ART. VII.-1. The American System. Baltimore. Printed by Lucas & Deaver. 1828.

2. Martin, heir at law and devisee of Fairfax, v. Hunter's lessee. Vol. i. Reports of Cases argued and adjudged in the Supreme Court of the United States, February Term, 1816. By HENRY WHEATON. Philadelphia. 1816.

3. New Views of the Constitution of the United States. By JOHN TAYLOR, of Caroline, Virginia. Washington City. 1823.

4. Cohens v. Virginia. Vol. vi. Reports of Cases adjudged in the Supreme Court, February Term, 1821. By HENRY WHEATON. New-York. 1821.

5. Hunter v. Martin, devisee of Fairfax. Vol. iv. Reports of Cases argued and determined in the Supreme Court of Appeals of Virginia. By WILLIAM MUNFORD. Philadelphia. 1817.

THERE are periods in the history of every government, when the bonds of society are loosened, and the principles of its constitution for all have some fundamental principles, however incongruous or absurd-are brought into discussion. Fortunate it is, when these controversies do not break up the foundations of national strength and happiness, and suffer not discord and abiding enmities to overflow the land. Our country is now passing through one of these paroxysms; and it threatens to be more dangerous than our former disputes, because, with the important questions and principles which are involved in the debate, and constitute its essential features, geographical divisions have been interwoven, and these serve to give a new and harsher tone to every discordant voice. The question which now agitates South-Carolina is, in this view, of intense interest. It is neither more nor less, than an effort to determine, whether written constitutions are to have any validity, any inherent or abiding strength; or, whether all devices to limit power, or to adjust authority, must forever be the prey of interest, of passion, of delusion, or of an absorbing ambition.

This controversy is not new in our councils, but, hitherto, it has appeared in no shape to occasion disquietude, but rather as a mere abstract proposition-as a theme for political declamation as a prelude to other doctrines that might afterwards arise or as a shadow, which, flitting across the view, only VOL. VI.-No. 12.

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served to indicate the substance that was yet concealed. Without any adjustment whatever of the difficulties, which seemed to us only as speculative, or as arising transiently in the operations of a great and powerful government, we continued to progress in an uninterrupted career of prosperity, and we were happy. Unfortunately, however, a new period has arrived, which imparts a totally different character to the controversy. A large portion of our fellow citizens, in other sections of the Union, have been persuaded into the belief, that their peculiar interests demand that the most liberal construction should be given to certain vague clauses in the Constitution, that they might reduce into practice, what has been hitherto only theory. And a party has consequently arisen, making these doctrines their watchword, striving to enforce them on the people generally, and looking to the success of this effort, as a means for the establishment of their political influence and supremacy.

Amongst all the champions who have stepped forth to advocate unlimited construction, and to maintain the principles on which the American System is to be supported, none have been so much in advance, as the author of the pamphlet we have placed at the head of this article. To shew fully the nature of the doctrines here advocated, we shall throw into the form of axioms, the "strong constitutional grounds" on which the author considers them as resting; and to guard against the charge of misrepresentation, we shall support, by quotations from his work, the views we shall give of his opinions.

1st. The Constitution is a restraining, not an enabling instrument. Congress may legislate upon all subjects, not prohibited.

"A written constitution of government is an instrument sui generis. It is not like a power of attorney, or a contract or compact between individuals, which is confined in its operations to the parties themselves, and must, therefore, be strictly construed with reference to the intentions of the parties to the contract, who are presumed to have entered into it with a full knowledge of all their rights and interests. A constitution of government, on the contrary, is not confined in its operation to the immediate and actual parties who formed and agreed to it, but in its origin is designed to extend to, and control unborn generations, and must, therefore, be largely and liberally construed in furtherance of their rights, powers and interests. Hence, a written constitution must be liberally construed in favour of the powers of the government, because it must be presumed, that every generation knows its own interest best, and because it must also be presumed, that the government will exercise all its power for the benefit of the people. Should the government abuse its power, the people have an ample remedy in the elective franchise. In such a government then, a broad and liberal construction

For pp 423-426 see above p 342ff

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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 which 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 clay anew, and moreover that the federal authorities, neither have, nor can they acquire an independent existence. But here the question occurs. 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. What 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 pay 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 seem 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 every thing 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 system 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 consider1st. The nature of this tribunal.

2dly. Its jurisdiction.

The Federal Government 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 existence-and 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.

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