the way. So here, by rejecting the principle of co-ordination as inapplicable to the federal and state governments, and endowing the former with a paramount sovereignty, and then enquiring of the laws of nations what a paramount sovereignty is, the conclusion also follows, that it is something which has a right to remove all obstacles out of its way. The judges decided, that the royal sphere was only limited by spherical sovereignty, supremacy, necessity, convenience, and means of which the king was to be the sole judge; but the nation considered the decision as destructive of its constitution. If our congressional sphere be only limited by spherical sovereignty, supremacy, necessity, convenience, and means of which it is the sole judge, can the nation believe that it will preserve the constitution of the United States ?

The security, arising from representation, is so repeatedly urged to defeat the force of these observations, that it must be repeatedly noticed. The undeniable fact, that sovereignty expounded by the laws of nations has in every form oppressed mankind, suggested to them the idea of dividing it, before they had conceived the idea of a government throughout responsible, and subservient to the interest of the community. In these divisions, representation has been subjected to restraints; but if it cannot be restrained because it is representation; if it can destroy the checks imposed upon itself, then no government can admit of checks, balances, or divisions of power, in which representation is an ingredient; and mankind after a long travail have returned to the very doctrine they have been trying to abolish, namely, that they must inevitably elect between a despotism in one, a few, or in many, because representation may be trusted with unlimited power. Confined to such a choice, they have generally agreed that the last species of sovereignty is the worst of its bad associates.

But we have encountered the doctrine of sovereignty in representation, because it is representation, by a great variety of constitutional limitations and restrictions upon representation; thus expressing a publick opinion, that, invested with sovereign power, it could not be confided in. We have made executive power a representative of the people; shall this, like legislative, extract sovereignty from representation? But, as if to puzzle inextricably the extractors of sovereignty from representation,

we have made both the federal and state governments representative, and given to each the quality said to absorb sovereignty; nor is there any way of getting over this unlucky moral equality, but by asserting that representation is paramount to represen

tation.

An interlude was played off many years ago between the treaty-making power and the house of representatives of congress, applicable to this idea of a spherical sovereignty. The treaty-making power contended, that the house of representatives had no right to contravene the means it had resorted to within its sphere of action, but were obliged, in obedience to its paramount spherical sovereignty, to appropriate money for carrying a treaty into execution. But it being a case at which the federal court could not get, there was no tribunal able to remove the obstruction of a refusal to surrender a constitutional discretion, as to appropriating money by the house of representatives; and they arrayed the positive powers conferred by the constitution, against the implied powers and paramount means claimed by the treaty-making power, though defended by many quotations from the laws of nations. The positive power, of taxation reserved to the states, has not been so fortunate in its controversy with the implied power in congress to create a bank, merely because a powerful ally of the latter has interposed; for I cannot discern any distinction between the cases. The doctrines of a paramount spherical sovereignty, of means, of convenience and of necessity, drawn from the laws of nations, were the pillars which sustained the pretensions of the treaty-making powers over the house of representatives, as they are now repeated, to deprive the states of a power as expressly reserved to them by the federal constitution, as the power of appropriating was to congress. But, co-ordinacy kept its ground in one case, and subordination is imposed in the other.

I think this concubinage between these words and the laws of nations is very fairly detected, by observing that the 8th, 9th and 10th sections of the constitution comprise a system of delegated and prohibited powers, by which some are expressly prohibited to the states, and others expressly delegated to congress. Delegation is a species of prohibition, which begins where delegation ends. The objects in view were, to bestow exclusive powers on a federal government, to retain exclusive

powers to the state governments, and to invest both with concurrent powers. This third class was the least numerous, and consisted chiefly of taxation and promoting arts and sciences. If a specification of the concurrent powers bestowed on congress was not intended as a limitation of this class of powers, congress may exercise any power which the state governments can exercise; if it was, congress cannot exercise concurrently with the state governments, any power not contained within the specification of that class. If the specification of the exclusive powers given to congress be a limitation of that class of powers, the specification of the concurrent powers given to congress must be a limitation of that class also; because candid reasoning does not admit of a different construction of the same cases in the same instrument. The specification of both classes of power, the exclusive and concurrent, must therefore prohibit congress in both cases from extending the powers delegated, or in neither. Yet, as if the principles by which these two classes of delegated powers are limited were not the same, the catalogue of exclusive powers has received no addition that I recollect, whilst that of concurrent powers, originally much the shortest, is daily growing. The precedents of the alien and sedition laws, and of the bank corporation, recognize a concurrent power in congress with the state governments, over persons; and that as to roads, a concurrent power over every thing useful in war. Under the operation of these precedents, which have arisen merely from selecting six or eight very comprehensive words, and making a glossary of the laws of nations, the federal constitution is rapidly becoming an instrument, by which sundry very great powers are exclusively bestowed upon congress, and by which nearly all other powers are consigned to the concurrent class, so as to leave very few exclusive powers to the state governments, except those which go to the organization of the federal government.

SECTION 15.

THE MISSOURI QUESTION.

It is with great reluctance that I consider a question, which has been so ably discussed with so little edification; but it constitutes a proof so forcible, in favour of the construction of the federal constitution for which I have contended, that it cannot be neglected.

The idea of a balance of power between two combinations of states, and not the existence of slavery, gave rise to this unfortunate, and as I shall endeavour to prove, absurd controversy. What is the political attitude of nations towards each other, supposed by a balance of power? Hostility. What is the effect of hostility? War. A balance of power is therefore the most complete invention imaginable for involving one combination of states, in a war with another. It is in its nature, and will be in its consequences, equivalent to the balance of power between England and France; and after a series of bargains and contrivances to stunt or pilfer each other, the party worsted in the warfare, disguised by these bargains and contrivances, will be driven by interest or resentment to use more destructive

arms.

But can this happen, when congress itself is to hold the scales, make the bargains, and adjust the balance? If it would discharge this business fairly, a balance of power would be worth nothing, nor would a preponderance be so fiercely contended for. The extreme anxiety to obtain a preponderance acknowledges a thorough conviction on both sides, that a majority in congress will not make fair bargains; and that it will sacrifice the interest of some states and individuals to advance that of others. The very first debate under the influence of this new balance of power has ascertained, that it will destroy the old federal principles, founded in similar and sympathetick interests, and transform congress into a body, merely diplo