been granted. It seems to be the prevailing opinion, that great advantage would be derived from the exercise of such a power by Congress. Respecting the right there is much diversity of sentiment. It is of the highest importance that this question should be settled. If the right exist, it ought, forthwith, to be exercised. If it does not exist, surely those who are friends to the power ought to unite in recommending an amendment to the constitution to obtain it. I propose to examine this question.

The inquiry confined to its proper objects, and within the most limited scale, is extensive. Our government is unlike other governments, both in its origin and form. In analyzing it, the differences, in certain respects, between it and those of other nations, ancient and modern, necessarily come into view. I propose to notice these differences, so far as they are connected with the object of inquiry, and the consequences likely to result from them, varying, in equal degree, from those which have attended other governments. The digression, if it may be so called, will, in every instance, be short, and the transition to the main object immediate and direct.

To do justice to the subject, it will be necessary to mount to the source of power in these states, and to pursue this power in its gradations and distribution among the several departments in which it is now vested. The great division is between the state governments and the general government. If there was a perfect accord, in every instance, as to the precise extent of the powers granted to the general government, we should then know, with equal certainty, what were the powers which remained to the state governments; since it would follow, that those which were not granted to the one would remain to the other. But it is on this point, and particularly respecting the construction of these powers, and their incidents, that a difference of opinion exists; and hence it is necessary to trace, distinctly, the origin of each government; the purposes intended by it; and the means adopted to accomplish them. By having the interior of both governments fully before us, we shall have all the means which can be afforded to enable us to form a correct opinion of the endowments of each.

Before the revolution, the present states, then colonies, were separate communities, unconnected with each other, except in their common relation to the crown. Their governments were instituted by grants from the crown; which operated, according to the conditions of each grant, in the nature of a compact between the settlers in each colony and the crown. All power not retained in the crown was vested, exclusively, in the colonies; each having a government, consisting of an executive, a judiciary and a legislative assembly, one branch of which was, in every instance, elected by the people. No office was hereditary, nor did any title under the crown give rank or office in any of the colonies. In resisting the encroachments of the parent-country, and abrogating the power of the crown, the authority which had been held by it, vested, exclusively, in the people of the colonies. By them was a Congress appointed, composed of delegates from each colony who managed the war, declared independence, treated with foreign powers, and acted, in all things, according to the sense of their constituents. The declaration of independence confirmed in form what had before existed in substance. It announced to the world new states, possessing and exercising complete sovereignty, which they were resolved to maintain. They were soon after recognised by France and other powers; and, finally, by Great Britain herself, in 1783.

Soon after the power of the crown was annulled, the people of each

colony established a constitution or frame of government for themselves; in which three separate branches, a legislative, executive, and judiciary, were instituted, each independent of the others. To these branches, each having its appropriate portion, the whole power of the people, not delegated to Congress, was communicated; to be exercised for their advantage, on the representative principle, by persons of their appointment, or otherwise deriving their authority immediately from them, and holding their offices for stated terms. All the powers necessary for useful purposes, held by any of the strongest governments of the old world, not vested in Congress, were imparted to these state governments, without other checks than such as are necessary to prevent abuse, in the form of fundamental declarations, or bills of right. The great difference between our governments and those of the old world, consists in this, that the former, being representative, the persons who exercise their powers do it, not for themselves, or in their own right, but for the people; and, therefore, while they are in the highest degree efficient, they can never become oppressive. It is this transfer of the power of the people to representative and responsible bodies, in every branch, which constitutes the great improvement in the science of government, and forms the boast of our system. It combines all the advantages of every known government, without any of their disadvantages. It retains the sovereignty in the people, while it avoids the tumult and disorder incident to the exercise of that power by the people themselves. It possesses all the energy and efficiency of the most despotic governments, while it avoids all the oppressions and abuses inseparable from those governments.

In every stage of the conflict, from its commencement, until March, 1781, the powers of Congress were undefined, but of vast extent. The assemblies, or conventions, of the several colonies, being formed by representatives from every county in each colony, and the Congress by delegates from each colonial assembly, the powers of the latter, for general purposes, resembled those of the former, for local. They rested on the same basis, the people, and were complete for all the purposes contemplated. Never was a movement so spontaneous, so patriotic, so efficient. The nation exerted its whole faculties in support of its rights and of its independence, after the contest took that direction, and it succeeded. It was, however, foreseen, at a very early stage, that, although the patriotism of the country might be relied on in the struggle for its independence, a well-digested compact would be necessary to preserve it, after obtained. A plan of confederation, was, in consequence, proposed and taken into consideration by Congress, even at the moment when the other great act which severed them from Great Britain, and declared their independence, was proclaimed to the world. This compact was ratified on the 21st March, 1781, by the last state, and thereupon carried into im mediate effect.

The following powers were vested in the United States by the articles of confederation. As this, the first bond of union, was in operation nearly eight years, during which time a practical construction was given to many of its powers, all of which were adopted in the constitution, with important additions, it is thought that a correct view of those powers, and of the manner in which they were executed, may shed light on the subject under consideration. It may fairly be presumed, that where certain powers were transferred from one instrument to the other, and in the same terms, or terms descriptive only of the same powers, that it was intended that they

should be construed in the same sense in the latter, that they were in the former :

Article 1 declares that the style of the confederacy shall be, The United States of America.

Art. 2. Each state retains its sovereignty, freedom and independence, and every power and right which is not expressly delegated to the United States.

Art. 3. The states severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, on account of religion, sovereignty, trade, &c.

Art. 4. The free inhabitants of each state, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several states, &c. Fugitives from justice into any of the states, shall be delivered up on the demand of the executive of the state from which they fled. Full faith and credit shall be given, in each state, to the records and acts of every other state.

Art. 5. Delegates shall be annually appointed, by the legislature of each state, to meet in Congress on the first Monday in November, with a power to recall, &c. No state shall appoint less than two, nor more than seven, nor shall any delegate hold his office for more than three in six years. Each state shall maintain its own delegates. Each state shall have one vote. Freedom of speech shall not be impeached, and the members shall be protected from arrests, except for treason, &c.

Art. 6. No state shall send or receive an embassy, or enter into a treaty with a foreign power. Nor shall any person, holding any office of profit or trust under the United States, or any state, accept any present, emolument, office, or title, from a foreign power. Nor shall the United States, or any state, grant any title of nobility. No two states shall enter into any treaty without the consent of Congress. No state shall lay any imposts, or duties, which may interfere with any treaties entered into by the United States. No state shall engage in war, unless invaded or be menaced with invasion by some Indian tribe; nor grant letters of marque or reprisal, unless it be against pirates, nor keep up vessels-of-war, nor any body of troops, in time of peace, without the consent of Congress; but every state shall keep up a well-regulated militia, &c.

Art. 7. When land forces are raised by any state for the common defence, all officers of, and under, the rank of colonel, shall be appointed by the legislature of each state.

Art. 8. All charges of war, and all other expenses which shall be incurred for the common defence or general welfare, shall be defrayed out of a common treasury; which shall be supplied by the several states, in proportion to the value of all the land in each state, granted to individuals. The taxes for paying such proportion shall be levied by the several states. Art. 9. Congress shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the 6th article; of sending and receiving ambassadors; entering into treaties and alliances, except, &c.; of establishing rules for deciding what captures on land and water shall be legal; of granting letters of marque and reprisal in time of peace; appointing courts for the trial of piracies and felonies on the high seas; for deciding controversies between the states, and between individuals claiming lands under two or more states, whose jurisdiction has

been adjusted; of regulating the alloy and value of coin struck by their authority, and of foreign coin; fixing the standard of weights and measures; regulating the trade with the Indians; establishing and regulating postoffices from one state to another, and throughout all the state, and exacting such postage as may be requisite to defray the expenses of the office; of appointing all officers of the land forces, except regimental; appointing all the officers of the naval forces; to ascertain the necessary sums of money to be raised for the service of the United States, and appropriate the same; to borrow money, and emit bills of credit; to build and equip a navy; to agree on the number of land forces, and to make requisitions on each state for its quota; that the assent of nine states shall be requisite to these great acts.

Art. 10 regulates the powers of the committee of the states, to sit in the recess of Congress.

Art. 11 provides for the admission of Canada into the confederation. Art. 12 pledges the faith of the United States for the payment of all bills of credit issued, and money borrowed, on their account.

Art. 13. Every state shall abide by the determination of the United States, on all questions submitted to them by the confederation. The articles of the confederation to be perpetual, and not to be altered without the consent of every state.

This bond of union was soon found to be utterly incompetent to the purposes intended by it. It was defective in its powers; it was defective also in the means of executing the powers actually granted by it. Being a league of sovereign and independent states, its acts, like those of all other leagues, required the interposition of the states composing it, to give them effect within their respective jurisdictions. The acts of Congress, without the aid of state laws to enforce them, were altogether nugatory. The refusal or omission, of one state, to pass such laws, was urged as a reason to justify like conduct in others, and thus the government was soon at a stand.

The experience of a few years demonstrated that the confederation could not be relied on, for the security of the blessings which had been derived from the revolution. The interests of the nation required a more efficient government, which the good sense and virtue of the people provided, by the adoption of the present constitution.

The constitution of the United States was formed by a convention of delegates from the several states, who met in Philadelphia, duly authorized for the purpose, and it was ratified by a convention in each state, which was especially called to consider and decide on the same. In this progress the state governments were never suspended in their functions. On the contrary, they took the lead in it. Conscious of their incompetency to secure to the Union the blessings of the revolution, they promoted the diminution of their own powers, and the enlargement of those of the general government in the way in which they might be most adequate and efficient. it is believed that no other example can be found of a government exerting its influence to lessen its own powers; of a policy so enlightened; of a patriotism so pure and disinterested. The credit, however, is more especially due to the people of each state, in obedience to whose will, and under whose control, the state governments acted.

The constitution of the United States being ratified by the people of the several states, became, of necessity, to the extent of its powers, the paramount authority of the Union. On sound principles it can be viewed in

no other light. The people, the highest authority known to our system, from whom all our institutions spring, and on whom they depend, formed it. Had the people of the several states thought proper to incorporate themselves into one community, under one government, they might have done it. They had the power, and there was nothing then, nor is there anything now, should they be so disposed, to prevent it. They wisely stopped, however, at a certain point, extending the incorporation to that point, making the national government, thus far, a consolidated government, and preserving the state governments, without that limit, perfectly sovereign and independent of the national government. Had the people of the several states incorporated themselves into one community, they must have remained such; their constitution becoming then, like the constitution of the several states, incapable of change, until altered by the will of the majority. In the institution of a state government by the citizens of a state, a compact is formed, to which all and every citizen are equal parties. They are also the sole parties, and may amend it at pleasure. In the institution of the government of the United States, by the citizens of every state, a compact was formed between the whole American people, which has the same force, and partakes of all the qualities, to the extent of its powers, as a compact between the citizens of a state, in the formation of their own constitution. It can not be altered, except by those who formed it, or in the mode prescribed by the parties to the compact itself.

This constitution was adopted for the purpose of remedying all the defects of the confederation, and in this it has succeeded, beyond any calculation that could have been formed of any human institution. By binding the states together, the constitution performs the great office of the confederation; but it is in that sense only, that it has any of the properties of that compact, and in that it is more effectual, to the purpose, as it holds them together by a much stronger bond; and in all other respects, in which the confederation failed, the constitution has been blessed with complete success. The confederation was a compact between separate and independent states; the execution of whose articles, in the powers which operated internally, depended on the state governments. But the great office of the constitution by incorporating the people of the several states, to the extent of its powers, into one community, and enabling it to act directly on the people, was to annul the powers of the state governments to that extent, except in cases where they were concurrent, and to preclude their agency in giving effect to those of the general government. The government of the United States relies on its own means for the execution of its powers, as the state governments do for the execution of theirs ; both governments having a common origin, or sovereign, the people; the state governments the people of each state, the national government the people of every state, and being amenable to the power which created it. It is by executing its functions as a government, thus originating and thus acting, that the constitution of the United States holds the states together, and performs the office of a league. It is owing to the nature of its powers, and the high source whence they are derived, the people, that it performs that office better than the confederation, or any league which ever existed, being a compact which the state governments did not form, to which they are not parties, and which executes its own powers independently of them.

Thus were two separate and independent governments established over our Union, one for local purposes, over each state, by the people of the VOL. I.-32