JAN. 31, 1833.] Revenue Collection Bill. others, not parties nor privies, are very necessary to be oath can detract nothing from the constitution; nothing observed. The disregard of the usage of speech antecedent to the constitution, and of the distinctions just mentioned, would remove the landmarks of the compact. It would convert the Supreme Court into a political council and board of control, to administer the political opinions of its members. It would confer on the Supreme Court from the public liberty, which the constitution was intend- By the constitution, the diversified particular interests of the States were intended to be under the regular action of the Federal Government, secured and reserved from powers too gigantic and terrific, too dangerous to the federal legislation: 1st, by a judicious selection of the peace of the United States, to the reserved powers of the delegated powers, the exercise of which were most likely States, and to the safety of the Union. to promote the general welfare of all the States, and least It would carry along with it the power to the Supreme likely to bear oppressively upon any one of them; 2d, by Court to decide upon acquisition of new territories, and regulations and prohibitions upon the exercise of those upon the admission of States into the Union, formed out powers so specified and delegated, so as to render their of such purchased territories; the power to decide how action uniform in all the States, and to guard against a far infractions of treaties and delays of reparation did preference or favoritism towards any of the States; 3d, abrogate those treaties between the United States and for- by guarding against amendments which might delegate eign nations. The whole system of the United States, for ascertaining and adjusting private land claims in the newly acquired territories by commissioners, reserving the final decision to the Congress, depends upon the distinction I have taken. Remove these distinctions, and the powers of the legislative and executive departments depend on the judgment of the Supreme Court; and the limits of its own powers would depend upon its own will. additional powers, and divest the States of further por- But by this new doctrine of supremacy of the federal A new mode of drawing to the Federal Government an additional grant by an amendment of the constitution. the reserved powers of the States is let in, which evades A majority of the States combined in interest, may, if sancand puts to naught the safeguard to the minority of the tioned by the Supreme Court, exercise any powers not States provided by the compact against amendments. delegated, not necessary and proper to execute the powThe door is open to usurpation and tyranny, by giving the ers especially delegated, but new substantive powers to Federal Government the sole and entire control, indepen- the Government, added by construction, destructive of dent of any control of the States. the particular interests and prosperity of a minority of By the theory of the constitution, if the Congress de- the States-powers which two-thirds of both Houses, or sire to exercise a new power not before delegated, they two-thirds of the Legislatures of the States, would not must draw upon the States for a further surrender and propose; or, if proposed, would not be ratified by threedelegation of another portion of their reserved powers. fourths of the States as an amendment to the constitution. A majority of the States elect a majority of the SenaTo sanction such new delegation of power, three-fourths of the several States must consent, by ratifying the amend- tors, and a majority of the members of the House of Rement proposed. But in practice, under this new doc- presentatives; and a bare majority of the States may be so trine, that whatever power is sanctioned by the Supreme taken as that they may elect a majority of electors of PreCourt of the United States is constitutional, and the sident and Vice President. So that a majority of States States have no power to interpose, a bare majority of both combined in the assumption of new powers, may exercise Houses of Congress, with the assent of the President and such new constructive powers to their agrandizement, and the Supreme Court, or two-thirds of both Houses with the advancement of their particular interests, to the dethe assent of the Supreme Court, without the assent of pression of the particular interests and prosperity of the the President, may alter the constitution at pleasure. If minority. Such a combination may be perpetuated by the Congress exercise any of the powers reserved to the the very fact that it is a combination of the majority of States by passing an act, let the Supreme Court, in a lit- local and particular interests. The aggression cannot be igation between two citizens, in which this law is incident- corrected by an appeal of the minority for a change of ally drawn in question, sanction it as constitutional, representation in the two Houses, because of the special then, according to this unlimited power, conferred on interests which the majority of the States have in contithe Supreme Court by construction, the act would be nuing such system of benefits to themselves, at the exconstitutional law, sound constitutional doctrine. Protect pense of the minority. The combination can effectually the authors of the law from a public examination of their perpetuate itself by continual elections to both Houses, conduct, by the terrors of an alien and sedition law, to and by the election of the President and Vice President. This is a short way of adding new powers by assumption speak or to write against the authors of the law would be seditious; to oppose the law by force would be trea- of Congress, with the consent of the Supreme Court, son, rebellion! So say those who contend for the unlim- and denying the authority of the States to interpose to ited power of the Supreme Court to decide "all cases arrest the evil. It is a new mode of amendment to the arising under the constitution and laws of the United constitution, totally variant from the mode prescribed by States!" Deny the rights of the States to interpose to arrest the usurpation, and where is the remedy? the constitution. It evades and defies the security and efficient safeguard provided by the constitution, and encourages encroachments which lead to a tyrannical concentration of all the powers of Government, both State and federal, in the same hands. Happily, a Legislature cannot be indicted of sedition; a State cannot be indicted of treason, and arraigned at the bar of a court. The general revolt of a whole nation But there may be instances of usurpations of undeleagainst usurpation and oppression cannot justly be called rebellion. Truth is comprehended by examining princi- gated power so contrived as to evade the examination ples. A whole people resisting oppression, and vindicat- and decision of the judicial department, even in suits being their own liberty and the constitution, commit no tween the Federal Government and an individual. The very protective system, which is the source of tho crime in so doing. Private men, who swear allegiance to the constitution, who swear" obedience ad legem," unhappy discontents in South Carolina as well as in other " extra vel contra legem." The States, is a striking example. swear no obedience VOL. IX.-19 1 : SENATE.] Revenue Collection Bill. [JAN. 31, 1833. The tariff bill, on its title and face, professes to be for a President, so as to give a majority of a desired political revenue. But the duties imposed produce revenue ex- cast. These judges hold their offices for life, removceeding the wants of the Government for its economical able by impeachment by the House of Representatives, expenditures. The high imposts are enacted for protec- and conviction by the concurrence of two-thirds of the tion of manufactures. But this motive and intent is conceal- Senators. Their responsibility is too remote, and the ed and not avowed in the bill, howsoever strongly urged number too few for a high prerogative court, with power on the floors of Congress to induce the high tariff, and to adjust the political powers of the Federal and State howsoever this intent may inflate extravagant and waste-Governments, and try the Federal Government when imful expenditures, for the purpose of fostering and continu- peached of usurpation and encroachment upon the reing the high pressure of taxation upon consumers. served powers belonging to the States. If the central Now, the judicial tribunals cannot go out of the act to Government be accused of encroachment and usurpation, look for the motives of the members of Congress; they cannot examine into the secret springs of action in the Legislature. So it is decided in the case of Fletcher vs. Peck, in the Supreme Court of the United States. As its triers, the Supreme Court judges, are, in their turn, liable to be impeached and tried by the central Government. The Congress who commit the usurpation are the only persons who can impeach and try their judges. The offending the power to tax imports and collect revenue is expressly Congress are to be tried by their judges; and the offending delegated, the question of the undelegated but usurped judges are to be impeached and tried by the offending Conpower of protection of one class of citizens, by giving gress. There is but little wise and practical security in this money to them, taken from the pockets of other classes against the encroachments of the central Government. of citizens who consume domestic manufactures, can No plaintiff would feel very safe if the defendant had the never arise upon a bill professing to be for revenue. But sole power to appoint the jury, with the power superwill the gentlemen who are so ardent for protection of added to accuse that jury of misconduct, and try the acmanufactures be pleased to divide these subjects into two cusation. It seems to me that if those wise and practical acts: the first, for revenue; the second, declaring that statesmen and patriots who framed the new federal conover and above the amount of duties necessary for reve- stitution had designed the Supreme Court to be the sole nue, so much additional duty shall be imposed for pro- prerogative court of high and ultimate commission to try tection? Bill number one, for revenue, no citizen will question. But bill number two, for protection avowedly, will be questioned; the judicial tribunals can, at the instance of any individual, who pays the duty for revenue, but refuses to pay the duty for protection, come at the question of delegated or undelegated power. Aye, more, sir; the people will see how much they are taxed for the wants of the treasury; and what for the system of protection to manufactures. I challenge the supporters of the protective system to such a trial, the central Government for usurpation of powers not delegated, and the final and sole safeguard for the reserved powers of the States, they would have devised some more certain and direct responsibility of the judges to the States, than by referring their impeachment to Congress, who must be parties, aiders, andabettors in the usurpation. The States would not have adopted the constitution if they had been informed that such was to be its interpretation. In deliberating upon the extent of the powers intended to be conferred by the constitution upon the several departments, and the powers reserved by the States, we ought to keep steadily in view 1st, The perpetuity of the Union; 2d. The powers necessary to a fair and energetic administration of the Government, as ordained and established; Government, at best, is but an evil. But it is a necessary evil. It is founded in an imperious necessity arising out of the very nature of man, his imperfection, his appetency to pursue his passion and selfish desires, to the destruction of the rights and interests of his fellow-men. If men were as perfect as angels, then no Government would be necessary. But such is the nature and imper- 3d. The safety of a minority of the States against a fections of man, that the exercise of the powers of Gov-combination of a majority; ernment tends to increase, not to allay, his lust for dominion. 4th. The security against usurpation and degeneracy into practical tyranny. These are the great interests of every true American, to which every patriot ought to look with a watchful, steadfast eye. Few men are willing to lessen their own powers. There are illustrious examples to the contrary. They stand conspicuous and illustrious, because they are exceptions to the general rule. "Power is continually stealing from Every construction of the constitution which tends, in the many to the few." No wise and practical statesman, practical operation, to weaken the exercise of the powers who is a lover of rational liberty, none but a political plainly conferred, to lessen the security against the comdreamer of the perfectability of man, or one who, ex-bination of a majority of the States against the minority, pecting to bask in the sunshine of power, loves it more or to weaken the guards against usurpation and practical than liberty, would ever construct a Government upon tyranny, tends necessarily, in the end, to weaken and disany other plan than that of providing and securing checks solve the bonds of union, and ought, therefore, to be reand balances against the encroachments and abuses of jected. power. The federal constitution was framed and adopted Union, common defence, and protection, justice to all, by wise, patriotic, and practical statesmen, lovers of li- rational liberty to all, now and at all times hereafter, were berty, inspired with a holy zeal in a revolution to resist the great ends intended by the constitution. All conthe encroachments of power from the central Govern-structions which tend to subvert these great ends; which ment upon the rights and liberties of the colonies. They tend to invite or encourage usurpation in the Federal did not, they could not, intend to create a central Govern- Government, or to the usurpation by one department of ment with unlimited powers, nor a Government without powers belonging to another department; which tend to sufficient practical checks against the usurpations which invite and encourage a combination of a majority of the might be attempted upon the reserved rights of the States. States to pursue their interests at the expense of a minoThe Supreme Court of the United States is not such rity of the States, ought to be rejected as repugnant to sufficient check and safeguard against the encroachments the leading objects of the constitution. These leading of the central Government upon the State Governments. inducements were, justice to the whole, the welfare The number of judges of the Supreme Court is not de- of all. fined by the constitution. That number is but seven at Oppression, injustice, invasion of private property by present. Four are a majority of the court. But the num- the insidious arts of legislation, insecurity against the opber may be increased at the pleasure of the Congress and pressive hand of power, combinations by a majority of JAN. 31, 1833.] Revenue Collection Bill. [SENATE. confederated States against the minority, have produced may be made universal. But the notions of political jusrevolutions and destruction of Governments, and will re- tice, and balances of political power, are mutable and produce them, unless the human race shall be degene-variant, differing, like the complexions, habits, education, rated into brutal ignorance; non-resistance and passive and feelings of politicians. obedience be inculcated as of divine institution; and every If the Supreme Court is to be the sole and exclusive spark of rational liberty shall be extinguished. judge in the last resort, not only of judicial questions The genius of our institutions, the intelligence of the properly submitted to it by the forms of the constitution, people of the States, the spirit of free inquiry guaran- but also of all questions touching the confines of political tied by the Federal and State Governments, the love of powers delegated and not delegated by the compact, liberty which pervades the great body of the peo- then not only the legislative and executive departments ple, all conspire to insure us that the iron age of igno- of the Government hold their powers at the will of this rance, tyranny, and passive obedience is never to infect court, but the concurrence of this court, with the other this land with its baleful gloom, unless preceded by those departments of the Federal Government, "in usurped awful convulsions of party strife and civil war, which de- powers, might subvert forever, and beyond the possible solate social order, and bury science, morals, and religion reach of any rightful remedy, the very constitution which in the ruins. all were instituted to preserve." If one of the parties is Are there no dangers to liberty to be apprehended to be the sole and exclusive judge of the extent of the from referring all the political powers of the Federal powers to him delegated, and of the concessions made by Government, and all the reserved powers of the States, the other parties, then such party would have an unlito the guardianship of a few judges appointed for life, mited and supreme authority over the other parties. It not removable, except by impeachment for crimes and is not sufficient to discriminate in theory the several classes misdemeanors; not impeachable or removable for error of power, and distribute them between the legislative, of opinion? So far removed from responsibility, ("for im- executive, and judicial departments; neither will it suffice peachment is not now even a scarecrow,") if transformed to mark with precision the boundaries between the powinto a political court instead of a judicial tribunal, is there ers delegated to the Federal Government and those reno cause to apprehend that a majority of the judges may tained by the States, and trust to these parchment barriers administer their theory of what the Government should for defence against the insatiable appetite and restless be, instead of the theory as actually adopted by the States? gnawings of power. Experience teaches that the efficacy Are no judicial opinions tinctured and discolored with the of such paper barriers are too feeble to withstand the party feelings and opinions of the day? Is there no cause scorching desires of power, and that some more adequate to apprehend that the judges will follow up the maxim defence is indispensable to secure the more feeble against taught in the law schools, and issued from the bench, the more powerful members of the Government. "est boni judicis ampliari jurisdictionem," not only to The judicial department does not present the requisite the enlargement of their own powers, but to the enlarge- security in matters of such transcendent and vital importment of the powers and increase of the jurisdiction of the ance. The judges of the Supreme Court are too few in Federal Government, as the means convenient and pro- number. The permanent tenure by which their appointper to the end, the amplification of their own jurisdiction? ments are held, as well as their salaries and the mode of their If the judges of the Supreme Court are to have the appointment, destroys all sense of dependence on the States, and lifts them above the common burdens of the people; and, from the very nature of their callings, they see human nature in the worst light. These are but too apt to infuse into their minds hightoned notions of a forcible consolidated Government, as final and exclusive authority to settle political questions, touching encroachments upon the reserved powers of the States, and all other political questions arising under the constitution, then, superadded to those qualifications which have heretofore been thought essential for a judge, the primary consideration in selecting him ought to be, necessary to "save the people from their worst enemy-in what political school has he been brought up? What themselves." Judges, in a long course of official duties, are his political opinions on certain great contested poli- are familiarized to the sight of frauds, chicaneries, misdetical questions? To what political party does he belong? meanors, and crimes; accustomed to exercise the force I respect a court of justice, but I abhor a party court. of the laws upon knavish wealth, naked poverty, and Let us not, by construction, transform a court of justice squalid vice; they are but too apt to confound the into a political council of state. Let us not transform distinction between the judicial powers necessary to admithe emblem of justice into the emblem of power. Let us nister the laws, and political powers necessary to prenot defile the sanctuary of justice with the passions of po- scribe the laws; between the powers necessary to be litical parties contending for political powers. granted to secure and protect against a violation of the If the Supreme Court is once acknowledged to be the laws by the vicious, and the powers necessary to be reultimate tribunal for settling the boundaries of political served to the good for protection and security against a power between the Federal Government and the State violation and abuse of the political powers of the GovernGovernments, so as to bind the parties to the compact, ment. then it will inevitably follow that the court will be the In England, from the time that Alfred hung the forty subject of political party strife. Reform in the court, by judges for illegal and corrupt practices, to the trial and infusing a new spirit by other or additional judges, will conviction of Algernon Sidney for high treason, in writbecome the subject of political party strife as much as ing that celebrated treatise on Government, (which, since reform in the executive administration. The majority of his execution, has been published,) against the divine Congress and the Executive might at any time add to right of kings, and the doctrines of non-resistance and the bench of the Supreme Court a sufficient number of passive obedience, and from that time to this, the history judges to carry an important question of political power. of judicial power, as exercised, teaches this solemn truth The British ministry advised the King to create a suffi---judges are but men, fallible men. cient number of new peers to carry the reform bill. The The history of judicial power in our own country and power of a majority of Congress, with the aid of the Pre- in our days, is not less impressive. But I forbear. I respect an independent, upright judge. There is a generous confidence yielded by the moral sense of the community to such an officer. He is looked upon as the sident, to create new judges, for a special occasion, is as effectual as the power of the King to create new peers. The principles of civil justice to be administered by the judicial tribunals are fixed, immutable, and eternal; they are so nearly assimilated in all civilized nations, that they guardian of civil rights, the protector of life, liberty, and SENATE.] Revenue Collection Bill. [JAN. 31, 1833. property. But the judge who exhibits himself as the combination, in short, would result from an apprehension zealot of a political party, freezes the generous confi- of the federal, as was produced by the dread of a foreign dence of the people, and turns it into fear and trembling. yoke; and unless the projected innovations should be volIt is well remarked in the 51st No. of the Letters of untarily renounced, the same appeal to a trial of force Publius, in relation to the judicial department, that "the would be made in the one case as would be made in the. permanent tenure by which the appointments are held in other. But what degree of madness could ever drive the that department must soon destroy all sense of depend ence on the authority conferring them." I defend the framers of the constitution from any intention of conferring on the Supreme Court such transcendent powers. I will not slander the characters of the Federal Government to such an extremity?" Again, page 299: "The only refuge left for those who prophesy the downfall of the State Governinents is the visionary supposition that the Federal Government may previously accumulate a military force for the objects of dead, nor of the survivors, by supposing that these zeal- ambition. That the people and the States should, for a ous patriots and enthusiastic defenders of the rights of sufficient period of time, elect an uninterrupted succesthe colonies against the central power of Great Britain, sion of men, ready to betray both; that the Governments could have been traitors to their principles. It is impos- and people of the States should silently and patiently sible, to my belief, that the statesmen who were members behold the gathering storm, and continue to supply the of the respective State conventions could have intended materials, until it should be prepared to burst on their to adopt a Government so destitute of all reasonable de- own heads, must appear to every one more like the infence against the encroachments of power and the un- coherent dreams of a delirious jealousy, or the misjudged compromising purposes of self-interest, as this would be, exaggerations of a counterfeit zeal, than like the sober if the Supreme Court were the sole expositor of the con- apprehensions of genuine patriotism. Extravagant as stitution in the last resort, and in "all cases arising under the supposition is, let it, however, be made. Leta regular the constitution and laws of the United States." army, fully equal to the resources of the country, be form If the General Government is to be the exclusive judge ed; and let it be entirely at the devotion of the Federal of the extent of the powers delegated to it, the discre- Government; still it would not be going too far to say, tion of those who administer the Government, and not that the State Governments, with the people on their the constitution, would be the measure of their powers. side, would be able to repel the danger." And if one department of that Government, the judiciary, Again, in the same No.: "Notwithstanding the militais to be the sole and final expositor, then its discretion, ry establishments, in the several kingdoms of Europe, and not the constitution, would be the measure of their which are carried as far as the public resources will bear, powers. Such a construction invites those who exercise the Governments are afraid to trust the people with arms. power to arrogate more than they have a right to, by de- And it is not certain that, with this aid alone, they would claring they are the sole, final, and exclusive judges of the measure of their own powers. not be able to shake off their yokes. But were the people to possess the additional advantages of local Governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia by these Governments, and attached both to them and to the militia, it may be affirmed, with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite Far different was the language of those who made the constitution; of those who recommended it for adoption, and of those who were deliberating on its adoption. It was declared, so recommended, and so adopted, to be a Government of limited powers, few and defined; that the powers of the State Governments were numerous and indefinite, and that the State Governments were "con- of the legions which surround it." stituent and essential parts of the Federal Government;" Again, in No. 48: "It will not be denied that power "that the State Governments would be the sentinels and the is of an encroaching nature, and that it ought to be effectauthoritative bulwarks against encroachments of the Fed-ually restrained from passing the limits assigned to it. eral Government."-Federalist, No. 45, p. 292. After discriminating, therefore, in theory, the several In the 45th No. of the Letters of Publius, p. 290, it is classes of power, as they may in their nature be legislative, declared that "the State Governments may be regarded executive, or judiciary, the next and most difficult task is as constituent and essential parts of the Federal Govern- to provide some practical security for each against the invament." "Each of the principal branches of the Federal sion of the others." "Will it be sufficient to mark with preGovernment will owe its existence, more or less, to the cision the boundaries of these departments in the constitufavor of the State Governments, and must consequently tion of the Government, and to trust to these parchment feel a dependence which is more likely to beget a disposition too obsequious than too overbearing towards perience assures us that the efficacy of the provision has them." been greatly overrated, and that some more adequate de bargains against the encroaching spirit of power?" "Ex Again, in the same number: "The powers delegated fence is indispensably necessary for the more feeble by the proposed constitution to the Federal Government against the more powerful members of the Government." are few and defined. Those which are to remain in The residue of this No., and Nos. 49 and 50, are dethe State Governments are numerous and indefinite. The voted to prove, by very many examples, "that a mere former will be exercised principally on external objects, demarcation on parchment of the constitutional limits of as war, peace, negotiation, and foreign commerce; with the several departments, is not a sufficient safeguard which last, the power of taxation will, for the most part, against those encroachments which lead to a tyrannical be connected. The powers reserved to the several concentration of all the powers of Government in the States will extend to all the objects which, in the ordina- same hands." ry course of affairs, concern the lives, liberties, and prop- In No. 49, it is said: "We have found, in the last erties of the people, and the internal order, improvement, paper, that mere declarations in the written constitution and prosperity of the State." are not sufficient to restrain the several departments with Again, in No. 46: "But ambitious encroachments of in their legal limits." the Federal Government on the authority of the State Again, in No. 51: "To what expedient, then, shall we Governments would not excite the opposition of a single finally resort, for maintaining the necessary partition of State, or a few States only. They would be signals of power among the several departments as laid down in the general alarm. Every Government would espouse the constitution? The only answer that can be given is, that common cause. A correspondence would be opened. if all these exterior provisions are found to be inadequate, Plans of resistance would be concerted." "The same the defect must be supplied, by so contriving the interior 297 JAN. 31, 1833.] Revenue Collection Bill. [SENATE. structure of the Government, as that its several constitu-another occasion, been shown that the Federal Legislaent parts may, by their mutual relations, be the means of ture will not only be restrained by its dependence on the people, as other legislative bodies are, but that it will be, keeping each other in their proper places." The first safeguard suggested is, that each department moreover, watched and controlled by the several collateshould have a will of its own, and the members of each ral Legislatures, which other legislative bodies are not." The letters of Publius, thus explaining the principles and the checks and balances, were should have as little agency as possible in appointing the others. In the execution of this principle rigorously, of the constitution, "all appointments for the supreme executive, legisla- published to the people of the United States, and had tive, and judiciary magistracies should be drawn from the very great influence in recommending the proposed consame fountain of authority, the people, through channels stitution. In the State conventions assembled to considhaving no communication with each other." Difficulties er the proposed constitution, the same explanations were are then suggested, which render some deviations from repeated again and again, as well by distinguished memthe rigorous execution of that principle proper. In the bers of the federal convention which framed and proposconstitution of the judiciary department, in particular, it ed the new constitution, as by the other advocates for its might be inexpedient to insist rigorously on the principle, adoption. The apprehensions that the new constitution (election by the people;) first, because peculiar qualifica- was or could be made a Government of unlimited powpowers, fortions being essential in the members, the primary considers that the rights and powers of the State Governments eration ou ought to be to select that mode of choice which could be absorbed by construction--that all best secures these qualifications; secondly, because the eign and domestic, could be melted in the crucible of permanent tenure by which the appointments are held in federal power, and consolidated in one mass, to be used that department must soon destroy all sense of depend- at pleasure by the Federal Government, as its administrators might think fit and convenient for the general welence on the authority conferring them. Another great security against a gradual concentration fare, were pronounced idle and visionary. Those who of the several powers in the same department "consists entertained such fears were called political dreamers, arin giving to those who administer each department the guing against the plain sense and meaning of the instrunecessary constitutional means and personal motives to ment. It was over and over again explained as a Governresist encroachments from the others." "In framing a ment of defined powers, with safe and sufficient checks Government, which is to be administered by men over and balances to guard against the exercise of powers not men, the great difficulty lies in this: you must first enable delegated by the States: as a Government deriving its the Government to control the governed; and, in the next powers by special delegation, leaving to the State Govplace, oblige it to control itself. A dependence on the ernments all their rights, powers, and privileges not delepeople is, no doubt, the primary control on the Govern- gated nor prohibited. In that sense, it was adopted by ment; but experience has taught mankind the necessity the States. But to render assurance doubly sure, they of auxiliary precaution." After reasoning upon the subject of these auxiliary precautions generally, the celebrated author of this number of Publius exhibits some as peculiarly applicable to the Federal Government, p. 326: "There are," says he, "moreover, two considerations particularly applicable to the federal system in a very interesting point of view. proposed and adopted the tenth amendment, declaring-"The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." Mark! to the States "respectively," not collectively. When the new federal constitution was framed and proposed for adoption, the encroaching nature of power had "First. In a single republic, all the power surrender- been severely felt and not forgotten. The necessity to ed by the people is submitted to the administration of a fortify against its usurpations was well understood, and Single Government; and the usurpations are guarded the principles of republican government were adored against by a division of the Government into separate and with a frank and generous spirit. In those early seasons distinct departments. In the compound republic of Amer- of virtue and devotion to liberty, the letters of Publius ica, the power surrendered by the people is first divided appeared, abounding with sound political maxims and elebetween distinct Governments, and then the portion allot- mentary principles of republican government, drawn from ted to each divided among distinct and separate depart- the deepest fountains of knowledge--the history of past ments. Hence, a double security arises to the rights of times, observations on the present, and the reflections of the people. The different Governments will control each the wise, the good, the philanthropic, and the patriotic. other, at the same time that each will be controlled by itself. secure. These principles are clearly stated and forcibly illustrated in the letters of Publius, that the State Governments are that power is of an "Secondly. It is of great importance in a republic constituent and essential parts of the Federal Government; not only to guard society against the oppression of its ru- that the powers of the proposed Federal Government are lers, but to guard one part of society against the injustice few and defined; that those which remain to the State of the other part. Different interests necessarily exist Governments are numerous and indefinite; that the in different classes of citizens. If a majority be united change proposed by the new constitution consists much by common interest, the rights of the minority will be in- less in the addition of new powers to the Union, than in encroaching naThere are but two methods of providing against the invigoration of the old, except only as to the regulathis evil; the one by creating a will in the community in- tion of commerce; dependent of the majority; the other, by comprehending ture; that it ought to be effectually restrained from passin the society so many separate descriptions of citizens as ing the limits assigned to it; that one security is, by writwill render an unjust combination of a majority of the ten constitutions; a second by distribution of powers into legislative, executive, and judicial; a third, that these whole very improbable, if not impracticable." The 52d No. concludes by adverting again to this secu-powers be intrusted to different hands; that mere demarrity arising from the control of the State Governments. cations of powers and written declarations in a constituwithin their assigned limits, "The conclusion resulting from these examples will be a tion are not sufficient to restrain the legislative, executive, little strengthened by these three circumstances. first is, that the Federal Legislature will possess a part to prevent their eneroachments, the one upon the other, the same hands; that, to oblige the only of that supreme legislative authority which is vested nor to prevent the tyrannical concentration of all the powcompletely in the British Parliament; and which, with a ers of Government in few exceptions, was exercised by the Colonial Assemblies Government to control itself, and keep within its assigned and the Irish Legislature. In the second place, it has, on limits, some additional auxiliaries over and above paper The and judicial departments nor |