longer one of enumerated powers and a circumscribed sphere, as it was beyond all doubt intended to be, it knows absolutely no bounds but the will of a majority of Congress-that instead of confining itself in time of peace to the diplomatic and commercial relations of the country, it is seeking out employment for itself by interfering in the domestic concerns of society, and threatens in the course of a very few years, to control in the most offensive and despotic manner, all the pursuits, the interests, the opinions and the conduct of men. He will find that this extraordinary revolution has been brought about, in a good degree by the Supreme Court of the United States, which has applied to the constitution-very innocently, no doubt, and with commanding ability in argument and thus given authority and currency to, such canons of interpretation, as necessarily lead to these extravagant results. Above all, he will be perfectly satisfied that that high tribunal affords, by its own shewing, no barrier whatever against the usurpations of Congress-and that the rights of the weaker part of this confederacy may, to any extent, be wantonly and tyrannically violated, under colour of law, (the most grievous shape of oppression) by men neither interested in its destiny nor subject to its controul, without any means of redress being left it, except such as are inconsistent with all idea of order and government. Perhaps, he will think with us, that the effect of a written constitution, interpreted by lawyers in a technical manner, is to enlarge power and to sanctify abuse, rather to abridge and restrain them-perhaps, he will conclude that the American people have not been sufficiently careful at the beginning of their unprecedented experiment in politics, what principles they suffered to be established-—perhaps, he may look forward to the future with anxiety and alarm, as holding forth a prospect of a rapid accumulation of power in the hands of those who have already abused it, or on the contrary, with a strong hope that experience will teach wisdom, and diversified interests and conflicting pretensions, lead to moderation in conduct-perhaps, (and surely nothing could be more rational) he might wish to see proper means adopted to bring back the government to its first principles, and put an end to the unhappy jealousies and heart-burnings which are beginning to embitter one part of our people against another-we do not undertake to anticipate his inferences-but we have no doubt in the world, that he will agree with us as to the fact that he will confess Congress to be, to all intents and purposes, omnipotent in theory, and that if, in practice, it prefer moderate counsels and a just and impartial policy, it will be owing, not to any check

in the constitution, but altogether to the vigilance, the wisdom, and the firmness of a free people.

We are not, indeed, sure but that this conclusion will, in the end, be productive of much good, and that we ought rather to rejoice than complain, that at so early a period of our history, it has been forced upon the public mind—in one part at least of this confederacy-by evidence too strong to be resisted, and with a depth and seriousness of conviction which promises to make it an active, permanent and universal principle of conduct. Our political opinions, it appears to us, have been hitherto in the last degree, wild and visionary. We have been so much accustomed to talk in a high-flown strain, of the perfectionthe faultless and unalterable perfection-of our institutions, that we were beginning to think that every thing had been done for us by our predecessors, and that it were impossible to mar their work by any errors of doctrine, or any defect in discipline among ourselves: We do not sufficiently reflect, what a rare and glorious privilege it is to be a free people, (in the only proper sense of that term) and how difficult it is, even under the most favourable circumstances, to keep so. We have unbounded faith in forms, and look upon a written constitution as a sort of talisman, which gives to the liberties of a nation "a charmed life" In short, no people was ever so much addicted to abstractions. It is really curious to look into the debates of Congress, when measures pregnant with important consequences are the subject of discussion. The University of Paris, in the hey-day of scholastic divinity, never excelled them in the thorny, unprofitable, and unintelligible subtleties of dialectics. Our statesmen are,` in general, any thing but practical men—a fact that may be, in some degree, accounted for by the vast predominance of mere professional lawyers, (not of the first order) and the fact, that we have a written constitution to interpret by technical rules. We look in vain for that plain, manly, unsophisticated good sense that instinct of liberty, which characterizes the controversial reasoning of the great fathers of the English constitution-the Seldens, the Sidneys, the Prynnes-and their worthy descendants and disciples, the founders of our own revolution. A measure is proposed, revolting to the moral sense and the common sense of mankind-unequal and oppressive, inconsistent with the cardinal objects and the whole genius of the government. It is opposed by those upon whom it bears hardest as unconstitutional—that is to say, as unfit to be adopted by the rulers of a free people, because it is unjust, and is not boná fide intended to fulfil the purposes of the federal compact. Immediately a metaphysical disputation ensues, and if by such

jargon as has immortalized the angelical and seraphic doctors, the constitutionality of the scheme be made to appear very doubtful, it is at once assumed by the majority as demonstrated, and, perhaps, acquiesced in by the minority, because the question, if it should be thought sufficiently important, can be tried again before the Supreme Court. The responsibility of those who pass the law, is shifted upon those who interpret it; and thus the former venture a great deal farther upon questionable ground, than they would were their decision entirely without appeal. If, again, when the law comes before the Supreme Court, that judicatory, from some defects in its constitution or its administration, will not or cannot pronounce it void--the will of the majority is at once considered as sanctified-its act is of course lawful, is just, is reasonable and proper. The people at large, after a few unheeded murmurs, submit to this imposing authority, and think that their discontents must be unreasonable, because their understandings have been puzzled by sophisters, and awed by the learning of the bench! In short, the constitution is made to have the effect of an estoppel (an odious thing in law) upon their just complaints, and they are expected to suffer, like poor Shylock, any hardship which a subtile interpretation can deduce from their "bond."

We will now proceed to make some remarks upon the total unfitness of the Supreme Court to act the part of an umpire in questions of constitutional law, from the very principles of construction which itself has established.

It is obvious at the very first view of the constitution, that it confers upon the Government of the United States, in the shape of distinct, substantive powers, many which would now be considered, and which, indeed, seem to be in the nature of things, merely subsidiary and instrumental.. For instance, to authorize Congress expressly "to make rules for the government of the land and naval forces," after charging it with the declaration of war, the levying of armies, and the maintenance of a navy, was wholly unnecessary according to the notions of our constitutional lawyers; for such a right would follow of course, and ex necesitate rei. Nay, it would place this subject in rather a striking light to draw up the projet of a constitution, in conformity with the doctrines of the Supreme Court, in the case of McCullough vs. Maryland. Such an instrument would be admirable for its pregnant brevity. All that needed to have been done in the way of express grants of power, was, according to that opinion, to enable Congress,

1. To declare war (subaudi and prosecute it effectually).

2. To regulate commerce.

To these provisions, the convention might or might not have added a third, which is nothing more than a maxim of universal law, "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest”—viz.

3. To make all laws necessary and ecution, the foregoing powers.

proper to carry into ex

All the other clauses of the eighth section, with the exception of three very unimportant ones, are, according to those principles, perfectly superfluous-the most unmeaning and nugatory verbiage that ever disgraced a set of tyros in law-making. Is there any power omitted in our projet that may not be easily deduced from the frame and objects of the government, by the same course of reasoning which is supposed to have demonstrated the right of Congress to incorporate a bank? Can it be pretended, that the prerogative of investing a body of men with corporate franchises, is not by the law which the people of the States lived under, by the language which they spoke, by the opinions which they universally entertained in '89, as perfectly well defined and ascertained, as a distinct, substantive power-one of the admitted jura regalia-as any other in the constitution, and much more than some of them?

The Supreme Court, it is true, does endeavour to shew that it is not; and it does so by a course of reasoning, which, however plausible at first sight, appears to us to be utterly fallacious and unsound. "The power of creating a corporation," says the Chief Justice, "though appertaining to sovereignty, is not like the power of making war, or levying taxes, or of regulating commerce, a great, substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity for the sake of an incorporation, but a corporation is created to administer the charity. The power of creating a corporation is never used for its own sake, but for the purpose of effecting, something else," &c. The power of "levying taxes" not used as a means to execute the power of making war! What is the history of the national debt in England or in this country? Besides, we we should like to be informed what power ever was "used for its own sake," and not for the purpose of effecting something else? Who ever declared war for the bare sake of declaring war-except, indeed, that great constitutional lawyer and original thinker, Caligula, who is said to have triumphed over

Britain, by merely parading his troops upon the opposite shoré, and marching off with the shells gathered there, for spoils and for trophies. Nay, the only idea which we are able to conceive of any power, is, as producing effects-it is ex vi termini, a means. Yet, according to the metaphysics of the Supreme Court, the fact that it may be a means, proves it no power!

We do not know that an attempt has ever been made by any of our constitutional lawyers, either in Congress or in the Courts, to explain what is meant by "sovereign-political powers”—a phrase, however, perpetually used in such discussions, as if nothing could be more ascertained and precise. Thus, taking the matter up on principle-why should coining money be a great state prerogative, any more than issuing bank notes and other negotiable paper, which constitute by far the greater part of the circulating medium of this country? Why should the right of war be exclusively confined to the whole society, and not be, as in the baronial times, the privilege of every gentleman of a certain degree? These questions are just as difficult to answer, as that so triumphantly asked in McCullough's case; why should the granting a corporate franchise be regarded as a prerogative of sovereignty? It is obvious to reply, that the policy of society requires it—but it is enough for us to say, that such powers have, in fact, been regarded as State prerogatives or jura regalia-and especially, that they were so considered by the common law of this land, at the adoption of the constitution. If any stress, therefore, is to be laid, (and great stress is laid by the Supreme Court) on the idea of "these great, substantive and independent powers," that instrument must be construed in reference to the general understanding of mankind—and, if after granting some of them, it expressly withholds all that have not been enumerated, it is passing strange to say that, under any vague words of course-any mere expressio eorum quæ tacitè insunt-such as the clause authorising Congress to pass all laws necessary, &c.-those which were expressly refused have been implicitly granted.

It only remains to be shewn, that the power of instituting a corporation is defined by the common law as an attribute—a distinct and peculiar attribute, if there ever was one-of sovereignty. Indeed, this is admitted by the Chief Justice, and that concession seems to give up the whole controversy-for if it was a "substantive, independent power" at all, it is clearly a power not granted. But the doctrine on this subject deserves to be more particularly stated.

By the law of England, the king alone-quâ talis, and not as part of the legislature-can grant a charter of incorporation. It