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vided that no state shall be deprived of its equal suffrage in the senate." There was also a further proviso with respect to the admission of slaves, which is now become immaterial.

All debts contracted, and engagements entered into, before the adoption of the constitution, are declared to be as valid against the United States under this constitution as under the confederation. And, finally, it is declared, that "This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby; any thing in the laws or constitution of any state to the contrary notwithstanding ;" and, that "The senators and representatives before mentioned, (in congress,) and the members of the several state legislatures, and all executive and judicial officers both of the United States, and of the several states, shall be bound by oath or affirmation to support this constitution; but no religious test shall be required as a qualification to any office or public trust under the United States."

I have thus exhibited a full and correct view of the constitution of the United States, embracing the subsequent amendments, as ratified by a competent authority, by the solemn and concurrent act of the sovereign people of each state, forming an express compact of national union and government equally binding on themselves and their several state governments.

CHAPTER IV.

Of the construction of the Constitution, with observations on some of the principal powers, general and incidental.

It is not my design here to enter into a detailed construction of every article and clause of the constitution. This would require volumes; such a work would be interesting, as well as highly necessary to professional men ; but less interesting, and might even appear tedious, to the general reader, who is in search of general principles, and is satisfied with a few brief and pertinent illustrations.

To attain even a general understanding of the constitution, it will be necessary to establish some general rules of construction. These are to be derived from various sources; from the common law; in some instances, from the law of nations; from clauses and expressions in the constitution; from the general end and design of the government established by the constitution. In treating the subject, however, I shall not confine myself to the precise order here indicated. I shall also reserve for a more full discussion in the following chapters, some important questions, which have been raised on the construction of the constitution respecting the nature of the union, the parties to the constitution; the relation to the general government, in which the several states are placed; and the relation established between the several departments of that govern

ment.

By the common law, is here to be understood the common law of England, so called; its principles, its rules, and maxims. From that country it was brought by our fathers,-the country of their birth and education. Its language was to them their na

tive language,-not merely the language of their lips, but of their thoughts upon law, government, and all institutions, civil and political. They claimed the common law as their birthright, and transmitted it to their posterity in this country. Such was the language, and such the habits of thinking, both of those who framed, and of those who ratified the constitution. Το the common law we must resort to learn what is meant by a legislative, an executive, and a judicial power in government, by an impeachment, by a court of law, a jury, a Grand Jury, an indictment, and a trial by jury. The same observation will be found applicable to almost every clause of the constitution. It may be proper here, once for all, to observe, that the common law as understood by us, is not precisely the common law of England as known and taught in that country, but as corrected by long experience and observation, and adapted to our civil and political institutions.

It is an established rule of the common law, that in the construction of a statute, the words are to be understood in the sense in which they were understood by the law makers; and the same rule is to be applied in the construction of the constitution. If, in course of time, as is often the case with language, the meaning of words or terms is changed, the meaning of the constitution is not therefore changed. In such case it is necessary to seek and learn the meaning intended by the framers. For this we must resort, first, to cotemporary writers, and cotemporary documents on the same, or similar subjects; and secondly, the construction given and acted upon at the same time, or in the times immediately following the institution. If a construction of the constitution has prevailed, has been acted upon, and acquiesced in for a reasonable length of time, it is to be considered as a precedent in the case.* If, in addition, it shall have been approved by a course of judicial decisions, it has then acquired all the sanction, all the force of a rule of the common law,-a common law precedent; and can be thereafter changed by that power only to which is reserved the right of altering and amending the constitution itself. In

* See Mr. Madison's letter on the bank question, No. 2, in the appendix.

many cases the constitution will be found its own best interpreter. The true meaning of any particular part, article, or clause, will frequently be best learned, by considering the scope, end, and design of the whole, the great end which the framers had in view, as it must necessarily be supposed to have been their intention, that all the parts, all the provisions should conspire to promote that end. The government of the United States is different from any thing of the kind before known in the world. The great end of its institution was to form a national, instead of a federal union; to unite a number of independent states into one national sovereignty for all purposes merely national; and to unite the citizens of the whole, in a national character; and at the same time to secure to the several states the full exercise of the municipal sovereignty within their local limits respectively, except in certain cases in which the interests of the whole were considered to be affected. To this end, therefore, there are certain restrictions and limitations on the powers delegated to the general government, and certain prohibitions and restrictions on the exercise of certain powers by the governments of the several states, with a view of drawing a line of distinction between the national sovereignty to be exercised by the general government, and the municipal sovereignty retained by the states. To these limitations, restrictions, and prohibitions, and the end for which they were imposed, a constant regard must be had in the construction of the constitution, as it respects the general, as well as the incidental powers.

The powers delegated by the constitution are for the most part expressed in general terms. It is a general rule of construction, that a grant made in general terms, is a grant of all that which is appurtenant to the thing granted, which is necessary to its enjoyment, or rather, without which the grant could not have the effect manifestly intended. It is the same with respect to powers delegated in general terms. A general power can in no other way be carried into effect, than by an exercise of the incidental powers comprehended in the general term.-Powers delegated in general terms are to be considered as the general and the incidental powers, the species comprehended in each. However obvious this mode of construction

may appear, yet, lest some doubt might arise on the subject, the framers of the constitution, after the enumeration of general powers, which it was declared congress should have, added the following elause. "The power (that is, congress shall have the power) to make all laws necessary and proper for carrying into effect the foregoing powers, and all other powers vested by this constitution in the government of the United States, and in any department or officer thereof." This clause was certainly introduced from abundant caution, and contains nothing more than what, on a sound construction of the constitution, was fully implied. It is very cautiously worded, because it obviously gives to congress a very great discretion in the exercise of the specific, or incidental powers,— in the choice of means to effect a legitimate end :-they must be necessary and proper. The word "necessary," is not here to be understood in the sense of that necessity which is usually denominated absolute, intending something without which the end could not be possibly effected, but is to be understood in its more usual and popular sense,-of that which is expedient and convenient, of the degree and urgency of which congress are to judge. The word "proper," is intended to qualify the term " necessary; ;" the measure proposed must not only be expedient, but proper as it respects the object, and as it respects the nature and end of the government, the limitations of power on the one hand, and the reservation of rights on the other. Of the same nature is the clause which declares, that the constitution, the laws made in pursuance of it, and treaties made under its authorities shall be the supreme law of the land; and the article of amendment, declaring, that the powers not delegated by the constitution, nor prohibited by it to the states, are rescrved to the states and to the people respectively. The former is implied in the very nature, end, and design of the government, intended to be a government over the whole, of which it must wholly fail, if not vested with that supremacy in the exercise of its power; and the latter, "that the powers not delegated are so reserved," is clearly implied from the manner in which that government is formed by a delegation of enumerated powers with certain limitations of those powers, and in the prohibitions to the states to exercise certain powers,

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