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A federation of States combines together for certain purposes which are expressed. They form a government, and devolve upon it, all the powers and duties, which are considered as necessary to accomplish these purposes. From the very exposition that the Constitution bears upon its surface, who would suppose, that this grant of enumerated powers was a conveyance of all power, and that the explicit deciaration of the functions bestowed upon it was a realunequivocal admission that every right of the confederate parties, which was not distinctly retained, had been absolutely conveyed away? Would not this imply, that no deed of trust-no power of attorney can be executed for specific purposes? The powers given in the Constitution, we are told, must be absolute in their nature, and can only be qualified by positive and express injunctions and prohibitions. In the formation of treaties between two or more high contracting parties, we see commissions frequently created, to consider certain questions, to perform certain duties, or to execute certain trusts. Can it be supposed, that such stipulations convey to the commissioners, any power to step beyond the functions assigned them, or to inquire into, and act upon subjects not mentioned, or even to modify the powers with which they ‘are invested, and to assume those prerogatives, which only appertained to the contracting parties? No one can for a moment doubt, that under such circumstances, the sovereign parties could reassume their violated trusts, and seek other modes of obtaining those objects, which they may wish amicably to secure. Neither can any one deny to either of the contracting parties, the liberty of withdrawing, if dissatisfied with the conduct of the commission.
Such is really the principle of our Federal Government. We have granted, it is true, more ample powers, and a greater range of action, and we have imposed more diversified duties than are usually delegated to such commissions, as we have just described: yet this authority is as clearly a delegated trust in the one case as in the other. Its functions are as strictly, though not so narrowly limited, and its powers are as unquestionably liable to be modified anew, or reassumed. The latter fact cannot be doubted when the power of amendment is considered, nor can we imagine how a government can be said to have acquired, and to possess an inherent authority, when its form, its functions, and its most essential principles can be changed or utterly destroyed by other sovereignties.
We owe some apology to our readers for taxing their patience, even for so short a time, by replying to arguments which are as yet too much in advance, even for the most strenuous
supporters of an enlarged construction of our charter. We know of no statesman, member of congress, judge or other dignitary of the Federal Government, baptized and confirmed in the faith of consolidation, who would make the public profession of principles contained in our author's propositions, and in the terms in wbich they are set forth. It is yet too soon for any to hold the doctrine, “ that the Constitution is a restraining and not an enabling instrument, and that but for the restraining clauses in the Constitution, Congress would possess just as absolute power to legislate on all subjects, as the Parliament of Great Britain."
One question of great importance arises in this discussion, which must be considered before any just conclusions are ultimately to be drawn. We are ready to acknowledge, that the whole confederation can modify and control the functions of the government, and at its pleasure mould the plastic elay anew, and moreover that the federal authorities, neither have, nor can they acquire an independent existence. But here the question
If a minority of the contracting parties conceive themselves aggrieved, or a single State finds its rights invaded and trampled on by the rest, what is to be done? Under such circumstances is there no redress. Are the minority bound with cords that cannot be loosened ? This is a serious inquiry, but our duty is not to shrink from, but to meet it.
It has been said by our author, that there is a resort to the elective franchise. Should the government abuse the power, the people have an ample remedy in the elective franchise." And in this manner have the Southern States been taunted in Congress by more than one great name. This is not liberal. It is the scoff and the jeering of a majority, who, having power in their hands, laugh to scorn the efforts and complaints of those, whom they are pleased to regard as an impotent minority. Let us take, for example, the case of the tariff, which now excites so much feeling over a large portion of the Union, and which has, in fact, led to this discussion. What benefit can the people of the South hope for, in the remedy of the elective franchise? By no exertion could they obtain more able, or more faithful representatives than they now possess.
The whole delegation South of the Potomac, with few exceptions, have been united in their opposition, unsparing in their exertions, and unshaken in their fidelity. ivhat new advantage could a change give us ? Over the majority who have opposed this burthen upon us, we have no control. Our ballots cannot reach them, and they know it. They feel their power, they persuade themselves of their right, and they understand their
interest. This presents one of those strong cases,
" where the imposition is laid, not by the representatives of those who puy the tax, but by the representatives of those, who receive the bounty," and it necessarily forces upon us the inquiry, whether the Constitution was formed for a majority who have the power to do what they please, or for the minority, that they might be protected against the power of the majority.
We never sit down to examine the Constitution, without rising from the consideration, with a deeper impression, that it is not less distinguished for the sagacity, the wisdom and the practical discretion of its framers, than it is for the prudence with which all the powers have been selected, which it is expedient for such a government to exercise, and the caution, with which others have been withheld, which would be unequal, partial or oppressive in their operation. They seein to have weighed and scanned maturely every prerogative before they admitted it into their catalogue; and of the enumerated powers, not one can be pointed out so unjust or unfair in its practical effects, as to disturb the harmony of the Union. Indeed, in the inquiry whether a particular measure may be adopted, we may almost consider the universality of its application, as one of the tests of an undisputed or rather indisputable power of the government to pursue it.
The principles of the Constitution, when fairly put into operation, are wonderfully harmonious and equitable, and as long as everything local, or any measure calculated to awaken partial and sectional feeling, was carefully excluded from the administration of the government, and its action strictly confined to such objects as were of universal interest, all partook of its bounties and of its providence, and one burst of joy, gratitude and confiding loyalty, was heard in every part of our land.
Such has been the enviable position of our country, for the greater part of the last thirty years. It is true, that during that period, there was one violent contest which clouded our intercourse and retarded our prosperity ; but it arose, like our present controversy, from the assumption by Congress of implied powers. The embargo was, to all intents and purposes, the apple of discord, and much of the violent and unmeasured opposition to the war, which soon after followed, arose from the state of destitution in which that war found us, when, by nonintercourse and non-importation, the materials of war were all wanting in our country, and an impoverished people had to contend against every privation.
The same encroachments on the part of the government, we now perceive to engender new strife and discord, of a nature too
more dangerous to our peace, because these assumptions of power appear to be intended as the settled systein of the government, and have not the excitement of foreign hostilities to palliate their injustice, and to make successful appeals to the patriotism of the people. Whenever the government has moved within the limits distinctly marked and specified, its course has been beneficial and easy.
Whenever it has wandered from its orbit, it has been involved in difficulty. If it regard not consequences, it may maintain for awhile its present attitude, for the power of numbers is apparently with it. But it is needless for the minority to look longer to the ballot-box. They will not be heard, and this must ever be the case, where measures are devised and adopted, which are to act differently on different sections of the Union. There immediately ceases every thing like a community of feeling, and the usual redress, through an appeal to the understandings and interests of the electors, is no longer to be expected. In truth, the appeal to cupidity and interest, is the strong plea against you, and will not be forgotten.
The next appeal that is offered to the minority,, is to the Federal Judiciary, as the tribunal properly instituted and specially appointed for the redress of such grievances.
When summoned to this bar, it will be proper to considerIst. The nature of this tribunal. 2dly. Its jurisdiction.
The Federal Goveroment is obviously the result of a compact, to which there are no parties but sovereign States. But no one will deny that quoad any controversy which may arise between one State and the others, the Federal Government is not only a party, but also an efficient party. It has attempted to extend its own jurisdiction, to assume authority, and to trespass on those prerogatives which the States never surrendered. It is the act of that government which is called in question and when its authority is arraigned, we are referred for redress to its own tribunals.
When we speak of its own tribunals, we are aware that they are a constituent part of the system--that they were created by the same parties that called the government into existenceand that they were entrusted with certain functions, and set apart to perform certain high and important duties. We wish not to derogate from their authority, nor lessen the respect to which they are entitled. On the contrary, we are willing to bear our testimony to talents on the bench of the Supreme Court of the United States, that would honour any tribunal on VOL. VI.-NO. 12.
earth ; but, in the questions which may arise, relative to the power of the Federal Government, it is impossible not to perceive, that they are the tribunals of one party, organized, appointed, paid, receiving rank, distinction, and the means of reputation. Feeling their influence to extend with the extent of their jurisdiction, and their dignity to increase with the magnitude of their powers, they must be more than men to resist the temptations that press upon them-the breathings of that inaudible voice, which, through the organs of pride, vain glory and ambition, urges them silently, but unceasingly, to amplify their powers, and enlarge the foundation of that structure, on which their greatness rests. Let us add also, in charity, a probable persuasion in their own minds, that by widening the limits of their authority, they might multiply the means of doing good, and thus add to the benefits their labours may confer on their country. Be this as it may, they certainly stand on an eminence, where every impulse that can act on the frailty of man, and every feeling that is indirect and selfish, urges them to assume a still more commanding attitude. Nothing but naked, unrewarded integrity, assuming, perhaps, the garb of unbecoming humility, can preserve them in an unchanging position. Our records are said already to shew, that some who have been selected to the high office, for their supposed devotion to popular opinions, and, particularly, for their avowed preference for the docrines of strict and literal construction, have no sooner found themselves within the influence of this relaxing atmosphere, than they have become latitudinarians in practice and in principle, and have assisted in loosening every restraint which the Constitution was supposed to imposé on the action of the government.
Without, however, supposing any liability to change, or even to modify an opinion from the mere influence of office, it must be obvious to all who'study the operation of our government, that it is in the power of its authorities, by appointment, to shape the opinion of the Supreme Court in such a manner, that, after a given time, it shall respond to any decision of a permanent majority, and uphold their doctrines. Independently of the variation which office may be suspected to produce, who can doubt, that as vacancies occur, men will be selected to fill this high station, for opinion's sake, as well as for their talents; and that none will be called to construe the Constitution, whose doctrinal views shall not have been previously known and considered. An occasional exception may occur in appointment, or a departure from this principle may, under peculiar circumstances, take place, but it must be regarded as a maxim of acknowledged truth, that