that have yielded to the terror of his arms, stimu- lated in his bloody march by a desire to regulate the domestic police of the conquered nations ? Was it the power of fixing and defining the individual and private rights of his subjects, that furnished the means of his aggral^dizement? No. He was stimulated by higher, though less worthy aims, and sustained by mightier means. These I shall pre- sently consider. The states are constitutionally restrained from "en- tering into any treaty, alliance, or confederation ; granting letters of marque and reprisal ;" and also from ^Maying any duty of tonnage; keeping troops or ships of war in time of peace ; entering into any agreement or compact with another state, or with a foreign power, or engaging in war unless actually invaded, or in such imminent danger ^ as will not admit of delay; without the consent of Congress." The powers of the state governments, then, are not only limited in their operation, but essentially pacific in their nature. From all "the pride, pomp, and circumstance of glorious war;" from all that class of polit- ical actions, in short, which furnish the most interesting themes of his- tory, and attract in their recital, the almost exclusive attention of the ' mass of mankind, the states are absolutely and wisely excluded. When, therefore, we consider the nature of ambition ; when we reflect that it is desirous of performing those actions, only, which history records with her brightest and most enduring colours, and nations behold with the highest admiration, the folly of the, apprehension that the general govermnent will subvert the governments of the states^ is most strik- ^ ingly apparent. But still more strikingly apparent will be the folly of such an appre- \ hension, when we come to compare the powers, which have been clearly and unequivocally delegated to the general government, with those which it can acquire by encroachments on the state authorities. By the express letter of the National Charter, Congress has power ''to lay and collect taxes, dutieis, imposts, and excises ;" to ''declare war," to "raise and support armies," and to "provide and maintain a navy." These powers are granted in the most general and unlimited terms. Upon the discretion of Congress in "laying and collecting taxes," and in ''raising and supporting armies," there are no restrictions but those imposed by nature. Congress may push these powers to the utmost 12 Defence of a Liberal Construction of the Powers of Congress, verge indicated by the physical capacity of the country. They may, «pon the slightest occasion, and for the most unwise, improvident, and wicked ends, draw from the people (of the '* states" too!) the utter- most farthing that can be spared from their suffering families, to fill the national coffers ; and call out the Jast man that can be spared from rais- ing the necessaries of life,' to fill the national armies and fight the bat- tles of ambitious rulers. And all this, however inexpedient, unjust and tyrannical, they can do, without transcending the limits of their con- stitutional authority. The general government is thus invested, (safely and constitutionally invested) with an unlimited command over the purse and the sword of the nation, those mighty and resistless instru- ments of lawless ambition and encroaching power ; and yet the very rulers, in whose hands these tremendous engines are harmless to the people, and terrible only to their enemies, are held up and denounced by your warning voices, as the depredators upon the more peaceful, inefficient, and unattractive powers of the state governments. We are called upon to believe that our federal rulers will use with moderation the very powers by which ambitious men have, in all ages, built up the monuments of their own aggrandizement upon the ruins (Jf the consti- tution, and amidst the execrations of the people ; and yet that these rulers will consummate their ambitious purposes, and subvert our libera ties by the paltry and petit larceny process of pilfering little fragments from the temples of state sovereignty ! ! ! If one of you were to trust a madman with a broad-sword, and yet be alarmed lest he should arm himself with a weapon to attack you, by invading your wife's pin- cushion, your fears would not be more ridiculous, nor your inconsist- ency more palpable. Be assured it is not in the course of ambition to descend; for "in its proper motion" it "ascends." The supreme ju- diciary of a state would hardly be inclined to usurp jurisdiction over the class of cases that fall within the exclusive and humble jurisdiction of a common magistrate. Abstractedly considered, power has no al- lurements. It is only desirable from its imposing associations. * * * * * If, after all that has been said, you still continue to dread the extinc- tion of the state governments in one great consolidated empire, I must, for the present, give you up as incurable ; in the hope, however, of producing some effect hereafter, by showing that there are dangers, much more imminent and alarming, to be apprehended from an oppo- site direction. That the real danger, which it demands all the wisdom and patriotic vigilance of the American statesmen to obviate, proceeds from the cen- trifugal tendencies of the states, was the doctrine invariably held by the framers of the federal constitution. And I wish distinctly and em- phatically to impress it upon you, that at the very era of the constitu- tion, when the true " principles of the revolution" burned with a living and holy fervour in the bosoms of those who had breasted the rudest shocks of the revolutionary war : Washington, Madison, and Ha- milton, were the firm and masterly supporters of this very doctrine. The views of the two last named statesmen are recorded in " The Fed- eralist/' that able and unanswerable commentary on the federal consti- TFriden by G, M'Duffie, Esq. July, 1821. 13 tution ; which is now almost universally received as the standard of po- litical orthodoxy. And it is most extraordinary that in your affected " recurrence to fundamental principles," you have entirely overlooked the opinions and commentaries of the friends and authors of that con- stitution, which will stand amidst the wreck of empires as an imperish- able monument of their wisdom ; and have based yourselves upon the visionary fears and dismal forebodings of those who were opposed to it. Whether I am to understand that you are at this day not only opposed to the administration, but the constitution of our govern- ment, and wish not only to change our rulers, but to destroy that con- stitution ; or that you suppose that the opponents of that instrument understand its principles better than its authors ; I confess I am at a loss to determine. For if you are sincere in your professions of attach- ment for the ^'principles of the revolution," and of the federal consti- tution, and are not acting a part in a great political manoeuvre ; if you are honestly seeking for the truth of principles, and not for the means of individual aggrandizement ; to what oracles could you have applied so likely to give you an unerring response, as the immortal patriots and statesmen whose names I have just mentioned ? But with an infelicity which seems to be your peculiar characteristic, you place your princi- pal reliance upon those opinions of Patrick Henry, which, by your own admission, he himself renounced, after experience had dispelled the delusions by which his warm imagination had been carried away. Pretermitting, however, any further remarks on the question of authori- ty, I will endeavour to show by arguments drawn as well from the *' fun- damental principles" of genuine representative republicanism, as from our actual experience, that we have more cause of apprehension FROM THE states, THAN FROM THE GENERAL GOVERNMENT ; OR, IN OTHER words, THAT THERE IS IN OUR SYSTEM A GREATER TENDEN- CY TO DISUNION THAN TO CONSOLIDATION. It will be recollected that the responsibility of public functionaries is the only true and adequate security for liberty, connected with the organization of the various departments of our political system. And, whenever, in the ramifications of that system, we find any part in which the principle of responsibility does not operate co-extensively with the sphere and compass of the power which it is intended to re- strain, we have just grounds to apprehend that the harmony of the sys- tem will be disturbed by the irregular and eccentric wanderings of the power thus inadequately restrained. — Now it results from the practical operation of our complex system, that the government of each state, though elected by the people of that state, and responsible to them only, may notwithstanding, affect by their proceedings the vital inter- ests of the whole Union. So far, then, as the interests of the '^ people of the United States" are liable to be impaired or destroyed by the measures of the government of a particular state, they are exposed \.q the action of a power absolutely irresponsible to them. If the general government should encroach upon the powers and violate the rights of the states, they would be infringing upon the interests, and rousing the indignation of the sovereign power that created them, the people of the states ; and would of course feel all the restraint that responsibility \ 14 Defence of a Liberal Consfrucfion of the Poivers of Congress, could impose. But the converse of the proposition does not hold (rue. If a state government should infringe upon the interests of the Union, or, more precisely, of the people of all the other states, their indigna- tion, however just, would be vain and powerless; for the principle of responsibility could hot be brought to bear upon the usurping or aggressing state government. Suppose, for example, that during a war, upon which the very liberty of the country depended, a particu- lar state, under the influence of some violent local excitement, should attempt to paralyze the arm of the general government, by restraining and limiting their power of recruiting soldiers, or by refusing to order out the quota of militia constitutionally demanded by the general go- vernment. These are not extreme cases ; for the latter actually occur- red in one of the Eastern states, and the former either occurred or was agitated in another, during the late war with Great Britain. I ask what constitutional means have the people of the Union, in such cases, to bring back the rulers of the refractory states to a sense of their duty? Can they hurl them from the ^* bad eminence" to which, perhaps, their very views, [these very views?] have raised them? Can they take from them the power thus perverted to the unhallowed purposes of faction and sedition ? Can they snatch from their grasp the firebrand, which from the heights of their constitutional power they threaten to cast '^hideous ruin and combustion^'' into the temple of union ? No. As long as the local excitement of their constituents shall pre- vail, the unanimous and indignant voice of all the people of the Union besides, cannot shake the foundations of their power. If, then, there be any virtue in the great principle of political attraction which sus- tains the harmony of our admirable system of practical freedom ; it is quite obvious that whenever a case occurs, in which the real or imagi- nary interests, the passions or prejudices of a particular state, shall stand opposed to the interests of the Union ; that attraction instead of binding the state rulers to the general interest, will absolutely carry them from it. And are we permitted, either by a knowledge of the principles of human nature, or a view of our own brief experience as a nation, to doubt that such cases will frequently occur? He must have READ THE LESSONS OF HISTORY TO LITTLE PURPOSE, WHO DOES NOT PERCEIVE THAT THE PEOPLE OF PARTICULAR STATES ARE LIABLE TO PALL, OCCASIONALLY, INTO A DANGEROUS AND MORBID EXCITEMENT UPON PARTICULAR SUBJECTS ; AND THAT UNDER THIS EXCITEMENT, THEY WILL IMPEL THEIR RULERS INTO THE ADOPTION OF MEASURES IN THEIR TENDENCY DESTRUCTIVE TO THE Union. Nor wiU any Consid- erate man look upon this source of danger, but with the deepest con- cern. How many local causes are there, calculated to generate feelings hostile to the general government ? Diversity and peculiarity of local interest, whether real or imaginary. Political prejudices and opinions, peculiar to one or a few states. Embarrassments growing out of a vi- tiated currency, which the general government may find it necessary to correct; a duty of the highest moral and political obligation, yet un- gracious in its nature, and, for a time, apparently oppressive. If to these we add, THE SELFISH AND AMBITIOUS VIEWS OF DESIGNING DEMAGOGUES, we shall have a specimen of the nu- Written by G, M'Duffie, Esq. /%, 1821. - 15 merous and multifarious causes of disunion, which exist in the passions f of men and the pride of the states. J Unfortunately for us, we are not left to mere theoretical reasoning ^^ upon this subject. We have seen embodied, in the living current of I events, the very dangers of which I have been speaking. Who can for- \ get how all the energies which state organization could confer, were in certain states exerted to impair our national energies, in the late war, and prostrate our country, degraded, disgraced, and discomfited, at the feet of a proud and imperious foe? Who can forget that the prayers of *^ states, '^ almost in the very forms of constitutional proceeding, were, from the very temples of state sovereignty, sent up to the throne of Heaven, breathing maledictions on the armies of the republic? Who, that feels any interest in the true glory of his country, does not wish ^ the story of the Hartford Convention blotted for ever from her annals ; and who that regards her permanent happiness would not deprecate the. / recurrence of such another infamous association, as the greatest calami- '. J ty that could befall her? "j And do we not see almost passing before us, in this tranquil period [ A of peace, an example of state insubordination, less glaring, but even | more alarming than that to which I have just alluded ? The laws oj^^ the Union, clothed with the most solemn sanctions of the constitu-i Hon, have been, tender the extreme pressure of local em,barrassment, absolutely resisted by the state authorities. After the supreme tribu- nal of the country pronounced an act of Congress constitutional, and consequently the supreme law of the land, a state government has openly opposed its execution. It will be readily understood, that I al- lude to the embarrassing conflict of authority between the general go- vernment and the state of Ohio, in relation to the National Bank. And I hesitate not to pronounce it one of the most portentous events that has occurred since the adoption of the federal constitution. For if, af- ter the National Judiciary have solemnly affirm.ed the constitution- ality of a law, it is still to be resisted by the state rulers, the con- stitution is literally at an end ; a revolution of the government is already accomplished, and anarchy ivaves his horrid sceptre over the broken altars of this happy union ! In the examples to which I have alluded thus briefly, of insubordi- nation in state rulers, we distinctly perceive tlie effects of that una- voidable want of responsibility to the Union, which I consider the weakest part of our federative system. And what is still more alarm- ing, every member that shall be admitted into the Union, will increase the danger to be apprehended from this source. It requires but little skill in ringing the changes of political permutation, to enable us to perceive that in proportion as we increase the number of states that compose the Union, we multiply the chances of local combinations unfriendly to it. And, although by enlarging the confederacy, we shall diminish the relative strength of any such probable combination, and of course the probability of a forcible disruption ; yet the increased frequency of collisions between the general and state governments, will be scarcely less to be deprecated. For it ought never to be forgot- 16 Defence of a Liberal Construction of the Powers of Congress, ten, that this Union is not to be sustained by physical force, but by ^ kindred sympathies and mutual good will. Let us now consider the principles of construction which ought to prevail in ascertaining the extent of the powers delegated by the Con- stitution to the national government ; and of the means provided for the application of those principles. As far as I can collect any distinct propositions from the medley of unconnected quotations you have made on these very important subjects, I understand you to affirm, that in expounding the Federal Constitution, we should be "tied down to the strict letter" of that instrument; and that the general government *' was not made the exclusive or final judge of the extent of the powers delegated to itself, but that, as in all other cases of compact among par- ties having no common judge, each party has a right to judge for itself. ^^ Jis these may be considered the concentrated essence of all the wild and destructive principles that have ever been advanced, in relation to the subjects under consideration, and as they constitute the basis of a contemplated revolution in the administration of the general government; I have been particular in using your very lan- guage, lest I should be suspected of giving my own impressions of the result of your arguments, or, more correctly speaking, of your quo- tations. In asserting that we ought not to travel out of the *' strict letter" of the Constitution, I am almost disposed to believe, in charity, that you were ignorant of the nature of your own proposition. For if, with its obvious and necessary consequences before you, I could believe you would still maintain it, I should be compelled to think very unfavour- ably of your characters; as nothing is more clearly demonstrable than that your rule of construction would paralyze every living energy of the Constitution, and absolutely annihilate the government. Without implied and incidental powers, alm,ost the entire mass of means by which the m,achine of government is kept in motion, could not be wielded a single moment, but would fall from the hands of the administration. Congress have power, for example, by "the strict letter" of the Constitution, to "declare war," and "raise and support armies ;" but not to erect arsenals and fortifications, and provide for the purchase of the munitions of war. They have power **to lay and collect taxes and imposts," but the "strict letter" of the constitution gives them no authority to create officers and custom- houses, any more than to incorporate banks, for their collection. They have power to ** borrow money," and to " pay the debts of the Union ;" but here " the strict letter" does not confer any authority to create commissioners of loans, or commissioners to apply the sinking fund,- or any other means of "borrowing," in the one case, or "paying" in the other. They have power to " coin money :" but regarding merely the "strict letter," the establishment of a mint would be an unconsti- tutional extension of the "patronage" of the government. Now if you will but imagine to yourselves a war without permanent structures for national defence ; an army without arsenals, magazines, or munitions of war ; a system of revenue without officers or custom- houses } a funding system without commissioners to carry it into Written by G. M*Duffie, Esq. July, 1821. 17 effect ; and a scheme of coining money without a mint establish- ment ; you may form a pretty adequate conception of the result of your rule of constitutional interpretation. I will now show that you have not the semblance of authority to sustain that rule. It is laid down, in an elementary writer, deemed the first authority in every state in the union, that '* the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it.^' This rule prevails throughout the civil- ized world, both in the construction of municipal laws and of treaties and confederacies between independent nations. It results from the essential imperfections of the human mind and of human language^ Without it the affairs of nations would be arrested in their progress. And yet you utterly deny that we have any warrant for construing the constitution with reference to its spirit. Even in the construction of private instruments, where the subjects to which they relate are within, the actual presence of the contracting parties, the same liberal regard to the spirit and intention of the parties generally prevails. Is there, | then, any reason why the Constitution of the United States should re- I ceive a more strict and technical construction than a municipal law or | a private contract? Was it intended merely to furnish themes for the i disputations of professional men ? Far from it. It was formed by the i people, and for the people. Popular in its creation and its objects, it was intended that it should be construed by the plain and^ obvious dictates of common sense, and with a liberal regard to the great na- tional ends it was designed to accomplish. Any man who will con- sider for a moment the vast field of human affairs embraced within the scope of the constitution, and that in its very nature it must be applied to all those vicissitudes which, in the succession of ages, shall mark our progress as a nation, cannot but perceive the absurdity of construing this great national Charter, as a lawyer would construe an indictment. The officer v^ho draws an indictment, and the scrivener who draws a private conveyance, have the whole matter im.mediately before them^ to which these documents respectively refer; and there is, of course, no difficulty in making a specific enumeration of particulars. But the framers of a constitution have to provide for all those modifications and combinations of human events, and all those varying interests of socie- ty, for which human wisdom cannot make any specific provision. To enumerate the various and detailed operations of a government for cen- turies to come, and the infinite variety of means that shall be employ- ed, is not therefore the object of a constitution. Its true object is to distribute the great political powers amongst the several departments of the government, giving a liberal discretion to public agents, in se- lecting the means by which those powers shall be carried into effect, but providing at the same time, by their responsibility to the people, the only adequate security against the abuse of that discretion. You seem, quite alarmed at the idea of discretionary powers ; ivhen in fact a government never did exist nor never can exist for a single year without such power. Such a government would be a political phe- nomenon. Its first act would be an act of usurpation, founded upon ne- cessity. An entire misconception of the true theory of political freedom C V 18 Defence ofa Liberal Construction of the Powers of Congress, seems to pervade all your reasonings. Frail, indeed, would %e the tenure by which we hold that great national blessing, if it solely depended upon the smaller or thelarger portions of political power, committed to this or that class of political TUnctionaries. I have already shown, that our true security, was to be found in the constant control, which, by means of the elective franchise, we can exercise over our political agents. All the classes and departments of our government have ample powers for all the purposes of despotism, if they were independent of the people; but as long as their constitutional dependence continues, we have nothing to fear. If they abuse their discretion, we have nothing to do but to dis- card them from office. Having thus shown the true principles by which the federal consti- tution ought to be construed, I shall proceed to inquire, what are the means provided to apply and enforce those rules. You assert that when any conflict shall occur between the general and state governments, as to the extent of their respective powers, <*EACH PARTY HAS A RIGHT TO JUDGE FOR ITSELF!" I confess I am at a loss to know how such a proposition ought to be treated. No climax of po- litical HERESIES CAN BE IMAGINED, IN WHICH THIS MIGHT NOT FAIRLY CLAIM THE MOST PROMINENT PLACE. It RESOLVES THE GO- VERNMENT, AT ONCE, INTO THE ELEMENTS OF PHYSICAL FORCE ', AN» INTRODUCES US DIRECTLY INTO A SCENE OF ANARCHY AND BLOOD. There is not a single power delegated to the general government, which it would not be in the power of every state government to destroy, un- der the authority of this licentious principle. It would be only neces- sary for a State Legislature to pass a law forbidding that which the Federal Legislature enjoins, or enjoining what the Federal Legislature forbids, and the work is accomplished. Perhaps you would require the State Judiciary to pronounce the State Law constitutional. I will illustrate your principle by a few examples. Suppose Congress should pass a law to *May and collect taxes, duties, imposts, and excises," and that a State Legislature should pass another, declaring the objects for which the revenue was intended, unconstitu- tio7ial, and therefore prohibiting the officers of the general govern- ment, by severe penalties, from collecting the " taxes, duties, imposts, and excises." Suppose Congress should pass a law to *' raise an army" for a national war, and a State Legislature pass another, declaring the w^ar *' wicked, unrighteous, and unconstitutional,'^ and therefore pro- hibiting the officers of the general government, under heavy penalties, from recruiting soldiers within the limits of the state. Suppose Con- gress should pass a law '^ for the punishment of counterfeiting the se- curities and current coin of the United States," and a State Govern- ment should pronounce it unconstitutional, and provide heavy penalties against all officers, judicial or ministerial, who should attempt to enforce it. I need not multiply cases ; for if you will duly consider these, you will find enough to satiate your keenest relish for anarchy and disorder. In all the above cases, you would say, ^^ each party has a right to judge for itself, ^^ and of course to enforce its judgment. You might, then, behold a revenue officer of the United States confined in a state dungeon for obeying the revenue laws of Congress. You might see a PFritten by G, M'Dnffie, Esq, July, 1821. 19 gallant officer of the army, covered ivith the glorious scars of many a hard-fought battle, bearing the scourge of a state constable at a whippingpost, for attempting, under a law of Congress, to recruit soldiers to fght the battles of his country . You might even see a Fe- deral Judge arraigned before a State Tribunal for pronouncing sentence against a counterfeiter of the current coin of the United States ! And all this would unavoidably result in giving the state rulers the right to resist the general government, or in a civil war to establish its legitimate au- thority ; consequences, either of which is incompatible with the very notion of government. To suppose that the general government have a constitutional right to exercise certain powers, ivhich m^ust operate"^ upon the people of the states, and yet that the government of each state has a right to fix and determine its own relative powers, and by necessary consequence, to limit the powers of the general govern- m,ent,is to suppose the existence of tivo contradictory and inconsist- ent rights. In all governments there must be some one supreme power ; in other words, every question that can arise as to the constitutional ex- tent of the powers of different classes of functionaries, must be susceptible of a legal and peaceable determination by some tribunal of acknowledged authority, or force must be the inevitable consequence. And where force begins, government ends. And it is the more astonishing that you have assumed positions involving such tremendous consequences, when we consider that they are in direct opposition to the '^strict let- ter" of the constitution, your favourite test of the extent of delegated powers. It is therein provided, *'that the constitution, and the laws of the United States which shall be made in pursuance thereof, '^ "shall be the supreme law of the land ; and the Judges in every state shall be bound thereby, cr/iy thing in the constitution or laws of any state to the contrary notwithstanding.'^ And again, "the Judicial power [of the United States] shall extend to all cases, in law and equity, aris- ing under this constitution, the laws of the United States, and treaties made or which shall be made under their authority.'^ Nothing can be more plain, than that the ^'strict letter^' of the constitution does make the laws of Congress supreme, enjoining obedience upon the state functionaries, and making void the laws of a state if contrary thereto. And to give this provision a sanction of a nature peculiarly impressive, *'the members of the several state legislatures, all execu- tive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support the consti- tution of the United States." It is not less evident that it belongs to the national judiciary to pronounce upon the constitutionality or un- constitutionality of the laws of the national legislature. Its jurisdiction extends to " all cases" arising under them ; and it is hard to conceive how in any possible case a federal Judge can decide a case, arising un- der a law, without pronouncing upon the constitutionality of that law. In fact it would-be vain and idle to make the laws of Congress supreme, if the national judiciary had not the power of enforcing them. For you can hardly be ignorant that a law is a dead letter, without an organ to expound and an instrument to enforce it. I should suppose, therefore, that no professional man could hesitate in saying, that a forcible oppo- V 20 Defence of a Liberal Construction of the Powers of Congress, sition to the judgment of the Federal Court, founded upon an act of Congress, by whatever state authority that opposition might be author- ized, would be the very case which the convention had in view, when they made provision,for ''calling forth the militia to execute the laws of the Union." But I sincerely hope that your licentious doctrines will never have the effect of misleading the state authorities so far as to render this terrible resort unavoidable. I trust the farewell Address of Washington, admonishing his fellow-citizens to ''frown indignantly" upon those who preach up doctrines tending to disunion, is not yet forgotten. But you seem to think your work will not produce the intended ef- fect, unless you can render the judicial department odious and sus- pected. You say, *' where is the country in which the rights of man" have always been protected by the judiciary? It is not to be found. But we can scarce turn our eyes to the history of any nation, in which, on the contrary, the judicial department has not become the '' agents of corruption.^ ^ You then go through a train of reasoning, to prove that the national judiciary are in " perfect habits of obedience and sub- ordination" to the legislative and executive departments! I cannot exactly determine from your equivocal denunciations, whether you wish the judicial department differently organized, or entirely abolished. As to its organization, it is such as the will of the people pleased to give it, and upon the whole I think the best it could have received. Perhaps it would have suited your taste better if the Governors of the States had been clothed with the power of appointing the Federal Judges. But, accustomed as I have been to consider an independent Judiciary, next to the responsibility of public agents, as the most important improvement which we have made upon the politi- cal systems of antiquity, I cannot suffer you to denounce the judiciary as being the "agents of corruption," without giving the charge a se- rious refutation. Appealing to the experience of nations, we shall find that the judicia- ry has generally been justly regarded with veneration, as the upright and inflexible ministers of the law. The very education of a Judge, accustomed to confine his views to the results of a stiff, technical, and artificial system, indisposes him to that course of flexible and unsteady reasoning, by which usurpation is too often palliated. On this subject the experience of Great Britain may be more profitably consulted than that of any other foreign nation. The judiciary of that country is the boast and glory of her patriots and statesmen. I do not mean to say that she never had a judicial tyrant; but I may safely assert, that where she has had one tyrant on the bench, she has had ten on the throne, and thousands in Parliament. The " Habeas Corpus^* act would not be so highly prized, but for the independence of the judiciary, by whose instrumentality alone, its benefits can be administered. — Where all the other departments are tyrannical and corrupt, it cannot be expect- ed that the judiciary will be always perfect. My end is accomplished when I show that in other countries it is better than the other depart- ments in these particulars. I have long thought that the brief and turbulent course of freedom Written by G. M'Duffie, Esq, July, 1821. 21 in the republics of antiquity, was to be ascribed principally to the want of an independent judiciary. Those violent passions, to which popular and even deliberative assemblies are occasionally subject, do not reach them. Elevated above the scenes of ambition and political intrigue, they behold with calmness the storm's impetuous rage ; they wave the magic wand of their peaceful power, and the elemental strife is heard no more. And it is my ardent prayer that we may never see the bloody day, when that wand shall lose its power. APPENDIX. A. CSee page 16. J It is thus, in the second number, that this writer illustrates some of the implied or incidental powers under the Constitution : The first measure which you touch upon, not in the body of your essay, but in your notes, by which you certainly intend to produce your greatest effect, is internal improvement; over which you say, Patrick Henry never supposed the general government would usurp any power. There is no incidental power more clearly given by the Constitution, {and even you admit incidental powers) and certainly there is none at once more harmless and salutary, than that of making internal im- provements. Congress has the power to "declare war," and " regulate commerce between the several states," If there is any such thing as an incidental power, that in question must be incidental to these two grants. The power to declare war necessarily involves the power to make war ; and the power to make war necessarily involves the right to use at least the ordinary means of making that war efficient. Now are not the roads and canals to facilitate the transportation of troops and all the apparatus of war, means indispensable to the prosecution of a war? If it should become necessary to march troops and trans- port arms, through an impassable wilderness in a state, would not any General be authorized to cut his way, and make the marshes and swamps through which he would pass, sufficiently firm to convey his carriages and troops? And would he not have a right to appropriate the public money for this purpose? Most surely. And yet the whole legislative power of the general government cannot do what a General in the field, the mere creature of the Executive, could certainly accomplish, and that most rightfully. If Congress have not a right to make a mili- tary road, they have no 7nght to march men through a state, tvith- out its consent ; for the one is as much a violation of sovereignty as the other. But you will say that military roads are not indispensably necessary, for wars might be conducted without them, and have been. I confess I was surprised to see, even such politicians as you are, fall into an argument so perfectly puerile. Do you not see that it would destroy all the powers of the general government, and leave it disarmed and at the mercy of a foreign foe? Let us apply your argument. It is proposed in the cabinet to use cannon and cavalry, and Congress are / 22 appendix. solicited to make an appropriation for the purchase. You would of course say no-^-Congress has no power to make the appropriation, for wars have been conducted without cannon or cavalry ; they are, there- fore, not indispensably necessary. It is proposed to buy muskets. You say no ; wars have been carried on by bows and arrows, and mus- kets cannot, consequently, be of indispensable necessity. In short, the very fact that there are more ways than one to carry on war, by your mode of argument, would deprive the general government of using either. For while there are two ways of doing a thing, neither of them, according to your refined logic, is necessary, and, therefore, neither can be used. The power of regulating internal commerce, equally involves the power to make roads and canals, necessary and proper for the transportation of merchandise. It is a power, too, that in the nature of things ought to belong to the general government ; for as it extends over the whole of our national territory, it is the only power competent to make improvements that will pervade the whole extent of our country. Now, I ask -you, gentlemen, in the name of common sense, ivhere is the danger of trusting the general government, elect- ed by, and frequently responsible to the whole people, with the pow- er of making a road, or opening a canal ; a power that exists in the little local corporation of almost every county and district in the United States? What is there in the thing itself, that is calculated to alarm you? Is it the means of enslaving the country? Is there any thing in making a road, or digging a canal, that is calculated to rouse the ambition of our federal rulers? Making a road is not in itself a very captivating work; nor can I very well see what ambitious purpose the general government could answer, merely by making a road. Your objection, it would seem to me, ought rather to be against the use of it by the general government, after it is made. Now every body will admit that good roads are desirable in every point of view. For a sketch of their utility, I will only refer to the masterly speech of Mr. Cal- houn on that subject, delivered shortly before he left Congress, and his able report on that subject since he has been Secretary of War. Then if roads are desirable, and ought to be used by the general government, if they had an existence, your objection resolves itself entirely into this! "That Congress ought not to make the roads." How the states can be injured, by improvements made by the general government, I cannot perceive. The power to make a road is not a distinct, substan- tive political power at all. It is simply and essentially a means, as much so as the power to manufacture a musket, and is certainly not more dangerous. PAMPHLET BINDER Syracuse, N. Y. Stockton, Calif. Yc sd^ 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall ^^Ormpjp- REC'D LD OCT 2ri ibo/ 26Qct*jR?rii/ Wc^Vd JAN 2 7 '64 -2 P M LD 21A-50m-3,'62 (C7097s]0)476B General Library University of California Berkeley