OPINIONS, SELECTED FROM DEBATES IN CONGRESS FROM 1789 TO 1836, INVOLVING CONSTITUTIONAL PRINCIPLES.

Oath.—On a Bill prescribing the Oath to support the Constitution.

May 6, 1789.

Mr. GERRY said, he did not discover what part of the Constitution gave to Congress the power of making this provision, (for regulating the time and manner of administering certain oaths,) except so much of it as respects the form of the oath; it is not expressly given by any clause of the Constitution, and, if it does not exist, must arise from the sweeping clause, as it is frequently termed, in the 8th section of the 1st article of the Constitution, which authorizes Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” To this clause there seems to be no limitation, so far as it applies to the extension of the powers vested by the Constitution; but even this clause gives no legislative authority to Congress to carry into effect any power not expressly vested by the Constitution. In the Constitution, which is the supreme law of the land, provision is made that the members of the legislatures of the several states, and all executive and judicial officers thereof, shall be bound by oath to support the Constitution: But there is no provision for empowering the government of the United States, or any officer or department thereof, to pass a law obligatory on the members of the legislatures of the several states, and other officers thereof, to take this oath. This is made their duty already by the Constitution, and no such law of Congress can add force to the Obligation; but, on the other hand, if it is admitted that such a law is necessary, it tends to weaken the Constitution, which requires such aid: neither is any law, other than to prescribe the form of the oath, necessary or proper to carry this part of the Constitution into effect; for the oath required by the Constitution, being a necessary qualification for the state officers mentioned, cannot be dispensed with by any authority whatever, other than the people, and the judicial power of the United States, extending to all cases arising in law or equity under this Constitution. The judges of the United States, who are bound to support the Constitution, may, in all cases within their jurisdiction, annul the official acts of state officers, and even the acts of the members of the state legislatures, if such members and officers were disqualified to do or pass such acts, by neglecting or refusing to take this oath.

Mr. BLAND had no doubt respecting the powers of Congress on this subject. The evident meaning of the words of the Constitution implied that Congress should have the power to pass a law directing the time and manner of taking the oath prescribed for supporting the Constitution. There can be no hesitation respecting the power to direct their own officers, and the constituent parts of Congress: besides, if the state legislatures were to be left to direct and arrange this business, they would pass different laws, and the officers might be bound in different degrees to support the Constitution. He not only thought Congress had the power to do what was proposed by the Senate, but he judged it expedient also.

Mr. JACKSON. The states had better be left to regulate this matter among themselves; for an oath that is not voluntary is seldom held sacred. Compelling people to swear to support the Constitution will be like the attempts of Britain, during the late revolution, to secure the fidelity of those who fell within the influence of her arms; and like those attempts they will be frustrated. The moment the party could get from under her wings, the oath of allegiance was disregarded. If the state officers will not willingly pay this testimony of their attachment to the Constitution, what is extorted from them against their inclination is not much to be relied on.

Mr. LAWRENCE. Only a few words will be necessary to convince us that Congress have this power. It is declared by the Constitution, that its ordinances shall be the supreme law of the land. If the Constitution is the supreme law of the land, every part of it must partake of this supremacy; consequently, every general declaration it contains is the supreme law. But then these general declarations cannot be carried into effect without particular regulations adapted to the circumstances: these particular regulations are to be made by Congress, who, by the Constitution, have power to make all laws necessary or proper to carry the declarations of the Constitution into effect. The Constitution likewise declares that the members of the state legislatures, and all officers, executive and judicial, shall take an oath to support the Constitution. This declaration is general, and it lies with the supreme legislature to detail and regulate it.

Mr. SHERMAN. It appears necessary to point out the oath itself, as well as the time and manner of taking it. No other legislature is competent to all these purposes; but if they were, there is a propriety in the supreme legislature’s doing it. At the same time, if the state legislatures take it up, it cannot operate disagreeably upon them, to find all their neighboring states obliged to join them in supporting a measure they approve: What a state legislature may do, will be good as far as it goes. On the same principle, the Constitution will apply to each individual of the state officers: they may go, without the direction of the state legislature, to a justice, and take the oath voluntarily.

This, I suppose, would be binding upon them; but this is not satisfactory; the government ought to know that the oath has been properly taken; and this can only be done by a general regulation. If it is in the discretion of the state legislatures to make laws to carry the declaration of the Constitution into execution, they have the power of refusing, and may avoid the positive injunctions of the Constitution. As the power of Congress, in this particular, extends over the whole Union, it is most proper for as to take the subject up, and make the proper provision for carrying it into execution, to the intention of the Constitution.

Duties.—Bill laying Duties on Goods, &c.

House of Representatives, May 15.

Mr. WHITE. The Constitution, having authorized the House of Representatives alone to originate money bills, places an important trust in our hands, which, as their protectors, we ought not to part with. I do not mean to imply that the Senate are less to be trusted than this house; but the Constitution, no doubt for wise purposes, has given the immediate representatives of the people a control over the whole government in this particular, which, for their interest, they ought not to let out of their hands.

Mr. MADISON The Constitution places the power in the House of originating money bills. The principal reason why the Constitution had made this distinction was, because they were chosen by the people, and supposed to be the best acquainted with their interest and ability. In order to make them more particularly acquainted with these objects, the democratic branch of the legislature consisted of a greater number, and were chosen for a shorter period; that so they might revert more frequently to the mass of the people.

Mr. MADISON “moved to lay an impost of eight cents on all beer imported. He did not think this would be a monopoly, but he hoped it would be such an encouragement as to induce the manufacture to take deep root in every state in the Union.”—Lloyd’s Debates of Congress, vol. i. p. 65.

The same. “The states that are most advanced in population, and ripe for manufactures, ought to have their particular interests attended to in some degree. While these states retained the power of making regulations of trade, they had the power to protect and cherish such institutions. By adopting the present Constitution, they have thrown the exercise of this power into other hands. They must have done this with an expectation that those interests would not be neglected here.”—Idem, p. 24.

The same. “There may be some manufactures which, being once formed, can advance towards perfection without any adventitious aid; while others, for want of the fostering hand of government, will be unable to go on at all. Legislative attention will therefore be necessary to collect the proper objects for this purpose.”—Idem, p. 26.

Mr. CLYMER “did not object to this mode of encouraging manufactures, and obtaining revenues, by combining the two objects in one bill. He was satisfied that a political necessity existed for both the one and the other.”—Idem, p. 31.

Mr. CLYMER “hoped gentlemen would be disposed to extend a degree of patronage to a manufacture [steel] which a moment’s reflection would convince them was highly deserving protection.”—Idem, p. 69.

Mr. CARROLL “moved to insert window and other glass. A manufacture of this article was begun in Maryland, and attended with considerable success. If the legislature was to grant a small encouragement, it would be permanently established.”—Idem, p. 94.

Mr. WADSWORTH. “By moderating the duties, we shall obtain revenue, and give that encouragement to manufactures which is intended.”—Idem, p. 128.

Mr. AMES “thought this a useful and accommodating manufacture, [nails,] which yielded a clear gain of all it sold for; but the cost of the material, the labor employed in it, would be thrown away probably in many instances. * * * He hoped the article would remain in the bill.”—Idem, p. 81.

The same. “The committee were already informed of the flourishing situation of the manufacture, [nails,] but they ought not to join the gentleman from South Carolina, Mr. Tucker, in concluding that it did not, therefore, deserve legislative protection. He had no doubt but the committee would concur in laying a small protecting duty in favor of this manufacture.”—Idem, p. 82.

Mr. FITZSIMONS “was willing to allow a small duty, because it conformed to the policy of the states who thought it proper in this manner to protect their manufactures.”—Idem, p. 83.

The same. “It being my opinion that an enumeration of articles will tend to clear away difficulties, I wish as many to be selected as possible. For this reason I have prepared myself with an additional number: among these are some calculated to encourage the productions of our country, and protect our infant manufactures.”—Idem, p. 17.

Mr. HARTLEY. “If we consult the history of the ancient world, Europe, we shall see that they have thought proper, for a long time past, to give great encouragement to establish manufactures, by laying such partial duties on the importation of foreign goods, as to give the home manufactures a considerable advantage in the price when brought to market. * * * I think it both politic and just that the fostering hand of the general government should extend to all those manufactures which will tend to national utility. Our stock of materials is, in many instances, equal to the greatest demand, and our artisans sufficient to work them up, even for exportation. In those cases, I take it to be the policy of every enlightened nation to give their manufacturers that degree of encouragement necessary to perfect them, without oppressing the other paris of the community; and, under this encouragement, the industry of the manufacturer will be employed to add to the wealth of the nation.”—Idem, p. 22.

Mr. WHITE. “In order to charge specified articles of manufacture so as to encourage our domestic ones, it will he necessary to examine the present state of each throughout the Union.”—Idem, p. 19.

Mr. BLAND (of Virginia) “thought that very little revenue was likely to be collected from the importation of this article, [beef;] and, as it was to be had in sufficient quantities within the United States, perhaps a tax amounting to a prohibition would be proper.”—Idem, p. 66.

Mr. BLAND “informed the committee that there were mines opened in Virginia capable of supplying the whole of the United States; and, if some restraint was laid on importation of foreign coals, those mines might be worked to advantage.”—Idem, p. 97.

Mr. BOUDINOT. “I shall certainly move for it, [the article of glass,] as I suppose we are capable of manufacturing this as well as many of the others. In fact, it is well known that we have and can do it as well as most nations, the materials being almost all produced in our country.”—Idem, p. 28.

The same. “Let us take, then, the resolution of Congress in 1783, and make it the basis of our system, adding only such protecting duties as are necessary to support the manufactures established by the legislatures of the manufacturing states.”—Idem, p. 34.

Mr. SINNICKSON “declared himself a friend to this manufacture, [beer,] and thought that, if the duty was laid high enough to effect a prohibition, the manufacture would increase, and of consequence the price would be lessened.”—Idem, p. 65.

Mr. LAWRENCE “thought that if candles were an object of considerable importation, they ought to be taxed for the sake of obtaining revenue, and if they were not imported in considerable quantities, the burden upon the consumer would be small, while it tended to cherish a valuable manufacture.”—Idem, p. 68.

Mr. FITZSIMONS “moved to lay a duty of two cents per pound on tallow candles. The manufacture of candles is an important manufacture, and far advanced towards perfection. I have no doubt but in a few years we shall be able to supply the consumption of every part of the continent.”—Idem, p. 67.

The same. “Suppose 5s. cwt. were imposed, [on unwrought steel:] it might be, as stated, a partial duty: but would not the evil be soon overbalanced by the establishment of such an important manufacture?”—Idem, p. 69.

The same. “The necessity of continuing those encouragements which the state legislatures have deemed proper, exists in a considerable degree. Therefore it will be politic in the government of the United States to continue such duties until their object is accomplished.”—Idem, p. 67.

Mr. SMITH (of South Carolina.) “The people of South Carolina are willing to make sacrifices to encourage the manufacturing and maritime interests of their sister states”—Idem, p. 212.

Gen. Washington’s Speech to Congress, of January 11, 1790, declares, “That the safety and interest of a free people require that Congress should promote such manufactures as tend to render them independent of others for essential, particularly military supplies.

“The advancement of agriculture, commerce, and manufactures, by all proper means, will not, I trust, need recommendation.”

Extract from the reply of the Senate, to the speech of Gen. Washington, January, 1790.—”Agriculture, commerce, and manufactures, forming the basis of the wealth and strength of our confederated republic, must be the frequent subject of our deliberations, and shall be advanced by all the proper means in our power.”

Extract from the reply of the House of Representatives.—”We concur with you in the sentiment that ‘agriculture, commerce, and manufactures, are entitled to legislative protection.'”

His speech of December, 1796, holds out the same doctrine—”Congress have repeatedly, and not without success, directed their attention to the encouragement of manufactures. The object is of too much importance not to insure a Continuance of these efforts in every way which shall appear eligible.”

Extract from the reply of the Senate to the speech of Gen. Washington, December, 1796.—”The necessity of accelerating the establishment of certain useful branches of manufactures, by the intervention of legislative aid and protection, and the encouragement due to agriculture by the creation of boards, (composed of intelligent individuals,) to patronize the primary pursuit of society, are subjects which will readily engage our most serious attention.”

Mr. Jefferson, in his Message of 1802, states that—”To cultivate peace, maintain commerce and navigation, to foster our fisheries, and protect manufactures adapted to our circumstances, &c., are the landmarks by which to guide ourselves in all our relations.”

From Mr. Jefferson’s Message of 1808.—”The situation into which we have been thus forced has impelled us to apply a portion of our industry and capital to internal manufacturing improvements. The extent of this conversion is daily increasing, and little doubt remains that the establishments formed and forming will, under the auspices of cheaper materials and subsistence, the freedom of labor from taxation with us, and protecting duties and prohibitions, become permanent.”

Extract from the Message of Mr. Madison, December 5, 1815.—”Under circumstances giving powerful impulse to manufacturing industry, it has made among us a progress, and exhibited an efficiency, which justify the belief that, with a protection not more than is due to the enterprising citizens whose interests are now at stake, it will become, at an early day, not only safe against occasional competitions from abroad, but a source of domestic wealth, and even of external commerce. * * * * In selecting the branches more especially entitled to public patronage, a preference is obviously claimed by such as will relieve the United States from a dependence on foreign supplies, ever subject to casual failures, for articles necessary for public defence, or connected with the primary wants of individuals. It will be an additional recommendation of particular manufactures, where the materials for them are extensively drawn from our agriculture, and consequently impart and insure to that great fund of national prosperity and independence an encouragement which cannot fail to be rewarded.”

From the Message of President Monroe, December, 1818.—”It is deemed of importance to encourage our domestic manufactures. In what manner the evils which we have adverted to may be remedied, and how it may be practicable in other respects to afford them further encouragement, paying due regard to the other great interests of the nation, is submitted to the wisdom of Congress.”

From the same, December 3, 1822.—”Satisfied I am, whatever may be the abstract doctrine in favor of unrestricted commerce, provided all nations would concur in it, and it was not liable to be interrupted by war, which has never occurred, and cannot be expected, that there are strong reasons applicable to our situation, and relations with other countries, which impose on us the obligation to cherish and sustain our manufactures.”

From the same, December, 1823.—”Having communicated my views to Congress, at the commencement of the last session, respecting the encouragement which ought to be given to our manufactures, and the principle on which it should be founded, I have only to add that those views remain unchanged, and that the present state of those countries with which we have the most immediate political relations, and greatest commercial intercourse, tends to confirm them. Under this impression, I recommend a review of the tariff, for the purpose of affording such additional protection to those articles which we are prepared to manufacture, or which are more immediately connected with the defence and independence of the country.”

Wm. H. Crawford, Secretary of the Treasury, in his report, December, 1819, says,—”It is believed that the present is a favorable moment for affording efficient protection to that increasing and important interest, if it can be done consistently with the general interest of the nation.”

Extract from the Message of President Jefferson, December 2, 1806. “The question now comes forward, To what objects shall surpluses be appropriated, and the whole surplus of impost, after the entire discharge of the public debt, and during those intervals when the purposes of war shall not call for them? Shall we suppress the impost, and give that advantage to foreign over domestic manufactures? On a few articles of a more general and necessary use, the suppression, in due season, will doubtless be right; but the great mass of the articles on which impost is paid are foreign luxuries, purchased only by those who are rich enough to afford themselves the use of them. Their patriotism would certainly prefer its continuance, and application to the great purposes of public education, roads, rivers, canals, and such other objects of public improvement as it may he thought proper to add to the constitutional enumeration of federal powers. By these operations, new channels of communication will be opened between the states; the lines of separation will disappear; their interests will be identified, and the union cemented by new and indissoluble ties. Education is here placed among the articles of public care. Not that it would be proposed to take its ordinary branches out of the hands of private enterprise, which manages so much better all the concerns to which it is equal; but a public institution alone can supply those sciences which, though rarely called for, are yet necessary to complete the circle, all the parts of which contribute to the improvement of the country, and some of them to its preservation. The subject is now proposed for the consideration of Congress, because, if approved, by the time the state legislatures shall have deliberated on this extension of the federal trusts, and the laws shall be passed, and other arrangements made for their execution, the necessary funds will be on hand and without employment. I suppose au amendment to the Constitution, by consent of the states, necessary, because the objects now recommended are not among those enumerated in the Constitution, and to which n permits the public money to be applied.” * * *

From the same, Nov. 8, 1808.—”The probable accumulation of surpluses of revenue beyond what can be applied to the payment of the public debt, whenever the freedom and safety of our commerce shall be restored, merits the consideration of Congress. Shall it lie unproductive in the public vaults? Shall the revenue be reduced? Or shall it not rather be appropriated to the improvements of roads, canals, rivers, education, and other great foundations of prosperity and union, under the powers which Congress may already possess, or such amendment of the Constitution as may be approved by the states? While uncertain of the course of things, the time may be advantageously employed in obtaining the powers necessary for a system of improvement, should that be thought best.” * * *

Removal by the President.—On the Bill for establishing an executive Department, to be denominated the Department of Foreign Affairs.

House of Representatives, June 16, 1789.

The first clause, after recapitulating the title of the officer and his duties, had these words: “to be removable from office by the President of the United States.”

Mr. WHITE. The Constitution gives the President the power of nominating, and by and with the advice and consent of the Senate, appointing to office. As I conceive the power of appointing and dismissing to be united in their natures, and a principle that never was called in question in any government, I am adverse to that part of the clause which subjects the secretary of foreign affairs to be removed at the will of the President. In the Constitution, special provision is made for the removal of the judges: that I acknowledge to be a deviation from my principle; but as it is a constitutional provision, it is to be admitted. In all cases not otherwise provided for in this Constitution, I take it that the principle I have laid down is the governing one. Now, the Constitution has associated the Senate with the President in appointing the heads of department; for the words of the law declare that there shall be a department established, at the head of which shall be an officer to be so denominated. If, then, the Senate is associated with the President in the appointment, they ought also to be associated in the dismission from office. Upon the justness of this construction, I take the liberty of reviving the motion made in the committee of the whole for striking out these words, “to be removable from office by the President of the United States.”

Mr. SMITH, (of South Carolina.) The gentleman has anticipated me in his motion. I am clearly in sentiment with him that the words ought to go out. It is in the recollection of the committee, that, when the subject was last before us, this power was excepted to; and although the words were then allowed to stand, it was generally understood that it should be further debated. I then was opposed to giving this power to the President, and am still of opinion that we ought not to make this declaration, even if he has the power by the Constitution.

I would premise, that one of these two ideas is just—either that the Constitution has given the President the power of removal, and therefore it is nugatory to make the declaration here, or it has trot given the power to him, and therefore it is improper to make an attempt to confer it upon him. If it be not given to him by the Constitution, but belongs conjointly to the President and Senate, we have no right to deprive the Senate of their constitutional prerogative; and it has been the opinion of sensible men that the power was lodged in this manner. A publication of no inconsiderable eminence, in the class of political writings on the Constitution, has advanced this sentiment. The author, or authors, (for I have understood it to be the production of two gentlemen of great information,) of the work published under the signature of Publius, has these words:—

“It has been mentioned as one of the advantages to be expected from the coöperation of the Senate in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as appoint. A change of the chief magistrate, therefore, would not occasion so violent or so general a revolution in the offices of the government as might be expected if he were the sole disposer of offices. Where a man, in any station, has given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change, in favor of a person more agreeable to him, by the apprehension that the discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will, in all probability, be less subject to inconstancy than any other member of the government.”

Here this author lays it down, that there can be no doubt of the power of the Senate in the business of removal, Let this be as it may, I am clear that the President alone has not the power. Examine the Constitution; the powers of the several branches of government are there defined; the President has particular powers assigned him; the judicial have, in like manner, powers assigned them; but you will find no such power as removing from office given to the President. I call upon gentlemen to show me where it is said that the President shall remove from office. I know they cannot do it. Now I infer from this, as the Constitution has not given the President the power of removability, it meant that he should not have that power, and this inference is supported by that clause in the Constitution, which provides that all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Here is a particular mode prescribed for removing, and if there is no other mode directed, I contend that the Constitution contemplated only this mode. But let me ask gentlemen if any other mode is necessary. For what other cause should a man be removed from office? Do gentlemen contend that sickness or ignorance would be a sufficient cause? I believe, if they will reflect, they cannot instance any person who was removed from ignorance. I venture to say, there never was an instance of this nature in the United States, There have been instances where a person has been removed for offences: the same may again occur, and are therefore judiciously provided for in the Constitution. But in this case, is he removed from his ignorance, or his error. which is the consequence of his ignorance? I suppose it is for his error, because the public are injured by it, and not for incapacity. The President is to nominate the officer, and the Senate to approve: here is provision made against the appointment of ignorant officers. They cannot be removed for causes which subsisted before their coming into office. Their ignorance therefore must arise after they are appointed; but this is an unlikely case, and one that cannot be contemplated as probable.

I imagine, sir, we are declaring a power in the President which may hereafter be greatly abused, for we are not always to expect a chief magistrate in whom such entire confidence can be placed as in the present. Perhaps gentlemen are so much dazzled with the splendor of the virtues of the present President, as not to be able to see into futurity. The framers of the Constitution did not confine their views to the first person who was looked up to, to fill the presidential chair. If they had, they might have omitted those checks and guards with which the powers of the executive are surrounded. They knew, from the course of human events, that they could not expect to be so highly favored of Heaven, as to have the blessing of his administration more than seven or fourteen years; after which, they supposed a man might get into power, who, it was possible, might misbehave. We ought to follow their example, and contemplate this power in the hands of an ambitious man, who might apply it to dangerous purposes. If we give this power to the President, he may, from caprice, remove the most worthy men from office: his will and pleasure will be the slight tenure by which an office is to be held; and of consequence, you render the officer the mere state dependant, the abject slave, of a person who may be disposed to abuse the confidence his fellow-citizens have placed in him.

Another danger may result. If you desire an officer to be a man of capacity and integrity, you may be disappointed. A gentleman possessed of these qualities, knowing he may be removed at the pleasure of the President, will be loath to risk his reputation on such insecure ground. As the matter stands in the Constitution, he knows, if he is suspected of doing any thing wrong, he shall have a fair trial, and the whole of his transactions developed by an impartial tribunal: he will have confidence in himself when he knows he can only be removed for improper behavior. But if he is subjected to the whim of any man, it may deter him from entering into the service of his country; because, if be is not subservient to that person’s pleasure, he may be turned out, and the public may be led to suppose for improper behavior. This impression cannot be removed, as a public inquiry cannot be obtained. Beside this, it ought to be considered, that the person who is appointed will probably quit some other office or business in which he is occupied. Ought he, after making this sacrifice in order to serve the public, to be turned out of place without even a reason being assigned for such behavior? Perhaps the President does not do this with an ill intention: he may have been misinformed, for it is presumable that a President may have round him men envious of the honors or emoluments of persons in office, who will insinuate suspicions into his honest breast, that may produce a removal; be this as it may, the event is still the same to the removed officer. The public suppose him guilty of malpractices—hence his reputation is blasted, his property sacrificed. I say his property is sacrificed, because I consider his office as his property: he is stripped of this, and left exposed to the malevolence of the world, contrary to the principles of the Constitution, and contrary to the principles of all free governments, which are, that no man shall be despoiled of his property but by a fair and impartial trial.

I have stated that, if the power is given by the Constitution, the declaration in the law is nugatory; and I will add, if it is not given, it will be nugatory also to attempt to vest the power. If the Senate participate, on any principle whatever, in the removal, they will never consent to transfer their power to another branch of the government; therefore they will not pass a law with such a declaration in it.

Upon this consideration alone, if there was no other, the words should be struck out, and the question of right, if it is one, left to the decision of the judiciary. It will be time enough to determine the question when the President shall remove an officer in this way. I conceive it can properly be brought before that tribunal; the officer will have a right to a mandamus to be restored to his office; and the judges would determine whether the President exercised a constitutional authority or not.

Some gentlemen think the Constitution takes no notice of this officer, as the head of a department. They suppose him an inferior officer in aid of the executive. This, I think. is going too far; because the Constitution, in the words authorizing the President to call on the heads of departments for their opinions in writing, contemplates several departments. It says, “the principal officer in each of the executive departments.”

I have seriously reflected on this subject, and am convinced that the President has not this power by the Constitution, and that, if we had the right to invest him with it, it would be dangerous to do so.

Mr. HUNTINGDON. I think the clause ought not to stand. It was well observed, that the Constitution was silent respecting the removal, otherwise than by impeachment. I would likewise add, that it mentions no other cause of removal than treason, bribery, or other high crimes and misdemeanors. it does not, I apprehend, extend to cases of infirmity or incapacity. Indeed, it appears hard to me that, after an officer has become old in an honorable service, he should be impeached for this infirmity. The Constitution, I think, must be the only rule to guide us on this occasion. As it is silent with respect to the removal, Congress ought to say nothing about it, because it implies that we have a right to bestow it, and I believe this power is not to be found among the enumerated powers delegated by the Constitution to Congress.

It was said, if the President had this authority, it would make him more responsible for the conduct of the officer. But if we have a vicious President, who inclines to abuse this power, which God forbid! his responsibility will stand us in little stead: therefore that idea does not satisfy me that it is proper the President should have this power.

Mr. SEDGWICK. I wish the words to be struck out, because I conceive them to be unnecessary in this place. I do conceive, Mr. Speaker, that this officer will be the mere creature of the law, and that very little need be said to prove to you that of necessity this ought to be the case. I apprehend, likewise, that it requires but a small share of abilities to point out certain causes for which a person ought to be removed from office, without being guilty of treason, bribery, or malfeasance; and the nature of things demands that it should be so. Suppose, sir, a man becomes insane by the visitation of God, and is likely to ruin our affairs; are the hands of government to be confined from warding off the evil? Suppose a person in office not possessing the talents he was judged to have at the time of the appointment; is the error not to be corrected? Suppose he acquires vicious habits, an incurable indolence, or total neglect of the duties of his office, which forebode mischief to the public welfare; is there no way to arrest the threatened danger? Suppose he becomes odious and unpopular by reason of the measures which he pursues,—and this he may do without committing any positive offence against the law, must he preserve his office in despite of the public will? Suppose him grasping at his own aggrandizement, and the elevation of his connections, by every means short of the treason defined by the Constitution,—hurrying your affairs to the precipice of destruction, endangering your domestic tranquility, plundering you of the means of defence, by alienating the affections of your allies, and promoting the spirit of discord,—is there no way suddenly to seize the worthless wretch, and hurl him from the pinnacle of power? Must the tardy, tedious, desultory road; by way of impeachment, be travelled to overtake the man who, barely confining himself within the letter of the law, is employed in drawing off the vital principle of the government? Sir, the nature of things, the great objects of society, the express objects of this Constitution, require that this thing should be otherwise. Well, sir, this is admitted by gentlemen; but they say the Senate is to be united with the President in the exercise of this power. I hope, sir, this is not the case, because it would involve us in the most serious difficulty. Suppose a discovery of any of those events which I have just enumerated were to take place when the Senate is not in session; how is the remedy to be applied? This is a serious consideration, and the evil could be avoided no other way than by the Senate’s sitting always. Surely no gentleman of this house contemplates the necessity of incurring such au expense. I am sure it will be very objectionable to our constituents; and yet this must be done, or the public interest he endangered by keeping an unworthy officer in place until that body shall be assembled from the extremes of the Union.

It has been said that there is danger of this power being abused if exercised by one man Certainly, the danger is as great with respect to the Senate, who are assembled from various parts of the continent, with different impressions and opinions. It appears to me that such a body is more likely to misuse this power than the mall whom the united voice of America calls to the presidential chair. As the nature of the government requires the power of removal, I think it is to be exercised in this way by a hand capable of exerting itself with effect; and the power must be conferred on the President by the Constitution, as the executive officer of the government.

I believe some difficulty will result from determining this question by a mandamus. A mandamus is issued to replace au officer who has been removed contrary to law. Now, this officer being the creature of the law, we may declare that he shall be removed for incapacity; and if so declared, the removal will be according to law.

Mr. MADISON. If the construction of the Constitution is to be left to its natural course, with respect to the executive powers of this government, I own that the insertion of this sentiment in law may not be of material importance, though, if it is nothing more than a mere declaration of a clear grant made by the Constitution, it can do no harm; but if it relates to a doubtful part of the Constitution, I suppose an exposition of the Constitution may come with as much propriety from the legislature as any other department of government. If the power naturally belongs to the government, and the Constitution is undecided as to the body which is to exercise it, it is likely that it is submitted to the discretion of the legislatures, and the question will depend upon its own merits.

I am clearly of opinion with the gentleman from South Carolina, (Mr. Smith,) that we ought, in this and every other case, to adhere to the Constitution, so far as it will serve as a guide to us; and that we ought not to be swayed in our decisions by the splendor of the character of our present chief magistrate, but consider it with respect to the merit of men who, in the ordinary course of things, may be supposed to fill the chair. I believe the power here declared is a high one, and in some respects a dangerous one; but, in order to come to a right decision on this point, we must consider both sides of the question—the possible abuses which may spring from the single will of the first magistrate, and the abuse which may spring from the combined will of the executive and the senatorial qualification.

When we consider that the first magistrate is to be appointed at present by the suffrages of three millions of people, and, in all human probability, in a few years’ time, by double that number, it is not to be presumed that a vicious or bad character will be selected. If the government of any country on the face of the earth was ever effectually guarded against the election of ambitious or designing characters to the first office of the state, I think it may with truth be said to be the case under the Constitution of the United States. With all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the present system, I think we may fairly calculate that the instances will be very rare in which an unworthy man will receive that mark of public confidence which is required to designate the President of the United States; Where the people are disposed to give so great an elevation to one of their fellow-citizens, I own that I am not afraid to place my confidence in him; especially when I know he is impeachable, for any crime or misdemeanor, before the Senate at all times; and that, at all events, he is impeachable before the community at large every four years, and liable to be displaced if Iris conduct shall have given umbrage during the time he has been in office. Under these circumstances, although the trust is a high one, and in some degree, perhaps, a dangerous one, I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be.

It is evidently the intention of the Constitution that the first magistrate should be responsible for the executive department; so far, therefore, as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his country. Again: is there no danger that an officer, when he is appointed by the concurrence of the Senate, and has friends in that body, may choose rather to risk his establishment on the favor of that branch, than rest it upon the discharge of his duties to the satisfaction of the executive branch, which is constitutionally authorized to inspect and control his conduct? and if it should happen that the officers connect themselves with the Senate, they may mutually support each other, and, for want of efficacy, reduce the power of the President to a mere vapor, in which case his responsibility would be annihilated, and the expectation of it unjust. The high executive officers, joined in cabal with the Senate, would lay the foundation of discord, and end in an assumption of the executive power, only to be removed by a revolution in the government. I believe no principle is more clearly laid down in the Constitution than that of responsibility. After promising this, I will proceed to an investigation of the merits of the question upon constitutional ground.

I have, since the subject was last before the house, examined the Constitution with attention; and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance. I am inclined to think that a free and systematic interpretation of the plan of government will leave us less at liberty to abate the responsibility than gentlemen imagine. I have already acknowledged that the powers of the government must remain as apportioned by the Constitution. But it may be contended that, where the Constitution is silent, it becomes a subject of legislative discretion. Perhaps, in the opinion of some, an argument in favor of the clause may be successfully brought forward on this ground. I, however, leave it for the present untouched.

By a strict examination of the Constitution on what appear to be its true principles, and considering the great departments of the government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill.

In the 1st section of the 1st article, it is said that all legislative powers herein granted shall be vested in a Congress of the United States. In the 2d article, it is affirmed that the executive power shall he vested in a President of the United States of America. In the 3d article, it is declared that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish. I suppose it would be readily admitted that, so far as the Constitution has separated the powers of these great departments, it would be improper to combine them together; and so far as it has left any particular department in the entire possession of the powers incident to that department, I conceive we ought not to qualify them further than they are qualified by the Constitution. The legislative powers are vested in Congress, and are to be exercised by them uncontrolled by any other department, except the Constitution has qualified it otherwise. The Constitution has qualified the legislative power by authorizing the President to object to any act it may pass—requiring, in this case, two thirds of both houses to concur in making a law; but still the absolute legislative power is vested in the Congress, with this qualification alone.

The Constitution affirms that the executive power shall be vested in the President. Are there exceptions to this proposition? Yes, there are. The Constitution says that, in appointing to office, the Senate shall be associated with the President, unless in the case of inferior officers, when the law shall otherwise direct, Have we a right to extend this exception? I believe not. If the Constitution has invested all executive power in the President, I venture to assert that the legislature has no right to diminish or modify his executive authority.

The question now resolves itself into this: Is the power of displacing an executive power? I conceive that, if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws. If the Constitution had not qualified the power of the President in appointing to office, by associating the Senate with him in that business, would it not be clear that he would have the right, by virtue of his executive power, to make such appointment? Should we be authorized, in defiance of that clause in the Constitution,—”The executive power shall be vested in a President,”—to unite the Senate with the President in the appointment to office? I conceive not. If it is admitted we should not be authorized to do this, I think it may be disputed whether we have a right to associate them in removing persons from office, the one power being as much of an executive nature as the other; and the first only is authorized by being excepted out of the general rule established by the Constitution, in these words, “The executive power shall be vested in the President.”

The judicial power is vested in a Supreme Court; but will gentlemen say the judicial power can be placed elsewhere, unless the Constitution has made an exception? The Constitution justifies the Senate in exercising a judiciary power in determining on impeachments. But can the judicial powers be further blended with the powers of that body? They cannot. I therefore say it is incontrovertible, if neither the legislative nor judicial powers are subjected to qualifications other than those demanded in the Constitution, that the executive powers are equally unabatable as either of the other; and inasmuch as the power of removal is of an executive nature, and not affected by any constitutional exception, it is beyond the reach of the legislative body.

If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the Constitution, and therefore not liable to any particular objection on that account. If the Constitution is silent, and it is a power the legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill.

Mr. WHITE. I have no doubt in my mind but an officer can be removed without a public trial. I think there are cases in which it would he improper that his misdemeanors should be publicly known, the tranquillity and harmony of the Union might be endangered if his guilt was not secreted from the world. I have therefore no hesitation in declaring, as my sentiment, that the President and Senate may dismiss him.

The Constitution contemplates a removal in some other way besides that by impeachment, or why is it declared, in favor of the judges only, that they shall hold their offices during good behavior? Does not this strongly imply that, without such an exception, there would have been a discretionary power in some branch of the government to dismiss even them?

Several objections have arisen from the inconvenience with which the power must be exercised, if the Senate is blended with the executive; and therefore it is inferred that the President ought exclusively to have this power. If we were framing a constitution, these arguments would have their proper weight, and I might approve such an arrangement. But at present, I do not consider we are at liberty to deliberate on that subject; the Constitution is already formed, and we can go no farther in distributing the powers than the Constitution warrants.

It was objected that the President could not remove an officer unless the Senate was in session; but yet the emergency of the case might demand an instant dismission. I should imagine that no inconvenience would result on this account; because, on my principle, the same power which can make a temporary appointment, can make an equal suspension: the powers are opposite to each other.

The gentleman says we ought not to blend the executive and legislative powers further than they are blended in the Constitution. I contend we do not. There is no expression in the Constitution which says that the President shall have the power of removal from office: but the contrary is strongly implied; for it is said that Congress may establish officers by law, and vest the appointment, and consequently the removal, in the President alone, in the courts of law, or heads of departments. Now, this shows that Congress are not at liberty to make any alteration by law in the mode of appointing superior officers, and consequently that they are not at liberty to alter the manner of removal.

Mr. BOUDINOT. This is a question, Mr. Speaker, that requires full consideration, and ought only to be settled on the most candid discussion. It certainly involves the right of the Senate to a very important power. At present, I am so impressed with the importance of the subject, that I dare not absolutely decide on any principle, although I am firmly persuaded we ought to retain the clause in the bill; and, so far as it has been examined, I agree that it is a legislative construction of the Constitution necessary to be settled for the direction of your officers. But if it is a deviation from the Constitution, or in the least degree an infringement upon the authority of the other branch of the legislature, I shall most decidedly be against it. But I think it will appear, on a full consideration of this business, that we can do no otherwise than agree to this construction, in order to preserve to each department the full exercise of its powers, and to give this house security for the proper conduct of the Officers who are to execute the laws.

The arguments adduced are to show that the power of removal lies either in the President and the Senate, or the President alone, except in cases of removal by impeachment. There is nothing, I take it, in the Constitution, or the reason of the thing, that officers should be only removable by impeachment. Such a provision would be derogatory to the powers of government, and subversive of the rights of the people. What says the Constitution on this point? I fear, sir, it has not been rightly comprehended. That the House of Representatives shall have the sole power of impeachment; that the Senate shall have the sole power to try all impeachments; and judgment shall not extend further than to removal from office, and disqualification to hold it in future: then comes the clause declaring, absolutely, that he shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes or misdemeanors.

It is this clause which guards the right of the house, and enables them to pull down an improper officer, although he should be supported by all the power of the executive. This, then, is a necessary security to the people, and one that is wisely provided in the Constitution. But I believe it is nowhere said that officers shall never be removed but by impeachment; but it says they shall be removed on impeachment. Suppose the secretary of foreign affairs shall misbehave, and we impeach him; notwithstanding the clearest proof of guilt, the Senate might only impose some trifling punishment, and retain him in office, if it was not for this declaration in the Constitution.

Neither this clause nor any other goes so far as to say it shall be the only mode of removal; therefore we may proceed to inquire what the other is. Let us examine whether it belongs to the Senate and President. Certainly, sir, there is nothing that gives the Senate this right in express terms; but they are authorized in express words to be concerned in the appointment. And does this necessarily include the power of removal? If the President complains to the Senate of the misconduct of an officer, and desires their advice and consent to the removal, what are the Senate to do? Most certainly, they will inquire if the complaint is well founded. To do this, they must call the officer before them to answer. Who, then, are the parties? The supreme executive officer against his assistant; and then the Senate are to set judges to determine whether sufficient cause of retrieval exists. Does not this set the Senate over the head of the President? But suppose they shall decide in favor of the officer; what a situation is the President then in, surrounded by officers with whom, by his situation, he is compelled to act, but in whom he can have no confidence, reversing the privilege, given him by the Constitution, to prevent his having officers imposed upon him who do not meet his approbation!

But I have another more solid objection, which places the question in a more important point of view. The Constitution has placed the Senate as the only security and barrier between the House of Representatives and the President. Suppose the President has desired the Senate to concur in removing an officer, and they have declined or suppose the House have applied to the President and Senate to remove an officer obnoxious to them, and they determine against the measure; the house can have recourse to nothing but an impeachment, if they suppose the criminality of the officer will warrant such procedure. Will the Senate, then, be that upright court which they ought, to appeal to on this occasion, when they have prejudged your cause? I conceive the Senate will be too much under the control of their former decision, to be a proper body for this house to apply to for impartial justice.

As the Senate are the dernier resort, and the only court of judicature which can determine on cases of impeachment, I am for preserving them free and independent, both on account of the officer and this house. I therefore conceive that it was never the intention of the Constitution to vest the power of removal in the President and Senate; but as it must exist somewhere, it rests on the President alone. I conceive this point was made fully to appear by the honorable member from Virginia, (Mr. Madison;) inasmuch as the President is the supreme executive officer of the United States.

It was asked if ever we knew a person removed from office by reason of sickness or ignorance. If there never was such a case, it is perhaps nevertheless proper that they should be removed for those reasons, and we shall do well to establish the principle.

Suppose your secretary of foreign affairs rendered incapable of thought or action by a paralytic stroke. I ask whether there would be any propriety in keeping such a person in office; and whether the salus populi—the first object of republican government—does not absolutely demand his dismission. Can it be expected that the President is responsible for an officer under these circumstances, although, when he went into office, he might have been a wise and virtuous man, and the President well inclined to risk his own reputation upon the integrity and abilities of the person?

I conceive it will be improper to leave the determination of this question to the judges. There will be some indelicacy in subjecting the executive action in this particular to a suit at law; and there may be much inconvenience if the President does not exercise this prerogative until it is decided by the courts of justice.

From these considerations, the safety of the people, the security of this house, and adherence to the spirit of the Constitution, I am disposed to think the clause proper; and as some doubts respecting the construction of the Constitution have arisen, I think it also necessary; therefore I hope it will remain

Mr. SMITH, (of South Carolina.) The gentleman from Virginia has said that the power of removal is executive in its nature. I do not believe this to be the case. I have turned over the constitutions of most of the states, and I do not find that any of them have granted this power to the governor.— In some instances I find the executive magistrate suspends, but none of them have the right to remove, officers; and I take it that the Constitution of the United States has distributed the powers of government on the same principles which most of the state constitutions have adopted; for it will not be contended but the state governments furnished the members of the late Convention with the skeleton of this Constitution.

The gentlemen have observed that it would be dangerous if the President had not this power. But is there not danger in making your secretary of foreign affairs dependent upon the will and pleasure of the President? Can gentlemen see the danger on one side only? Suppose the President averse to a just and honorable war which Congress have embarked in; can he not countenance the secretary at war (for it is in contemplation to establish such an officer) in the waste of public stores, and misapplication of the supplies? Nay, cannot he dragoon your officer into a compliance with his designs by threatening him with a removal by which his reputation and property would be destroyed? If the officer was established on a better tenure, he would dare to be honest; he would know himself invulnerable in his integrity, and defy the shafts of malevolence, though aimed with Machiavellian policy. He would be a barrier to your executive officer, and save the state from ruin.

But, Mr. Chairman, the argument does not turn upon the expediency of the measure, The great question is with respect to its constitutionality; and as yet I have heard no argument advanced sufficiently cogent to prove to my mind that the Constitution warrants such a disposition of the power of removal; and until I am convinced that it is both expedient and constitutional, I cannot agree to it.

Mr. GERRY. Some gentlemen consider this as a question of policy; but to me it appears a question of constitutionality, and I presume it will be determined on that point alone. The best arguments I have heard urged on this occasion came from the honorable gentleman from Virginia, (Mr. Madison.) He says, the Constitution has vested the executive power in the President; and that he has a right to exercise it under the qualifications therein made. He lays it down as a maxim, that the Constitution, vesting in the President the executive power, naturally vests him with the power of appointment and removal. Now, I would be glad to know from that gentleman, by what means we are to decide this question. Is his maxim supported by precedent drawn from the practice of the individual states? The direct contrary is established. In many cases, the executives are not, in particular, vested with the power of appointment; nor do they exercise that power by virtue of their office. It will be found that other branches of the government make appointments. How, then, can gentlemen assert that the powers of appointment and removal are incident to the executive department of the government? To me it appears at best but problematical. Neither is it clear to me that the power that appoints naturally possesses the power of removal. As we have no certainty on either of these points, I think we must consider it, as established by the Constitution.

It has been argued that, if the power of removal vests in the President alone, it annuls or renders nugatory the clause in the Constitution which directs the concurrence of the Senate in the case of appointment: it behoves us not to adopt principles subversive of those established by the Constitution. It has been frequently asserted, on former occasions, that the Senate is a permanent body, and was so constructed in order to give durability to public measures. If they are not absolutely permanent, they are formed on a renovating principle which gives them a salutary stability. This is not the case either with the President or House of Representatives; nor is the judiciary equally lasting, because the officers are subject to natural dissolution. It appears to me that a permanency was expected in the magistracy; and therefore the Senate were combined in the appointment to office. But if the President alone has the power of removal, it is in his power at any time to destroy all that has been done. It appears to me that such a principle would be destructive of the intention of the Constitution expressed by giving the power of appointment to the Senate. It also subverts the clause which gives the Senate the sole power of trying impeachments; because the President may remove the officer, in order to screen him from the effects of their judgment on an impeachment. Why should we construe any part of the Constitution in such a manner as to destroy its essential principles, when a more consonant construction can be obtained?

It appears very clear to me that, however this power may be distributed by the Constitution, the House of Representatives have nothing to do with it. Why, then, should we interfere in the business? Are we afraid the President and Senate are not sufficiently informed to know their respective duties?. Our interposition argues that they want judgment, and are not able to adjust their powers without the wisdom of this house to assist them. To say the least on this point, it must be deemed indelicate for us to intermeddle with them. If the fact is, as we seem to suspect, that they do not understand the Constitution, let it go before the proper tribunal; the judges are the constitutional umpires on such questions. Why, let me ask, gentlemen, shall we commit an infraction of the Constitution, for fear the Senate or President should not comply with its directions?

It has been said, by my colleague, that these officers are the creatures of the law; but it seems as if we were not content with that,—we are making them the mere creatures of the President. They dare not exercise the privilege of their creation, if the President shall order them to forbear. Because he holds their thread of life, his power will be sovereign over them, and will soon swallow up the small security we have in the Senate’s concurrence to the appointment, and we shall shortly need no other than the authority of the supreme executive officer to nominate, appoint, continue, or remove.

Mr. AMES. When this question was agitated at a former period, I took no part in the debate. I believe it was then proposed without any idea or intention of drawing on a lengthy discussion, and to me it appeared to be well understood and settled by the house; but since it has been reiterated and contested again, I feel it my bounden duty to deliver the reasons for voting in the manner I then did and shall do now. Mr. Chairman, I took upon every question which touches the Constitution as serious and important, and therefore worthy of the fullest discussion and the most solemn decision. I believe, on the present occasion, we may come to something near certainty, by attending to the leading principles of the Constitution. In order that the good purposes of a federal government should be answered, it was necessary to delegate considerable powers; and the principle upon which the grant was made intended to give sufficient power to do all possible good, but to restrain the rulers from doing mischief.

The Constitution places all executive power in the hands of the President; and could he personally execute all the laws, there would be no occasion for establishing auxiliaries; but the circumscribed powers of human nature in one man demand the aid of others. When the objects are widely stretched out, or greatly diversified, meandering through such an extent of territory as what the United States possess, a minister cannot see with his own eyes every transaction, or feel with his hands the minutiae that pass through his department: he must therefore have assistants. But in order that he may be responsible to his country, he must have a choice in selecting his assistants, a control over them, with power to remove them when he finds the qualifications which induced their appointment cease to exist. There are officers under the Constitution who hold their office by a different tenure: your judges are appointed during good behavior; and from the delicacy and peculiar nature of their trust, it is right it should be so, in order that they may be independent and impartial n administering justice between the government and its citizens, But the removability of the one class, or immovability of the other, is founded,in the same principle—the security of the people against the abuse of power. Does any gentleman imagine that an officer is entitled to his office as to an estate? Or does the legislature establish them for the convenience of an individual? For my part, I conceive it intended to carry into effect the purposes for which the Constitution was intended.

The executive powers are delegated to the President, with a view to have a responsible officer to superintend, control, inspect, and check, the officers necessarily employed in administering the laws. The only. bond between him and those he employs is the confidence he has in their integrity and talents. When that confidence ceases, the principal ought to have the power to remove those whom he can no longer trust with safety. If an officer shall be guilty of neglect or infidelity, there can be no doubt but he ought to be removed; yet there may be numerous causes for removal which do not amount to a crime. He may propose to do a mischief, but I believe the mere intention would not be cause of impeachment: he may lose the confidence of the people upon suspicion, in which case it would be improper to retain him in service; he ought to be removed at any time, when, instead of doing the greatest possible good, he is likely to do an injury, to the public interest, by being combined in the administration.

I presume gentlemen will generally admit that officers ought to be removed when they become obnoxious; but the question is, How shall this power be exercised? It will not. I apprehend, be contended that all officers hold their offices during good behavior. If this is the case, it is a most singular government. I believe there is not another in the universe that bears the least semblance to it in this particular: such a principle, I take it, is contrary to the nature of things.

But the manner how to remove is the question. If the officer misbehaves, he can be removed by impeachment. But, in this case, is impeachment the only mode of removal? It would be found very inconvenient to have a man continued in office after being impeached, and when all confidence in him was suspended or lost. Would not the end of impeachment be defeated by this means? If Mr. Hastings, who was mentioned by the gentleman from Virginia, (Mr. Vining,) preserved his command in India, could he not defeat the impeachment now pending in Great Britain? If that doctrine obtains in America, we shall find impeachments come too late; while we are preparing the process, the mischief will he perpetrated, and the offender escape. I apprehend it will be as frequently necessary to prevent crimes as to punish them; and it may often happen that the only prevention is by removal The superintending power possessed by the President will perhaps enable him to discover a base intention before it is ripe for execution. It may happen that the treasurer may be disposed to betray the public chest to the enemy, and so injure the government beyond the possibility of reparation. Should the President be restrained from removing so dangerous an officer until the stow formality of an impeachment was complied with, when the nature of the case rendered the application of a sudden and decisive remedy indispensable?

But it will, I say, be admitted that an officer may be removed: the question then is, by whom? Some gentlemen say, by the President alone: and others, by the President, by and with the advice of the Senate. By the advocates of the latter mode it is alleged that the Constitution is in the way of the power of removal being by the President alone. If this is absolutely the case, there is an end to all further inquiry. But before we suffer this to be considered an insuperable impediment, we ought to be clear that the Constitution prohibits him the exercise of what, on a first view, appears to be a power incident to the executive branch of the government. The gentleman from Virginia (Mr. Madison) has made so many observations to evince the constitutionality of the clause, that it is unnecessary to go over the ground again, t shall therefore confine myself to answer only some remarks made by the gentleman from South Carolina, (Mr. Smith.) The powers of the President are defined in the Constitution; but it is said that he is not expressly authorized to remove from office. If the Constitution is silent also with respect to the Senate, the argument may be retorted. If this silence proves that the power cannot be exercised by the President, it certainly proves that it cannot be exercised by the President, by and with the advice and consent of the Senate. The power of removal is incident to government; but, not being distributed by the Constitution, it will come before the legislature, and, like every other omitted case, must be supplied by law.

Gentlemen have said, when the question was formerly before us, that all powers not intended to be given up to the general government were retained. I beg gentlemen, when they undertake to argue from implication, to be consistent, and admit the force of other arguments drawn from the same source. It is a leading principle in every free government—it is a prominent feature in this—that the legislative and executive powers should be kept distinct; yet the attempt to blend the executive and legislative departments, in exercising the power of removal, is such a maxim as ought not to be carried into practice on arguments grounded on implication. And the gentleman from Virginia’s (Mr. White’s) reasoning is wholly drawn from implication. He supposes, as the Constitution qualifies the President’s power of appointing to office, by subjecting his nomination to the concurrence of the Senate, that the qualification follows of course in the removal.

If this is to be considered as a question undecided by the Constitution, and submitted on the footing of expediency, it will be well to consider where the power can be most usefully deposited, for the security and benefit of the people. It has been said by the gentleman on the other side of the house, (Mr. Smith,) that there is an impropriety in allowing the exercise of this power; that it is a dangerous authority, and much evil may result to the liberty and property of the officer who may be turned out of business without a moment’s warning. I take it, the question is not whether such power shall be given or retained; because it is admitted, on all hands, that the officer may be removed; so that it is no grant of power it raises no new danger. If we strike out the clause, we do not keep the power, nor prevent the exercise of it; so the gentleman will derive none of the security he contemplates by agreeing to the motion for striking out. It will be found that the nature of the business requires it to be conducted by the head of the executive; and I believe it will be found, even there. that more injury will arise from not removing improper officers, than from displacing good ones. I believe experience has convinced us that it is an irksome business; and officers are more frequently continued in one place after they become unfit to perform the duties, than turned out while their talents and integrity are useful. But advantages may result from keeping the power of removal, in terrorem, over the heads of the officers: they will be stimulated to do their duty to the satisfaction of the principal, who is to be responsible for the whole executive department.

The gentleman has supposed there will be great difficulty in getting officers of abilities to engage in the service of their country upon such terms. There has never yet been any scarcity of proper officers in any department of the government of the United States; even during the war, when men risked their lives and property by engaging in such service, there were candidates enough.

But why should we connect the Senate in the removal? Their attention is taken up with other important business, and they have no constitutional authority to watch the conduct of the executive officers, and therefore cannot use such authority with advantage. If the President is inclined to shelter himself behind the Senate, with respect to having continued an improper person in office, we lose the responsibility which is our greatest security: the blame, amongst so many, will be lost. Another reason occurs to me against blending these powers. An officer who superintends the public revenue will naturally acquire a great influence. If he obtains support in the Senate, upon an attempt of the President to remove him, it will be out of the power of the house, when applied to by the first magistrate, to impeach him with success; for the very means of proving charges of malconduct against him will be under the power of the officer: all the papers necessary to convict him may be withheld while the person continues in his office. Protection may be rendered for protection; and, as this officer has such extensive influence, it may be exerted to procure the reëlection of his friends. These circumstances, in addition to those stated by the gentleman from New Jersey, (Mr. Boudinot,) must clearly evince to every gentleman the impropriety of connecting the Senate with the President, in removing from office.

I do not say these things will take effect now; and if the question only related to what might take place in a few years, I should not be uneasy on this point, because I am sensible the gentlemen who form the present Senate are above corruption; but in future ages, (and I hope this government may be perpetuated to the end of time,) such things may take place, and it is our duty to provide against evils which may be foreseen, but if now neglected, will be irremediable.

I beg to observe, further, that there are three opinions entertained by gentlemen on this subject. One is, that the power of removal is prohibited by the Constitution; the next is, that it requires it by the President; and the other is, that the Constitution is totally silent. It therefore appears to me proper for the house to declare what is their sense of the Constitution. If we declare justly on this point, it will serve for a rule of conduct to the executive magistrate: if we declare improperly, the judiciary will revise our decision; so that, at all events, I think we ought to make the declaration.

Mr. LIVERMORE. I am for striking out this clause, Mr. Chairman, upon the principles of the Constitution, from which we are not at liberty to deviate. The honorable gentleman from Massachusetts (Mr. Sedgwick) calls the minister of foreign affairs the creature of the law, and that very properly; because the law establishes the office, and has the power of creating him in what shape the legislature pleases. This being the case, we have a right to create the office under such limitations and restrictions as we think proper, provided we can obtain the consent of the Senate; but it is very improper to draw, as a conclusion from having the power of giving birth to a creature, that we should therefore bring forth a monster, merely to show we had such power. I call that creature a monster that has not the proper limbs and features of its species. I think the creature we are forming is unnatural in its proportions. It has been often said that the Constitution declares the President, by and with the advice and consent of the Senate, shall appoint this officer. This, to be sure, is very true, and so is the conclusion which an honorable gentleman from Virginia (Mr. White) drew from it—that an officer must be discharged in the way he was appointed.

I believe, Mr. Chairman, this question depends upon a just construction of a short clause in the Constitution—”the President shall have power, by and with the advice and consent of the Senate, to appoint ambassadors; other public ministers, and consuls; judges of the Supreme Court, and all other officers of the United States.” Here is no difference with respect to the power of the President to make treaties and appoint officers, only it requires in the one case a larger majority to concur than in the other. I will not, by any means, suppose that gentlemen mean, when they argue in favor of removal by the President alone, to contemplate the extension of the power to the repeal of treaties; because, if they do, there will be little occasion for us to sit here. But, let me ask these gentlemen—as there is no real or imaginary distinction between the appointment of ambassadors and ministers, or secretaries of foreign affairs—whether they mean that the President should have the power of recalling or discarding ambassadors and military officers,—for the words in the Constitution are, “all other officers,”—as well as he can remove your secretary of foreign affairs. To be sure, they cannot extend it to the judges, because they are secured under a subsequent article, which declares they shall hold their offices during good behavior; they have an inheritance which they cannot be divested of but on conviction of some crime. But I presume gentlemen mean to apply it to all those who have not an inheritance in their offices. In this case, it takes the whole power of the President and Senate to create an officer; but half the power can uncreate him. Surely, a law passed by the whole legislature cannot be repealed by one branch of it; so, I conceive, in the case of appointments, it requires the same force to supersede an officer as to put him in office.

I acknowledge that the clause relative to impeachment is for the benefit of the people. It is intended to enable their representatives to bring a bad officer to justice, who is screened by the President. But I do not conceive, with the honorable gentleman from South Carolina, (Mr. Smith,) that it, by any means, excludes the usual ways of superseding officers. It is said, in the Constitution, that the house shall have the power of choosing their own officers. We have chosen a clerk, and, I am satisfied, a very capable one; but will any gentleman contend that we may not discharge him, and choose another, and another, as often as we see cause? And so it is in every other instance—where they have power to make, they have likewise the power to unmake. It will be said, by gentlemen, that the power to make does not imply the power of unmaking; but I believe they will find very few exceptions in the United States.

Were I to speak of the expediency, every one of my observations would be against it. When an important and confidential trust is placed inn man, it is worse than death to him to be displaced without cause; his reputation depends upon the single will of the President, who may ruin him on bare suspicion. Nay, a new President may turn him out on mere caprice, or in order to make room for a favorite. This contradicts all my notions of propriety; every thing of this sort should he done with due deliberation; every person ought to have a hearing before they are punished. It is on these considerations that I wish the general principle laid down by the gentleman from Virginia (Mr. White) may be adhered to.

I will add one word more, and I have done. This seems, Mr. Chairman, altogether to be aimed at the Senate. What have they done to chagrin us? or why should we attempt to abridge their powers, because we can reach them by our regulations in the shape of a bill? I think we had better let it alone. If the Constitution has given them this power, they will reject this part of the bill, and they will exercise that one privilege judiciously, however they may the power of removal. If the Constitution has not given it to them, it has not vested it any where else; consequently, this house would have no right to confer it.

Mr. HARTLEY, I apprehend, Mr. Chairman, that this officer cannot be considered as appointed during good behavior, even in point of policy; but with respect to the constitutionality, I am pretty confident he cannot be viewed in that light. The Constitution declares the tenure of the officers it recognizes, and says one class of them shall hold their offices during good behavior; they are the judges of your Supreme and other courts; but as to any other officer being established on this firm tenure, the Constitution is silent. It, then, necessarily follows that we must consider every other according to its nature, and regulate it in a corresponding manner. The business of the secretary of foreign affairs is of an executive nature, and must consequently be attached to the executive department.

I think the gentleman from South Carolina goes too far, in saying that the clause respecting impeachments implies that there is no other mode of removing an officer. I think it does not follow that, because one mode is pointed out by the Constitution, there is no other, especially if that provision is intended for nothing more than a punishment for a crime. The 4th section of the 2d article says that all civil officers shall be removed on conviction of certain crimes. But it cannot be the intention of the Constitution to prevent, by this, a removal in any other way. Such a principle, if once admitted, would be attended with very inconvenient and mischievous consequences.

The gentleman further contends that every man has a property in his office, and ought not to be removed but for criminal conduct; he ought not to be removed for inability. I hope this doctrine will never be admitted in this country. A man, when in office, ought to have abilities to discharge the duties of it. If he is discovered to be unfit, he ought to be immediately removed; but not on principles like what that gentleman contends for. If he has an estate in his office, his right must be purchased, and a practice like what obtains in England will be adopted here. We shall be unable to dismiss an officer, without allowing him a pension for the interest he is deprived of. Such doctrine may suit a nation which is strong in proportion to the number of dependants upon the crown, but will be very pernicious in a republic like ours. When we have established an office, let the provision for the support of the officer be equal to compensate his services; but never let it be said that he has an estate in his office when he is found unfit to perform his duties. If offices are to be held during good behavior, it is easy to foresee that we shall have as many factions as heads of departments. The consequence would be, corruption in one of the great departments of government; and if the balance is once destroyed, the Constitution must fall amidst the ruins. From this view of the subject, I have no difficulty to declare that the secretary of foreign affairs is an officer during pleasure, and not during good behavior, as contended for.

One gentleman (Mr. White) holds the same principles, but differs with respect to the power which ought to exercise the privilege of removal. On this point we are reduced to a matter of construction; but it is of high importance to the United States that a construction should be rightly made. But gentlemen say it is inconsistent with the Constitution to make this declaration; that, as the Constitution is silent, we ought not to be too explicit. The Constitution has expressly pointed out several matters which we can do, and some which we cannot; but in other matters it is silent, and leaves them to the discretion of the legislature. If this is not the case, why was the last clause of the 8th section of the 1st article inserted? It gives power to Congress to make all laws necessary and proper to carry the government into effect.

I look upon it that the legislature have, therefore, a right to exercise their discretion on such questions; and, however attentively gentlemen may have examined the Constitution on this point, I trust they have discovered no clause which forbids this house interfering in business necessary and proper to carry the government into effect.

The Constitution grants expressly to the President the power of filling all vacancies during the recess of the Senate. This is a temporary power, like that of removal, and liable to very few of the objections which have been made. When the President has removed an officer, another must be appointed; but this cannot be done without the advice and consent of the Senate. Where, then, is the danger of the system of favoritism? The President. notwithstanding the supposed depravity of mankind, will hardly remove a worthy officer to make way for a person whom the Senate max reject. Another reason why the power of removal should be lodged with the President, rather than with the Senate, arises from their connection with the people. The President is the representative of the people; in a near and equal manner, he is the guardian of his country. The Senate are the representatives of the State legislatures; but they are very unequal in that representation; each state sends two members to that house, although their proportions are as ten to one. Hence arises a degree of insecurity to an impartial administration; but if they possessed every advantage of equality, they cannot he the proper body to inspect into the behavior of officers, because they have no constitutional powers for this purpose. It does not always imply criminality to be removed from office, because it may be proper to remove for other causes; neither do I see any danger which can result from the exercise of this power by the President, because the Senate is to be consulted in the appointment which is afterwards to take place. Under these circumstances, I repeat it, that I have no doubt, in my own mind, that this office is during pleasure; and that the power of removal, which is a mere temporary one, ought to be in the President, whose powers, taken together, are not very numerous, and the success of this government depends upon their being unimpaired.

Mr. LAWRENCE. It has been objected against this clause, that the granting of this power is unconstitutional. It was also objected, if it is not unconstitutional, it is unnecessary; that the Constitution must contain, in itself, the power of removal, and have given it to some body, or person, of the government, to be exercised; that, therefore, the law could make no disposition of it, and the attempt to grant it was unconstitutional; or the law is unnecessary;—for, if the power is granted in the way the clause supposes, the legislature can neither add to nor diminish the power by making the declaration.

With respect to the unconstitutionality of the measure, I observe, that, if it is so, the Constitution must have given the power expressly to some person or body other than the President; otherwise, it cannot be said with certainty that it is unconstitutional in us to declare that he shall have the power of removal. I believe it is not contended that the Constitution expressly gives this power to any other person; but it is contended that the objection is collected from the nature of the body which has the appointment, and the particular clause in the Constitution which declares, that all officers shall be removed on conviction. It will be necessary to examine the expressions of that clause; but I believe it will be found not to comprehend the case we have under consideration. I suppose the Constitution contemplates somewhere the power of removal for other causes besides those expressed as causes of impeachment. I take it that the clause in the Constitution respecting impeachments is making a provision for removal against the will of the President; because the house can carry the offender before a tribunal which shall remove him, notwithstanding the desire of the chief magistrate to keep him in office. If this is not to be the construction, then a particular clause in the Constitution will be nugatory. The Constitution declares that the judges shall hold their offices during good behavior. This implies that other officers shall hold their offices during a limited time, or according to the will of some persons; because, if all persons are to hold their offices during good behavior, and to be removed only by impeachment, then this particular declaration in favor of the judges will be useless. We are told that an officer must misbehave before he can be removed. This is true with respect to those officers who hold their commissions during good behavior; but it cannot be true of those who are appointed during pleasure: they may be removed for incapacity, or if their want of integrity is suspected; but the question is to find where this power of removal resides.

It has been argued that we are to find this in the construction arising from the nature of the authority which appoints. Here I would meet the gentleman, if it was necessary to rest it entirely on that ground. Let me ask the gentleman, who appoints? The Constitution gives an advisory power to the Senate; but it is considered that the President makes the appointment. The appointment and responsibility are actually his; for it is expressly declared that he shall nominate and appoint, though their advice is required to be taken. If, from the nature of the appointment, we are to collect the authority of removal, then I say the latter power is lodged in the President; because, by the Constitution, he has the power of appointment: instantly as the Senate have advised the appointment, the act is required to be executed by the President. The language is explicit: “He shall nominate, and, by and with the advice and consent of the Senate, appoint;” so that, if the gentleman’s general principle, that the power appointing shall remove also, is true, it follows that the removal shall be by the President.

It has been stated, as an objection, that we should extend the powers of the President, if we give him the power of removal; and we are not to construe the Constitution in such way as to enlarge the executive power to the injury of any other; that, as he is limited in the power of appointment by the control of the Senate, he ought to be equally limited in the removal.

If there is any weight in this argument, it implies as forcibly against vesting the power conjointly in the President and Senate; because, if we are not to extend the powers of the executive beyond the express detail of duties found in the Constitution, neither are we at liberty to extend the duties of the Senate beyond those precise points fixed in the same instrument: of course, if we cannot say the President alone shall remove, we cannot say the President and Senate may exercise such power.

It is admitted that the Constitution is silent on this subject; but it is also silent with respect to the appointments it has vested in the legislature. The Constitution declares that Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or heads of departments; yet says nothing with respect to the removal. Now, let us suppose the legislature to have vested the power of appointment in the President in cases of inferior offices; can the intention of the Constitution in this, (contemplating this mode of appointment for the sake of convenience,) be ever carried into effect if we say nothing respecting the removal? What would be the consequence if the legislature should not make the declaration? Could it be supposed that he would not have the authority to dismiss the officer he has so appointed? To be sure he could. Then, of course, in those cases in which the Constitution has given the appointment to the President, he must have the power of removal, for the sake of consistency; for no person will say that, if the President should appoint an inferior officer, he should not have the power to remove him when he thought proper, if no particular limitation was determined by the law. Thus stands the matter with respect to the Constitution. There is no express prohibition of the power, nor positive grant. If, then, we collect the power by inference from the Constitution, we shall find it pointed strongly in favor of the President, much more so than in favor of the Senate combined with him.

This is a case omitted, or it is not; if it is omitted, and the power is necessary and essential to the government, and to the great interests of the United States, who are to make the provision and supply the defect? Certainly the legislature is the proper body. It is declared they shall establish offices by law. The establishment of an office implies every thing relative to its formation, constitution. and termination; consequently, the Congress are authorized to declare their judgment on each of these points. But if the arguments of the gentleman from South Carolina (Mr. Smith) prevail, that, as the Constitution has not meditated the removal of an officer in any other way than by impeachment, it would be an assumption in Congress to vest the President, courts of law, or heads of departments, with power to dismiss their officers in any other manner:—would a regulation of this kind be effectual to carry lute effect the great objects of the Constitution? I contend it would not. Therefore, the principle which opposes the carrying of the Constitution into effect, must be rejected as dangerous and incompatible with the general welfare. Hence all those suppositions, that, because the Constitution is silent, the legislature must not supply the defect, are to be treated as chimeras and illusory inferences.

I believe it is possible that the Constitution may be misconstrued by the legislature; but will any gentleman contend that it is more probable that the Senate, one branch only of the legislature, should make a more upright decision on any point than the whole legislature,—especially on a point in which they are supposed by some gentlemen to be so immediately interested, even admitting that honorable body to have more wisdom and more integrity than this house? Such an inference can hardly be admitted. But I believe it seldom or never was so contended, that there was more wisdom or security in a part than in the whole.

But supposing the power to vest in the Senate, is it more safe in their hands than where we contend it should be? Would it be more satisfactory to our constituents for us to make such a declaration in their favor? I believe not.

With respect to this and every case omitted, but which can be collected from the other provisions made in the Constitution, the people look up to the legislature, the concurrent opinion of the two branches, for their construction; they conceive those cases proper subjects for legislative wisdom; they naturally suppose, where provisions are to be made, they ought to spring from this source, and this source alone.

From a view of these circumstances, we may be induced to meet the question in force. Shall we now venture to supply the defect? For my part, I have no hesitation. We should supply the defect; we should place the power of removal in the great executive officer of the government.

In the Constitution, the heads of departments are considered as the mere assistants of the President in the performance of his executive duties. He has the superintendence, the control, and the inspection, of their conduct; he has an intimate connection with them; they must receive from him his orders and directions; they must answer his inquiries in writing, when he requires it. Shall the person having these superior powers to govern—with such advantages of discovering and defeating the base intentions of his officers, their delinquencies, their defective abilities, or their negligence—be restrained from applying these advantages to the most useful, nay, in some cases, the only useful purpose which can be answered by them?

It appears to me that the power can be safely lodged here. But it has been said by some gentlemen, that if it is lodged here it will be subject to abuse; that there may be a change of officers, and a complete revolution throughout the whole executive department, upon the election of every new President. I admit that this may be the case, and contend that it should be the case if the President thinks it necessary. I contend that every President should have those men about him in whom he can place the most confidence, provided the Senate approve his choice. But we are not from hence to infer that changes will be made in a wanton manner, and from capricious motives; because the Presidents are checked and guarded in a very safe manner with respect to the appointment of their successors; from all which it may be fairly presumed that changes will be made on principles of policy and propriety only.

Will the man chosen by three millions of his fellow-citizens, be such a wretch as to abuse them in a wanton manner? For my part I should think, with the gentleman from Virginia, (Mr. Madison,) that a President, thus selected and honored by his country, is entitled to my confidence; and I see no reason why we should suppose he is more inclined to do harm than good. Elected as he is, I trust we are secure. I do not draw these observations from the safety I conceive under the present administration, or because our chief magistrate is possessed of irradiated virtues, whose lustre brightens this western hemisphere, and incites the admiration of the world! But I calculate upon what our mode of election is likely to bring forward, and the security which the Constitution affords. If the President abuses his trust, will he escape the popular censure when the period which terminates his elevation arrives? And would he not be liable to impeachment for displacing a worthy and able man who enjoyed the confidence of the people?

We ought not to consider one side alone; we should consider the benefit of such an arrangement, as well as the difficulties. We should also consider the difficulties arising from the exercise of the power of removing by the Senate. It was well observed by an honorable gentleman (Mr. Sedgwick) on this point, that the Senate must continue in session the whole year, or be hastily assembled from the extremes and all parts of the continent, whenever the President thinks a removal necessary. Suppose an ambassador, or minister plenipotentiary, negotiating or intriguing contrary to his instructions, and to the injury of the United States; before the Senate can he assembled to accede to his recall, the interest of his country may be betrayed, and the evil irrevocably perpetrated. A great number of such instances could be enumerated; but I will not take up the time of the committee; gentlemen may suggest them to their own minds; and I imagine they will be sufficient to convince them that, with respect to the expediency, the power of removal ought not to be in the Senate.

I take it, Mr. Chairman, that it is proper for the legislature to speak their sense upon those points on which the Constitution is silent. I believe the judges will never decide that we are guilty of a breach of the Constitution, by declaring a legislative opinion in cases where the Constitution is silent. If the laws shall be in violation of any part of the Constitution, the judges will not hesitate to decide against them. Where the power is incident to the government, and the Constitution is silent, it can be no impediment to a legislative grant. I hold it necessary, in such cases, to make provision. In the case of removal, the Constitution is silent. The wisdom of the legislature should therefore declare in what place the power resides.

Mr. JACKSON. As a constitutional question, it is of great moment, and worthy of full discussion. I am, sir, a friend to the full exercise of all the powers of government, and deeply impressed with the necessity there exists of having an energetic executive. But, friend as I am to the efficient government, I value the liberties of my fellow-citizens beyond every other consideration; and where I find them endangered, I am willing to forego every other blessing to secure them. I hold it as good a maxim as it is an old one—of two evils to choose the least.

It has been mentioned, that in all governments the executive magistrate had the power of dismissing officers under him. This may hold good in Europe, where monarchs claim their powers jure divino; but it never can be admitted in America, under a Constitution delegating enumerated powers. It requires more than a mere ipse dixit to demonstrate that any power is in its nature executive, and consequently given to the President of the United States by the present Constitution. But if this power is incident to the executive branch of government, it does not follow that it vests in the President alone; because he alone does not possess all executive powers. The Constitution has lodged the power of forming treaties, and all executive business, I presume, connected therewith, in the President: but it is qualified by and with the advice and consent of the Senate—provided two thirds of the Senate agree therein. The same has taken place with respect to appointing officers. From this I infer that those arguments are done away which the gentleman from Virginia (Mr. Madison) used, to prove that it was contrary to the print pies of the Constitution that we should blend the executive and legislative powers in the same body. It may be wrong that the great powers of government should be blended in this manner, but we cannot separate them: the error is adopted in the Constitution, and can only be eradicated by weeding it out of that instrument. It may therefore be a proper subject for amendment, when we come to consider that business again.

It has been observed, that the President ought to have this power to remove a man when he becomes obnoxious to the people, or disagreeable to himself. Are we, then, to have all the officers the mere creatures of the President? This thirst of power will introduce a treasury bench into the house, and we shall have ministers obtrude upon us to govern and direct the measures of the legislature, and to support the influence of their master; and shall we establish a different influence between the people and the President? I suppose these circumstances must take place, because they have taken place in other countries. The executive power falls to the ground in England, if it cannot be supported by the Parliament; therefore a high game of corruption is played, and a majority secured to the ministry by the introduction of placemen and pensioners.

The gentlemen have brought forward arguments drawn from possibility. It is said that our secretary of foreign affairs may become unfit for his office by a fit of lunacy, and therefore a silent remedy should be applied. It is true such a case may happen; but it may also happen in cases where there is no power of removing. Suppose the President should be taken with a fit of lunacy; would it be possible by such arguments to remove him? I apprehend he must remain in office during his four years. Suppose the Senate should be seized with a fit of lunacy, and it was to extend to the House of Representatives; what could the people do but endure this mad Congress till the term of their election expired? We have seen a king of England in an absolute fit of lunacy, which produced an interregnum in the government. The same may happen here with respect to our President; and although it is improbable that the majority of both houses of Congress may be in that situation, yet it is by no means impossible. But gentlemen have brought forward another argument, with respect to the judges. It is said they are to hold their offices during good behavior. I agree that ought to be the case. But is not a judge liable to the act of God, as well as any other officer of government? However great his legal knowledge, his judgment and integrity, it may be taken from him at a stroke, and he rendered the most unfit of all men to fill such an important office. But can you remove him? Not for this cause: it is impossible; because madness is no treason, crime, or misdemeanor. If he does not choose to resign, like Lord Mansfield he may continue in office for ninety or one hundred years; for so long have some men retained their faculties.

But let me ask gentlemen if it is possible to place their officers in such a situation—to deprive them of their independency and firmness; for I apprehend it is not intended to stop with the secretary of foreign affairs. Let it be remembered that the Constitution gives the President the command of the military. If you give him complete power over the man with the strong box, he will have the liberty of America under his thumb. It is easy to see the evil which may result. If he wants to establish an arbitrary authority, and finds the secretary of finance not inclined to second his endeavors, he has nothing more to do than to remove him, and get one appointed of principles more congenial with his own. Then says he, “I have got the army; let me have but the money, and I will establish my throne upon the ruins of your visionary republic]” Let no gentleman say I am contemplating imaginary dangers—the mere chimeras of a heated brain. Behold the baneful influence of the royal prerogative. All officers till lately held their commissions during the pleasure of the crown.

At this moment, see the king of Sweden aiming at arbitrary power, shutting the doors of his senate, and compelling, by the force of arms, his shuddering councillors to acquiesce in his despotic mandates. I agree that this is the hour in which we ought to establish-our government; but it is an hour in which we should be wary and cautious, especially in what respects the executive magistrate. With him every power may be safely lodged. Black, indeed, is the heart of that man who even suspects him to be capable of abusing them. But alas! he cannot be with us forever; he is liable to the vicissitudes of life; he is but mortal; and though I contemplate it with great regret, yet I know the period must come which will separate him from his country; and can we know the virtues or vices of his successor in a very few years? May not a man with a Pandora’s box in his breast come into power, and give us sensible cause to lament our present confidence and want of foresight?

A gentleman has declared that, as the Constitution has given the power of appointment, it has consequently given the power of removal. I agree with him in all that the Constitution expressly grants, but I must differ in the constructive reasoning. It was said by the advocates of this Constitution, that the powers not given up in that instrument were reserved to the people. Under this impression, it has been proposed, as a favorite amendment to the Constitution. that it should be declared that all powers not expressly given should be retained. As to what gentlemen have said of its giving satisfaction to the people, I deny it. They never can be pleased that we should give new and extraordinary powers to the executive. We must confine ourselves to the powers described in the Constitution; and the moment we pass it, we take an arbitrary stride toward a despotic government.

The gentleman from New York (Mr. Lawrence) contends that the President appoints, and therefore he ought to remove. I shall agree to give him the same power, in cases of removal, as he has in appointing; but nothing more. Upon this principle. I would agree to give him the power of suspension during the recess of the Senate. This, in my opinion, would effectually provide against those inconveniences which have been apprehended, and not expose the government to the abuses we have to dread from the wanton and uncontrolled authority of removing officers at pleasure. I am the friend of an energetic government; but while we are giving vigor to the executive arm, we ought to be careful not to lay the foundation of future tyranny.

For my part, I must declare that I think this power too great to be safely trusted in the hands of a single man; especially in the hands of a man who has so much constitutional power. I believe, if those powers had been more contracted, the system of government would have been more generally agreeable to our constituents; that is, at present it would conform more to the popular opinion, at least. For my part, though I came from a state where the energy of government can be useful, and where it is at this moment wanting, I cannot agree to extend this power; because I conceive it may, at some future period, be exercised in such a way as to subvert the liberties of my country; and no consideration shall ever induce me to put them in jeopardy. It is under this impression that I shall vote decidedly against the clause.

Mr. CLYMER. If I was to give my vote merely on constitutional ground, I should be totally indifferent whether the words were struck out or not; because I am clear that the executive has the power of removal, as incident to his department; and if the Constitution had been silent with respect to the appointment, he would have had that power also. The reason, perhaps, why it was mentioned in the Constitution, was to give some further security against the improper introduction of improper men into office. But in cases of removal there is not such necessity for this check. What great danger would arise from the removal of a worthy man, when the Senate must be consulted in the appointment of his successor? Is it likely that they will consent to advance an improper character? The presumption therefore is, that he would not abuse this power; or, if he did, only one good man would be changed for another.

If the President is divested of this power, his responsibility is destroyed; you prevent his efficiency, and disable him from affording that security to the people which the Constitution contemplates. What use will it be of, to call the citizens of the Union together every four years to obtain a purified choice of a representative, if he is to be a mere cipher in the government? The executive must act by others; but you reduce him to a mere shadow, when you control both the power of appointment and removal. If you take away the latter power, he ought to resign the power of superintending and directing the executive parts of government into the hands of the Senate at once; and then we become a dangerous aristocracy, or shall be more destitute of energy than any government on earth. These being my sentiments, I wish the clause to stand as a legislative declaration that the power of removal is constitutionally vested in the President.

Mr. PAGE. I venture to assert that this clause of the bill contains in it the seeds of royal prerogative. If gentlemen lay such stress on the energy of the government, I beg them to consider how far this doctrine may go. Every thing which has been said in favor of energy in the executive may go to the destruction of freedom, and establish despotism. This very energy, so much talked of, has led many patriots to the Bastile, to the block, and to the halter. If the chief magistrate can take a man away from the head of a department without assigning any reason, he may as well be invested with power, on certain occasions, to take away his existence. But will you contend that this idea is consonant with the principles of a free government, where no man ought to be condemned unheard; nor till after a solemn conviction of guilt on a fair and impartial trial? It would, in my opinion, be better to suffer, for a time, the mischief arising from the conduct of a bad officer, than admit principles which would lead to the establishment of despotic prerogatives.

There can be little occasion for the President to exercise this power, unless you suppose that the appointments will be made in a careless manner, which by no means is likely to be the case. If, then, you have a good officer, why should he be made dependent upon the will of a single man? Suppose a colonel in your army should disobey his orders, or cowardly flee before the enemy; what would the general do? Would he be at liberty to dismiss the officer? No; he would suspend him, until a court-martial was held to decide the degree of guilt. If gentlemen had been content to say that the President might suspend, I should second their motion, and afterward the officer might be removed by and with the advice and consent of the Senate; but to make every officer of the government dependent on the will and pleasure of one man, will be vesting such arbitrary power in him as to occasion every friend to liberty to tremble for his country. I confess it seems to me a matter of infinite concern, and I should feel very unhappy if I supposed the clause would remain in the bill.

Mr. SHERMAN. I consider this as a very important subject in every point of view, and therefore worthy of full discussion. In my mind, it involves three questions: First, whether the President has, by the Constitution, the right to remove an officer appointed by and with the advice and consent of the Senate. No gentleman contends but the advice and consent of the Senate are necessary to make the appointment in all cases, unless in inferior offices, where the contrary is established by law; but then they allege that, although the consent of the Senate is necessary to the appointment, the President alone, by the nature of his office, has the power of removal. Now, it appears to me that this opinion is ill founded, because this provision was intended for some useful purpose, and by that construction would answer none at all. I think the concurrence of the Senate as necessary to appoint an officer as the nomination of the President; they are constituted as the mutual checks, each having a negative upon the other.

I consider it as an established principle, that the power which appoints can also remove, unless there are express exceptions made. Now, the power which appoints the judges cannot displace them, because there is a constitutional restriction in their favor; otherwise, the President, by and with the advice and consent of the Senate, being the power which appointed them. would be sufficient to remove them. This is the construction in England, where the king had the power of appointing judges; it was declared to be during pleasure, and they might be removed when the monarch thought proper. It is a general principle in law, as well as reason, that there should be the same authority to remove as to establish. It is so in legislation, where the several branches whose concurrence was necessary to pass a law, must concur in repealing it. Just so I take it to be in cases of appointment; and the President alone may remove when he alone appoints, as in the case of inferior offices to be established by law.

Here another question arises—whether this officer comes within the description of inferior officers. Some gentlemen think not, because he is the head of the department for foreign affairs. Others may perhaps think that, as he is employed in the executive department in aid of the President, he is not such an officer as is understood by the term heads of departments; because the President is the head of the executive de pertinent, in which the secretary of foreign affairs serves. If this is the construction which gentlemen put upon the business, they may vest the appointment in the President alone, and the removal will be in him of consequence. But if this reasoning is not admitted, we can by no means vest the appointment or removal in the chief magistrate alone. As the officer is the mere creature of the legislature, we may form it under such regulations as we please, with such powers and duration as we think good policy requires. We may say he shall hold his office during good behavior, or that he shall be annually elected; we may say he shall be displaced for neglect of duty, and point out how he should be convicted of it, without calling upon the President or Senate.

The third question is, if the legislature has the power to authorize the President alone to remove this officer, whether it is expedient to vest him with it. I do not believe it is absolutely necessary that he should have such power, because the power of suspending would answer all the purposes which gentlemen have in view by giving the power of removal. I do not think that the officer is only to be removed by impeachment, as is argued by the gentleman from South Carolina, (Mr. Smith;) because he is the mere creature of the law, and we can direct him to be removed on conviction of mismanagement or inability, without calling upon the Senate for their concurrence. But I believe, if we make no such provision; he may constitutionally be removed by the President, by and with the advice and consent of the Senate; and I believe it would be most expedient for us to say nothing in the clause on the subject.

Mr. STONE. I think it necessary, Mr. Chairman, to determine the question before us. I do not think it would do to leave it to the determination of courts of law hereafter. It should be our duty, in cases like the present, to give our opinion on the construction of the Constitution.

When the question was brought forward, I felt unhappy, because my mind was in doubt; but since then, I have deliberately reflected upon it, and have made up an opinion perfectly satisfactory to myself. I consider that, in general, every officer who is appointed should be removed by the power that appoints him. It is so in the nature of things. The power of appointing an officer arises from the power over the subject on which the officer is to act. It arises from the principal, who appoints, having an interest in, and a right to conduct, the business which he does by means of an agent; therefore this officer appears to be nothing more than an agent appointed for the convenient despatch of business. This is my opinion on this subject, and the principle will operate from a minister of state down to a tide-waiter. The Constitution, it is admitted by every gentleman, recognizes the principle; because it has not been denied, whenever general appointments are made under the Constitution, that they are to be at will and pleasure; that where an appointment is made during good behavior. it is an exception to the general rule; there you limit the exercise of the power which appoints: it is thus in the case of the judges.

Let us examine, then, whence originates the power of Congress with respect to the officer under consideration. I presume it is expressly contained in the Constitution, or clearly deducible from that instrument, that we have a right to erect the department of foreign affairs. No gentleman will consent to a reduction or relinquishment of that power. The Constitution has given us the power of laying and collecting taxes, duties, imposts, and excises; this includes the power of organizing a revenue board. It gives us power to regulate commerce; this includes the power of establishing a board of trade: to make war, and organize the militia; this enables us to establish a minister at war: and generally to make all laws necessary to carry these powers into effect. Now, it appears to me, that the erection of this department is expressly within the Constitution. Therefore it seems to me, as Congress, in their legislative capacity, have an interest in, and power over, this whole transaction, that they consequently appoint and displace their officers. But there is a provision in the Constitution which takes away from us the power of appointing officers of a certain description: they are to be appointed by the President, by and with the advice and consent of the Senate; then the Constitution limits the legislature in appointing certain officers, which would otherwise be within their power.

It will, then, become a considerable question, as it has been in my mind, that as, in the nature of things, the power which appoints removes also, and as the power of appointment, by the Constitution, is placed in the President and Senate, whether the removal does not follow as incidental to that power. But I am averse to that construction, as the terms of the Constitution are sufficient to invest the legislature with complete power for performing its duties; and since it has given the power of making treaties, and judging of them, to the Senate and President, I should be inclined to believe that, as they have an immediate concern in, and control over this business, therefore they ought to have the power of removal. It may be said, with respect to some other officers, that, agreeably to this principle, the President alone ought to have the sole power of removal, because he is interested in it, and has the control over the business they manage; for example, the minister at war. The President is the commander-in-chief of the army and militia of the United States; but the ground is narrowed by the Senate being combined with him in making treaties; though even here the ground is reduced, because of the power combined in the whole legislature to declare war and grant supplies. If it is considered that Congress have a right to appoint these officers, or dictate the mode by which they shall be appointed,—and I calculate in my own opinion the manner of dismission from the mode of appointment,—I should have no doubt but we might make such regulations as we may judge proper. If the Constitution had given no rule by which officers were to be appointed, I should search for one in my own mind. But as the Constitution has laid down the rule, I consider the mode of removal as clearly defined as by implication it can be: it ought to be the same with that of the appointment. What quality of the human mind is necessary for the one that is not necessary for the other? Information, impartiality, and judgment in the business to be conducted, are necessary to make a good appointment. Are not the same properties requisite for a dismission? It appears so to me.

I cannot subscribe to the opinion, delivered by some gentlemen, that the executive in its nature implies the power to appoint the officers of government. Why does it imply it? The appointment of officers depends upon the qualities that are necessary for forming a judgment on the merits of men; and the displacing of them, instead of including the idea of what is necessary for an executive officer, includes the idea necessary for a judicial one; therefore it cannot exist, in the nature of things, that an executive power is either to appoint or displace the officers of government. Is it a political dogma? Is it founded in experience? If it is, I confess it has been very long wrapped up in mysterious darkness. As a political rule, it is not common in the world, excepting monarchies, where this principle is established, that the interest of the state is included in the interest of the prince; that whatever injures the state is an injury to the sovereign; because he has a property in the state and the government, and is to take care that nothing of that kind is to be injured or destroyed, he being so intimately connected with the welt-being of the nation, it appears a point of justice only to suffer him to manage his own concerns. Our principles of government are different; and the President, instead of being master of the people of America, is only their great servant. But, if it arises from a political dogma, it must be subject to exceptions, which hold good as they are applied to governments which give greater or lesser proportions of power to their executive. I shall only remark that the Constitution, in no one part of it, so far as I can see, supposes that the President is the sole judge of the merits of an appointment; it is very forcible to my mind, that the Constitution has confined his sole appointment to the case of inferior officers. It also strikes me, from the clause that gives the President the power to grant reprieves and pardons for offences against the United States, except in cases of impeachment, that the Constitution reposes a confidence in the Senate which it has not done in this officer; and therefore, there is no good reason for destroying that participation of power which the system of government has given to them.

Whether it would be expedient to give the power of removal to the President alone, depends on this consideration:—they are both bodies chosen with equal care and propriety; the people show as much confidence in the one as in the other; the best President and the best Senate, it is to be presumed, will always be chosen that they can get. All the difficulties and embarrassments that have been mentioned can be removed by giving to the President the power of suspension during the recess of the Senate; and I think that an attention to the Constitution will lead us to decide that this is the only proper power to be vested in the President of the United States.

Mr. MADISON. I feel the importance of the question, and know that our decision will involve the decision of all similar cases. The decision that is at this time made will become the permanent exposition of the Constitution; and on a permanent exposition of the Constitution will depend the genius and character of the whole government. It will depend, perhaps, on this decision, whether the government shall retain that equilibrium which the Constitution intended, or take a direction towards aristocracy, or anarchy, among the members of the government. Hence, how careful ought we to be to give a true direction to a power so critically circumstanced! It is incumbent on us to weigh, with particular attention, the arguments which have been advanced in support of the various opinions with cautious deliberation. I own to you, Mr. Chairman, that I feel great anxiety upon this question. I feel an anxiety, because I am called upon to give a decision in a case that may affect the fundamental principles of the government under which we act, and liberty itself. But all that I can do, on such an occasion, is to weigh well every thing advanced on both sides, with the purest desire to find out the true meaning of the Constitution, and to be guided by that, and an attachment to the true spirit of liberty, whose influence I believe strongly predominates here.

Several constructions have been put upon the Constitution relative to the point in question. The gentleman from Connecticut (Mr. Sherman) has advanced a doctrine which was not touched upon before. He seems to think (if I understood him right)that the power of displacing from office is subject to legislative discretion, because, it having a right to create, it may limit or modify, as is thought proper. I shall not say but at first view this doctrine may seem to have some plausibility. But when I consider that the Constitution clearly intended to maintain a marked distinction between the legislative, executive, and judicial powers of government; and when I consider that, if the legislature has a power such as contended for, they may subject, and transfer, at discretion, powers from one department of government to another; they may, on that principle, exclude the President altogether from exercising any authority in the removal of officers; they may give it to the Senate alone, or the President and Senate combined; they may vest it in the whole Congress, or they may reserve it to be exercised by this house. When I consider the consequences of this doctrine, and compare them with the true principles of the Constitution, I own that I cannot subscribe to it.

Another doctrine, which has found very respectable friends, has been particularly advocated by the gentleman from South Carolina, (Mr. Smith.) It is this: When an officer is appointed by the President and Senate, he can only be displaced, from malfeasance in his office, by impeachment. I think this would give a stability to the executive department, so far as it may be described by the beads of departments, which is more incompatible with the genius of republican governments in general, and this Constitution in particular, than any doctrine which has yet been proposed. The danger to liberty—the danger of maladministration—has not yet been found to lie so much in the facility of introducing improper persons into office, as in the difficulty of displacing those who are unworthy of the public trust. If it is said that an officer once appointed shall not be displaced without the formality required by impeachment, I shall be glad to know what security we have for the faithful administration of the government. Every individual in the long chain, which extends from the highest to the lowest link of the executive magistracy, would find a security in his situation which would relax his fidelity and promptitude in the discharge of his duty.

The doctrine, however, which seems to stand most in opposition to the principles I contend for is, that the power to annul an appointment is, in the nature of things, incidental to the power which makes the appointment. I agree that, if nothing more was said in the Constitution than that the President, by and with the advice and consent of the Senate, should appoint to office, there would be great force in saying that the power of removal resulted, by a natural implication, from the power of appointing. But there is another part of the Constitution no less explicit than the one on which the gentleman’s doctrine is founded; it is that part which declares that the executive power shall be vested in a President of the United States. The association of the Senate with the President, in exercising that particular function, is an exception to this general rule; and exceptions to general rules, I conceive, are ever to be taken strictly. But there is another part of the Constitution which inclines, in my judgment, to favor the construction I put upon it: the President is required to take care that the laws be faithfully executed. If the duty to seethe laws faithfully executed be required at the hands of the executive magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end.

Now, if the officer, when once appointed, is not to depend upon the President for his official existence, but upon a distinct body, (for where there are two negatives required, either can prevent the removal,) I confess I do not see how the President can take care that the laws be faithfully executed. It is true, by a circuitous operation, he may obtain an impeachment, and even without this it is not impossible he may obtain the concurrence of the Senate, for the purpose of displacing an officer; but would this give that species of control to the executive magistrate which seems to be required by the Constitution? I own, if my opinion was not contrary to that entertained by what I suppose to be the minority on this question, I should be doubtful of being mistaken, when I discovered how inconsistent that construction would make the Constitution with itself. I can hardly bring myself to imagine, the wisdom of the Convention who framed the Constitution contemplated such incongruity.

There is another maxim which ought to direct us in expounding the Constitution, and is of great importance. It is laid down in most of the constitutions, or bills of rights, in the republics of America,—it is to be found in the political writings of the most celebrated civilians, and is every where held as essential to the preservation of liberty,—that the three great departments of government be kept separate and distinct; and if in any case they are blended, it is in order to admit a partial qualification, in order more effectually to guard against an entire consolidation. I think, therefore, when we review the several parts of this Constitution,—when it says that the legislative powers shall be vested in a Congress of the United States, under certain exceptions, and the executive power vested in the President, with certain exceptions,—we must suppose they were intended to be kept separate in all cases in which they are not blended, and ought, consequently, to expound the Constitution so as to blend them as little as possible.

Every thing relative to the merits of the question, as distinguished from a constitutional question, seems to turn on the danger of such a power vested in the President alone. But when I consider the checks under which he lies in the exercise of this power, I own to you I feel no apprehensions but what arise from the dangers incidental to the power itself; for dangers will be incidental to it, vest it where you please. I will not reiterate what was said before, with respect to the mode of election, and the extreme improbability that any citizen will be selected from the mass of citizens who is not highly distinguished by his abilities and worth: in this alone we have no small security for the faithful exercise of this power. But, throwing that out of the question, let us consider the restraints he will feel after he is placed in that elevated station. It is to be remarked that the power, in this case, will not consist so much in continuing a bad man in office as in the danger of displacing a good one. Perhaps the great danger, as has been observed, of abuse in the executive power, lies in the improper continuance of bad men in office. But the power we contend for will not enable him to do this; for if an unworthy man be continued in office by an unworthy President, the House of Representatives can at any time impeach him, and the Senate can remove him, whether the President chooses or not. The danger, then, consists merely in this—the President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this house, before the Senate, for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be, that he may fill the place with an unworthy creature of his own. Can he accomplish this end? No: he can place no man in the vacancy whom the Senate shall not approve; and if he could fill the vacancy with the man he might choose, I am sure he would have little inducement to make an improper removal.

Let us consider the consequences. The injured man will be supported by the popular opinion; the community will take sides with him against the President; it will facilitate those combinations, and give success to those exertions which will be pursued to prevent his reëlection. To displace a man of high merit, and who, from his station, may be supposed a man of extensive influence, are considerations which will excite serious reflections beforehand in the mind of any man who may fill the presidential chair: the friends of those individuals, and the public sympathy, will be against him. If this should not produce his impeachment before the Senate, it will amount to an impeachment before the community, who will have the power of punishment by refusing to reëlect him. But suppose this persecuted individual cannot obtain revenge in this mode: there are other modes in which be could make the situation of the President very inconvenient, if you suppose him resolutely bent on executing the dictates of resentment. If he had not influence enough to direct the vengeance of the whole community, he may probably be able to obtain an appointment in one or other branch of the legislature; and, being a man of weight, talents, and influence, in either case he may prove to the President troublesome indeed. We have seen examples, in the history of other nations, which justify the remark I now have made: though the prerogatives of the British king are as great as his rank, and it is unquestionably known that be has a positive influence over both branches of the legislative body, yet there have been examples in which the appointment and removal of ministers has been found to be dictated by one or other of those branches. Now, if this is the case with an hereditary monarch, possessed of those high prerogatives, and furnished with so many means of influence, can we suppose a President, elected for four years only, dependent upon the popular voice, impeachable by the legislature, little if at all distinguished, for wealth, personal talents, or influence, from the head of the department himself;—I say, will he bid defiance to all these considerations, and wantonly dismiss a meritorious and virtuous officer? Such abuse of power exceeds my conception. If any thing takes place in the ordinary course of business of this kind, my imagination cannot extend to it on any rational principle.

But let us not consider the question on one side only: there are dangers to be contemplated on the other. Vest the power in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the securely of liberty and the public good. If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officer, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community. The chain of dependence, therefore, terminates in the supreme body, namely, in the people; who will possess besides, in aid of their original power, the decisive engine of impeachment. Take the other supposition—that the power should be vested in the Senate, on the principle that the power to displace is necessarily connected with the power to appoint. It is declared by the Constitution, that we may by law vest the appointment of inferior officers in the heads of departments, the power of removal being incidental, as stated by some gentlemen. Where does this terminate? If you begin with the subordinate officers, they are dependent on their superior, he on the next superior, and he, on whom?—on the Senate, a permanent body, by its peculiar mode of election, in reality existing forever a body possessing that proportion of aristocratic power which the Constitution no doubt thought wise to be established in the system, but which some have strongly excepted against. And, let me ask, gentlemen, is there equal security in this case as in the other? Shall we trust the Senate, responsible to individual legislatures, rather than the person who is responsible to the whole community? It is true, the Senate o not hold their offices for life, like aristocracies recorded in the historic page; yet the fact is, they will not possess that responsibility for the exercise of executive powers which would render it safe for us to vest such powers in them. What an aspect will this give to the executive! Instead of keeping the departments of government distinct, you make an executive out of one branch of the legislature; you make the executive a two-headed monster, to use the expression of the gentleman from New Hampshire, (Mr. Livermore;) you destroy the great principle of responsibility, and perhaps have the creature divided in its will, defeating the very purposes for which a unity in the executive was instituted.

These objections du nut lie against such an arrangement as the bill establishes. I conceive that the President is sufficiently accountable to the community; and if this power is vested in him, it will be vested where its nature requires it should be vested: if any thing in its nature is executive, it must be that power which is employed in superintending, and seeing that the laws are faithfully executed; the laws cannot be executed but by officers appointed for that purpose; therefore, those who are over such officers naturally possess the executive power. If any other doctrine be admitted, what is the consequence? You may set the Senate at the head of the executive department, or you may require that the officers hold their places during the pleasure of this branch of the legislature, if you cannot go so far as to say we shall appoint them; and by this means you link together two branches of the government which the preservation of liberty requires to be constantly separated.

Another species of argument has been urged against this clause. It is said that it is improper, or at least unnecessary, to come to any decision on this subject. It has been said by one gentleman that it would be officious in this branch of the legislature to expound the Constitution, so far as it relates to the division of power between the President and the Senate. It is incontrovertibly of as much importance to this branch of the government as to any other, that the Constitution be preserved entire. It is our duty, so far as it depends upon us, to take care that the powers of the Constitution be preserved entire to every department of government. The breach of the Constitution in one point will facilitate the breach in another: a breach in this point may destroy the equilibrium by which the house retains its consequence and share of power; therefore we are not chargeable with an officious interference. Besides, the bill, before it can have effect, must be submitted to both those branches who are particularly interested in it; the Senate may negative, or the President may object, if he thinks it unconstitutional.

But the great objection, drawn from the source to which the last arguments would lead us, is, that the legislature itself has no right to expound the Constitution; that wherever its meaning is doubtful, you must leave it to take its course, until the judiciary is called upon to declare its meaning. I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial; but I beg to know upon what principle it can he contended that any one department draws from the Constitution greater powers than another, in marking ont the limits of the powers of the several departments. The Constitution is the charter of the people in the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.

Perhaps this is an admitted case. There is not one government on the face of the earth, so far as I recollect—there is not one in the United States—in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems, there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the Constitution, or one dictated by the necessity of the case. It is, therefore, a fair question, whether this great point may not as well be decided, at least by the whole legislature, as by part—by us, as well as by the executive or the judicial. As I think it will be equally constitutional, I cannot imagine it will he less safe, that the exposition should issue from the legislative authority, than any other; and the more so, because it involves in the decision the opinions of both those departments whose powers are supposed to be affected by it. Besides, I do not see in what way this question could come before the judges to obtain a fair and solemn decision; but even if it were the case that it could, I should suppose, at least while the government is not led by passion, disturbed by faction, or deceived by any discolored medium of sight, but while there is a desire in all to see and be guided by the benignant ray of truth, that the decision may be made with the most advantage by the legislature itself.

My conclusion from these reflections is, that it will be constitutional to retain the clause; that it expresses the meaning of the Constitution as it must be established by fair construction—and a construction which, upon the whole, not only consists with liberty, but is more favorable to it than any one of the interpretations that have been proposed.

Mr. GERRY. I am clearly of opinion, with the gentleman last up, that it is of importance to decide this question on its true principles; and am free to declare that I shall be as ready to oppose every innovation or encroachment upon the rights of the executive, as upon those of the legislative. q I conceive myself bound to do this, not only by oath, but by an obligation equally strong—I mean the obligation of honor.

I wish, sir, to consider this question so far as to ascertain whether it is or is not unconstitutional. I have listened with attention to the arguments which have been urged on both sides; and it does appear to me that the clause is as inconsistent with the Constitution as any set of words which could possibly be inserted in the bill.

There are two questions relative to this clause—the first, whether the sovereignty of the Union has delegated to the government the power of removal; and the second, to whom? That they have delegated such power has been clearly proved by the gentlemen who advocate the clauses—who justly say, if the power is not delegated, the clause in the Constitution, declaring the appointment of judges to be during good behavior, would be nugatory, unless some branch of government could otherwise have removed them from office. As to the second question, it depends upon the first: if the power is delegated, it must vest in some part of the government. The gentlemen will agree that this house has not the power of removal; they will also agree that it does not vest in the judicial; then it must vest in the President, or the President by and with the advice and consent of the Senate. In either of these cases, the clause is altogether useless and nugatory. It is useless if the power vests in the President; because, when the question comes before him, he will decide upon the provision made in the Constitution, and not on what is contained in this clause. If the power vests in the President and Senate, the Senate will not consent to pass the bill with this clause in it; therefore the attempt is nugatory: but if the Senate will assent to the exercise of the power of removal by the President alone, whenever he thinks proper to use it so, then, in that case, the clause is, as I said before, both useless and nugatory.

The second question which I proposed to examine is, to whom the power of removal is committed. The gentlemen in favor of this clause have not shown that, if the construction that the power vests in the President and Senate is admitted, it will be an improper construction. I call on gentlemen to point out the impropriety, if they discover any. To me it appears to preserve the unity of the several clauses of the Constitution; while their construction produces a clashing of powers, and renders of none effect some powers the Senate by express grants possess. What becomes of their power of appointing, when the President can remove at discretion? Their power of judging is rendered vain by the President’s dismission; for the power of judging implies the power of dismissing, which will be totally insignificant in its operation, if the President can immediately dismiss an officer whom they have judged and declared innocent.

It is said that the President will be subject to an impeachment for dismissing a good man. This, in my mind, involves an absurdity. How can the house impeach the President for doing an act which the legislature has submitted to his discretion?

But what consequence may result from giving the President the absolute Control over all officers? Among the rest, I presume he is to have an unlimited control over the officers of the treasury. I think, if this is the case, you may as well give him at once the appropriation of the revenue; for of what use is it to make laws on this head, when the President, by looking at the officer, can make it his interest to break them? We may expect to see institutions arising under the control of the revenue, and not of the law.

Little, then, will it answer to say that we can impeach the President, when he can cover all his crimes by an application of the revenue to those who are to try him. This application would certainly be made in case of a corrupt President. And it is against corruption in him that we must endeavor to guard. Not that we fear any thing from the virtuous character who now fills the executive chair; he is perhaps to be safer trusted with such a power than any man on earth; but it is to secure us against those who may hereafter obtrude themselves into power.

But if we give the President the power to remove, (though I contend, if the Constitution has not given it him, there is no power on earth that can,—except the people, by an alteration of the Constitution,—though I will suppose it for argument’s sake,) you virtually give him a considerable power over the appointment, independent of the Senate; for if the Senate should reject his first nomination, which will probably be his favorite, he must continue to nominate till the Senate concur: then, immediately after the recess of the Senate, he may remove the officer, and introduce his own creature, as he has this power expressly by the Constitution. The influence created by this circumstance would Prevent his removal from an office which he held by a temporary appointment from his patron.

This has been supposed by some gentleman to be an omitted case, and that Congress have the power of supplying the defect. Let gentlemen consider the ground on which they tread. If it is an omitted case, an attempt in the legislature to supply the defect will be, in fact, an attempt to amend the Constitution. But this can only be done in the way pointed out by the fifth article of that instrument; and an attempt to amend it in any other way may be a high crime or misdemeanor, or perhaps something worse. From this view of our situation, gentlemen may perhaps be led to consent to strike out the clause.

In Great Britain there are three estates—King, Lords, and Commons. Neither of these can be represented by the other; but they conjointly can form constructions upon the rights of the people, which have been obtained, sword in hand, from the crown. These, with the legislative acts, form the British constitution; and if there is an omitted case, Parliament has a right to make provision for it. But this is not the case in America, consisting of a single estate. The people have expressly granted certain powers to Congress, and they alone had the right to form the Constitution. In doing so, they directed a particular mode of making amendments, which we are not at liberty to depart from.

The system, it cannot be denied, is in many parts obscure. If Congress are to explain and declare what it shall be, they certainly will have it in their power to make it what they please. It has been a strong objection to the Constitution, that it was remarkably obscure; nay, some have gone so far as to assert that it was studiously obscure—that it might be applied to every purpose by Congress. By this very act, the house are assuming a power to alter the Constitution. The people of America can never be safe, if Congress have a right to exercise the power of giving constructions to the Constitution different from the original instrument. Such a power would render the most important clause in the Constitution nugatory; and one without which, I will be bold to say, this system of government never would have been ratified. If the people were to find that Congress meant to alter it in this way, they would revolt at the idea: it would be repugnant to the principles of the revolution, and to the feelings of every freeman in the United States.

It is said that the power to advise the President in appointing officers is an exception to a general rule. To what general rule? That the President, being an executive officer, has the right of appointing. From whence is this general rule drawn? Not from the Constitution, nor from custom, because the state governments are generally against it. Before the gentleman had reasoned from this general rule, he ought to have demonstrated that it was one. He ought to have shown that the President, ex officio, had the power to appoint and remove from office; that it was necessarily vested in the executive branch of the government.

It is said to be the duty of the President to see the laws faithfully executed, and he could not discharge this trust without the power of removal. I ask the gentleman if the power of suspension, which we are willing to give, is not sufficient for that purpose? In case the Senate should not be sitting, the officer could be suspended; and at their next session the causes which require his removal might be inquired into.

It is said to be incumbent on us to keep the departments distinct. I agree to this; but, then, I ask, what department is the Senate of, when it exercises its power of appointment or removal? If legislative, it shows that the power of appointment is not an executive power; but if it exercises the power as an executive branch of government, there is no mixing of the departments; and therefore the gentleman’s objections fall to the ground.

The dangers which lie against investing this power jointly in the Senate and President, have been pointed out; but I think them more than counterbalanced by the dangers arising from investing it in the President alone. It was said that the community would take part with the injured officer against the President, and prevent his reëlection. I admit that the injured officer may be a man of influence and talents; yet it is fifty to one against him, when he is opposed by such a powerful antagonist. It is said that, if the Senate should have this power, the government would contain a two-headed monster; but it appears to me, that if it consists in blending the power of making treaties and appointing officers,—as executive officers, with their legislative powers, the Senate is already a two-headed monster. If it is a two-headed monster, let us preserve it a consistent one; for surely it will be a very inconsistent monster, while it has the power of appointing, if you deprive it of the power of removing. It was said that the judges could not have the power of deciding on this subject, because the Constitution was silent; but I may ask if the judges are, ex officio, judges of the law; and whether they would not be bound to declare the law a nullity, if this clause is continued in it, and is inconsistent with the Constitution. There is a clause in this system of government that makes it their duty: I allude to that which authorizes the President to obtain the opinions of the heads of departments in writing; so the President and Senate may require the opinion of the judges respecting this power, if they have any doubts concerning it.

View the matter in any point of light, and it is utterly impossible to admit this clause. It is both useless and unnecessary; it is inconsistent with the Constitution, and is an officious interference of the house in a business which does not properly come before them. We expose ourselves to most dangerous innovations by future legislatures, which may finally overturn the Constitution itself.

Mr. BENSON. I will not repeat what has been said to prove that the true construction is, that the President alone has the power of removal, but will state a case to show the embarrassment which must arise by a combination of the senatorial and legislative authority in this particular. I will instance the officer to which the bill relates. To him will necessarily be committed negotiations with the ministers of foreign courts. This is a very delicate trust. The supreme executive officer, in superintending this department, may he entangled with suspicions of a very delicate nature, relative to the transactions of the officer, and such as, from circumstances, would be injurious to name: indeed, he may be so situated, that he will not, cannot, give the evidence of his suspicion. Now, thus circumstanced, suppose tie should propose to the Senate to remove the secretary of foreign affairs: are we to expect the Senate will, without any reason being assigned, implicitly submit to his proposition? They will not.

Suppose he should say he suspected the man’s fidelity: they would say, “We must proceed farther, and know the reasons for this suspicion;” they would insist on a full communication. Is it to be supposed that this man will not have a single friend in the Senate who will contend for a fair trial and full hearing? The President, then, becomes the plaintiff, and the secretary the defendant. The Senate are sitting in judgment between the chief magistrate of the United States and a subordinate officer. Now, I submit to the candor of the gentlemen, whether this looks like good government. Yet, in every instance when the President thinks proper to have an officer removed, this absurd scene must be displayed. How much better, even on principles of expediency, will it be that the President alone have the power of removal!

But suppose the Senate to be joined with the President in the exercise of the power of removal; what mode will they proceed in? Shall the President always propose the removal, or shall the Senate undertake this part of the business? If so, how are they to act? There is no part of the Constitution which obliges the President to meet them, to state his reasons for any measure he may recommend. Are they to wait upon the President? In short, it appears to me that introducing this clashing of the powers, which the Constitution has given to the executive, will be destructive of the great end of the government. So far will restraining the powers of that department be from producing security to the liberties of the people, that they would inevitably be swallowed up by an aristocratic body.

Mr. SEDGWICK. It will be agreed, on all hands, that this officer, without observing on the subject at large, is merely to supply a natural incompetency in man: in other words, if we could find a President capable of executing this and all other business assigned him, it would be unnecessary to introduce any other officer to aid him. It is then merely from necessity that we institute such an office; because all the duties detailed in the bill are, by the Constitution, pertaining to the department of the executive magistrate. If the question respected the expediency, I should be content to advocate it on that ground, if expediency is at all to be considered. Gentlemen will perceive that this man is as much an instrument, in the hands of the President, as the pen is the instrument of the secretary in corresponding with foreign courts. If, then, the secretary of foreign affairs is the mere instrument of the President, one would suppose, on the principle of expediency, this officer should be dependent upon him. It would seem incongruous and absurd, that an officer who, in the reason and nature of things, was dependent on his principal, and appointed merely to execute such business as was committed to the charge of his superior, (for this business, I contend, is committed solely to his charge,)—I say it would be absurd, in the highest degree, to continue such a person in office contrary to the will of the President, who is responsible that the business be conducted with propriety, and for the general interest of the nation. The President is made responsible, and shall he not judge of the talents, abilities, and integrity of his instruments?

Will you depend on a man who has imposed upon the President, and continue him in office when he is evidently disqualified, unless he can be removed by impeachment? If this idea should prevail,—which God for bid!—what would be the result? Suppose even that he should be removable by and with the advice and consent of the Senate; what a wretched situation might not our public councils be involved in! Suppose the President has a secretary in whom he discovers a great degree of ignorance, or a total incapacity to conduct the business he has assigned him; suppose him inimical to the President; or suppose any of the great variety of cases which would be good cause for removal and impress the propriety of such a measure strongly on the mind of the President, without any other evidence than what exists in his own ideas from a contemplation of the man’s conduct and character day by day; what, let me ask, is to be the consequence if the Senate are tube applied to? If they are to do any thing an this business, I presume they are to deliberate, because they are to advise and consent; if they are to deliberate, you put them between the officer and the President; they are then to inquire into the causes of removal; the President must produce his testimony. How is the question to be investigated?—because, I presume, there must be some rational rule for conducting this business.

Is the President to be sworn to declare the whole truth, and to bring forward facts? or are they to admit suspicion as testimony? or is the word of the President to he taken at all events? If so, this check is not of the least efficacy in nature. But if proof is necessary, what is then the consequence? Why, in nine cases out of ten, where the case is very clear to the mind of the President that the man ought to be removed, the effect cannot be produced; because it is absolutely impossible to produce the necessary evidence. Are the Senate to proceed without evidence? Some gentlemen contend not; then the object will be lost. Shall a man, under these circumstances, be saddled upon the President, who has been appointed for no other purpose, in the creation, but to aid the President in performing certain duties? Shall he be continued, I ask again, against the will of the President? If he is, where is the responsibility? Are you to look for it in the President, who has no control over the officer, no power to remove him if he acts unfeelingly or unfaithfully? Without you make him responsible, you weaken and destroy the strength and beauty of your system. What is to be done in cases which can only be known from a long acquaintance with the conduct of an officer? But so much has been said on this subject, that I will add no further observations upon it.

Let me ask, what will be the consequence of striking out these words? Is the officer tube continued during an indefinite time? for it has been contended that he cannot be removed but by impeachment. Others have contended that he is always in the power of them who appoint him. But who will undertake to remove him? Will the President undertake to exercise an authority which has been so much doubted here, and which will appear to be determined against him if we consent to strike out the words? Will the Senate undertake to exercise this power? I apprehend they will not. But if they should, would they not also be brought before the judges, to show by what authority they did it? because it is supposed by one gentleman, that the case might go before that tribunal. if the President alone removed the officer. But how is this to be done? Gentlemen tell you, the man who is displaced must apply for a mandamus to admit him to his office. I doubt much if this would be adequate to the purpose. It would be difficult to say whether the mandamus should be directed to the President, to the President and Senate, to the legislature, or to the people. Could the President be compelled to answer to a civil suit, for exercising the power vested in him by law and by the Constitution? The question upon either of those points would be involved in doubts and difficulties.

If these observations Strike the committee in the same point of light, and with the same force, as they have struck my mind, they will proceed to determine the present question; and I have no doubt but they will determine right.

Mr. LEE. I contend we have the power to modify the establishment of offices. So ought we, Mr. Chairman, to modify them in such a way as to promote the general welfare, which can only be done by keeping the three branches distinct; by informing the people where to look, in order to guard against improper executive acts. It is our duty, therefore, to vest all executive power, belonging to the government, where the Convention intended it should be placed. It adds to the responsibility of the most responsible branch of the government; and without responsibility, we should have little security against the depredations and gigantic strides of arbitrary power. I say it is necessary, sir, to hold up a single and specific object to the public jealousy to watch; therefore it is necessary to connect the power of removal with the President. The executive is the source of all appointments: is his responsibility complete unless he has the power of removal? If he has this power, it will be his fault if any wicked or mischievous act is committed; and he will hardly expose himself to the resentment of three millions of people, of whom he holds his power, and to whom he is accountable every four years.

If the power of removal is vested in the Senate, it is evident, at a single view, that the responsibility is dissipated, because the fault cannot be fixed on any individual; besides, the members of the Senate are not x accountable to the people; they are the representatives of the state legislatures; but even if they were, they have no powers to enable them to decide with propriety in the case of removals, and therefore are improper persons to exercise such authority.

Mr. BOUDINOT. Sir, the efficacy of your government may depend upon the determination of this house respecting the present question. For my part, I shall certainly attend to the terms of the Constitution in making a decision; indeed, I never wish to see them departed from or construed, if the government can possibly be carried into effect in any other manner. But I do not agree with the gentleman, that Congress have no right to modify principles established by the Constitution; for, if this doctrine be true, we have no business here. Can the Constitution be executed, if its principles are not modified by the legislature? A Supreme Court is established by the Constitution; but do gentlemen contend that we cannot modify that court, direct the manner in which its functions shall be performed, and assign and limit its jurisdiction? I conceive, notwithstanding the ingenious arguments of the gentleman from Virginia, (Mr. White,) and the ingenious arguments of the gentleman from South Carolina, (Mr. Smith,) that there has not been, nor can be, any solid reason adduced to prove that this house has not power to modify the principles of the Constitution. But is the principle now in dispute to be found in the Constitution? If it is to be found there, it will serve as a line to direct the modification by Congress. But we are told that the members of this house appear to be afraid to carry the principles of the Constitution into effect. I believe, sir, we were not sent here to carry into effect every principle of the Constitution; but I hope, whenever we are convinced it is for the benefit of the United States to carry any of them into effect, we shall not hesitate.

The principle of the Constitution is, generally, to vest the government in three branches. I conceive this to be completely done, if we allow for one or two instances, where the executive and legislative powers are intermixed, and the case of impeachment. These cases I take to be exceptions to a principle which is highly esteemed in America. Let gentlemen attend to what was said by some of the conventions when they ratified the Constitution. One great objection was, that the powers were not totally separated. The same objection is, I believe, to be found among the amendments proposed by the state of North Carolina. Now, I conceive, if we do any thing to conciliate the minds of people to the Constitution, we ought not to modify the principle of the government so as to increase the evil complained of, by a further blending of the executive and legislative powers, and that too upon construction, when gentlemen deny that we ought to use construction in any case.

Now, let us take up the Constitution, and consider, from the terms and principles of it, in whom this power is vested. It is said by some gentlemen to be an omitted case. I shall take up the other principle, which is easier to be maintained,—that it is not an omitted case,—and say the power of removal is vested in the President. I shall also take up the principle laid down by the gentleman from Virginia, (Mr. White,) at the beginning of this argument, that, agreeably to the nature of all executive powers, it is right and proper that the person who appoints should remove. This leads me to consider in whom the appointment is vested by the Constitution. The President nominates and appoints: he is further expressly authorized to commission all officers. Now, does it appear, from this distribution of power, that the Senate appoints? Does an officer exercise powers by authority of the Senate? No. I believe the President is the person from whom he derives his authority. He appoints, but under a check. It is necessary to obtain the consent of the Senate; but after that is obtained, I ask, who appoints? who vests the officer with authority? who commissions him? The President does these acts by his sole power; but they are exercised in consequence of the advice of another branch of government. If, therefore, the officer receives his authority and commission from the President, surely the removal follows as coincident.

Now, let us examine whether this construction consists with the true interest of the United States and the general principles of the Constitution. It consists with the general principles of the Constitution, because the executive power is given to the President, and it is by reason of his incapacity that we are called upon to appoint assistants Mention, to be sure, is made of principal officers in departments; out it is from construction only that we derive our power to constitute this particular office. If we were not at liberty to modify the principles of the Constitution, I do not see how we could erect an office of foreign affairs. If we establish an office avowedly to aid the President, we leave the conduct of it to his discretion. Hence the whole executive is to be left with him, agreeably to this maxim— All executive power shall be vested in a President. But how does this comport with the true interest of the United States? Let me ask gentlemen where they suspect danger. Is it not made expressly the duty of the secretary of foreign affairs to obey such orders as shall be given to him by the President? And would you keep in office a man who should refuse or neglect to do the duties assigned him? Is not the President responsible for the administration? He certainly is. How, then, can the public interest suffer?

Then, if we find it to be naturally inferred, from the principles of the Constitution, coincident with the nature of his duty, that this officer should be dependent upon him, and to the benefit of the United States, for what purpose shall Congress refuse a legislative declaration of the Constitution, and leave it to remain a doubtful point? Because, if Congress refuses to determine, we cannot conceive that others will be more entitled to decide upon it than we are. This will appear to give ground for what the gentlemen have asserted—that we are afraid to carry the Constitution into effect. This, I apprehend, would not be doing our duty.

Gentlemen say they have a sufficient remedy for every evil likely to result from connecting the Senate with the President. This they propose to do by allowing the power of suspension. This, in the first place, does not answer the end; because there is a possibility that the officer may not be displaced after a hearing before the Senate; and in the second place, it is entirely inconsistent with the whole course of reasoning pursued by the gentlemen in opposition I would ask them, if the Constitution does not give to the President the power of removal, what part is it that gives the power of suspension? If you will in one case construe the Constitution, you may do it in another; for I look upon it as dangerous to give the power of suspension, by implication, as to give the full power of removal. Gentlemen, observe that I take it for granted that the President has no express right to the power of suspension; and that, if he is to exercise it, it must be drawn, by constructive reasoning alone, from the Constitution. If we are to exercise our authority, we had better at once give a power that would answer two valuable purposes, than one altogether nugatory. In the first place, it would entirely separate the legislative and executive departments, conformably to the great principles of the Constitution; and, in the second place, it would answer the end of government better, and secure real benefits to the Union.

The great evil, as was stated by the gentleman from Virginia, (Mr. Madison,) yesterday, is, that bad officers shall continue in office, and not that good ones be removed; yet this last is all that is in the power of the President. If he removes a good officer, he cannot appoint his successor without the consent of the Senate; and it is fairly to be presumed, that, if at any time he should be guilty of such an oversight as to remove a useful and valuable officer, the evil will be small, because another as valuable will be placed in his stead. If it is said that this is an injury to the individual, I confess that it is possible that it may be so. But ought we not, in the first place, to consult the public good? But, on mature consideration, I do not apprehend any very great injury will result to the individual from this practice; because, when he accepts of the office, he knows the tenure by which he is to hold it, and ought to be prepared against every contingency.

These being the principles on which I have formed my opinion, in addition to what was stated, I do conceive that I am perfectly justified to my constituents, and to my oath, to support this construction. And when I give my vote that the President ought to have the power of removal from office, I do it on principle; and gentlemen in the opposition will leave us to the operation of our judgments on this as well as every other question that comes before us. For my part, I conceive it is impossible to carry into execution the powers of the President, in a salutary manner, unless he has the power of removal vested in him. I do not mean that, if it was not vested in him by the Constitution, it would be proper for Congress to confer it, though I do believe the government would otherwise be very defective; yet we would have to bear this inconvenience until it was rectified by an amendment of the Constitution.

Mr. GERRY. The Parliament of England is one of the most important bodies on earth; but they can do nothing without the concurrence of the executive magistrate. The Congress of the United States are likely to become a more important body; the executive magistrate has but a qualified negative over them. The Parliament of England, with the consent of the king, can expound their constitution; in fact, they are the constitution itself. But Congress may, if once the doctrine of construction is established, make the Constitution what they please, and the President can have no control over them.

It has been said by my colleague, (Mr. Sedgwick,) that the President not only nominates, but appoints, the officers; and he infers from hence, that, as the power of removal is incidental to the power of appointing, the President has the power of removal also. But I should be glad to know how it can with justice be said that the President appoints. The Constitution requires the consent of the Senate; therefore they are two distinct bodies, and intended to check each other. If my colleague’s is a true construction, it may be extended farther, and said, that, in the act of nominating, the assent of the Senate is virtually given, and therefore he has a right to make the whole appointment himself, without any interference on the part of the Senate. I contend, sir, that there is just as much propriety in the one construction as in the other. If we observe the enacting style of the statutes of Great Britain, we shall find pretty near the same words as what are used in the Constitution with respect to appointments:—”Be it enacted by the king’s most excellent majesty, by and with the advice and consent of Parliament.” Here it might be said the king enacts all laws; but I believe the truth of this fact will be disputed in that country. I believe no one will pretend to say that the king is the three branches of Parliament; and unless my colleague will do all this, I never can admit that the President, in himself, has the power of appointment.

My colleague has gone farther, to show the dependence of this officer on the President. He says the necessity of appointing a secretary of foreign affairs arises from a natural defect in man; that if the President was able to administer all these departments, there would be no occasion of making provision by law. If the President had power superior to the limits of humanity, he might render his country great services; but we are not likely to have any such Presidents; the Constitution itself contemplates none; it makes provision for the infirmities of human nature; it authorizes us to establish offices by law; and this is the ground upon which we stand; indeed, this is the ground that was assumed yesterday by my colleague, when he said that this officer was the creature of the law. If he is the creature of the law, let him conduct according to law; and let it not be contended that he is the creature of the President, because he is no further the creature of the President than that he is obliged to give his opinion in writing when required. But it is said the President is responsible for the conduct of this officer. I wish to know what this responsibility is. Does it mean, if a subordinate executive officer commits treason, that the President is to suffer for it? This is a strange kind of responsibility. Suppose, in the case of the secretary of the treasury; there Should be a defalcation of the public revenue; is he to make good the loss? Or, if the head of the army should betray his trust, and sacrifice the liberties of his country, is the President’s head to be the devoted sacrifice? The Constitution shows the contrary, by the provision made for impeachment; and this I take to be one of the strongest arguments against the President’s having the power of removing one of the principal officers of government—that he is to bear his own responsibility.

The question before the committee must be decided on one of these two grounds. Either they must suppose this power is delegated particularly to the President by the Constitution, or it is not. Let us examine these two cases. If gentleman say that it is delegated by the Constitution, then there is no use for the clause: but if it is not particularly delegated to the President by the Constitution, and we are inclined to authorize him to exercise this power, I would ask gentlemen whether this is the proper way to do it; whether a little clause hid in the body of a bill can be called a declaratory act. I think it cannot. It looks as if we were afraid of avowing our intentions. If we are determined upon making a declaratory act, let us do it in such a manner as to indicate our intention. But perhaps gentlemen may think we have no authority to make declaratory acts. They may be right in this opinion; for though I have examined the Constitution with attention, I have not been able to discover any clause which vests Congress with that power. But if the power of making declaratory acts really vests in Congress, and the judges are bound by our decisions, we may alter that part of the Constitution which is secured from being amended by the 5th article; we may say, that the 9th section of the Constitution, respecting the migration or importation of persons, does not extend to negroes; that the word persons means only white men and women. We then proceed to lay a duty of twenty or thirty dollars per head on the importation of negroes. The merchant does not construe the Constitution in the manner that we have done. He therefore institutes a suit, and brings it before the supreme judicature of the United States for trial. The judges, who are bound by oath to support the Constitution, declare against this law; they would therefore give judgment in favor of the merchant.

But, say Congress, we are the constitutional expounders of this clause, and your decision in this case has been improper. Shall the judges, because Congress have usurped power, and made a law founded in construction, be impeached by one branch, and convicted by the other, for doing a meritorious act, and standing in opposition to their usurpation of power? If this is the meaning of the Constitution, it was hardly worth while to have had so much bustle and uneasiness about it. I would ask gentlemen, if the Constitution has given us power to make declaratory acts, where is the necessity of inserting the 5th article for the purpose of obtaining amendments? The word amendment implies a defect; a declaratory act conceives one. Where, then, is the difference between an amendment and a declaratory act? I call upon the gentleman to point out what part of the Constitution says we shall correct that instrument by a declaratory act. If gentlemen once break through the constitutional limits of their authority, they will find it very difficult to draw a boundary which will secure to themselves and their posterity that liberty which they have so well contended for.

Mr. SHERMAN. The Convention, who formed this Constitution, thought it would tend to secure the liberties of the people, if they prohibited the President from the sole appointment of all officers. They knew that the crown of Great Britain, by having that prerogative, has been enabled to swallow up the whole administration; the influence of the crown upon the legislature subjects both houses to its will and pleasure. Perhaps it may be thought, by the people of that kingdom, that it is best for the executive magistrate to have such kind of influence; if so, it is very well, and we have no right to complain that it is injurious to them, while they themselves consider it beneficial. But this government is different, and intended by the people to be different I have not heard any gentleman produce an authority from law or history which proves, where two branches are interested in the appointment, that one of them has the power of removal. I remember that the gentleman from Massachusetts (Mr. Sedgwick) told us that the two houses, notwithstanding the partial negative of the President, possessed the whole legislative power; but will the gentleman infer from that, because the concurrence of both branches is necessary to pass a law, that a less authority can repeal it? This is all we contend for.

Some gentlemen suppose, if the President has not the power by the Constitution, we ought to vest it in him by law. For my part, I very much doubt if we have the power to do this. I take it we would be placing the heads of departments in a situation inferior to what the Constitution contemplates; but if we have the power, it will be better to exercise it than attempt to construe the Constitution. But it appears to me, that the best way will be to leave the Constitution to speak for itself whenever occasion demands.

It has been said, that the Senate are merely an advisory body. I am not of this opinion, because their consent is expressly required; if this is not obtained, an appointment cannot be made. Upon the whole, I look upon it as necessary, in order to preserve that security which the Constitution affords to the liberty of the people, that we avoid making this declaration, especially in favor of the President; as I do not believe the Constitution vests the authority in him alone.

Mr. AMES. I believe there are very few gentlemen on this floor who have not made up their opinions; therefore it is particularly disagreeable to solicit their attention, especially when their patience is already exhausted, and their curiosity sated; but still I hope to be of some use in collecting the various arguments, and bringing them to a point. I shall rather confine myself to this task, than attempt to offer any thing that is new. I shall just observe, that the arguments of the gentleman from Pennsylvania, (Mr. Scott,) which are complained of as being ridiculous, were arguments addressed to the understandings of the committee; my own understanding was enlightened by them, although they wore the garb of pleasantry. But to proceed to my main object.

The question, so far as it relates to the Constitution, is this—whether it has vested the sole power of removing in the President alone, or whether it is to take place by and with the advice and consent of the Senate. If the question of constitutionality was once despatched, we should be left to consider of the expediency of the measure. I take it to be admitted on all hands, though it was at first objected to by a worthy gentleman from South Carolina, that the power of removal from office, at pleasure, resides somewhere in the government. If it does not reside in the President, or the President and Senate, or if the Constitution has not vested it in any particular body, it must be in the legislature; for it is absurd to suppose that officers once appointed cannot be removed. The argument tending to prove that the power is in the President alone, by an express declaration, may not be satisfactory to the minds of those gentlemen who deem the Constitution to be silent on that head. But let those gentlemen revert to the principles, spirit, and tendency, of the Constitution, and they will be compelled to acknowledge that there is the highest degree of probability that the power does vest in the President of the United States. I shall not undertake to say that the arguments are conclusive on this point. I do not suppose it is necessary that they should be so; for I believe nearly as good conclusions may be drawn from the refutations of an argument as from any other proof; for it is well said, that destructio unius est generatio alterius.

It has been said, and addressed with solemnity to our consciences, that we ought not to destroy the Constitution, to change, or modify it; nay, it has been inferred that it is unnecessary and dangerous for us to proceed in this inquiry. It is true, we may decide wrong, and therefore there may be danger; but it is not unnecessary: we have entered too far into the discussion to retreat with honor to ourselves or security to our country; we are sworn as much to exercise constitutional authority, for the general good, as to refrain from assuming powers that are not given to us: we are as responsible for forbearing to act, as we are for acting. Are we to leave this question undetermined, to be contended between the President and Senate? Are we to say that the question to us is indissoluble, and therefore throw it upon the shoulders of the President to determine? If it is complex and difficult, it is certainly disingenuous in us to throw off the decision: besides, after so long a debate has been had, a decision must be made; for it never would do to strike out the words, as that would be deciding, and deciding against the power of the President.

It must be admitted that the Constitution is not explicit on the point in contest; yet the Constitution strongly infers that the power is in the President alone. It is declared that the executive power shall be vested in the President. Under these terms, all the powers properly belonging to the executive department of the government are given, and such only taken away as are expressly excepted. If the Constitution had stopped here, and the duties had not been defined, either the President had had no powers at all, or he would acquire from that general expression all the powers properly belonging to the executive department. In the Constitution, the President is required to see the laws faithfully executed. He cannot do this without he has a control over officers appointed to aid him in the performance of his duty. Take this power out of his hands, and you virtually strip him of his authority; you virtually destroy his responsibility, the great security which this Constitution holds out to the people of America.

Gentlemen will say that, as the Constitution is not explicit, it must be matter of doubt where the power vests. If gentlemen’s consciences will not let them agree with us, they ought to permit us to exercise the like liberty on our part. But they tell us we must meet them on the ground of accommodation, and give up a declaration that the power of removal is in the President, and they will acquiesce in declaring him to have the power of suspension; but they should recollect that, in so doing, we sacrifice the principles of the Constitution.

It has been frequently said, that the power of removing is incidental to the power of appointing: as the Constitution implies that all officers, except the judges, are appointed during pleasure, so the power of removal may, in all cases, be exercised. But suppose this general principle true; yet it is an arbitrary principle, I take it, and one that cannot be proved: if it was denied, it could not be established; and if it was established, it is still doubtful whether it would make for the adverse side of this question or not, because it is dubious whether the Senate do actually appoint or not. It is admitted that they may check and regulate the appointment by the President; but they can do nothing more; they are merely an advisory body, and do not secure any degree of responsibility, which is one great object of the present Constitution: they are not answerable for their secret advice; but if they were, the blame, divided among so many, would fall upon none.

Certainly this assumed principle is very often untrue; but if it is true, it is not favorable to the gentlemen’s doctrine. The President, I contend, has expressly the power of nominating and appointing, though he must obtain the consent of the Senate. He is the agent: the Senate may prevent his acting, but cannot act themselves. It may be difficult to illustrate this point by examples which will exactly correspond: but suppose the case of an executor, to whom is devised lands, to be sold with the advice of a certain person, on certain conditions; the executor sells with the consent, and upon the conditions, required in the will; the conditions are broken; may the executor reënter for the breach of them? or has the person whom tie was obliged to consult with in the sale any power to restrain him? The executor may remove the wrongful possessor from the land, though, perhaps, by the will, he may hold it in trust for another person’s benefit. In this manner, the President may remove from office, though, when vacant, he cannot fill it without the advice of the Senate. We are told it is dangerous to adopt constructions; and that what is not expressly given is retained. Surely it is as improper in this way to confer power upon the Senate as upon the President; for if the power is not in the President solely by the Constitution, it never can be in the President and Senate by any grant of that instrument: any arguments, therefore, that tend to make the first doubtful, operate against the other, and make it absurd. If gentlemen, therefore, doubt with respect to the first point, they will certainly hesitate with respect to the other. If the Senate have not the power,—and it is proved that they have it not, by the arguments on both sides,— the power either vests with the President or the legislature. If it is in the disposal of the latter, and merely a matter of choice with us, clearly we ought not to bestow it on the Senate; for the doubt, whether the President is not already entitled to it, is an argument against placing it in other hands: besides, the exercise of it by the Senate would be inconvenient; they are not always sitting: it would be insecure, because they are not responsible: it would be subversive of the great principles of the Constitution, and destructive to liberty, because it tends to intermingle executive and legislative powers in one body of men, and this blending of powers ever forms a tyranny. The Senate are not to accuse offenders; they are to try them: they are not to give orders; but, on complaint, to judge of the breach of them. We are warned against betraying the liberties of our country: we are told that all powers tend to abuse: it is our duty, therefore, to keep them single and distinct. Where the executive swallows up the legislature, it becomes a despotism; where the legislature trenches upon the executive, it approaches towards despotism; and where they have less than is necessary, it approximates towards anarchy.

We should be careful, therefore, to preserve the limits of each authority, in the present question. As it respects the power of the people, it is but of little importance; it is not pretended that the people have reserved the power of removing bad officers. It is admitted, on all hands, that the government is possessed of such power; consequently, the people can neither lose nor gain power by it. We are the servants of the people; we are the watchmen; and we should be unfaithful, in both characters, if we should so administer the government as to destroy its great principles and most essential advantages. The question now among us is, which of these servants shall exercise a power already granted. Wise and virtuous as the Senate may be, such a power lodged in their hands will not only tend to abuse, but cannot tend to any thing else. Need I repeat the inconveniences which will result from vesting it in the Senate? No. I appeal to that maxim which has the sanction of experience, and is authorized by the decision of the wisest men: to prevent an abuse of power, it must be distributed into three branches, who must be made independent, to watch and check each other: the people are to watch them all. While these maxims are pursued, our liberties will be preserved. It was from neglecting or despising these maxims, the ancient commonwealths were destroyed. A voice issues from the tomb which covers their ruins, and proclaims to mankind the sacredness of the truths that are at this moment in controversy.

It is said that the Constitution has blended these powers which we advise to keep separate, and, therefore, we ought to follow in completing similar regulations; but gentlemen ought to recollect, that has been an objection against the Constitution; and if it is a well-founded one, we ought to endeavor, all that is in our power, to restrain the evil, rather than to increase it. But, perhaps, with the sole power of removal in the President, the check of the Senate in appointments may have a salutary tendency: in removing from office, their advice and consent are liable to all the objections that have been stated. It is very proper to guard the introduction of a man into office by every check that can properly be applied; but after he is appointed, there can be no use in exercising a judgment upon events which have heretofore taken place. If the Senate are to possess the power of removal, they will be enabled to hold the person in office, let the circumstances be what they may, that point out the necessity or propriety of his removal: it creates a permanent connection; it will nurse faction; it will promote intrigue to obtain protectors, and to shelter tools. Sir, it is infusing poison into the Constitution; it is an impure and unchaste connection: there is ruin in it: it is tempting the Senate with forbidden fruit: it ought not to be possible for a branch of the legislature even to hope for a share of the executive power; for they may be tempted to increase it. by a hope to share the exercise of it. People are seldom jealous of their own power; and if the Senate become part of the executive, they will be very improper persons to watch that department: so far from being champions for liberty, they will become conspirators against it.

The executive department should ever be independent, and sufficiently energetic to defeat the attempts of either branch of the legislature to usurp its prerogative. But the proposed control of the Senate is setting that body above the President: it tends to establish an aristocracy. And at the moment we are endangering the principles of our free and excellent Constitution, gentlemen are undertaking to amuse the people with the sound of liberty. If their ideas should succeed, a principle of mortality will be infused into a government which the lovers of mankind have wished might last to the end of the world. With a mixture of the executive and legislative powers in one body, no government can long remain uncorrupt. With a corrupt executive, liberty may long retain a trembling existence. With a corrupt legislature, it is impossible: the vitals of the Constitution would be mortified, and death must follow in every step. A government thus formed would be the most formidable curse that could befall this country. Perhaps an enlightened people might timely foresee and correct the error; but if a season was allowed for such a compound to grow and produce its natural fruit, it would either banish liberty, or the people would he driven to exercise their unalienable right, the right of uncivilized nature, and destroy a monster whose voracious and capacious jaws could crush and swallow up themselves and their posterity.

The principles of this Constitution, while they are adhered to, will perpetuate that liberty which it is the honor of Americans to have well contended for. The clause in the bill is calculated to support those principles; and for this, if there was no other reason, I should be inclined to give it my support.

Mr. LIVERMORE. The decision of this question depends upon the construction of a short clause in the Constitution, in which is designated the power of the President. It is said he shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. He shall nominate, and, by and with the advice and consent of the Senate, appoint ambassadors, other public ministers, and consuls, justices of the Supreme Court, and all other officers of the United States. Such strange constructions have been given to this advice and consent of the Senate, which, if agreed to, will make the whole Constitution nothing, or any thing, just as we please. If we can deprive the Senate of their powers in making treaties, and say, with truth, that they have no authority m the business, the legislature will become a dangerous branch of the government. So, in the case of appointing officers, if it can be truly said that these heads of departments are the servants of the President alone, we shall make the executive department a dangerous one.

I do not admit that any man has an estate in his office. I conceive all officers to be appointed during pleasure, except where the Constitution stipulates for a different tenure—unless, indeed, the law should create the office, or officer, for a term of years. After observing this, I must contend that the power of removal is incidental to the power of appointment. If it was the President alone that appointed, he alone could displace. If the President and Senate, by a joint agreement, appoint an officer, they alone have the power to supersede him; and however any gentleman may say he doubts, or does not understand, the force of this principle, yet to me it appears as clear and demonstrable as any principle of law or justice that I am acquainted with. There is another method to displace officers expressly pointed out by the Constitution; and this implies, in the clearest manner, that in all other cases officers may be removed at pleasure; and if removed at pleasure, it must be at the pleasure of the parties who appointed them.

Congress are enabled, by the Constitution, to establish offices by law. In many cases they will, no doubt, vest the power of appointing inferior officers in the President alone. They have no express right, by the Constitution, to vest in him the power of removing these at pleasure; yet no gentleman will contend but inferior officers ought to be removable at pleasure. How, then, can the President acquire this authority, unless it be on the principle that the power of removal is incidental, and the x natural consequence of the power of appointing. If gentlemen will maintain consistency, they will be compelled to acknowledge the force of this principle; and if they acknowledge the principle, they must agree to strike out the words.

Mr. MADISON. The question now seems to be brought to this—whether it is proper or improper to retain these words in the clause, provided they are explanatory of the Constitution. I think this branch of the legislature is as much interested in the establishment of the true meaning of the Constitution, as either the President or Senate; and when the Constitution submits it to us to establish offices by law, we ought to know by what tenure the office should be held, and whether it should depend upon the concurrence of the Senate with the President, or upon the will of the President alone, because gentlemen may hesitate, in either case, whether they will make it for an indefinite or precise time. If the officer can be removed at discretion by the President, there may be safety in letting it be for an indefinite period. If he cannot exert his prerogative, there is no security, even by the mode of impeachment; because the officer may intrench himself behind the authority of the Senate, and bid defiance to every other department of government. In this case, the question of duration would take a different turn. Hence it is highly proper that we and our constituents should know the tenure of the office. And have we not as good a right as any branch of the government to declare our sense of the meaning of the Constitution?

Nothing has yet been offered to invalidate the doctrine, that the meaning of the Constitution may as well be ascertained by the legislative as by the judicial authority. When a question emerges, as it does in this bill,—and much seems to depend upon it,—I should conceive it highly proper to make a legislative construction. In another point of view, it is proper that this interpretation should now take place, rather than at a time when the exigency of the case may require the exercise of the power of removal. At present, the disposition of every gentleman is to seek the truth, and abide by its guidance when it is discovered. I have reason to believe the same disposition prevails in the Senate. But will this be the case when some individual officer of high rank draws into question the capacity of the President, with the Senate, to effect his removal? If we leave the Constitution to take this course, it can never be expounded until the President shall think it expedient to exercise the right of removal, if he supposes he has it. Then the Senate may be induced to set up their pretensions; and will they decide so calmly as at this time, when no important officer in any of the great departments is appointed to influence their judgments? The imagination of no member here, or of the Senate, or of the President himself, is heated or disturbed by faction. If ever a proper moment for decision should offer, it must be one like the present.

I do not conceive that this question has been truly stated by some gentlemen. In my opinion, it is not whether we shall take the power from one branch of the government, and give it to another; but the question is, to which branch has the Constitution given it? Some gentlemen have said that it resides in the people at large, and that, if it is necessary to the government, we must apply to the people for it, and obtain it by way of amendment to the Constitution. Some gentlemen contend, that although it is given in the Constitution as a necessary power to carry into execution the other powers vested by the Constitution, yet it is vested in the legislature. I cannot admit this doctrine either, because, it is setting the legislature at the head of the executive branch of the government. If we take the other construction, of the gentleman from South Carolina, that all officers hold their places by the firm tenure of good behavior, we shall find it still more improper. I think gentlemen will see, upon reflection, that this doctrine is incompatible with the principles of free government. If there is no removability but by way of impeachment, then all the executive officers of government hold their offices by the firm tenure of good behavior, from the chief justice down to the tide-waiter.

[Mr. SMITH interrupted Mr. Madison, and said, that he had admitted that inferior officers might be removed, because the Constitution had left it in the power of the legislature to establish them on what terms they pleased; consequently, to direct their appointment and removal.]

Mr. MADISON had understood the gentleman as he now explained himself, But still he contended that the consequences he had drawn would necessarily follow; because there was no express authority given to the legislature, in the Constitution, to enable the President, the courts of law, or heads of departments, to remove au inferior officer. All that was said on that head was confined solely to the power of appointing them. If the gentleman admits, says he, that the legislature may vest the power of removal, with respect to inferior officers, he must also admit that the Constitution vests the President with the power of removal in the case of superior officers, because both powers are implied in the same words; the President may appoint the one class, and the legislature may authorize the courts of law or heads of departments to appoint in the other case. If, then, it is admitted that the power of removal vests in the President, or President and Senate, the arguments which I urged yesterday, and those which have been urged by honorable gentlemen on this side of the question for these three days past, will fully evince the truth of the construction which we give,—that the power is in the President alone. I will not repeat them, because they must have full possession of every gentleman’s mind. I am willing, therefore, to rest the decision here, and hope that it will be made in such a manner as to perpetuate the blessings which this Constitution was intended to embrace.

Mr. BALDWIN. I have felt an unusual anxiety during the debate upon this question. I have attentively listened to the arguments which have been brought forward, and have weighed them in my mind with great deliberation; and as I consider a proper decision upon it of almost infinite importance to the government, I must beg the indulgence of the house while I submit a few observations.

The main ground on which the question is made to rest is, that if we adopt this clause, we violate the Constitution. Many of the gentlemen who advocate the present motion for striking out, would, if they could do it with consistency to the Constitution, be in favor of the clause. We have been reminded of our oaths, and warned not to violate the solemn obligation. This injunction has come from so many parts of the house, that it arrested my whole attention for a few minutes; and then they produced us the clause in the Constitution which directed that officers should be appointed by and with the advice and consent of the Senate. They then tell us that he should be removable in the same manner. We see the clause by which it is directed that they should be appointed in that manner, but we do not see the clause respecting their removal in the same way. Gentlemen have only drawn it as an inference from the former: they construe that to be the meaning of the Constitution, as we construe the reverse. I hope, therefore, gentlemen will change their expression, and say, we shall violate their construction of the Constitution, and not the Constitution itself. This will be a very different charge! unless the gentlemen pretend to support the doctrine of infallibility, as it respects their decisions; and that would perhaps be more than the house are willing to admit, and more than the people in this country are accustomed to believe.

I have said the gentlemen rest their principal opposition on this point—that the Constitution plainly means that the officers must be removed in the way they are appointed. Now, when gentlemen tell me that I was going to construe the Constitution, and many interpret it in a manner which was never intended, I am very cautious how I proceed. I do not like to construe over much. It is a very delicate and critical branch of our duty; and there is not, perhaps, any part of the Constitution on which we should be more cautious and circumspect than on the present.

I am well authorized to say, that the mingling the powers of the President and Senate was strongly opposed in the Convention which had the honor to submit to the consideration of the United States, and the different states, the present system for the government of the Union. Some gentlemen opposed it to the last; and finally it was the principal ground on which they refused to give it their signature and assent. One gentleman called it a monstrous and unnatural connection, and did not hesitate to affirm it would bring on convulsions in the government. This objection was not confined to the walls of the Convention; it has been the subject of newspaper declamation, and perhaps justly so. Ought not we, therefore, to be careful not to extend this unchaste connection any farther?

Gentlemen who undertake to construe, say that they see clearly that the power which appoints must also remove. Now, I have reviewed this subject with all the application and discernment my mind is capable of, and have not been able to see any such thing. There is an agency given to the President, in making appointments, to which the Senate are connected. But how it follows that the connection extends to the removal, positively I cannot see. They say that it follows as a natural, inseparable consequence. This sounds like logic. But if we consult the premises, perhaps the conclusion may not follow. The Constitution opposes this maxim more than it supports it. the President is appointed by electors chosen by the people themselves, or by the state legislatures. Can the state legislatures, either combined or separate, effect his removal? No. But the Senate may, on impeachment by this house. The judges are appointed by the President, by and with the advice and consent of the Senate; but they. are only removable by impeachment; the President has no agency in the removal. Hence, I say, it is not a natural consequence that the power which appoints should have the power of removal also.

We may find it necessary that subordinate officers should be appointed, in the first instance, by the President and Senate. I hope it will not be contended that the President and Senate shall be applied to in all cases when their removal may be necessary. This principle, sir, is not pursued by the Senate themselves, in the very bill that is now before this house, sent down by the Senate, to establish the judicial courts of the United States. It is directed that a marshal shall be appointed for each district, who shall have power to appoint one or more deputies; and these deputies are to be removable from office by the judge of the District Court, or the Circuit Court sitting within the district, at the pleasure of either. It is not said they shall be appointed by the marshal, who may remove them at pleasure; which ought to be the case, if the maxim is true, that the power which appoints necessarily has the power of removal. But I dispute the maxim altogether; for though it is sometimes true, it is often fallacious; but by no means is it that kind of conclusive argument which they contend for.

Gentlemen proceed in their constructions, and they ask, “Why did not the Convention insert a clause in the Constitution, declaring the removal to be in a manner different from the appointment?” They tell us that it must naturally have occurred to them, and that here and there was the proper place to insert such a clause. Now, let me ask them, also, if theirs is the natural construction, why the Convention, after declaring that officers should be appointed by and with the advice and consent of the Senate, did not add, to be removed in like manner. It must have as naturally occurred to insert the one as the other. It is very possible that such a clause might have been moved and contended for; but it is hardly probable it would meet with success from these who opposed giving the Senate any check or control whatsoever over the powers of the President; much less was it probable that those gentlemen wire opposed it there should wish to enlarge it by construction: for my part, I hope never to see it increased in this way. What of this nature is brought in by the letter of the Constitution, let it be there; but let us never increase evils of which we have some right to complain. A gentleman asks, “Where is the danger of mixing these powers, if the Constitution has already done it?” That gentleman knows that it has always been viewed as an evil, and an association of the legislative and executive powers in one body has been found to produce tyranny. It is a maxim among the wisest legislators not to blend the branches of government further than is necessary to carry their separate powers into more complete operation. It was found necessary to blend the powers to a certain degree; so far we must acquiesce. The Senate must concur with the President in making appointments; but with respect to the removal, they are not associated; no such clause is in the Constitution; and, therefore, I should conclude that the Convention did not choose they should have the power. But what need was there that such a clause should be there? What is the evil it was intended to guard against? Why, we are afraid the President will unnecessarily remove a worthy man from office; and we say it is a pity the poor man should be turned out of service without a hearing; it is injurious to his reputation; it is his life, says the gentleman from New Hampshire, (Mr. Livermore;) it is cruelty in the extreme. But why are we to suppose this? I do not see any well-grounded apprehension for such an abuse of power. Let us attend to the operation of this business. The Constitution provides for what? That no bad man should come into office: this is the first evil. Hence we have nothing to dread from a system of favoritism; the public are well secured against that great evil; therefore the President cannot be influenced by a desire to get his own creatures into office; for it is fairly presumable that they will be rejected by the Senate. But suppose that one such could be got in; he can be got out again, in spite of the President: we can impeach him, and drag him from his place; and then there will be some other person appointed.

Some gentlemen seem to think there should be another clause in the Constitution, providing that the President should not turn out a good officer, and then they would not apprehend so much danger from that quarter. There are other evils which might have been provided against, and other things which might have been regulated; but if the Convention had undertaken to have done them, the Constitution, instead of being contained in a sheet of paper, would have swelled to the size of a folio volume. But what is the evil of the President’s being at liberty to exercise this power of removal? Why, we fear that he will displace, not one good officer only, but, in a fit of passion, all the good officers of the government, by which, to be sure, the public would suffer; but I venture to say he would suffer himself more than any other man. But I trust there is no dearth of good men. I believe he could not turn out so many, but that the Senate would still have some choice, out of which to supply a good one But, even if he was to do this, what would be the consequence? He would be obliged to do the duties himself; or, if he did not, we would impeach him, and turn him out of office, as he had done others. I must, admit, though, that there is a possibility of such an evil, but it is a remote possibility indeed.

I think gentlemen must concede that, if there should be such a passion,—such resentment as I have supposed between the President and the heads of departments,—the one or the other ought to be removed; they must not go on pulling different ways, for the public will receive most manifest injury: therefore it mitigates the appearance of the evil by suffering the public business to go on, which, from their irreconcilable difference, would otherwise be at a stand.

Mr. GERRY. The judges are the expositors of the Constitution and the acts of Congress. Our exposition, therefore, would be subject to their revisal. In this way the constitutional balance would be destroyed. The legislature, with the judicial, might remove the head of the executive branch. But a further reason why we are not the expositors, is, that the judiciary may disagree with us, and undo what all our efforts have labored to accomplish. A law is a nullity, unless it can be carried into execution: in this case, our law will be suspended. Hence all construction of the meaning of the Constitution is dangerous, or unnatural, and therefore ought to be avoided.

This is our doctrine, that no power of this kind ought to be exercised by the legislature. But, we say, if we must give a construction to the Constitution, it is more natural to give the construction in favor of the power of removal vesting in the President, by and with the advice and consent of the Senate, because it is in the nature of things that the power which appoints removes also. If there are deviations from this general rule, the instances are few, and not sufficient to warrant our departure on this occasion. We say our construction is superior also, because it does not militate against any clause of the Constitution; whilst their construction militates against several, and, in some respects, renders them mere nullities.

There is a consistency, under a monarchy, of the king’s exercising the power of appointment and removal at pleasure. In Great Britain this is the prerogative of the throne; where it is likewise held a maxim, that the king can do no wrong. The chief magistrate under this Constitution is a different character. There is a constitutional tribunal, where he may be arraigned, condemned and punished, if he does wrong. The reason of this distinction I take to be this: the majesty of the people receives an injury when the President commits an improper act, for which they are to receive satisfaction. Kings have a property in government; and when a monarch acts unwisely he injures his own interest, but is accountable to none, because satisfaction is due to himself alone. He is established in his office for life; it is an estate to him which he is interested to transmit to his posterity unimpaired; the good of the people, upon principles of interest; will be his peculiar study; he ought, therefore, to have power to act in such a manner as is most likely to secure to him this object; then, necessarily, he must have the right of choosing or displacing his agents. There can be no difficulty on this point. But in a confederated republic the chief magistrate has no such trust; he is elected but for four years, after which the government goes into other hands; he is not stimulated to improve a patrimony, and therefore has no occasion for complete power over the officers of the government. If he has such power, it can only be made useful to him by being the means of procuring him a reëlection, but can never be useful to the people by inducing him to appoint good officers or remove bad ones. It appears to me that such unbounded power vitiates the principles of the Constitution; and the officers, instead of being the machinery of the government, moving in regular order prescribed by the legislature, will be the mere puppets of the President, to be employed or thrown aside as useless lumber, according to his prevailing fancy.

If gentlemen will take this step, they must take another, and secure the public good by making it the interest of the President to consult it; they must elect him for life, or, what will be more consistent still, they must make his office hereditary. Then gentlemen may say, with some degree of truth, that he ought to have the power of removal, to secure in his hands a balance in the government. But if gentlemen are willing to remain where they are, and abide by the Constitution, regarding its true principles, they will not contend that there is a necessity, or even a propriety, in vesting this power in the President alone.

Gentlemen tell us they are willing to consider this as a constitutional question; and yet the bill shows that they consider the Constitution silent, for the clause grants the power in express terms: this also implies that the legislature have a right to interfere with the executive power contrary to their avowed principles. If the legislature has not the power of removal, they cannot confer it upon others; if they have it, it is a legislative power, and they have no right to transfer the exercise of it to any other body; so, view this question in whatever point of light you please, it is clear the words ought to be struck out.

The call for the question being now very general, it was put—Shall the words “to be removable by the President” be struck out?

It was determined in the negative; being yeas 20, nays 34.

Amendments to the Constitution.

House of Representatives, August 13, 1789.

Mr. GERRY. The Constitution of the United States was proposed by a Convention met at Philadelphia; but with all its importance, it did not possess as high authority as the President, Senate, and House of Representatives of the Union; for that Convention was not convened in consequence of any express will of the people, but an implied one, through their members in the state legislatures. The Constitution derived no authority from the first Convention; it was concurred in by conventions of the people, and that concurrence armed it with power, and invested it with dignity. Now, the Congress of the United States are expressly authorized, by the sovereign and uncontrollable voice of the people, to propose amendments whenever two thirds of both houses shall think fit. Now, if this is the fact, the propositions of amendment will be found to originate with a higher authority than the original system. The conventions of the states respectively have agreed, for the people, that the state legislatures shall be authorized to decide upon these amendments in the manner of a convention. If these acts of the state legislatures are not good, because they are not specifically instructed by their constituents, neither were the acts calling the first and subsequent conventions.

Mr. AMES. It is not necessary to increase the representation, in order to guard against corruption; because no one will presume to think that a body composed like this, and increased in a ratio of 4 to 3, will be much less exposed to sale than we are. Nor is a greater number necessary to secure the rights and liberties of the people, for the representative of a great body of people is likely to be more watchful of its interests than the representative of a lesser body.

Mr. MADISON. Suppose they, the people, instruct a representative by his vote to violate the Constitution; is he at liberty to obey such instructions? Suppose he is instructed to patronize certain measures, and from circumstances known to him, but not to his constituents, he is convinced that they will endanger the public good; is he obliged to sacrifice his own judgment to them? Is he absolutely bound to perform what he is instructed to do? Suppose he refuses; will his vote be the less valid, or the community be disengaged from that obedience which is due, from the laws of the Union? If his vote must inevitably have the same effect, what sort of a right is this, in the Constitution, to instruct a representative who has a right to disregard the order, if he pleases? In this sense, the right does not exist; in the other sense, it does exist, and is provided largely for.

Domestic Debt.

House of Representative, February 22, 1790.

Mr. SMITH, (of South Carolina.) The Constitution itself was opposed to the measure, (discrimination of the domestic debt;) for it was an ex post facto law, which was prohibited in express terms. The transference of public securities was lawful at the time these alienations were made; an attempt therefore to punish the transferees, is an attempt to make an ex post facto law, by making that unlawful which was lawful at the time it was done; it alters the nature of the transaction, and annexes the idea of guilt to that which, at the moment of commission, was not only perfectly innocent, but was explicitly authorized and encouraged by a public act of Congress. By that act, those who had money were invited, to purchase of those who held securities; and now they were called upon to punish the purchasers who bought under that invitation. The Constitution restrains the states from passing any law impairing the force of contracts: a fortiori, is the legislature of the Union restrained? What all example to hold up to the judiciary of the United States! How could they annul a state law, when the state would be able to plead a precedent on the part of Congress? The right of property was a sacred right; no tribunal on earth, nor even legislative body, could deprive a citizen of his property, unless by a fair equivalent, for the public welfare. The purchaser was vested, by the sale, with an absolute right to the full amount of the security, and it was beyond their authority to divest him of it. They might, indeed, by an act of power, declare that he should be paid only half; but his right to the other moiety would not be extinguished.

The present Constitution, which is a mild one, met with considerable opposition. Had it been rejected, the public securities would never have been paid.

It was the surest policy of governments to adhere strictly to their plighted faith, when it was in their power to do so, even should such-strict adherence work an injury to some part of the community. This was the practice of nations in the case of a treaty, which, when made by competent authority, they considered themselves bound to observe, although they deemed it disadvantageous to them, lest a refusal should deter other nations from treating with them in future. It is by this line of conduct that public credit can alone be supported.

Mr. MADISON. The constitutionality of the proposition had been drawn into question. He (Mr. Madison) asked whether words could be devised that would place the new government more precisely in the same relation to the real creditors with the old. The power was the same; the objection was the same: the means only were varied.

If the gentlemen persisted, however, in demanding precedents, he was happy in being able to gratify them with two, which, though not exactly parallel, were, on that account, of the greater force, since the interposition of government had taken place where the emergencies could less require them. The first was the case of the Canada bill. During the war which ended in 1763, and which was attended with a revolution in the government of Canada, the supplies obtained for the French army in that province were paid for in bills of exchange and certificates. This paper depreciated, and was bought up chiefly by British merchants. The sum and the depreciations were so considerable as to become a subject of negotiation between France and Great Britain at the peace. The negotiation produced a particular article, by which it was agreed by France that the paper ought to be redeemed, and admitted by Great Britain that it should be redeemed, at a stipulated value. In the year 1766, this article was accordingly carried into effect by ministers from the two courts, who reduced the paper, in the bands of the British holders, in some instances as much as seventy-five per cent. below its nominal value. It was stated, indeed, by the reporter of the ease, that the holders of the paper had themselves concurred in the liquidation: but it was not probable that the concurrence was voluntary. If it was voluntary, it shows that they themselves were sensible of the equity of the sacrifice.

The other case was of still greater weight, as it had no relation to war or to treaty, and took place in the nation which had been held up as a model with respect to public credit. In the year 1715, the civil list of Great Britain had fallen in arrears to the amount of £500,000. The creditors who had furnished supplies to the government, had, instead of money, received debentures only from respectable officers. These had depreciated. In that state they were assigned in some instances; in others, covenanted to be assigned. When the Parliament appropriated funds for satisfying these arrears, they inserted an express provision in the act, that the creditors who had been obliged, by the defaults of government, to dispose of their paper at a loss, might redeem it from the assignees by repaying the actual price, with an interest of six per cent., and that all agreements and covenants to assign should be absolutely void. Here, then, was au interposition on the very principle that a government ought to redress the wrongs sustained by its default, and on an occasion trivial when compared with that under consideration; yet it does not appear that the public credit of its nation was injured by it.

Slave Trade.—On committing the Memorial of the Quakers on the Slave Trade.

House of Representatives, March, 1790.

Mr. TUCKER said, he conceived the memorial to be so glaring an interference with the Constitution, that he had hoped the house would not have given so much countenance to a request so improper in itself. He was sorry that the society had discovered so little prudence in their memorial, as to wish that Congress should intermeddle in the internal regulations of the particular states. He hoped the petition would not be committed, as it would operate directly against the interest of those it was designed to benefit. This is a business that may be attended with the most serious consequences; it may end in a subversion of the government, being a direct attack on the rights and property of the Southern States. He then inquired what satisfaction was to be made to the proprietors of slaves. He believed it was not in the power of the states to make indemnification for the loss that would attend emancipation. He reprobated the interposition of the society, and denied that they possessed any more humanity than other denominations.

Mr. GERRY replied to Mr. Tucker, and desired the gentleman to point out any part of the memorial which proposed that the legislature should infringe on the Constitution. For his part, he heard nothing read that had such a tendency. Its only object was, that Congress should exert their constitutional authority to abate the horrors of slavery so far as they could. He hoped the petition would be committed. Indeed, he considered that all altercation on the subject of commitment was at an end, as the house had essentially determined that it should be committed.

Mr. BURKE reprobated the commitment, as subversive of the Constitution, as sounding an alarm, and blowing the trumpet of sedition in the Southern States. He should oppose the business totally; and if chosen on the committee, he should decline serving.

Mr. SCOTT was in favor of the commitment.

Mr. JACKSON was opposed to it, and painted in strong colors, the alarming consequences to be apprehended from taking up the business,—revolt, insurrection, and devastation,—and concluded by an observation similar to Mr. Burke’s.

Mr. SHERMAN could see no difficulty in committing the memorial; the committee may bring in such a report as may prove satisfactory to gentlemen on all sides.

Mr. BALDWIN referred to the principles of accommodation which prevailed at the time of forming the government. Those mutual concessions which then took place gave us a Constitution which was to insure the peace and the equal rights and properties of the various states; and to prevent all infraction of the rights in this particular instance, they precluded themselves, by an express stipulation, from all interposition in the slave trade. Congress are not called upon to declare their sentiments upon this occasion; they cannot constitutionally interfere in the business. He deprecated the consequences of such a measure in very forcible terms, and hoped the house would proceed no farther in the investigation of the subject.

Mr. SMITH, (of South Carolina,) recurring to the memorial, observed, that Congress could not constitutionally interfere in the business, upon the prayer of the memorialists, as that went to an entire abolition of slavery; it could not, therefore, with propriety, be referred to a committee.

In the Southern States, difficulties on this account had arisen in respect to the ratification of the Constitution; and, except their apprehensions on this head had been dissipated by their property being secured and guarantied to them by the Constitution itself, they never could have adopted it. He then depicted the miseries that would result from the interference of Congress in the southern governments. He asserted, as his opinion, that if there were no slaves in the Southern States, they would he entirely depopulated; from the nature of the country, it could not be cultivated without them. Their proprietors are persons of as much humanity as the inhabitants of any part of the continent: they are as conspicuous for their morals as any of their neighbors.

He then asserted that the Quakers are a society not known to the laws; that they stand in exactly the same situation with other religious societies. Their memorial relates to a matter in which they are no more interested than any other sect whatever; and it must therefore be considered in the light of advice; and is it customary to refer a piece of advice to a committee? He then contrasted this memorial with one which might be presented from the sect called Shaking Quakers, whose principles and practices are represented in a very exceptionable point of light; and asked whether Congress would pay any attention to such a memorial. He hoped the memorial would not be committed.

Mr. PAGE was in favor of the commitment. He hoped that the benevolent designs of the respectable memorialists would not he frustrated at the threshold, so far as to preclude a fair discussion of the prayer of their memorial. He observed that they do not apply for a total abolition of slavery. They only request that such measures may be taken, consistent with the Constitution, as may finally issue in the total abolition of the slave trade. He could not conceive that the apprehensions entertained by the gentlemen from Georgia and South Carolina were well founded, as they respected the proposed interference of Congress.

Mr. MADISON observed, that it was his opinion, yesterday, that the best way to proceed in the business was to commit the memorial, without any debate on the subject. From what has taken place, he was more convinced of the propriety of the idea; but, as the business has engaged the attention of many members, and much has been said by gentlemen, he would offer a few observations for the consideration of the house. He then entered into a critical review of the circumstances respecting the adoption of the Constitution; the ideas upon the limitation of the powers of Congress to interfere in the regulation of the commerce in slaves, and showing that they undeniably were not precluded from interposing in their importation; and generally, to regulate the mode in which every species of business shall be transacted. He adverted to the western country, and try the cession of Georgia, in which Congress have certainly the power to regulate the subject of slavery; which shows that gentlemen are mistaken supposing that Congress cannot constitutionally interfere in the business in any degree whatever. He was in favor of committing the petitions, and justified the measure, by repeated precedents in the proceedings of the house.

Mr. GERRY entered into a justification of the interference of Congress, as being fully compatible with the Constitution. He descanted on the miseries to which the Africans are subjected by this traffic, and said that he never contemplated this subject without reflecting what his own feelings would be, in case himself, his children, or friends, were placed in the same deplorable circumstances. He then adverted to the flagrant acts of cruelty which are committed in carrying on that traffic, and asked whether it can be supposed that Congress has no power to prevent such transactions as far as possible. He then referred to the Constitution, and pointed out the restrictions laid on the general government respecting the importation of slaves. It is not, he presumed, in the contemplation of any gentleman in this house to violate that part of the Constitution; but that we have a right to regulate this business is as clear as that we have any rights whatever; nor has the contrary been shown by any person, who has spoken on the occasion. Congress can, agreeably to the Constitution, lay a duty of ten dollars a head on slaves: they may do this immediately. He made a calculation of the value of the slaves in the Southern States. He supposed they might be worth about ten million of dollars. Congress have a right, if they see proper to make a proposal to the Southern States, to purchase the whole of them; and their resources in the western country may furnish them with means. He did not mean to suggest a measure of this kind: he only instanced these particulars to show that Congress certainly have a right to intermeddle in this business. He thought that no objections had been offered of any force to prevent the committing of the memorial.

Mr. BOUDINOT was in favor of the commitment, enlarged on the idea suggested by Mr. Gerry, and observed that the memorial contained only a request that Congress would interfere their authority in the cause of humanity and mercy.

Mr. GERRY and Mr. STONE severally spoke again on the subject. The latter gentleman, in opposition to the commitment, said, that this memorial was a thing of course; for there never was a society of any considerable extent which did not interfere with the concerns of other people; and this interference has at one time or other deluged the world with blood. On this principle he was opposed to the commitment.

Mr. TUCKER moved to modify the first paragraph by striking out all the words after the word opinion, and to insert the following: “that the several memorials proposed to the consideration of this house a subject on which its interference would be unconstitutional, and even its deliberations highly injurious to some of the states of the Union.”

Mr. JACKSON rose, and observed, that he had been silent on the subject of the reports coming before the committee, because he wished the principles of the resolutions to be examined fairly, and to be decided on their true grounds. He was against the propositions generally, and would examine the policy, the justice, and use of them; and he hoped, if he could make them appear in the same light to others as they did to him by fair argument, that the gentlemen in opposition were not so determined in their opinions as not to give up their present sentiments.

With respect to the policy of the measure,—the situation of the slaves here, their situation in their native states, and the disposal of them in case of emancipation, should be considered. That slavery was an evil habit he did not mean to controvert; but that habit was already established, and there were peculiar situations in countries which rendered that habit necessary. Such situations the states of South Carolina and Georgia were in: large tracts of the most fertile lands on the continent remained uncultivated for the want of population. It was frequently advanced on the floor of Congress how unhealthy those climates were, and how impossible it was for northern constitutions to exist there. What, he asked, is to be done with this uncultivated territory? Is it to remain a waste? Is the rice trade to be banished from our coasts? Are Congress willing to deprive themselves of the revenue arising from that trade, and which is daily increasing; and to throw this great advantage into the hands of other countries?

Let us examine the use or the benefit of the resolutions contained in the report. I call upon gentlemen to give me one single instance in which they can be of service. They are of no use to Congress. The powers of that body are already defined, and those powers cannot be amended, confirmed, or diminished, by ten thousand resolutions. Is not the first proposition of the report fully contained in the Constitution? Is not that the guide and rule of this legislature? A multiplicity of laws is reprobated in any society, and tends but to confound and to perplex. How strange would a law appear which was to confirm a law! and how much more strange must it appear for this body to pass resolutions to confirm the Constitution under which they sit! This is the case with others of the resolutions.

A gentleman from Maryland (Mr. STONE) very properly observed that the Union had received the different states with all their ill habits about them. This was one of these habits established long before the Constitution, and could not now be remedied. He begged Congress to reflect on the number on the continent who were opposed to this Constitution, and on the number which yet remained in the Southern States. The violation of this compact they would seize on with avidity; they would make a handle of it to cover their designs against the government; and many good federalists, who would be injured by the measure, would be induced to join them. His heart was truly federal, and it had always been so, and he wished those designs frustrated. He begged Congress to beware, before they went too far. He called on them to attend to the interest of two whole States, as well as to the memorials of a society of Quakers, who came forward to blow the trumpet of sedition, and to destroy that Constitution which they had not in the least contributed by personal service or supply to establish.

He seconded Mr. Tucker’s motion.

Mr. SMITH (of South Carolina) said, the gentleman from Massachusetts (Mr. GERRY) had declared that it was the opinion of the select committee, of which he was a member, that the memorial from the Pennsylvania society required Congress to violate the Constitution. It was not less astonishing to see Dr. Franklin taking the lead in a business which looks so much like a persecution of the southern inhabitants, when he recollected the parable he had written some time ago, with a view of showing the impropriety of one set of men persecuting others for a difference of opinion. The parable was to this effect: “An old traveller, hungry and weary, applied to the patriarch Abraham for a night’s lodging. In conversation, Abraham discovered that the stranger differed with him on religious points, and turned him out of doors. In the night, God appeared unto Abraham, and said, Where is the stranger? Abraham answered, I found that he did not worship the true God, and so I turned him out of doors. The Almighty thus rebuked the patriarch: Have I borne with him three-score and ten years, and couldst thou not bear with him one night?” Has not the Almighty, said Mr. Smith, borne with us for more than threescore years and ten? He has even made our country opulent, and shed the blessings of affluence and prosperity on our land, notwithstanding all its slaves; and must we now be ruined on account of the tender consciences of a few scrupulous individuals, who differ from us on this point?

Mr. BOUDINOT agreed with the general doctrines of Mr. S., but could not agree that the clause in the Constitution relating to the want of power in Congress to prohibit the importation of such persons as any of the states, now existing, shall think proper to admit, prior to the year 1808, and authorizing a tax or duty on such importation; not exceeding ten dollars for each person, did not extend to negro slaves. Candor required that he should acknowledge that this was the express design of the Constitution; and therefore Congress could not interfere in prohibiting the importation or promoting the emancipation of them prior to that period. Mr. Boudinot observed, that he was well informed that the taxer duty of ten dollars was provided, instead of the five per cent. ad valorem, and was so expressly understood by all parties in the Convention; that, therefore, it was the interest and duty of Congress to impose this tax, or it would not be doing justice to the states, or equalizing the duties throughout the Union. If this was not done, merchants might bring their whole capitals into this branch of trade, and save paying any duties whatever. Mr. Boudinot observed, that the gentleman had overlooked the prophecy of St. Peter, where he foretells that, among other damnable heresies, “through covetousness shall they with reigned words make merchandise of you.”

[Note.—In the first edition, p. 211, vol. iv., this head terminated, “Memorial rejected“—a mistake, which the editor in the present edition corrects, by stating that, with other petitions of a similar object, it was committed to a select committee: that committee made a report; the report was referred to a committee of the whole house, and discussed on four successive days: it was then reported to the house with amendments, and by the house ordered to be inscribed in its Journals, and then laid on the table.

That report, as amended in committee, is in the following words: “The committee to whom were referred sundry memorials from the people called Quakers, and also a memorial from the Pennsylvania Society for promoting the Abolition of Slavery, submit the following report, (as amended in committee of the whole:)—

“First. That the migration or importation of such persons, as any of the states now existing shall think proper to admit, cannot be prohibited by Congress prior to the year 1808.

“Secondly. That Congress have no power to interfere in the emancipation of slaves, or in the treatment of them, within any of the states; it remaining with the several states alone to provide any regulation therein which humanity and true policy may require.

“Thirdly. That Congress have authority to restrain the citizens of the United States from carrying on the African slave trade, for the purpose of supplying foreigners with slaves, and of providing, by proper regulations, for the humane treatment, during their passage, of slaves imported by the said citizens into the states admitting such importations.

“Fourthly. That Congress have also authority to prohibit foreigners from fitting out vessels in any part of the United States for transporting persons from Africa to any foreign port.”]

On the Establishment of a National Bank.

House of Representatives, February 2, 1791.

Mr. GILES said he was disposed to consider the plan as containing a principle not agreeable to the Constitution, and in itself not altogether expedient.

To show its unconstitutionality, he read the 1st section of the bill which established the subscribers of the bank into a corporation, to do which, be conceived the Constitution had given Congress no power. He read the clause in the Constitution which had been adduced as sanctioning the exercise of such a power. This clause only respects, he said all the necessary powers to carry into effect such as were expressly delegated; that of forming corporations was not expressly granted. He then adverted to the power of borrowing money, vested in Congress by the Constitution, and controverted the idea that a bank was necessary to carry it into execution. It might, he granted, conduce to a greater facility in exercising that power; but that it was expedient or necessary he denied, either to effect loans or establish the government.

If Congress, in this instance, he observed, exercised the power of erecting corporations, it was nowhere limited, and they might. if they thought fit, extend it to every object, and, in consequence thereof, monopolies of the East and West India trade be established; and this would place us, he said, in the precise situation of a nation without a free constitution.

He referred to the clause in the Constitution which prohibits Congress from giving a preference to one part of the United States over another. This he considered, together with his other objections, fully sufficient to justify a rejection of the plan.

He then offered some observations relative to the expediency of the measure. If it is problematical only, whether the establishment of this national bank is agreeable to the Constitution, this ought to be, he thought, sufficient to prevent an adoption of the system. He showed the consequences which will result from a doubt of the legality of the measure. He noticed the objection which had been originally made by the people to the Constitution, and the pains which were taken to obviate their fears and apprehensions. The adoption of this plan, he said, would realize many of their disagreeable anticipations. He denied the necessity of a hank for the preservation of government. The only object, as the subject struck his mind, was to raise stock; but it was certainly not expedient, he conceived, to kindle the flame of discontent, and rouse the fears and jealousies of the people, in many states, to raise stock.

He took notice of some observations which had fallen from a gentleman from Connecticut, respecting incidental powers, and denied that Congress possessed those powers. The general government, he said, was not a consolidated government, but a federal government, possessed of such powers as the states or the people had expressly delegated; but to support these incidental powers, ceded to Congress, was to make it, not a federal, not even a republican consolidated government, but a despotic one. If this idea was contemplated, the people would be alarmed, they would he justly alarmed, and he hoped they would be alarmed.

Mr. VINING observed, that he had endeavored to give the subject a full and dispassionate consideration; and, so far from thinking the plan contrary to the Constitution, he considered it perfectly consonant to it.

He adverted to the principles, design, and operations of the bank systems. Their usefulness he deduced from the experience of those countries which had been the longest in the use of those institutions. The constitutionality of the measure he urged from a fair construction of those powers, expressly delegated, and from a necessary implication; for he insisted that the Constitution was a dead letter, if implied powers were not to be exercised.

Mr. MADISON did not oppose all the banking systems, but did not approve of the plan now under consideration.

Upon the general view of banks, he recapitulated the several advantages which may be derived from them. The public credit; he granted, might be raised for a time, but only partially. Banks, he conceived, tended to diminish the quantity of precious metals in a country; and the articles received in lieu of a portion of them, which was banished, conferred no substantial benefit on the country. He dwelt on the casualties that banks are subject to.

To be essentially useful in so extensive a country, banks, he said, should be fixed in different parts of the United States; and in this view, the local banks of the several states, he said, could be employed with more advantage than if any other banking system was substituted. Circumstances, in Great Britain, he observed, required that there should be one bank, as the object there is to concentrate the wealth of the country to a point, as the interest of their public debt is all paid in one place Here a difference in circumstances called for another kind of policy: the public debt is paid in all the different states.

He then expressly denied the power of Congress to establish banks. And this, he said, was not a novel opinion; he had long entertained it. All power, he said, had its limits; those of the general government were ceded from the mass of general power inherent in the people, and were consequently confined within the bounds fixed by their act of cession. The Constitution was this act; and to warrant Congress in exercising the power, the grant of it should be pointed out in that instrument. This, he said, had not been done; he presumed it could not be done. If we ventured to construe the Constitution, such construction only was admissible, as it carefully preserved entire the idea on which that Constitution is founded.

He adverted to the clauses in the Constitution which had been adduced as conveying this power of incorporation. He said he could not find it in that of laying taxes. He presumed it was impossible to deduce it from the power given to Congress to provide for the general welfare. If it is admitted that the right exists there, every guard set to the powers of the Constitution is broken down, and the limitations become nugatory.

The present Congress, it was said, had all the powers of the old Confederation, and more. Under the old government a bank had been established; and thence it was deduced that the present legislature had indubitably that power. The exigencies of government were such, he answered, under the old Confederation, as to justify almost any infraction of parchment rights; but the old Congress were conscious they had not every power necessary for the complete establishment of a bank, and recommended to the individual states to make sundry regulations for the complete establishment of the institution.

To exercise the power included in the bill was an infringement on the rights of the several states; for they could establish hanks within their respective jurisdictions, and prohibit the establishment of any others. A law existed in one of the states prohibitory of cash notes of hand, payable on demand. The power of making such a law could not, be presumed, be denied to the states: and if this was granted, and such laws were in force, it certainly would effectually exclude the establishment of a bank.

This power of establishing a bank had been, he said, deduced from the right, granted in the Constitution, of borrowing money; but this, he conceived, was not a bill to borrow money. It was said that Congress had not only this power to borrow money, but to enable people to lend. In answer to this, he observed that, if Congress had a right to enable those people to lend, who are willing, but not able, it might be said that they have a right to compel those to lend, who were able, and not willing.

He adverted to that clause in the Constitution which empowers Congress to pass all the laws necessary to carry its powers into execution, and, observing on the diffusive and ductile interpretation of these words, and the boundless latitude of construction given them by the friends of the bank, said that, by their construction, every possible power might be exercised.

The government would then be paramount in all public cases: charters, incorporations, and monopolies, might be given, and every limitation effectually swept away, and could supersede the establishment of every bank in the several states. The doctrine of implication, he warned the friends to this system, was a dangerous one, which, multiplied and combined in the manner some gentlemen appeared to contemplate, would form a chain reaching every object of legislation of the United States. This power to incorporate, he contended, was of primary importance, and could by no means be viewed as a subaltern, and therefore ought to be laid down in the Constitution, to warrant Congress in the exercise of it, and ought not to be considered as resulting from any other power.

Incorporation, he said, is important as the power of naturalization; and Congress, he presumed, would not exercise the power of naturalizing a foreigner, unless expressly authorized by the Constitution. He read a sentence in the bill respecting the power of making such regulations as were not contrary to law. What law? Was it the law of the United States? There were so few, that this allowed a very considerable latitude to the power of making regulations, and more than any member, he conceived, would wish to grant. Were the laws of the individual states contemplated by this provision? Then it would be in the power of the separate states to defeat an institution of the Union. He asked by what authority Congress empowered a corporation to possess real estate. He reprobated this idea. To establish this bank was, he said, establishing a monopoly guarantied in such a manner that no similar privilege could be granted to any other number of persons whatever. He denied the necessity of instituting a bank at the present time. The Constitution ought not to be violated without urgent necessity indeed. There were banks, in several of the states, from which some advantages could be derived which could not be gained from an institution on the plan proposed.

In confirmation of his sentiments, he adduced certain passages from speeches made in several of the state conventions by those in favor of adopting the Constitution. These passages were fully in favor of this idea—that the general government could not exceed the expressly-delegated powers. In confirmation also of this sentiment, he adduced the amendments proposed by Congress to the Constitution.

He urged, from a variety of considerations, the postponement of the buisness to the next session of Congress.

Mr. AMES. For his own part, he never doubted the constitutionality of the plan; and if the public sense was to be regarded on the occasion, their approbation of the measures taken by the old Confederation, respecting the Bank of North America, and their total silence on the constitutionality of the plan before Congress at this day, were to him sufficient proofs of their opinions on the subject.

The first question that occurred on this subject was, whether the powers of the house were confined to those expressly granted by the letter of the Constitution, or whether the doctrine of implication was safe ground to proceed upon. If the letter of the Constitution was to be adhered to, the question he deemed determined; but if a more rational plan was adopted, and the sense of the Constitution, upon strict, examination, appeared even doubtful, every member must then appeal to his conscience and understanding. If the powers of the house were circumscribed by the letter of the Constitution, much expense might have been saved to the public, as their hands would have been completely tied. But, by the very nature of government, the legislature had an implied power of using every means, not positively prohibited by the Constitution, to execute the ends for which that government was instituted. Every constitutional right should be so liberally construed as to effect the public good. This, it has been said, was taking too great a latitude; but certainly to promote the ends of government was the end of its existence; and by the ties of conscience, each member was bound to exercise every lawful power which could have a tendency to promote the general welfare. It had been said that the doctrine of implication was dangerous, and would alarm the people. He thought it would not, unless the alarm was founded.

Suppose, he said, the power of raising armies was not expressly granted to the general government; would it be inferred from hence, that the power of declaring war, without the means of carrying it on, had been ceded to them? Would it be said that the blood of fellow-citizens was crying for vengeance, though their lives and property called for protection from the hand of government? Would it be said that they had not a constitutional right to be protected? Would it be urged that the Constitution, by not expressly granting to the general government the power of levying armies, had put it out of their power to protect its citizens? This, he conceived, would be a very dangerous doctrine.

Suppose the power of borrowing money had not been expressly given to the federal government; would it not, in emergencies, be inferred from the nature of the general powers granted to it? Suppose the power to lend had not been mentioned, and a surplus of revenue in the public coffers; should it not be distributed among the people, but locked up and suffered to remain unproductive in the treasury? He imagined not. Suppose the question of redeeming the prisoners in captivity at Algiers was before the house; would it be urged that nothing could be done in their favor by the general government, because no power was specially granted? No. Every person, he conceived, that felt as a man, would not think his hands tied when they were to be extended to the relief of suffering fellow-citizens. The power of buying certificates was not particularly mentioned in the Constitution; yet it had been exercised by the general government, and was inferred from that of paying the public debt, and from the reason of the case. The power of establishing banks, he conceived, could be deduced from the same source—from their utility in the ordinary operations of government, and their indispensable necessity in cases of sudden emergencies. It was said that the state banks would serve all these purposes; but why deprive the general government, he asked, of the power of self-defence?

Mr. Ames proceeded to prove that the power of incorporating the subscribers to the bank could be deduced from that clause in the Constitution which had been termed the sweeping clause. Unless a reasonable latitude of Construction of this part of the Constitution was allowed, he did not see upon what authority several acts of Congress would rest. Whence did the general government draw the authority they had exercised over the western territory? That authority, he answered, must of necessity belong to Congress: it could not rest with the individual states.

The power here was derived by implication, and was deduced from the reason and necessity of the case; and the power contended for in the present case might, for the same reasons, be exercised, and was drawn from the same source. The government of the western territory was a species of corporation—corporation in its nature the most important; and would it be said that Congress had acted unconstitutionally when they established it? And would the territory be left under the control of the individual states? He presumed not.

By the Constitution, a power of regulating trade was specially given to Congress; and under this clause they had established regulations affecting ships, seamen, lighthouses, &c. By parity of reasoning, he conceived that, as the power of collecting taxes was specified among the rights granted by the Constitution to Congress, they undoubtedly were entitled to make regulations affecting the instruments by means of which those taxes were to be collected.

Some opposition to the system arose from the idea that it was an infringement on the rights of the individual states. This objection he answered. It could not be denied, he said, that Congress had the right to exercise complete and exclusive jurisdiction over the district of ten miles square, ceded for the seat of permanent residence, and over such spots as were ceded for the establishment of lighthouses, &. In these places, then, it must be granted that Congress had authority to establish a bank. If this was allowed, (and he could not see how it could be denied,) then the question became a question of place, and not of principle. He adverted to the preamble of the Constitution, which declares that it is established for the general welfare of the Union. This vested Congress with the authority over all objects of national concern, or of a general nature. A national bank undoubtedly came under this idea; and though not specially mentioned, yet the general design and tendency of the Constitution proved more evidently the constitutionality of the system, than its silence in this particular could be construed to express the contrary. He deduced the power also from those clauses in the Constitution which authorize Congress to lay and collect taxes. This, he said, could not he done from every corner of so extended an empire without the assistance of paper. In the power of borrowing money, he saw that of providing the means, by the establishment of a bank. But it has been said that, if Congress could exercise the power of making those who were willing, able to lend, they might carry their authority to creating the will in those who were able. This would be, he said, an abuse of power, and reasonings drawn from it could not be just.

Gentlemen had noticed the amendment proposed by Congress to the Constitution, as conveying the sense of the legislature on the nature of the powers vested by that instrument. The amendment stated, that it should be declared, that the powers not expressly delegated to the general government, and such as could be exercised by the states, should be considered as belonging to the states. But the power of establishing a national bank, he said, could not be exercised by the states, and therefore rested nowhere but in the federal legislature.

The doctrine of implication, it had been said, would excite alarms. It had been resorted to, and alarms had not been excited. He conceived it a necessary doctrine in many cases.

He had no desire to extend the powers granted by the Constitution beyond the limits prescribed by them. But in cases where there was doubt as to its meaning and intention, he thought it his duty to consult his conscience and judgment to solve them; and even if doubts did still remain on two different interpretations of it, he would constantly embrace that the least involved in doubt.

Mr. SEDGWICK expressed his surprise at the objections made to the constitutionality of the bill.

A gentleman from Virginia (Mr. Madison) had taken some pains to convince the house that he had uniformly been opposed to seeing the general government exercise the power of establishing banks. He did not wish to dispute with the honorable member the merit of consistency, but only begged leave to remark that the same gentleman had not always been averse to the exercise of power by implication. Witness the proceedings on the propriety of vesting the President of the United States with the authority of removing officers. But in this case, he was willing to take up the question solely on its own merits, without reference to former opinions.

In the present case, he conceived the determination of the question rested, in a great measure, on the meaning of the words necessary and proper.

Mr. MADISON. Those two words had been, by some, taken in a very limited sense, and Were thought only to extend to the passing of such laws as were indispensably necessary to the very existence of the government. He was disposed to think that a more liberal construction should be put on them,—indeed, the conduct of the legislature had allowed them a fuller meaning,—for very few acts of the legislature could be proved essentially necessary to the absolute existence of government. He wished the words understood so as to permit the adoption of measures the best calculated to attain the ends of government, and produce the greatest quantum of public utility.

In the Constitution, the great ends of government were particularly enumerated; but all the means were not, nor could they all be, pointed out, without making the Constitution a complete code of laws: some discretionary power, and reasonable latitude, must be left to the judgment of the legislature. The Constitution, he said, had given power to Congress to lay and collect taxes; but the quantum, nature, means of collecting; &c., were of necessity left to the honest and sober discretion of the legislature.

It authorized Congress to borrow money; but of whom, on what terms, and in what manner, it had not ventured to determine; these points of secondary importance were also left to the wisdom of the legislature. The more important powers are specially granted; but the choice from the known and useful means of carrying the power into effect, is left to the decision of the legislature. He enumerated some other powers which are specified in the Constitution as belonging to Congress, and of which the means of execution are not mentioned; and concluded this part of his argument by observing that, if the bank which it was proposed to establish by the bill before the house could be proven necessary and proper to carry into execution any one of the powers given to Congress by the Constitution, this would at once determine the constitutionality of the measure.

He would not, he said, dwell any longer on the constitutionality of the plan under consideration, but would only observe that no power could be exercised by Congress, if the letter of the Constitution was strictly adhered to, and no latitude of construction allowed, and all the good that might be reasonably expected from an efficient government entirely frustrated.

Mr. LAWRENCE. The principles of the government, and ends of the Constitution, he remarked, were expressed in its preamble. It is established for the common defence and general welfare. The body of that instrument contained provisions the best adapted to the intention of those principles and attainment of those ends. To these ends, principles, and provisions, Congress was to have, he conceived, a constant eye; and then, by the sweeping clause, they were vested with the powers to carry the ends into execution.

Mr. JACKSON. From the power given the general government of making all necessary laws concerning the property of the United States, a right to establish a national bank had been deduced; and it was asked if bank notes were not property. He said they were a property of a peculiar nature. They were not property as well as an ox or an ass; so they could not be taxed.

It had been asked whether Congress could not establish a bank within the ten miles square, granted to the general government for the permanent residence of the federal legislature. Congress could not, because they had no authority to force the circulation of this paper beyond the limits of the ten miles. The fiscal administration of the Union was said to be vested in Congress. But this did not authorize their adoption of any measures they should think fit for the regulation of the finances. The very Constitution which granted these fiscal powers restricted them by particular clauses; for example, Congress could not without control lay a poll tax, and could not, in any shape, impose duties on exports; yet they were undoubtedly fiscal operations.

Gentlemen, he said, had deduced this power from various parts of the Constitution. The preamble and context had been mentioned; the clause that provides for laying taxes had been particularly dwelt upon; but surely the bill before the house did neither lay an excise, direct tax, or any other, and could, therefore, not come within the meaning of the clause.

Mr. BOUDINOT. But gentlemen say that the Constitution does not expressly warrant the establishment of such a corporation. If, by expressly, express words are meant, it is agreed that there are no express words; and this is the case with most of the powers exercised by Congress; for if the doctrine of necessary implication is rejected, he did not see what the supreme legislature of the Union could do in that character; if this power is not clearly given in the Constitution by necessary implication, then it is a necessary end proposed and directed, while the common and useful necessary means to attain that end are refused, or at least not granted. Mr. Boudinot was firmly of opinion that the national bank was the necessary means, without which the end could not be obtained.

Mr. STONE thought that the friends of the bill were not willing to confine themselves to such means as were necessary and proper, but had extended their views to those convenient and agreeable. If, in the plan before the house, he said, a provision had been made to secure a certainty that money could be procured by the government on loan from this bank, there would be more plausibility, he thought, in urging its establishment by a construction of the power of borrowing money. But the bank could, and, whenever it was their interest, certainly would, refuse lending to government. If the power, in this case, was deduced by implication, and was exercised because it was thought necessary and proper, it might be the opinion of a future Congress that monopolies, in certain cases, might be useful, and a door would then be open for their establishment.

February 7, 1791.

Mr. GERRY. The gentlemen on different sides of the question do not disagree with respect to the meaning of the terms taxes, duties, imposts, excises, &c., and of borrowing money, but of the word necessary; and the question is, What is the general and popular meaning of the term? Perhaps the answer to the question will be truly this—That, in a general and popular one, the word does not admit of a definite meaning, but that this varies according to the subject and circumstances. With respect to the subject, for instance; if the people, speaking of a garrison besieged by a superior force, and without provisions or a prospect of relief, should say it was under the necessity of surrendering, they would mean a physical necessity; for troops cannot subsist long without provisions. But if, speaking of a debtor, the people should say he was frightened by his creditor, and then reduced to the necessity of paying his debts, they would mean a legal, which is very different from a physical necessity; for although the debtor, by refusing payment, might be confined, he would be allowed sustenance; and the necessity he was under to pay his debts would not extend beyond his confinement. Again, if it should be said that a client is under the necessity of giving to his lawyer more than legal fees, the general and popular meaning of necessity would in this case be very different from that in the other cases. The necessity would neither be physical nor legal, but artificial, or, if I may be allowed the expression, a long-robed necessity. The meaning of the word “necessary” varies, also, according to circumstances: for, although Congress have power to levy and collect taxes, duties, &c.; to borrow moneys; and to determine the time, quantum, mode, and every regulation necessary and proper for supplying the treasury,—yet the people would apply a different meaning to the word necessary under different circumstances. For instance, without a sufficiency of precious metals for a medium, laws creating an artificial medium would be generally thought necessary for carrying into effect the power to levy and collect taxes; but if there was a sufficiency of such metals, those laws would not generally be thought necessary. Again, if specie was scarce, and the credit of the government low, collateral measures would be by the people thought necessary for obtaining public loans; but not so if the case was reversed. Or, if parts of the states should be invaded and overrun by an enemy, it would be thought necessary to levy on the rest heavy taxes, and collect them in a short period, and to take stock, grain, and other articles, from the citizens, without their consent, for common defence; but in a time of peace and safety such measures would be generally supposed unnecessary. Instances may be multiplied in other respects, but it is conceived that these are sufficient to show that the popular and general meaning of the word “necessary” varies according to the subject and circumstances.

The Constitution, in the present case, is the great law of the people, who are themselves the sovereign legislature; and the preamble is in these words—”We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessing of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

These are the great objects for which the Constitution was established; and in administering it, we should always keep them in view. And here it is remarkable, that, although common defence and general welfare are held up, in the preamble, amongst the primary objects of attention, they are again mentioned in the 8th section of the 1st article, whereby we are enjoined, in laying taxes, duties, &c., particularly to regard the common defence and general welfare. Indeed, common sense dictates the measure; for the security of our property, families, and liberties—of every thing dear to us—depends on our ability to defend them. The means, therefore, for attaining this object, we ought not to omit a year, a month, or even a day, if we could avoid it; and we are never provided for defence unless prepared for sudden emergencies.

In the present case, the gentlemen in the opposition generally, as well as the gentleman first up, from Virginia, give the whole clause by which Congress are authorized “to make all laws necessary and proper,” &c., no meaning whatever; for they say the former Congress had the same power under the Confederation, without this clause, as the present Congress have with it. The “Federalist” is quoted on this occasion; but, although the author of it discovered great ingenuity, this part of his performance I consider as a political heresy. His doctrine, indeed, was calculated to lull the consciences of those who differed in opinion with him at that time; and, having accomplished his object, he is probably desirous that it may die with the opposition itself. The rule in this case says, that where the words bear no signification, we must deviate a little; and as this deviation cannot be made by giving the words less than no meaning, it must be made by a more liberal construction than is given by gentlemen in the opposition. Thus their artillery is turned against themselves; for their own interpretation is an argument against itself.

The last rule mentioned relates to the spirit and reason of the law; and the judge is of opinion “that the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it—of the cause which moved the legislature to enact it.” The causes which produced the Constitution were an imperfect union, want of public and private confidence, internal commotions, a defenceless community, neglect of the public welfare, and danger to our liberties. These are known to be the causes, not only by the preamble of the Constitution, but also froth our own knowledge of the history of the times which preceded the establishment of it. If these weighty causes produced the Constitution, and it not only gives power for removing them, but also authorizes Congress to make all laws necessary and proper for carrying these powers into effect, shall we listen to assertions, that these words have no meaning, and that the new Constitution has not more energy than the old? Shall we thus unnerve the government, leave the Union as it was under the Confederation,—defenceless against a banditti of Creek Indians,—and thus relinquish the protection of its citizens? Or shall we, by a candid and liberal construction of the powers expressed in the Constitution, promote the great and important objects thereof? Each member must determine for himself. I shall, without hesitation, choose the latter, and leave the people and states to determine whether or not I am pursuing their true interest. If it is inquired where we are to draw the line of a liberal construction, I would also inquire, Where is the line of restriction robe drawn?

The interpretation of the Constitution, like the prerogative of a sovereign, may be abused; but from hence the disabuse of either cannot be inferred. In the exercise of prerogative, the minister is responsible for his advice to his sovereign, and the members of either house are responsible to their constituents for their conduct in construing the Constitution. We act at our peril: if our conduct is directed to the attainment of the great objects of government, it will be approved, and not otherwise But this cannot operate as a reason to prevent our discharging the trusts reposed in us.

Let us now compare the different modes Of reasoning on this subject, and determine which is right—for both cannot be.

The gentleman from Virginia (Mr. Madison) has urged the dangerous tendency of a liberal construction; but which is most dangerous, a liberal or a destructive interpretation? The liberty we have taken in interpreting the Constitution, we conceive to be necessary, and it cannot be denied to be useful in attaining the objects of it; but whilst he denies us this liberty, he grants to himself a right to annul part, and a very important part, of the Constitution. The same principle that will authorize a destruction of part, will authorize the destruction of the whole, of the Constitution; and if gentlemen have a right to make such rules, they have an equal right to make others for enlarging the powers of the Constitution, and indeed of forming a despotism. Thus, if we take the gentleman for our pilot, we shall be wrecked on the reef which he cautions us to avoid.

The gentleman has referred us to the last article of the amendment proposed to the Constitution by Congress, which provides that the powers not delegated to Congress, or prohibited to the states, shall rest in them or the people; and the question is, What powers are delegated? Does the gentleman conceive that such only are delegated as are expressed? If so, he must admit that our whole code of laws are unconstitutional. This he disavows, and yields to the necessity of interpretation, which, by a fair and candid application of established rules of construction to the Constitution, authorize, as has been shown, the measure under consideration.

The usage of Congress has also been referred to; and if we look at their acts under the existing Constitution, we shall find they are generally the result of a liberal construction. I will mention but two. The first relates to the establishment of the executive departments, and gives to the President the power of removing officers. As the Constitution is silent on this subject, the power mentioned, by the gentleman’s own reasoning, is vested in the states or the people. He, however, contended for an assumption of the power, and, when assumed, urged that it should be vested in the President, although, like the power of appointment, it was, by a respectable minority in both houses, conceived that it should have been vested in the President and Senate. His rule of interpretation then was, therefore, more liberal than it is now. In the ether case, Congress determined by law, with the sanction of the President, when and where they should hold their next session, although the Constitution provides that this power shall rest solely in the two houses. The gentleman also advocated this measure, and yet appears to be apprehensive of the consequences that may result from a construction of the Constitution which admits of a national bank. But from which of these measures is danger to be apprehended? The only danger from Our interpretation would be the exercise by Congress of a general power to form corporations; but the dangers resulting from the gentleman’s interpretation are very different; for what may we not apprehend from the precedent of having assumed a power on which the Constitution was silent, and from having annexed it to the supreme executive? If we have this right in one instance, we may extend it to others, and make him a despot.

Militia Bill.

December 22, 1790.

Mr. BLOODWORTH moved to strike out the words in the 1st section, “except as herein exempted,” and to insert, in lieu thereof, “except such as shall be exempted by the legislatures of the particular states.”

Mr. SHERMAN wished the gentleman would consent to alter his motion, and let it be all between certain ages, and who are not exempted from militia duty by the respective states.

Mr. MADISON said, the motion ought to go still farther, and exempt the judges of the federal courts; because some states, having no militia laws, could not have exempted them, and the propriety of exonerating them from militia duty was too apparent to need any arguments to prove it.

Mr. SHERMAN thought the motion was simple as it stood, and would decide a question upon which the house seemed to be divided. It would afterwards be open for amendment, so far as to add the exemptions.

Mr. MADISON said, if the gentleman would vary his motion, so as to embrace his idea, he would have no objection to the adoption of that part which was first moved.

Mr. LIVERMORE declared, that he had several objections. The first was, that the expression in the motion was of a doubtful import. It could not be readily ascertained, whether it had relation to the militia laws at this time existing in the several states, or to the existing and future laws. If it opens a door to future laws, it is impossible for us to foresee where it will end. It destroys that certainty which is necessary in a government of laws, and renders us incapable of judging of the propriety of our own act. Some states may exempt all persons above thirty years of age; some may exempt all mechanics; and others all husbandmen, or any general description of persons; and this uncertainty will be productive of inconceivable inconveniences. Hence it will be improper to adopt the amendment in the present form.

Mr. SHERMAN observed. that most of the powers delegated to the government of the United States, by the Constitution, were altogether distinct from the local powers retained by the individual states. But in the case of the militia it was different. Both governments are combined in the authority necessary to regulate that body. The national government is to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. But, then, it is to be observed, that the states do, respectively and expressly, reserve out of such power the right of appointing officers, and the authority of training the militia; so that the concurrence of both governments is evidently necessary, in order to form and train them. Now, in governing the militia, the states have, at times other than when they are in the actual service of the United States, an indisputable title to act as their discretion shall dictate. And here it was au allowable supposition, that the particular states would have the greatest advantage of judging of the disposition of their own citizens, and who are the most proper characters to be exempted from their government. He admitted, however, that the general government had (under that clause of the Constitution which gave the authority to exercise all powers necessary to carry the particularly enumerated powers into effect) a right to make exemptions of such officers of the government whose duties were incompatible with those of militiamen. Every thing, besides this, he believed, was vested in the particular states; and he would ask the gentleman whether it was not a desirable thing to give satisfaction on these points; and whether they ought not to avoid stretching the general power, which he had mentioned, beyond what was absolutely necessary to answer the end designed.

An accommodation (continues Mr. Sherman) on this point took place between the gentlemen, and the two motions were blended and made into one; whereupon Mr. GILES rose and said, he had now greater objections to the motion than before, and was well persuaded that if the gentleman (Mr. Sherman) attended to its consequences, he would find that it was not only extremely dissimilar in its principles, but tended to overthrow the very doctrine laid down in the first proposition, which was intended to decide whether, under the division of the authority for forming and raising the militia, the power of making exemptions remained in the state governments, or was granted by the Constitution to the government of the United States. Now, in the compromised proposition, there appears to be a mixture of power; the first part seems to declare that the states ought to make the exemptions; yet the subsequent absolutely exercises it on the part of the United States. If, then, the power of exemption be either ceded to the general government, or reserved to the state governments, the amendment must fall to the ground.

But this was not his only objection. He conceived that, whether the power of exemption was in the state or federal government, there was one description of men mentioned in the proposition which could not be exempted or further privileged by the house. He alluded to the members of the legislature of the United States. The privilege of these persons was taken up and duly considered by the Convention, who then decided what privileges they were entitled to. It is under this clause, said he, that every thing necessary or proper to be done for members of Congress was done. “The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony, and breach of peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.” Now, if the Convention took up this subject, (as it is plain from the foregoing clause that they did,) it is reasonable to presume that they made a full declaration of all our privileges; and it is improper to suppose that we are possessed of similar powers with the Convention and able to extend our own privileges. I conceive that every inconvenience which would attend the want of an exemption in the bill, is completely remedied by the Constitution; and therefore if is impolitic to make a useless regulation.

Mr. WILLIAMSON. When we departed from the straight line of duty marked out for us by the first principles of the social compact, we found ourselves involved in difficulty. The burden of militia duty lies equally upon all persons; and when we contemplate a departure from this principle, by making exemptions, it involves us in our present embarrassment. I wish, therefore; that, before we proceed any farther in considering the propriety of the amendment, we should consider the intention of the Constitution. When it speaks of regulating the militia, was it for organizing, arming, and disciplining, the militia of the several states, that Congress ought to provide? I think it was not the militia of the nation, but that which existed in the several states. It is impossible the Convention could have had any thing else in contemplation; because the Constitution says that Congress shall have the power of such parts of them as may be employed in the service of the United States. If we are, then, to govern the militia, it must be such men as the particular states have declared to be militia.

Mr. BOUDINOT. With respect to the power of exempting from militia duty, I believe little doubt will remain on the mind of any gentleman, after a candid examination of the Constitution, but that it is vested in Congress. This, then, reduces the question to the doctrine of expediency. Is it more expedient that the general government should make the exemptions, or leave it to the state legislatures? For my part, I think we ought to exercise the power ourselves; because I can see neither necessity, propriety, nor expediency, in leaving that to be done by others which we ourselves can do without inconvenience.

Mr. JACKSON, (a gentleman of superior talents, who had been an active member of the Federal Convention, in framing the general Constitution, and who is one of the judges of the Supreme Court of the United States; was likewise a member of the late Convention of Pennsylvania; audit is in evidence that he gave his assent to the present Constitution of that state, one article of which declared that persons conscientiously scrupulous of bearing arms shall be exempted from performing militia duty, upon the condition of their paying an equivalent.) Is not this a declaration of the sense of the people of Pennsylvania, that they, and they only, had the right to determine exemptions so far as relates to their own citizens? And it is observable that this Constitution has been framed whilst the federal government was in full operation. If this privilege belongs to the state, as they have declared it does, why shall Congress attempt to wrest it from them, first by undertaking exemptions for them, and then depriving them of a tax, which they contemplate to receive into the state treasury, as an equivalent for such exemption? Certainly such conduct must excite alarm, and occasion no inconsiderable degree of jealousy. These circumstances and considerations are forcible arguments with me to desist.

December, 24, 1790.

Mr. LIVERMORE. He saw no reason why Congress should grant an exemption to those who are conscientiously scrupulous of bearing arms, more than to any other description of men. They ought, in his opinion, to be exempted by the state legislatures. As to the money accruing from such exemptions, he could not conceive that Congress was authorized to raise a revenue for the United States by the militia bill; nor was any such thing ever intended by the Constitution.

Bill to determine the Time when the Electors of President and Vice-President shall be chosen.

House of Representatives, January 14, 1791

Mr. SHERMAN showed, from the Constitution, that Congress possess the power of appointing the time of choosing the electors, and the time when they should meet to give in their votes. He was in favor of Congress exercising this power, in order to guard against all intrigue; and this, he conceived, was agreeable to the people; for in none of the conventions was an amendment of this article ever moved for.

On the Post-Office Bill.—On a Motion to authorize the President to choose the Mail Route.

House of Representatives, December 6, 1791.

Mr. SEDGWICK. As to the constitutionality of this delegation, (of power to establish post-roads,) it was admitted by the committee themselves, who brought in the bill; for, if the power was altogether indelegable, no part of it could be delegated; and if a part of it could, he saw no reason why the whole could not. The 2d section was as unconstitutional as the 1st; for it is there said, that “it shall be lawful for the post-master-general to establish such other roads, or post-roads, as to him may seem necessary.”

Congress, he observed, are authorized not only to establish post-offices and post-roads, but also to borrow money. But is it understood that Congress are to go, in a body, to borrow every sum that may be requisite? Is it not rather their office to determine the principle on which the business is to be conducted, and then delegate the power of carrying their resolves into execution?

Mr. GERRY observed, that, since the words of the Constitution expressly vested in Congress the power of establishing post-offices and post-roads, and since the establishing of post-roads cannot possibly mean anything else but to point out what roads the post shall follow, the proposed amendment cannot take effect without altering the Constitution. The house could not transfer the power which the Constitution had vested in them. Supposing even they could; still it must be allowed that they, assembled from every quarter of the Union, must collectively possess more of that kind of information which the present subject required, than could be obtained by any executive officer. If it was thought necessary, in the present instance, to transfer the power from their own to other hands, with what degree of propriety could they be said to have undertaken to determine the ports of entry throughout the United States, since the Constitution mentions nothing further on that subject than the power of laying duties, imposts, and excises? According to the arguments now advanced, the legislature might have contented themselves with simply determining the amount of the duties and excises, and left the rest to the executive. But if such conduct would have been improper in that instance, much more so would it appear m the present case; since, on the one hand, there is no provision in Congress that should establish ports of entry, whereas there is no other for the establishment of post-roads.

Mr. B. BOURNE was in favor of the amendment, which he thought both expedient and constitutional. In speaking of post-offices and post-roads, the Constitution, he observed, speaks in general terms, as it does of a mint, excises, &c. In passing the excise law, the house, not thinking themselves possessed of sufficient information, empowered the President to mark out, the districts and surveys; and if they had a right to delegate such power to the executive, the further delegation of the power of marking out the roads for the conveyance of the mail could hardly be thought dangerous. The Constitution meant no more than that Congress should possess the exclusive right of doing that by themselves, or by any other person, which amounts to the same thing: the business he thought much more likely to be well executed by the President, or the postmaster-general, than by Congress.

Post-Offices and Post-Roads.

House of Representatives, January 3, 1792.

On a motion of Mr. FITZSIMONS, to allow stage proprietors, who transport the mail, to carry passengers also, it was argued—

That clause of the Constitution which empowers the federal government to establish post-offices and post-roads, cannot (it was said) be understood to extend farther than the conveyance of intelligence, which is the proper subject of the post-office establishment: it gives no power to send men and baggage by post. The state governments have always possessed the power of stopping or taxing passengers. That power they have never given up; and the proposition now made to wrest it from them might be viewed as an attempt to lay the state legislatures prostrate at the feet of the general government, and will give a shock to every state in the Union.

If, by the Construction of that clause of the Constitution which authorizes Congress to make all laws necessary for carrying into execution the several powers vested in them, they should establish the proposed regulations for the conveyance of the mail, they may proceed farther, and so regulate the post-roads as to prevent passengers from travelling on them; they may say what weights shall be carried on those roads, and what seasons of the year; they may remove every thing that stands in the way; they may level buildings to the ground, under the pretence of making more convenient roads; they may abolish tolls and turnpikes; they may, where an established ferry has been kept for a hundred years past in the most convenient place for crossing a river, give the post-rider authority to set up a new one beside it, and ruin the old establishment; they may say, that the person who carries the mail shall participate in every privilege that is now exclusively enjoyed by any man or body of men;—and allege, as a reason for these encroachments, that they are only necessary encouragements to carry the mail of the United States: in short, the ingenuity of man cannot devise any new proposition so strange and inconsistent, as not to be reducible within the pale of the Constitution, by such a mode of construction. If this were once admitted, the Constitution would be a useless and dead letter; and it would be to no purpose that the states, in convention assembled, had framed that instrument, to guide the steps of Congress. As well might they at once have said, “There shall be a Congress who shall have full power and authority to make all laws which to their wisdom will seem meet and proper.”

On the Cod Fishery Bill, granting Bounties.

House of Representatives, February 3, 1792.

Mr. GILES. The present section of the bill (he continued) appears to contain a direct bounty on occupations; and if that be its object, it is the first attempt as yet made by this government to exercise such authority; —and its constitutionality struck him in a doubtful point of view; for in no part of the Constitution could he, in express terms, find a power given to Congress to grant bounties on occupations: the power is neither directly granted, nor (by any reasonable construction that he could give) annexed to any other specified in the Constitution.

February 7, 1792.

Mr. WILLIAMSON. In the Constitution of this government, there are two or three remarkable provisions which seem to be in point. It is provided that direct taxes shall be apportioned among the several states according to their respective numbers. It is also provided that “all duties, imposts, and excises, shall be uniform throughout the United States;” and it is provided that no preference shall be given, by any regulation of commercial revenue, to the ports of one state over those of another. The clear and obvious intention of the articles mentioned was, that Congress might not have the power of imposing unequal burdens—that it might not be in their power to gratify one part of the Union by oppressing another. It appeared possible, and not very improbable, that the time might come, when, by greater cohesion, by more unanimity, by more address, the representatives of one part of the Union might attempt to impose unequal taxes, or to relieve their constituents at the expense of the people. To prevent the possibility of such a combination, the articles that I have mentioned were inserted in the Constitution.

I do not hazard much in saying that the present Constitution had never been adopted without those preliminary guards on the Constitution. Establish the general doctrine of bounties, and all the provisions I have mentioned become useless. They vanish into air, and, like the baseless fabric of a vision, leave not a trace behind. The common defence and general welfare, in the hands of a good politician, may supersede every part of our Constitution, and leave us in the hands of time and chance. Manufactures in general are useful to the nation; they prescribe the public good and general welfare. How many of them are springing up in the Northern States! Let them be properly supported by bounties, and you will find no occasion for unequal taxes. The tax may be equal in the beginning; it will be sufficiently unequal in the end.

The object of the bounty, and the amount of it, are equally to be disregarded in the present case. We are simply to consider whether bounties may safely be given under the present Constitution. For myself, I would rather begin with a bounty of one million per annum, than one thousand. I wish that my constituents may know whether they are to put any confidence in that paper called the Constitution.

Unless the Southern States are protected by the Constitution, their valuable staple, and their visionary wealth, must occasion their destruction. Three short years has this government existed; it is not three years; but we have already given serious alarms to many of our fellow-citizens. Establish the doctrine of bounties; set aside that part of the Constitution which requires equal taxes, and demands similar distributions; destroy this barrier;—and it is not a few fishermen that will enter, claiming ten or twelve thousand dollars, but all manner of persons; people of every trade and occupation may enter in at the breach, until they have eaten up the bread of our children.

Mr. MADISON. It is supposed, by some gentlemen, that Congress have authority not only to grant bounties in the sense here used, merely as a commutation for drawback, but even to grant them under a power by virtue of which they may do any thing which they may think conducive to the general welfare! This, sir, in my mind, raises the important and fundamental question, whether the general terms which have been cited are to be considered as a sort of caption, or general description of the specified powers; and as having no further meaning, and giving no further powers, than what is found in that specification, or as an abstract and indefinite delegation of power extending to all cases whatever—to all such, at least, as will admit the application of money—which is giving as much latitude as any government could well desire.

I, sir, have always conceived—I believe those who proposed the Constitution conceived—it is still more fully known, and more material to observe, that those who ratified the Constitution conceived—that this is not an indefinite government, deriving its powers from the general terms prefixed to the specified powers—but a limited government, tied down to the specified powers, which explain and define the general terms.

It is to be recollected that the terms “common defence and general welfare,” as here used, are not novel terms, first introduced into this Constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old Articles of Confederation, where, although they are susceptible of as great a latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. On the contrary, it was always considered clear and certain that the old Congress was limited to the enumerated powers, and that the enumeration limited and explained the general terms. I ask the gentlemen themselves, whether it was ever supposed or suspected that the old Congress could give away the money of the states to bounties to encourage agriculture, or for any other purpose they pleased. If such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it.

The novel idea now annexed to those terms, and never before entertained by the friends or enemies of the government, will have a further consequence, which cannot have been taken into the view of the gentlemen. Their construction would not only give Congress the complete legislative power I have stated,—it would do more; it would supersede all the restrictions understood at present to lie, in their power with respect to a judiciary. It would put it in the power of Congress to establish courts throughout the United States, with cognizance of suits between citizen and citizen, and in all cases whatsoever.

This, sir, seems to be demonstrable; for if the clause in question really authorizes Congress to do whatever they think fit, provided it be for the general welfare, of which they are to judge, and money can be applied to it, Congress must have power to create and support a judiciary establishment, with a jurisdiction extending to all cases favorable, in their opinion, to the general welfare, in the same manner as they have power to pass laws, and apply money providing in any other way for the general welfare. I shall be reminded, perhaps, that, according to the terms of the Constitution, the judicial power is to extend to certain cases only, not to all cases. But this circumstance can have no effect in the argument, it being presupposed by the gentlemen, that the specification of certain objects does not limit the import of the general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objectsof legislative regulations—as well such as fall under the judiciary article in the Constitution as those falling immediately under the legislative article; and if the partial enumeration of objects in the legislative article does not, as these gentlemen contend, limit the general power, neither will it be limited by the partial enumeration of objects in the judiciary article.

There are consequences, sir, still more extensive, which, as they follow dearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their Own hands; they may a point teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare.

The language held in various discussions of this house is a proof that the doctrine in question was never entertained by this body. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this government, as limited to certain enumerated powers, instead of extending, like other governments, to all cases not particularly excepted. In a very late instance—I mean the debate on the representation bill—it must be remembered that an argument much used, particularly by gentlemen from Massachusetts, against the ratio of 1 for 30,000, was, that this government was unlike the state governments, which had an indefinite variety of objects within their power; that it had a small number of objects only to attend to; and therefore, that a smaller number of representatives would be sufficient to administer it.

Arguments have been advanced to show that because, in the regulation of trade, indirect and eventual encouragement is given to manufactures, therefore Congress have power to give money in direct bounties, or to grant it in any other way that would answer the same purpose. But surely, sir, there is a great and obvious difference, which it cannot be necessary to enlarge upon. A duty laid on imported implements of husbandry would, in its operation, be an indirect tax on exported produce; but will any one say that, by virtue of a mere power to lay duties on imports, Congress might go directly to the produce or implements of agriculture, or to the articles exported? It is true, duties on exports are expressly prohibited; but if there were no article forbidding them, a power directly to tax exports could never be deduced from a power to tax imports, although such a power might indirectly and incidentally affect exports.

In short, sir, without going farther into the subject. Which I should not have here touched at all but for the reasons already mentioned, I venture to declare it as my opinion, that, were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America; and what inferences might be drawn, or what consequences ensue, from such a step, it is incumbent on us all to consider.

On the Proposition introduced by Mr. Fitzsimons, that Provision should be made for the Reduction of the Public Debt.

House of Representatives, November 20, 1792.

Mr. MERCER. The Constitution permits the head of the treasury to propose plans. It may be proper, then, that the different secretaries may prepare such plans as are within their respective departments, which the chief magistrate may propose to the legislatures, if he sees fit; and when so done, it is constitutional, and the legislature may or may not, at their discretion, take them up; any other exposition is unconstitutional and idle. This is also the exposition of the documents and information that arise in the administration of government, which this house may require of the executive magistrate, and which he will communicate as he sees fit. The house may go too far in asking information. He may constitutionally deny such information of facts there deputed as are unfit to be communicated, and may assist in the legislation I always wish for. But I want no opinions resulting from them. If they are to influence us, they are wrong; if not to influence, they are useless. This mode of procedure, of originating laws with the secretary, destroys the responsibility; it throws it on a man not elected by the people, and over whom they have no control.

November 21, 1792.

Mr. AMES. What is the clause of the Constitution, opposed to the receiving a plan of a sinking fund from the secretary? Bills for raising revenue shall originate in this house. I verily believe the members of this house, and the citizens at large, would be very much surprised to hear this clause of the Constitution formally and gravely stated as repugnant to the reference to the treasury department for a plan, if they and we had not been long used to hear it.

To determine the force of this amazing constitutional objection, it will be sufficient to define terms.

What is a bill? It is a term of technical import, and surely it cannot need a definition: it is an act of an inchoate state, having the form but not the authority of the law.

What is originating a bill? Our rules decide it. Every bill shall be introduced by a motion for leave, or by a committee.

It may be said, the plan of a sinking fund, reported by the secretary, is not, in technical, or even in popular language, a bill— nor, by the rules of the house or those of common sense, is this motion the originating a bill. By resorting to the spirit of the Constitution, or by adopting any reasonable construction of the clause, is it possible to make it appear repugnant to the proposition for referring to the secretary? The opposers of this proposition surely will not adopt a construction of the Constitution. They have often told us, we are to be guided by a strict adherence to the letter; that there is no end to the danger of constructions.

The letter is not repugnant; and will it be seriously affirmed that, according to the spirit and natural meaning of the Constitution, the report of the secretary will be a revenue bill; or any other bill, and that this proposition is originating such a bill? If it be, where shall we stop? If the idea of such a measure, which first passes through the mind, be confounded with the measure subsequent to it, what confusion will ensue! The President, by suggesting the proposition, may as well be pretended to originate a revenue bill; even a newspaper plan would be a breach of the exclusive privilege of this house, and the liberty of the press, so justly dear to us, would be found unconstitutional Yet if, without any order of the house, the draft of an act were printed, and a copy laid before every member in his seat, no person will venture to say that it is a bill—that it is originated, or can be brought under cognizance of the house, unless by a motion.

I reply upon it, that neither the letter of the Constitution, nor any meaning that it can be tortured into, will support the objection which has so often been urged with solemn emphasis and persevering zeal.

We may repeat it, what color is there for saying that the secretary legislates? Neither my memory nor my understanding can discern any. I am well aware that no topic is better calculated to make popular impressions; but I cannot persuade myself that they will charge us with neglect or violation of duty, for putting ourselves into a situation to discharge it in the best and most circumspect manner.

Mr. MADISON. I insisted that a reference to the secretary of the treasury on subjects of loans, taxes, and provisions for loans, &c., was in fact a delegation of the authority of the legislature, although it would admit of much sophistical argument on the contrary.

On the Memorial of the Relief Committee of Baltimore, for the Relief of St. Domingo Refugees.

House of Representatives, January 10, 1794.

Mr. MADISON remarked, that the government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general. Charity is no part of the legislative duty of the government. It would puzzle any gentleman to lay his finger on any part of the Constitution which would authorize the government to interpose in the relief of the St. Domingo sufferers. The report of the committee, he observed, involved this constitutional question—whether the money of our constituents can be appropriated to any other than specific purposes. Though he was of opinion that the relief contemplated could not be granted in the way proposed, yet he supposed a mode might be adopted which would answer the purpose without infringing the Constitution.

Mr. NICHOLAS concurred in the sentiment with Mr. Madison. He considered the Constitution as defining the duty of the legislature so expressly, as that it left them no option in the present case.

Mr. BOUDINOT supported the question on constitutional grounds. He instanced several cases, which had occurred and might occur, in which relief must necessarily be granted, and that without occasioning any doubt of the constitutionality of the business; such as granting pensions, affording relief to the Indians, supporting prisoners, &c. He alluded to the circumstance of the alliance between the United States and France, the connection between the citizens of the United States and that country, &c.

Mr. DEXTER stated sundry objections from the Constitution. It will not be pretended, he supposed, that the grant of moneys, on this occasion, was for the general welfare; it is merely a private charity. He was in favor of going into a committee on the subject, but wished a short delay, that he might revolve the question more fully in his own mind.

Mr. MADISON, in reply to Mr. Boudinot, who had stated several cases as in point, observed, that those cases came within the law of nations, of which this government has express cognizance; the support of prisoners is a case provided for by the laws of nations; but the present question, he remarked, could not be considered in any such point of view. (Motion lost.)

[Note. In May, 1812, “An Act for the relief of the citizens of Venezuela” was passed, authorizing the President to expend $50,000 to purchase provisions for that object. The motion to fill the blank with that amount was moved by Mr. Calhoun, and carried by ayes, 45; noes, 29.]

Commercial Restrictions.

House of Representatives, January 31, 1794.

Mr. MADISON insisted that trade ought to be left free to find its proper channels, under the conduct of merchants; that the mercantile opinion was the best guide in the case now depending; and that that opinion was against the resolutions.

In answer to this objection, he said it was obvious to remark that, in the very terms of the proposition, trade ought to be free before it could find its proper channel. It was not free at present: it could not, therefore, find the channels in which it would most advantageously flow. The dikes must be thrown down, before the waters could pursue their natural course. Who would pretend that the trade with the British West Indies, or even with Great Britain herself, was carried on, under the present restrictions, as it would go on of itself, if unfettered from restrictions on her part, as it is on ours? Who would pretend that the supplies to the West Indies, for example, would not flow thither in American bottoms, if they flowed freely? Who would pretend that our wheat, our flour, our fish, &c., would not find their way to the British market, if the channels to it were open for them?

It seemed to have been forgotten that the principle of this objection struck at every regulation in favor of manufactures, as much, or even more, than at regulations on the subject of commerce. It required that every species of business ought to be left to the sagacity and interest of those carrying it on, without any interference whatever of the public authority.

The interest of the mercantile class may happen to differ from that of the whole community. For example; it is, generally speaking, the interest of the merchant to import and export every thing; the interest of manufacturers to lessen imports in order to raise the price of domestic fabrics, and to check exports, where they may enhance the price of raw materials. In this ease, it would be as improper to allow the one for the other as to allow either to judge for the whole.

It may be the interest of the merchant, under particular circumstances, to Confine the trade to its established channels, when the national interest would require those channels to be enlarged or changed. The best writers on political economy have observed, that the regulations most unfriendly to the national wealth of Great Britain have owed their birth to mercantile counsels. It is well known that, in France, the greatest opposition to that liberal policy which was as favorable to the true interest of that country as of this, proceeded from the interests which merchants had in keeping the trade in its former course.

If, in any country, the mercantile opinion ought not to be implicitly followed, there were the strongest reasons why it ought not in this. The body of merchants who carry on the American commerce is well known to be composed of so great a proportion of individuals who are either British subjects, or trading on British capital, or enjoying the profits of British consignments, that the mercantile opinion here might not be an American opinion; nay, it might be the opinion of the very country of which, in the present instance at least, we ought not to take counsel. What the genuine mercantile American opinion would be, if it could be collected apart from the general one, Mr. M. said he did not undertake positively to decide. His belief was, that it would be in favor of the resolutions.

Direct Taxes.

May 6, 1794.

Mr. SEDGWICK said, that, in forming a constitution for a national government, to which was intrusted the preservation of that government, and of the existence of society itself, it was reasonable to suppose that every mean necessary to those important ends should be granted. This was in fact the case in the Constitution of the United States. To Congress it was expressly granted to impose “taxes, duties, imposts, and excises.” It had been universally concluded, and never, to his knowledge, denied, but that the legislature, by those comprehensive words, had authority to impose taxes on every subject of revenue. If this position was just, a construction which limited their operation of this power (in its nature and by the Constitution illimitable) could not be the just construction.

He observed that, to obviate certain mischief, the Constitution had provided that capitation and other direct taxes should be proportioned according to the ratio prescribed in it. If, then, the legislature was authorized to impose a tax on every subject of revenue, (and surely pleasure carriages, as an object of luxury, and in general owned by those to whom contributions would not be inconvenient, were fair and proper subjects of taxation,) and a tax on them could not be proportioned by the constitutional ratio, it would follow, irresistibly, that such a tax, in this sense of the Constitution, was not “direct.” On this idea he enlarged his reasoning, and showed that such a tax was incapable of apportionment.

He said that, so far as he had been able to form au opinion, there had been a general concurrence in a belief that the ultimate sources of public contributions were labor, and the subjects and effects of labor; that taxes, being permanent, had a tendency to equalize, and to diffuse themselves through a community. According to these opinions, a capitation tax, and taxes on land, and on property and income generally, were a direct charge, as well in the immediate as ultimate sources of contribution. He had considered those, and those only, as direct taxes in their operation and effects. On the other hand, a tax imposed on a specific article of personal property, and particularly of objects of luxury, as in the case under consideration, he had never supposed had been considered a direct tax within the meaning of the Constitution. the exaction was indeed directly of the owner; but by the equalizing operation, of which all taxes more or less partook, it created an indirect charge on others besides the owners.

The Bill for authorizing the President to lay, regulate, and revoke Embargoes.

House of Representatives, May 29, 1794.

Mr. MADISON. did not accede to the principle of the bill. He did not see any such immediate prospect of a war as could induce the house to violate the Constitution. He thought that it was a wise principle in the Constitution to make one branch of the government raise an army, and another conduct it. If the legislature had the power to conduct an army, they might imbody it for that end. On the other hand, if the President was empowered to raise an army, as he is to direct its motions when raised, he might wish to assemble it for the sake of the influence to be acquired by the command The Constitution had wisely guarded against the danger on either side, Upon the whole, he could not venture to give his consent for violating so salutary a principle of the Constitution as that upon which this bill encroached.

On the Motion of Mr. Tazewell to strike out a complimentary Reply to the French Republic.

Senate, January 6, 1796.

Mr. ELLSWORTH combated the resolution, as originally offered, as unconstitutional. Nothing, he contended, could be found in the Constitution to authorize either branch of the legislature to keep up any kind of correspondence with a foreign nation. To Congress were given the powers of legislation, and the right of declaring war. If authority beyond this is assumed, however trifling the encroachment at first, where will it stop?

Mr. BUTLER. There was nothing in the Constitution, he contended, that could prevent the legislature from expressing their sentiments. It was not au executive act, but a mere complimentary reply to a complimentary presentation. If this right was denied them, where would the principle stop? The Senate might be made in time mere automata.

Internal Improvement.

House of Representatives, February 11, 1796.

Mr. MADISON moved that the resolution laid on the table some days ago be taken up, relative to the survey of the post-roads between the province of Maine and Georgia; which being read, he observed that two good effects would arise from carrying this resolution into effect: the shortest route from one place to another would be determined upon, and persons having a stability of the roads would not hesitate to make improvements upon them.

Mr. BALDWIN was glad to see this business brought forward; the sooner it could be carried into effect the better. In many parts of the country, he said, there were no improved roads, nothing better than the original Indian track. Bridges and other improvements are always made with reluctance whilst roads remain in this state; because it is known, as the country increases in population and wealth, better and shorter roads will be made. All expense of this sort, indeed, is lost. It was properly the business of the general government, he said, to undertake the improvement of the roads; for the different states are incompetent to the business, their different designs clashing With each other. It is enough for them to make good roads to the different seaports; the cross-roads should be left to the government of the whole. The expense, he thought, would not be very great: Let a surveyor point out the shortest and best track, and the money will soon be raised. There was nothing in this country, he said, of which we ought to be more ashamed than our public roads.

Mr. BOURNE thought very valuable effects would arise from the carrying of this resolution into effect. The present may be much shortened, he observed. The Eastern States, he said, had made great improvement in their roads; and he trusted the best effects would arise from having regular mails from one end of the Union to the other.

Mr. WILLIAMS did not think it right for the revenues of the post-office to be applied to this end. He acknowledged the propriety of extending the post-roads to every part of the Union. He thought the house had better wait for the report of the committee, to which business relative to the post-office had been referred, which was preparing to be laid before the house.

Mr. MADISON explained the nature and object of the resolution. He said it was the commencement of an important work. He wished not to extend it at present. The expenses of the survey would be great. The post-office, he believed, would have no objection to the intended regulation.

After some observations from Mr. THACHER, on the obtaining of the shortest distance from one place to another, and the comparing old with new roads, so as to come at the shortest and best, the resolution was agreed to, and referred to a committee of five, to prepare and bring in a bill.

Treaty-Making Power.—[Jay’s Treaty.]

House of Representatives, March 23, 1796.

Mr. MURRAY said, in construing our Constitution, in ascertaining the metes and bounds of its various grants of power, nothing, at the present day, is left for expedience or sophistry to new-model or to mistake. The explicitness of the instrument itself; the contemporaneous opinions, still fresh from the recency of its adoption; the journals of that Convention which formed it, still existing, though not public,—all tend to put this question, in particular, beyond the reach of mistake. Many who are now present were in the Convention; and on this question, he learned a vote was actually taken.

That the paper upon the table, issued by the President’s proclamation, as a treaty, was a treaty in the eye of the Constitution, and the law of nations; that as a treaty, it is the supreme law of the land, agreeably to the Constitution; that, if it is a treaty, nothing that we can rightfully do, or refuse to do, will add or diminish its validity, under the Constitution and law of nations.

March 24, 1796.

Mr. GALLATIN said, the only contemporaneous opinions which could have any weight in favor of the omnipotence of the treaty-making power, were those of gentlemen who had advocated the adoption of the Constitution; and recourse had been had to the debates of the state conventions in order to show that such gentlemen had conceded that doctrine. The debates of Virginia had first been partially quoted for that purpose; yet when the whole was read and examined, it had clearly appeared that, on the contrary, the general sense of the advocates of the Constitution there was similar to that now contended for by the supporters of the motion. The debates of the North Carolina Convention had also been partially quoted; and it was not a little remarkable that, whilst gentlemen from that state had declared, on that floor, during the present debate, that they were members of the Convention which ratified and adopted the Constitution, that they had voted for it, and that their own and the general impression of that Convention was, that the treaty-making power was limited by the other parts of the Constitution, in the manner now mentioned,—it was not a little remarkable, that, in opposition to those declarations, a gentleman from Rhode Island had quoted partial extracts of the debates of a Convention in North Carolina which rejected the Constitution.

A gentleman from New York (Mr. Williams) had read to them an amendment proposed in the Convention of that state, by which it was required that a treaty should not abrogate a law of the United States; from whence he inferred that that Convention understood the treaty-making powers would have that effect, unless the amendment was introduced.

The gentleman, however, forgot to inform the committee that the amendment did not obtain; and, therefore, that the inference was the reverse of what he stated. Leaving, however, to other gentlemen, to make further remarks on the debates of the Conventions of their respective states, he would conclude what he had to say on that ground, by adverting to the debates of the Pennsylvania Convention.

The only part of those debates which had been printed contained the speeches of the advocates of the Constitution; and although the subject was but slightly touched, yet what was said on the subject by the ablest advocate of the Constitution in Pennsylvania, by the man who had been most efficient to enforce its adoption in that state, would be found to be in point. He then read the following extracts from Judge Wilson’s speech, (page 468, Debates of the Pennsylvania Convention:) “There is no doubt but, under this Constitution, treaties will become the supreme law of the land; nor is there doubt but the Senate and President possess the power of making them.”

Mr. Wilson then proceeds to show the propriety of that provision, and how unfit the legislature were to conduct the negotiations; and then expresses himself in the following words: “It well deserves to be remarked that, though the House of Representatives possess no active part in making treaties, yet their legislative authority will be found to have strong restraining influence upon both President and Senate. In England, if the king and his ministers find themselves, during their negotiation, to be embarrassed because an existing law is not repealed, or a new law enacted, they give notice to the legislature of their situation, and inform them that it will be necessary, before the treaty can operate, that some law be repealed, or some be made. And will not the same thing take place here?”

April 15, 1796.

Mr. MADISON. The proposition immediately before the committee was, that the treaty with Great Britain ought to be carried into effect by such provisions as depended on the House of Representatives. This was the point immediately in question.

If the propositions for carrying the treaty into effect be agreed to, it must be from one of three considerations: either that the legislature is bound by a constitutional necessity to pass the requisite laws, without examining the merits of the treaty; or that, on such examination, the treaty is deemed in itself a good one; or that there are good extraneous reasons for putting it into force, although it be in itself a bad treaty.

The first consideration being excluded by the decision of the house that they have a right to judge of the expediency or inexpediency of passing laws relative to treaties, the question first to be examined must relate to the merits of the treaty.

He mentioned the permission to aliens to hold lands in perpetuity, as a very extraordinary feature in this part of the treaty. He would not inquire how far this might be authorized by constitutional principles; but he would continue to say, that no example of such a stipulation was to be found in any treaty that ever was made, either where territory was ceded, or where it was acknowledged by one nation or another. Although it was common and right, in such regulation, in favor of the property of the inhabitants, yet he believed that, in every case that ever had happened, the owners of landed property were universally required to swear allegiance to the new sovereign, or to dispose of their landed property within a reasonable time. With respect to the great points in the law of nations, comprehended in the stipulations of the treaty, the same want of real reciprocity, and the same sacrifice of the interests of the United States, were conspicuous.

It is well known to have been a great and favorite object with the United States, “that free ships make free goods.” They had established the principle in their other treaties. They had witnessed, with anxiety, the general efforts, and the successful advances, towards incorporating this principle into the law of nations—a principle friendly to all neutral nations, and particularly interesting to the United States. He knew that, at a former period, it had been conceded, on the part of the United States, that the law of nations stood as the present treaty regulates it. But it did not follow, that more than acquiescence in that doctrine was proper. There was an evident distinction between silently acquiescing in it, and giving it the support of a formal and positive stipulation. The former was all that could have been required, and the latter was more than ought to have been unnecessarily yielded.

Mr. LYMAN. I have no doubt of its constitutionality, notwithstanding all the arguments which I have either seen or heard. Many arguments might be adduced in support of this opinion; but I will dispense with all but one, and that I consider as conclusive; and that is this: The stipulations m this treaty are nearly all of such nature as not to respect objects of legislation. They respect objects which lie beyond the bounds of our sovereignty; and beyond these limits our laws cannot extend, as rules to regulate the conduct of subjects of foreign powers; and although some of these stipulations respect objects which are within the reach of our sovereignty, yet it is in such manner as to be not only pertinent, but perhaps absolutely necessary in forming the treaty. This conclusion, I think, is the natural and necessary result of a fair construction of the principles of the Constitution, and especially of that paragraph which vests the power of making treaties in the supreme executive, with the advice of the Senate.

In acts of the smallest importance, we see, daily; that, after they have undergone any possible chance of fair and impartial discussion in this house, they are transmitted to another, who equally proceed to correct and amend them; and even this not being deemed sufficient to secure, as it were, against all possibility of danger; they are sent to the President, who has ten days to consider, and who may return them with his objections. These we are bound respectfully to inscribe on our Journals, and if we disagree in opinion with the President, the majority of two thirds of both branches is requisite to give validity to the law. Do we not discover in all this infinite Caution a wish rather not to act at all, by the difference of the branches among each other, than to act imprudently or precipitately and can we imagine that a Constitution thus guarded with respect to laws of little consequence, hath left without check the immense power of making treaties—embracing, as in the instrument before us, all our greatest interests, whether they be of territory, of agriculture, commerce, navigation, or manufactures, and this for an indefinite length of time? No. By one of the guards of that Constitution, relative to appropriations of money, this treaty hath, in the last stage of its progress, come before us.

“We have resolved,” according to our best judgment of the Constitution, and, as we have seen above, according to the meaning of it, that we have a right to judge of the expediency or inexpediency of carrying it into effect. This will depend on its merits; and this is the discussion that is now before us.

Our duty requires of us, before we vote 90,000 dollars of the people’s money,—the sum required to carry this treaty into effect,—to pause, and require as to the why and wherefore. But is it merely the sum of 90,000 dollars that is in question? If it was, we ought to proceed slowly and cautiously to vote away the money of our constituents. But it is in truth a Sum indefinite, for British debts, the amount of which we know not; and we are to grant this in the moment our treasury is empty; when we are called upon to pay five millions to the bank, and when no gentleman hath resources to suggest, but those of borrowing, at a time when borrowing is unusually difficult and expensive. But is it merely a question of money? No. It is the regulation of our commerce; the adjustment of our limits; the restraint, in many respects, of our own faculties of obtaining good or avoiding bad terms with other nations. In short, it is all our greatest and most interesting concerns that are more or less involved in this question.

I must confess, Mr. Chairman, that the first point of view in which this treaty struck me with surprise, was the attitude Great Britain assumes in it of dictating laws and usages of reception and conduct different towards us, in every different part of her empire, while the surface of our country is entirely laid open to her in one general and advantageous point of admission. In Europe, we are told, we may freely enter her ports. In the West Indies we were to sail in canoes of seventy tens burden. In the East Indies we are not to settle or reside without leave of the local government. In the seaports of Canada and Nova Scotia we are not to be admitted at all:—while all our rivers and countries are opened without the least reserve; yet surely our all was as dear to us as the all of any other nation, and ought not to have been parted with but on equivalent terms.

On the Bill for organizing, arming, and disciplining, the Militia of the United States.

House of Representatives, December, 1796.

Mr. RUTHERFORD said, he believed the government of the United States had nothing to do with the militia of the several sovereign states. This was his opinion, and it was the opinion of the people at large—however, of nine tenths of them. The Constitution is express upon this subject. It says, when the militia is called into actual service, it shall he under the direction of the general government, but not until that takes place; the several states shall have command over their own children—their own families. If the United States take it up, they will defeat the end in view—they grasp too much.

With respect to the unconstitutionality, Mr. R. joined in opinion with the gentleman from New Jersey, (Mr. Henderson.) This law would tend to alienate the minds of the people of the Eastern States, whose militia were already well disciplined.

He hoped nothing more would be done, in that house, than to advise those states who had neglected their militia to revise and amend their laws, and make them more effectual. This is all this house can do—all they have a right to do.

Appropriations of Money for fitting out Vessels of War.

House of Representatives, February, 25, 1797.

Mr. GALLATIN conceived the power of granting money to be vested solely in the legislature, and though, according to the opinion of some gentlemen, (though not in his,) the President and Senate could so bind the nation as to oblige the legislature to appropriate money to carry a treaty into effect, yet, in all other cases, he did not suppose there had been any doubt with respect to the powers of the legislature in this respect.

March 2, 1797.

Mr. NICHOLAS. The power of this house to control appropriations has been settled. It was indeed an absurdity to call a body a legislature, and at the same time deny them control over the public purse. If it were not so, where would be the use of going through the forms of that house with a money bill? The executive might as well draw upon the treasury at once for whatever sums he might stand in need of. A doctrine like this would be scouted even in despotic countries.

Patronage.—During the Discussion of the Foreign Intercourse Bill.

House of Representatives, January 18, 1798.

Mr. GALLATIN said, he believed, upon the whole, our government was in a great degree pure. Patronage was not very extensive, nor had it any material effect upon the house, or any other part of the government; yet he could suppose our government to be liable to abuse in this way. By the nature of the government, the different powers were divided; the power of giving offices was placed in the executive—an influence which neither of the other branches possessed; and if too large grants of money were made, it might give to that power an improper weight.

Our government, he said, was in its childhood and if patronage had any existence, it Could not, of course, be as yet alarming; but he desired gentlemen to look at all governments where this power was placed in the executive, and see if the greatest evil of the government was not the excessive influence of that department. Did net this corruption exist, in the government which was constituted most similar to ours, to such a degree as to have become a part of the system itself, and without which, it is said, the government could not go on? Was it not, therefore, prudent to keep a watchful eye in this respect?

He did not, however, speak against the power itself: it was necessary to be placed somewhere. The Constitution had fixed it in the executive. If the same power had been placed in the legislature, he believed they would have been more corrupt than the executive. He thought, therefore, the trust was wisely placed in the executive.

January, 19, 1798.

On the same occasion, Mr. PINCKNEY said, all commercial regulations might as well be carried on by consuls as by ministers; and if any differences should arise betwixt this country and any of the European governments, special envoys might be sent to settle them, as heretofore.

January 22, 1798.

Mr. BAYARD. It had been supposed, by gentlemen, that he might appoint an indefinite number of ministers; and were the house, in that case, he asked, blindly to appropriate for them? This question was predicated upon an abuse of power, whilst the Constitution supposed it would be executed with fidelity. Suppose he were to state the question in an Opposite light. Let it be imagined that this country has a misunderstanding with a foreign power, and that the executive should appoint a minister, but the house, in the plenitude of its power, should refuse an appropriation. What might be the consequence? Would not the house have contravened the Constitution by taking from the President the power which by it is placed in him? It certainly would. So that this supposition of the abuse of power would go to the destruction of all authority. The legislature was bound to appropriate for the salary of the chief justice of the United States; and though the President might appoint a chimney-sweeper to the office, they would still be bound. The Constitution had trusted the President, as well as it had trusted that house. Indeed, it was not conceivable that the house could act upon the subject of foreign ministers. Our interests with foreign countries came wholly under the jurisdiction of the executive. The duties of that house related to the internal affairs of the country; but what related to foreign countries and foreign agents was vested in the executive. The President was responsible for the manner in which this business was conducted. He was bound to communicate, from time to time, our situation with foreign powers; and if plans were carried on abroad for dividing or subjugating us, if he were not to make due communication of the design, he would be answerable for the neglect.

Retaliation for Aggressions.

May 23, 1798.

Mr. SITGREAVES said, it is a principle as well settled as any in the law of nations, that, when a nation has received aggressions from another nation, it is competent for the injured nation to pursue its remedy by reprisal before a declaration of war takes place; and these reprisals shall be perfectly warrantable whilst they are commensurate only with the injuries received; and are not, under such circumstances, justifiable cause of war. It is even clear that these reprisals may be made during the pendency of a negotiation, and cannot, according to the law of nations, be justifiable ground for the rupture of any such negotiations.

Alien and Sedition Laws.

June,, 1798.

Mr. LIVINGSTON. By this act the President alone is empowered to make the law; to fix in his own mind what acts, what words, what thoughts, or looks, shall constitute the crime contemplated by the bill; that is, the crime of being “suspected to be dangerous to the peace and safety of the United States.” This comes completely within the definition of despotism—a union of legislative, executive, and judicial powers. My opinions on this subject are explicit: they are, that wherever our laws manifestly infringe the Constitution under which they were made, the people ought not to hesitate which to obey. If we exceed our powers, we become tyrants, and our acts have no effect.

Mr. TAZEWELL opposed the bill. He knew but of one power, given to Congress by the Constitution, which could exclusively apply to aliens; and that was the power of naturalization. Whether this was a power which excluded the states from its exercise, or gave to Congress only a concurrent authority over the subjects, he would not now pretend to say. It neither authorized Congress to prohibit the migration of foreigners to any state, nor to banish them when admitted. It was a power which could only authorize Congress to give or withhold citizenship. The states, notwithstanding this power of naturalization, could impart to aliens the rights of suffrage, the right to purchase and hold lands. There were, in this respect, no restraints upon the states. The states, Mr. T. said, had not parted from their power of admitting foreigners to their society, nor with that of preserving the benefit which their admission gave them in the general government, otherwise than that by which they would be deprived of a citizen. [The bill passed the Senate by yeas, 16; nays, 7.]

On the same Subject.—1799.

From a Report of Congress. —”The right of removing aliens, as incident to the power of war and peace, according to the theory of the Constitution, belongs to the government of the United States. By the 4th section of the 4th article of the Constitution, Congress is required to protect each state from invasion; and is vested by the 8th section of the 5th article with powers to make all laws which shall be proper to carry into effect all powers vested by the Constitution in the government of the United States, or any department or officer thereof; and, to remove from the country, in times of hostility, dangerous aliens, who may be employed in preparing the way for invasion, is a measure necessary for the purpose of preventing invasion, and, of course, a measure it is empowered to adopt.”

In relation to the sedition act, the committee report that “punish false, scandalous, and malicious writings against the government, with intent to stir up sedition, is a law necessary for carrying into effect the power vested by the Constitution in the government of the United States, and in the officers and departments thereof, and, consequently, such a law as Congress may pass.”

Further —”Although the committee believe that each of the measures [alien and sedition laws] adopted by Congress is susceptible of an analytical justification, on the principles of the Constitution and national policy, yet they prefer to rest their vindication on the same ground of considering them as parts of a general system of defence, adapted to a crisis of extraordinary difficulty and danger.”

[See Virginia and Kentucky Resolutions of ’98, at the end of this volume.]

Reduction of the Standing Army.

House of Representatives, January 5, 1800.

Mr. RANDOLPH. I suppose the establishment of a standing army in the country not only a useless and enormous expense, but, upon the ground of the Constitution, the spirit of that instrument and the genius of a free people are equally hostile to this dangerous institution, which ought to be resorted to (if it all) only in extreme cases of difficulty and danger; yet let it be remembered that usage, that immemorial custom, is paramount in every written obligation; and let us beware of engrafting this abuse upon the Constitution. A people who mean to continue free must be prepared to meet danger in person, not to rely upon the fallacious protection of mercenary armies.

Amendment to the Constitution.—Election of President of the United States.

Senate, January 23, 1800.

Mr. C. PINCKNEY (of South Carolina) thought it a very dangerous practice to endeavor to amend the Constitution by making laws for the purpose. The Constitution was a sacred deposit put into their hands; they ought to take great care not to violate or destroy the essential provisions made by this instrument. He remembered very well that, in the Federal Convention, great care was used to provide for the election of the President of the United States independently of Congress, and to take the business, as far as possible, out of THEIR hands.

On an Act laying Duties on Licenses, &c.

House of Representatives, December 31, 1800.

Mr. BIRD said, that he considered Congress as incompetent to transfuse into the state governments the right of judging on cases that occurred under the Constitution and laws of the federal government, as they were to transfuse executive or legislative power, derived from that Constitution, into the hands of the executive and legislative organs of the state governments.

Judiciary.— On Mr. Breckenridge’s Motion to repeal the Act passed for a new Organization of the Judiciary System.

Senate, January 8, 1800.

Mr. J. MASON. It will be found that the people, in forming their Constitution, meant to make the judges as independent of the legislature as of the executive; because the duties they have to perform call upon them to expound not only the laws, but the Constitution also; in which is involved the power of checking the legislature, in case it should pass any laws in violation of the Constitution. For this reason it was more important that the judges in this country should be placed beyond the control of the legislature, than in other countries, where no such power attaches to them.

Mr. Mason knew that a legislative body was occasionally subject to the dominance of violent passions He knew that they might pass unconstitutional laws; and that the judges, sworn to support the Constitution, would refuse to carry them into effect and he knew that the legislature might contend for the execution of their statutes Hence the necessity of placing the judges above the influence of these passions; and for these reasons the Constitution had put them out of the power of the legislature.

January 13, 1802.

Mr. MASON, (of Virginia.) When I view the provisions of the Constitution on this subject, I observe a clear distinction between the Supreme Court and other courts. With regard to the institution of the Supreme Court, the words are imperative; while with regard to inferior tribunals, they are discretionary. The first shall, the last may, be established. And surely we are to infer, from the wise sages that formed that Constitution, that nothing was introduced into it in vain. Not only sentences, but words, and even points, elucidate its meaning. When, therefore, the Constitution, using this language, says a Supreme Court shall be established, are we not justified in considering it a constitutional creation? and on the other, from the language applied to inferior courts, are we not equally justified in considering their establishment as dependent upon the legislature, who may, from time to time, ordain them, as the public good requires? Can any other meaning be applied to the words “from time to time”? And nothing can be more important on this subject than that the legislature should have power, from time to time, to create, to annul, or to modify, the courts, as the public good may require—not merely to-day, but forever, and whenever a change of circumstances may suggest the propriety of a different organization. On this point, there is great force in the remark, that, among the enumerated powers given to Congress, while there is no mention made of the Supreme Court, the power of establishing inferior courts is expressly given. Why this difference, but that the Supreme Court was considered by the framers of the Constitution as established by the Constitution? while they considered the inferior courts as dependent upon the will of the legislature.

January 13, 1802.

Mr. STONE, (of North Carolina.) No part of the Constitution expressly gives the power of removal to the President; but a construction has been adopted, and practised upon from necessity, giving him that power in all cases in which he is not expressly restrained from the exercise of it. The judges afford an instance in which he is expressly restrained from removal—it being declared, by the 1st section of the 3d article of the Constitution, that the judges, both of the supreme and inferior courts, shall hold their offices during good behavior. They doubtless shall, (as against the President’s power to retain them in office,) in common with other officers of his appointment, be removed from office by impeachment and conviction; but it does not follow that they may not be removed by other means. They shall hold their offices during good behavior, and they shall be removed from office upon impeachment and conviction of treason, bribery, and other high crimes and misdemeanors. If the words impeachment of high crimes and misdemeanors be understood according to any construction of them hitherto received and established, it will be found that, although a judge, guilty of high crimes and misdemeanors, is always guilty of misbehavior in office; yet that, of the various species of misbehavior in office which may render it exceedingly improper that a judge should continue in office, many of them are neither treason nor bribery; nor can they properly be dignified by the appellation of high crimes and misdemeanors; and for impeachment of which no precedent can be found, nor would the words of the Constitution justify such impeachment.

To what source, then, shall we resort for a knowledge of what constitutes this thing called misbehavior in office? The Constitution did not intend that a circumstance, as a tenure by which the judges hold their offices, should be incapable of being ascertained. Their misbehavior certainly is not an impeachable offence; still it is the ground by which the judges are to be removed from office. The process of impeachment, therefore, cannot be the only one by which the judges may be removed from office, under and according to the Constitution. I take it, therefore, to be a thing undeniable, that there resides somewhere in the government a power that shall amount to define misbehavior in office by the judges, and to remove them from office for the same without impeachment. The Constitution does not prohibit their removal by the legislature, who have the power to make all laws necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States.

Mr. BRECKENRIDGE. To make the Constitution a practical system, the power of the courts to annul the laws of Congress cannot possibly exist. My idea of the subject, in a few words, is—That the Constitution intended a separation only of the powers vested in the three great departments, giving to each the exclusive authority of acting on the subjects committed to each; that each are intended to revolve within the sphere of their own orbits, are responsible for their own motion only, and are not to direct or control the course of others that those, for example, who make the laws, are presumed to have an equal attachment to, and interest in, the Constitution, are equally bound by oath to support it, and have an equal right to give a construction to it; that the construction of one department, of the powers particularly vested in that department, is of as high authority, at least, as the construction given to it by any other department; that it is, in fact, more competent to that department, to which powers are exclusively confided, to decide upon the proper exercise of those powers, than any other department, to which such powers are not intrusted, and who are not consequently under such high and responsible obligations for their constitutional exercise; and that, therefore, the legislature would have an equal right to annul the decisions of the courts, founded on their construction of the Constitution, as the courts would have to annul the acts of the legislature founded on their construction.

Although, therefore, the courts may take upon them to give decisions which go to impeach the constitutionality of a law, and which, for a time, may obstruct its operation; yet I contend that such law is not the less obligatory because the organ through which it is to be executed has refused its aid. A pertinacious adherence of both departments to their opinions would soon bring the question to an issue, which would decide in whom the sovereign power of legislation resided, and whose construction of the Constitution as to the law-making power ought to prevail.

Mr. HEMPHILL. I have ever understood that there was difference in opinion on this point: that the general opinion was, that the words in the Constitution rendered the judges independent of both the other branches of the government. This appears from the debates in the Convention in Virginia, to have been their opinion; it appears also, from the strongest implication, to have been the opinion of the author of the Notes on Virginia.

What is the meaning of the words from time to time? They are used but in three other parts of the Constitution, and, when used, they do not convey the idea of what may be done. Indeed, they are used in cases where it is impracticable to undo what shall have been done. [Mr. Hemphill here read 5th sec. 1st art. No. 3, 9th sec. 1st art. No. 6, and 3d sec. 2d art.] What do these words mean in that part of the Constitution under discussion? The Supreme Court had been mentioned in 2d and 3d art.—the Supreme Court, which implies that there should be but one. They were not used to give Congress power to constitute inferior courts, for that power had been previously given; and if the inferior courts, together with the offices of the judges, are, as is contended, subjects of ordinary legislation, these words were unnecessary to enlarge the powers of Congress on them; for, on all subjects of ordinary legislation, Congress have an unquestionable right to enact and repeal at pleasure.

It is not said, in the 8th section, 1st article, that Congress shall have the power to borrow money from time to time, to regulate Commerce from time to time, or to establish post-offices and post-roads from time to time; yet nobody doubts that Congress have a right to enact and repeal laws on these subjects when it may appear expedient; and the same power would have extended to the clause giving power to constitute inferior tribunals, if there had been no restriction in any other part of the Constitution. As these words are unnecessary to give the power contended for, they must have some other meaning. The plain meaning is this—that these words, together with the first part of the section, were not used to give a power to constitute courts; for that power had been expressly given: they were merely introduced to dispose of judiciary power, and to declare where it should reside. The judiciary power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish; meaning the power before given, Which was discretionary as to number. The clause in the 8th section of the let article is brought here into view; and in the very next sentence, the offices are positively fixed and limited. Here, then, is an express and positive provision, uncontradicted by any express declaration, or by any violent implication.

Mr. BAYARD. The 2d section of the 3d article of the Constitutionexpressly extends the judicial power to all cases arising under the Constitution, the laws, &c. The provision in the 2d clause of the 6th article leaves nothing to doubt. This Constitution, and the laws Of the United States which shall be made in pursuance thereof, &c., shall be the supreme law of the land. The Constitution is absolutely the supreme law. Not so of the acts of the legislature. Such only are the laws of the land as are made in pursuance of the Constitution.

Mr. RUTLEDGE. Taught by examples the value of a good judiciary, the patriots who met at Philadelphia determined to establish one which should be independent of the executive and legislature, and possess the power of deciding rightfully and finally on conflicting claims between them. The Convention laid their hand upon this invaluable and protecting principle in it they discovered what was essential to the security and duration of free states; what would prove the shield and palladium of our liberties; and they boldly said, notwithstanding the discouragement in other countries, in past times, to efforts in favor of republicanism, our experiment shall not miscarry, for we will establish an independent judiciary; we will create an asylum to secure the government and protect the people in all the revolutions of opinion, and struggles of ambition and faction, They did establish an independent judiciary. There is nothing, I think, more demonstrable than that the Convention meant the judiciary to be a coördinate, and not a subordinate branch of the government. This is my settled opinion. But on a subject So momentous as this is, I am unwilling to be directed by the feeble lights of my own understanding; and as my judgment, at all times very fallible, is liable to err much where my anxieties are much excited, I have had recourse to other sources for the true meaning of this Constitution. During the throes and spasms, as they have been termed, which convulsed this nation prior to the late presidential election, strong doubts were very Strongly expressed whether the gentleman who now administers this government was attached to it as it is. Shortly after his election; the legislature of Rhode Island presented a congratulatory address which our chief magistrate considered as soliciting some declaration of his opinions of the Federal Constitution; and in his answer deeming it fit to give them, he said, “the Constitution shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption—a meaning to be found in the explanations of those who advocated, not those who opposed it. These explanations are preserved in the publications of the time.” To this high authority I appeal—to the honest meaning of the instrument, the plain understanding of its framers. I, like Mr. Jefferson, appeal to the opinions of those who were the friends of the Constitution at the time it was submitted to the states. Three of our most distinguished statesmen, who had much agency in framing this Constitution, finding that objections had been raised against its adoption, and that much of the hostility produced against it had resulted from a misunderstanding of some of its provisions, united in the patriotic work of explaining the true meaning of its framers. They published a series of papers, under the signature of Publius, which were afterwards republished in a book called the Federalist. This contemporaneous exposition is what Mr. Jefferson must have adverted to when he speaks of the publication of the time. From this very valuable work, for which we are indebted to Messrs. Hamilton, Madison, and King, I will take the liberty of reading some extracts, to which I solicit the attention of the committee. In the seventy-eighth number we read, “Good behavior for the continuance in office of the judicial magistracy, is the most valuable of the modern improvements in the practice of government. In a republic, it is a barrier to the encroachments and oppressions of the representative body; and it is the best expedient that can be devised in any government to secure a steady, upright, and impartial administration of the laws. The judiciary, in a government where the departments of power are separate from each other, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. It has no influence over the Sword or the purse, and may be truly said to have neither force nor will, but merely judgment. The complete independence of the courts of justice is essential in a limited constitution; one containing specified exceptions to the legislative authority; such as that it shall pass no ex post facto law, no bill of attainder, &c. Such limitations can be preserved in practice no other way than through the courts of justice, whose duty it must be to declare all acts manifestly contrary to the Constitution void. Without this, all the reservations of particular rights or privileges of the states or the people would amount to nothing. Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the courts, designed to be an intermediate body between the people and the legislature, are to keep the latter within the limits assigned to their authority. The Convention acted wisely in establishing good behavior as the tenure of judicial offices. Their plan would have been inexcusably defective bad it wanted this important feature of good government.” The authority I have read proves to demonstration what was the intention of the Convention on this subject—that it was to establish a judiciary completely independent of the executive and legislature, and to have judges removable only by impeachment. This was not only the intention of the General Convention, but of the state conventions when they adopted this Constitution. Nay, sir, had they not considered the judicial power to be coördinate with the other two great departments of government, they never would have adopted the Constitution. I feel myself justified in making this declaration by the debates in the different state conventions. From those of the Virginia Convention I will read some extracts, to show what were there the opinions of the speakers of both political parties.

General Marshall, the present chief justice, says, “Can the government of the United States go beyond those delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered as an infringement of the Constitution, which they are to guard: they would not consider such a law as coming under their jurisdiction they would declare it void.” Mr. Grayson, who opposed the Constitution, we find saying, “The judges will not be independent, because their salaries may be augmented. This is left open. What if you give £600 or £1000 annually to a judge? ‘Tis but a trifling object, when, by that little money, you purchase the most invaluable blessing that any country can enjoy. The judges are to defend the Constitution.” Mr. Madison, in answer, says, “I wished to insert a restraint on the augmentation as well as diminution of the compensation of the judges; but I was overruled. The business of the courts must increase. If there was no power to increase their pay, according to the increase of business, during the life of the judges, it might happen that there would be such an accumulation of business as would reduce the pay to a most trivial consideration.” Here we find Mr. Madison not using the words good behavior, but saying, (what we say was meant by good behavior,) during the life of the judges. The opinions of Mr. Madison I deem conclusive as to the meaning of the words good behavior. Let us now see what was the opinion on this subject of the first Congress under the Constitution, when the first judiciary bill was debated. Mr. Stone says, “The establishment of the courts is immutable.” Mr. Madison says, “The judges are to be removed only on impeachment and conviction before Congress.” Mr. Gerry, who had been a member of the General Convention, expresses himself in this strong and unequivocal manner: “The judges will be independent, and no power can remove them: they will be beyond the reach of the other powers of the government; they will be unassailable, and cannot be affected but by the united voice of America, and that only by a change of government.” Here it is evident Mr. Gerry supposed a project like the present could only be effected by the people, through the medium of a convention; he did not suppose it possible for Congress ever to grasp at this power. The same opinions were held by Mr. Lawrence and Mr. Smith.

As early as the year 1789, among the first acts of the government, the legislature explicitly recognized the right of a state court to declare a treaty, a statute, and an authority exercised under the United States, void, subject to the revision of the Supreme Court of the United States; and it has expressly given the final power to the Supreme Court to affirm a judgment which is against the validity either of a treaty, statute, or an authority of the government.

Louisiana Treaty.

House of Representatives, October 25, 1803.

Mr. ELLIOT. The Constitution is silent on the subject of the acquisition of territory; therefore the treaty is unconstitutional. This question is not to be determined from a mere view of the Constitution itself, although it may be considered as admitted that it does not prohibit, in express terms, the acquisition of territory. It is a rule of law that, in order to ascertain the import of a contract, the evident intention of the parties, at the time of forming it, is principally to be regarded. Previous to the formation of this Constitution, there existed certain principles of the law of nature and nations, consecrated by time and experience, in conformity to which the Constitution was formed. The question before us, I have always believed, must be decided upon the law of nations alone.

Dr. MITCHELL. The people, in forming their Constitution, had an eye to that law of nations which is deducible by natural reason, and established by common consent, to regulate the intercourse and concerns of nations. With a view to this law the treaty-making power was constituted, and, by virtue of this law, the government and people of the United States, m common with all other nations, possess the power and right of making acquisitions of territory by conquest, cession, or purchase.

Mr. SMILIE. We are obliged to admit the inhabitants according to the principles of the Constitution. Suppose those principles forbid their admission; then we are not obliged to admit them. This followed as an absolute consequence from the premises. There, however, existed a remedy for this case, if it Should occur; for, if the prevailing opinion shall be, that the inhabitants of the ceded territory cannot be admitted under the Constitution, as it now stands, the people of the United States can, if they see fit, apply a remedy, by amending the Constitution so as to authorize their admission. And if they do not choose to do this, the inhabitants may remain in a colonial state.

Mr. RODNEY. In the view of the Constitution, the Union is composed of two corporate bodies—of states and territories. A recurrence to the Constitution will Show that it is predicated on the principle of the United States’ territory, either by war, treaty, or purchase. There was one part of that instrument within whose capacious grasp all these modes of acquisition were embraced. By the Constitution, Congress have power to “lay and collect taxes, duties imposts and excises; to pay the debts and provide for the common defence and general welfare of the United States.” To provide for the general welfare. The import of these terms is very comprehensive indeed. If this general delegation of authority be not at variance with other particular powers specially granted, nor restricted by them,—if it be not in any degree comprehended in those subsequently delegated,—I cannot perceive why, within the fair meaning of these general provisions, is not included the power of increasing our territory, if necessary for the general welfare or common defence.

Mr. TRACY, among other objections, said that the 7th article admits, for twelve years, the ships of France and Spain into the ceded territory, free of foreign duty. This is giving a commercial preference to those ports over the other ports of the United States, because it is well known that a duty of forty-four cents on tonnage, and ten per cent. on duties, are paid by all foreign vessels in all the ports of the United States. If it be said we must repeal those laws, and then the preference will cease, the answer is, that this 7th article gives the exclusive right of entering the ports of Louisiana to the ships of France and Spain; and if our discriminating duties were repealed this day, the preference would be would be given to the ports of the United States to those of Louisiana; so that the preference, by any regulation of commerce or revenue, which the Constitution expressly forbids from being given to the ports of one state over those of another, would be given by this treaty, in violation of the Constitution.

We can hold territory; but to admit the inhabitants into the Union, to make citizens of them, and states, by treaty, we cannot constitutionally do, and no subsequent act of legislation, or even ordinary amendment to our Constitution, can legalize such measures.

Mr. ADAMS. It has been argued that the bill ought not to pass, because the treaty itself is an unconstitutional, or, to use the words of the gentleman from Connecticut, (Mr. Tracy,) an extra-constitutional act, because it contains engagements which the powers of the Senate were not competent to ratify, the powers of Congress not competent to ratify, the powers of Congress not competent to confirm; and, as two of the gentlemen have contended, not even the legislatures of the number of states requisite to effect an amendment of the Constitution, are adequate to sanction. It is, therefore, they say, a nullity. We cannot fulfil our part of its conditions; and on our failure in the performance of any one stipulation, France may consider herself as absolved from the obligations of the whole treaty on hers. I do not conceive it necessary to enter into the merits of the treaty at this time. The proper occasion for that discussion is past. But allowing even that this is a case for which the Constitution has not provided, it does not, in my mind, follow that the treaty is a nullity, or that its obligations, either on us or on France, must necessarily be cancelled. For my own part, I am free to confess, that the 3d article, and more especially the 7th, contain engagements placing us in a dilemma, from which I see no possible mode of extricating ourselves but by an amendment, or rather an addition, to the Constitution.

The gentleman from Connecticut, (Mr. Tracy,) both on a former occasion and in this day’s debate, appears to me to have shown this to demonstration. But what is this more than saying that the President and Senate have bound the nation to engagements which require the cooperation of more extensive powers than theirs to carry them into execution? Nothing is more common, in the negotiations between nation and nation, than for a minister to agree to and sign articles beyond the extent of his powers. This is what your ministers, in the very case before you, have confessedly done. It well known that their powers did not authorize them to conclude this treaty; but they acted for the benefit of their country, and this house, by a large majority, has advised to the ratification of their proceedings. Suppose, then, not only that the ministers who signed, but the President and Senate who ratified, this compact, have exceeded their powers; suppose that the other house of Congress, who have given their assent by passing this and other bills for the fulfillment of the obligations it imposes on us, have exceeded their powers; may, suppose even that the majority of the states competent to amend the Constitution in other cases, could not amend it in this, without exceeding their powers,—and this is the extremest point to which any gentleman on this floor has extended his scruples;—suppose all this, and there still remains in the country a power competent to adopt and sanction every part of our engagements, and to carry them entirely into execution; for, notwithstanding the objections and apprehensions of many individuals, of many wise, able, and excellent men, in various parts of the Union, yet, such is the public favor attending the transaction which commenced by the negotiation of this treaty, and which I hope will terminate in our full, undisturbed, and undisputed possession of the ceded territory, that I firmly believe, if an amendment to the Constitution, amply sufficient for the accomplishment of every thing for which we have contracted, shall be proposed, as I think it ought, it will be adopted by the legislature of every state in the Union. We can, therefore, fulfil our part of the convention, and this is all that France has a right to require of us. France can never have a right to come and say, “I am discharged from the obligation of this treaty, because your President and Senate, in ratifying, exceeded their powers;” for this would be interfering in the internal arrangements of our government. It would be intermeddling in questions with which she has no concern, and which must be settled altogether by ourselves. The only question for France is, whether she has contracted with the department of our government authorized to make treaties; and this being clear, her only right is to require that the conditions stipulated in our name be punctually and faithfully performed. I trust they will be so performed, and will cheerfully lend my hand to every act necessary to the purpose; for I consider the object as of the highest advantage to us; and the gentleman from Kentucky himself, who has displayed, with so much eloquence, the immense importance, to this Union, of the possession of the ceded country, cannot carry his ideas farther on the subject than I do.

With these impressions, sir, perceiving in the first objection no substantial reason requiring the postponement, and in the second no adequate argument for he rejection, of this bill, I shall give my vote in its favor.

Mr. TRACY. It is unreasonable to suppose that Congress should, by a majority only, admit new foreign states, and swallow up, by it, the old partners, when two thirds of all the members are made requisite for the least alteration in the Constitution.

Dr. MITCHELL. The 3d section of the 4th article of the Constitution contemplates that territory and other property may belong to the United States. By a treaty with France, the nation has lately acquired title to a new territory, with various kinds of public property on it and annexed to it. By the same section of the Constitution, Congress is so clothed with the power to dispose of such territory and property, and to make all needful rules and regulations respecting it. This is a fair an exercise of constitutional authority as that by which we assemble and hold our seats in this house. To the title thus obtained, we wish now to add the possession; and it is proposed, for this important purpose, the President shall be empowered.

[Note. Jefferson himself (under whose auspices the treaty was made) was of opinion that the measure was unconstitutional, and required an amendment of the Constitution to justify it. He accordingly urged his friends strenuously to that course; at the same time he added, “that it will be desirable for Congress to do what is necessary in silence;” “whatever Congress shall think necessary to do, should be done with as little debate as possible, and particularly so far as respects the constitutional difficulty;” “I confess, ten, I think it important, in the present case, to set an example against broad construction by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding that the good sense of our country will correct the evil of construction, when it shall produce ill effects.”

His letter to Dr. Sibley, (in June, 1803,) recently published, is decisive that he thought an amendment of the Constitution necessary. Yet he did not hesitate, without such amendment, to give effect to every measure to carry the treaty into effect during his administration. See Jefferson’s Corresp., ii. pp. 1, 2, 3; Story’s Comm.]

District of Columbia.—On the Report of the Committee of Elections, on the Case of John P. Van Ness.

House of Representatives, January 17, 1803.

Mr. VAN NESS said, the reasons he should offer to the committee for retaining his seat were few and simple. He thought the fair, liberal, and sound construction did not affect his case; that the incapacitating provision only applied to civil offices. The Constitution was only a digest of the most approved principles of the constitutions of the several states, in which the spirit of those constitutions was combined. Not one of those constitutions excluded from office those who had accepted military appointments, except in the regular service. He, therefore, felt a full conviction that it never was the intention of the framers of the Constitution of the United States to exclude militia officers from holding a seat in Congress. And however important it might be to adhere to the letter of the Constitution, yet, when the spirit of it was so clear as it appeared to him, it ought to have weight in the decision of the question before the committee, which might affect objects of great importance. The right of every portion of the Union to a representation in that house was very important, and ought to be respected in all cases which may either directly or indirectly affect it.

Mr. BACON observed, though the first part of the section of the Constitution referred to civil offices, yet the latter part used the expression any office, which was more comprehensive, and appeared to them to have been intended to have a universal effect.

The question was then taken on the report of the committee of elections, which was agreed to without a division.

On Mr. Bacon’s Resolution to re-cede the District of Columbia.

House of Representatives, February 9, 1803.

Mr. BAYARD. Now, the states of Maryland and Virginia have made this cession, with the consent and approbation of the people in the ceded territory, and Congress has accepted the cession, and assumed the jurisdiction. Are they, then, at liberty, or can they relinquish it, without the consent of the other parties? It is presumed they cannot. In his opinion, they were constitutionally and morally bound to proceed in the exercise of that power regularly assumed, either immediately by themselves, or by the intervention of a territorial legislature, chosen and acting under a special act of Congress for that purpose. To relinquish the jurisdiction at this time, and re-cede the territory, would, in his view, exhibit a surprising inconsistency of conduct in the legislature; it would discover such a versatility, such a disposition to change, as could not fail to unsettle the minds of the people, and shake their confidence in the government.

Duelling.—On a Resolution for rendering all Persons concerned in a Duel incapable of holding an office under the General Government of the United States.

House of Representatives, December 31, 1803.

Mr. DAVIS said, if the house could be made sensible that the resolution embraced a subject on which it could not constitutionally act, they would reject it. To him it was plain that, if the house pursued the object of the resolution, it led them on forbidden ground. In the first place, it took from the citizens a right which, by their Constitution, they had secured themselves,—to wit, the right of free elections. Do what the resolution contemplates, and no man can hold a seat here who ever fought a duel, or gave or carried a challenge, although he may be the choice of the people. No such thing is said in the Constitution. The people, in that instrument, have already defined the disqualifications to office; that charter of their rights declares that no person who has been impeached and found guilty shall hold an office; and I contend that Congress cannot impeach a person for any offence done by him as an individual. Two things are requisite to ground an impeachment. First, the person must be an officer of the United States: secondly, he must have been guilty of some malfeasance in the discharge of the duties imposed on him by that office. If an individual who does not hold an office under the United States commits murder, I deny the right of Congress to impeach him. He is made amenable to the state laws. While we were busy in impeaching him, he might be executed by the statute laws of the states. My observations disclaim the right we have to act on it.

The resolution was negatived.

On the Amendment to the Constitution.

House of Representatives, December 9, 1804.

Mr. JACKSON. The fate of the other little republics warranted the idea that the smaller members would be swallowed up by the larger ones, who would, in turn, attack each other; and thus the liberty achieved by the blood of some of the bravest men that ever lived would pass away without leaving a trace behind it. They, therefore, yielded every thing to the little states, knowing they were not numerous, and naturally jealous of the large ones. If we examine the Constitution, we shall find the whole of the grant powers of the government centred in the Senate.

On the Impeachment of Judge Chase.

House of Representatives, February 21, 1805.

Mr. HOPKINSON. What part of the Constitution declares any of the acts charged and proved upon Judge Chase, even int eh worst aspect, to be impeachable? He has not been guilty of bribery or corruption; he is not charged with them. Has he, then, been guilty of “other high crimes and misdemeanors”? In an instrument so sacred as the Constitution, I presume every word must have its full and fair meaning. It is not, then, only for crimes and misdemeanors that a judge is impeachable, but it must be for high crimes and misdemeanors. Although this qualifying adjective “high” immediately precedes, and is directly attached to the word “crimes,” yet, from the evident intention of the Constitution, and upon a just grammatical construction, it must also be applied to “misdemeanors.” If my construction of this part of the Constitution be not admitted, and the adjective “high” be given exclusively to “crimes,” and denied to “misdemeanors,” this strange absurdity must ensue—that when an officer of the government is impeached for a crime, he cannot be convicted, unless it proves to be a high crime; but he may, nevertheless, be convicted of a misdemeanor of the most petty grade. Observe, sir, the crimes with which these “other high crimes” are classed in the Constitution, and we may learn something of their character. They stand in connection with “bribery and corruption“—tried in the same manner, and subject to the same penalties. But, if we are to lose the force and meaning of the word “high,” in relation to misdemeanors, and this description of offences must be governed by the mere meaning of the term “misdemeanors,” without deriving any grade from the adjective, still my position remains unimpaired—that the offence, whatever it is, which is the ground of impeachment, must be such a one as would support an indictment. “Misdemeanor” is a legal and technical term, well understood and defined in law; and in the construction of a legal instrument, we must give words their legal significations. A misdemeanor, or a crime,—for in their just and proper acceptation they were synonymous,—is an act committed, or omitted, in the violation of a public law, either forbidding or commanding it.

[Note. In the few cases of impeachment which have hitherto been tried, no one of the charges has rested upon any suitable, misdemeanors. It seems to be the settled doctrine of the high court of impeachment, (the Senate,) that though the common law cannot be a foundation of a jurisdiction not given by the Constitution or laws, that jurisdiction, when given, attaches, and is to be exercised according to the rules of the common law; and that what are, and what are not, high crimes and misdemeanors, is to be ascertained by a recurrence to the great basis of American jurisprudence.—Story’s Comm.]

Mr. Madison’s Motion for Commercial Restrictions.

House of Representatives, February 14, 1806.

Resolved, As the opinion of this committee, that the interest of the United States would be promoted by further restrictions and higher duties, in certain cases, on the manufactures and navigation of foreign nations employed in the commerce of United States, than those now imposed.

1. Resolved, As the opinion of this committee, that an additional duty ought to be laid on the following articles, manufactured by European nations having no commercial treaty with the United States: —

On articles of which leather is the material of chief value, an additional duty of … per cent. ad valorem.

On all manufactured iron, steel, tin, pewter, copper, brass, or other articles, of which either of these metals is the material of chief value, an additional duty of     per cent. ad valorem.

On all articles of which cotton is the material of chief value, an additional duty of     per cent. ad valorem.

On all cloths of which wool is the material of chief value, where the estimated value on which the duty is payable is above     , an additional duty of     per cent. ad valorem; where such value is below     , an additional duty of     per cent. ad valorem.

On all other articles of which wool is the material of chief value, an additional duty of per cent. ad valorem.

On all cloths of which hemp or flax is the article of chief value, and of which the estimated value on which the duty is payable is below     , an additional duty of per cent. ad valorem.

On all manufactures of which silk is the article of chief value, an additional duty of per cent. ad valorem.

2. Resolved, As the opinion of this committee, that an additional duty of     per ton ought to be laid on the vessels belonging to nations having no commercial treaty with the United States.

3. Resolved, As the opinion of this committee, that the duty on vessels belonging to nations having commercial treaties with the United States, ought to be reduced to     per ton.

4. Resolved, As the opinion of this committee, that where any nation may refuse to consider as vessels of the United States any vessels not built within the United States, the foreign-built vessels of such nation ought to be subjected to a like refusal, unless built within the United States.

5. Resolved, As the opinion of this committee, that where any nation may refuse to admit the produce and manufactures of the United States, unless in vessels belonging to the United States, or to admit them in vessels of the United States if last imported from any place not within the United States, a like restriction ought, after the     day of     , to be extended to the produce and manufactures of such nation; and that, in the mean time, a duty of per ton, extraordinary, ought to be imposed on vessels so importing any such produce or manufacture.

6. Resolved, As the opinion of this committee, that where any nation may refuse to the vessels of the United States a carriage of the produce and manufactures thereof, while such produce or manufactures are admitted by it in its own vessels, it would be just to make the restriction reciprocal; but, inasmuch as such a measure, if suddenly adopted, might be particularly distressing in cases which merit the benevolent intention of the United States, it is expedient, for the present, that a tonnage extraordinary only of     be imposed on the vessels so employed; and that all distilled spirits imported therein shall be subjected to an additional duty of one part of the existing duty.

7. Resolved, As the opinion of this committee, that provision ought to be made for liquidating and ascertaining the losses, sustained by citizens of the United States, from the operation of particular regulations of any country, contravening the law of nations; and that such losses be reimbursed, in the first instance, out of the additional duties on manufactures, production, and vessels of the nation establishing such unlawful regulations.

Contractors

Resolved, That a contractor, under the government of the United States, is an officer within the purview and meaning of the Constitution, and, as such, is incapable of holding a seta in this house.

Mr. EPPES. I do not believe Congress have power to pass this resolution. The words of the Constitution are, “No person holding an office under the United States shall be a member of either house during his continuance in office.”

These words are plain and clear. Their obvious intention was, to have officers excluded, and officers only. It would certainly have been equally wise to have excluded contractors, because the reason for excluding officers applies to them with equal force. We are not, however, to inquire what the Constitution ought to have been, but what it is. We cannot legislate on its spirit against the strict letter of the instrument. Our inquiry must be, is be an officer? If an officer, under the words of the Constitution, he is excluded. If not an officer, we cannot exclude him by law.

An extensive meaning has been given to the word office. How far such a construction of the meaning of this word is warranted, I leave for others to decide. That all contractors are not officers I am certain. A man, for instance, makes a contract with government to furnish supplies. He certainly is not an officer, according to the common and known acceptation of that word. He is, however, a contractor, and, under this resolution, excluded from a seat here. A carrier of the mail approaches very near an officer. The person takes an oath, is subject to penalties, the remission of which depends on the executive.

Public Lands.—On the Resolution for investing a certain Portion of the Public Lands in Shares of the Chesapeake Canal.

Senate, February 13, 1807.

Mr. BAYARD. It is admitted that the Constitution does not expressly give the power to cut canals; but we posses, and are in the daily exercise of, the power to provide for the protection and safety of commerce, and the defence of the nation. It has never been contended that no power exists which has not been expressly delegated.

There is no express power given to erect a fort or magazine, though it is recognized in the delegation of exclusive legislative powers in certain cases. The power to erect lighthouses and piers, to survey and take the soundings on the coast, or to erect public buildings, is neither expressly given nor recognized in the Constitution; but it is embraced by a liberal and just interpretation of the clause in the Constitution, which legitimates all laws necessary and proper for carrying into execution the powers expressly delegated. On a like principle, the Bank of the United States was incorporated. Having a power to provide for the safety of commerce and the defence of the nation, we may fairly infer a power to cut a canal—a measure unquestionably proper with a view to either subject.

To suspend the Embargo.

House of Representatives, April 19, 1808.

Mr. QUINCY. The Constitution of the United States, as I understand it, has in every part reference to the nature of things and necessities of society. No portion of it was intended as a mere ground for the trial of technical skill, or of verbal ingenuity. The direct, express powers with which it invests Congress are always to be so construed as to enable the people to attain the end for which they were given. This is to be gathered from the nature of those powers, compared with the known exigencies of society, and the other provisions of the Constitution. If a question arise, as in this case, concerning the extent of incidental and implied powers vested in us by the Constitution, the instrument itself contains the criterion by which it is to be decided. We have authority to make “laws necessary and proper for carrying into execution” powers unquestionably vested. Reference must be had to the nature of these powers to know what is necessary and proper for their wise execution. When this necessity and propriety appear, the Constitution has enabled us to make the correspondent provisions. To the execution of many of the powers vested in us by the Constitution, a discretion is necessarily and properly incident; and when this appears from the nature of any particular power, it is certainly competent for us to provide, by law, that such discretion shall be exercised.

Mr. KEY said, all the respective representatives of the people, of the states at large, and the sovereignty in a political capacity of each state, must concur to enact a law. An honorable gentleman from Tennessee (Mr. Campbell) admitted that the power to repeal must be coëxtensive with the power to make. If this be admitted, I will not fail to convince you that, in the manner in which this law is worded we cannot constitutionally assent to it. What does it propose? To give the President of the United States power to repeal an existing law now in force:—upon what? Upon the happening of certain contingencies in Europe? No. But in those contingencies which they suppose in his judgment shall render it safe to repeal the law, a discretion is committed to him—upon the happening of those events—to suspend the law. It is that discretion to which I object. I do not say it will be improperly placed at all; but the power and discretion to judge of the safety of the United States, is a power legislative in its nature and effects, and as such, under the Constitution, cannot be exercised by one branch of the legislature. I pray gentlemen to note this distinction, that whenever the events happen, if the President exercise his judgment upon those events, and suspend the law, it is the exercise of a legislative power: the people, by the Constitution of the country, never meant to confide to any one man the power of legislating for it.

Renewal of the Charter of the United States Bank.

House of Representatives, April 13, 1810.

Mr. LOVE. The question of the constitutionality of the bank solely depends on the question, whether it is necessary and proper for conducting the moneyed operations of government. So great a change has taken place on that subject within twenty years past, that it is supposed the question is now settled. Not only the moneyed transactions of the United States, but, it is believed, of all the state governments, are carried on through the state banks, as well as commercial transactions, and other moneyed negotiations.

Mr. TROUP said, gentlemen might pass the bill but for the constitutional question. If they did pass it, he hoped they would not permit themselves to become the retailing hucksters of the community, for the sale of bank charters. There is a power in the Constitution to sell the public property; but there is certainly no power to sell privileges of any kind. I, therefore, move to strike out the bribe, the douceur, the bonus, as gentlemen call it, of 1,250,000 dollars.

Mr. KEY said, to him it clearly appeared within the power and limit of the Constitution to establish a bank, if necessary, for the collection of the revenue.

Mr. TROUP observed, that some gentlemen had said that the power to incorporate a bank was derived from the power to lay and collect revenue; and that the power ought to be exercised, because banks give a facility to the collection of the revenue. If the power be exercised, it must be necessary and proper. If it be necessary to the collection of the revenue, the revenue cannot be collected without it. The gentleman from Maryland might say a bank institution was useful. He might say it would give facility to the collection of the revenue; but facility and necessity are wholly different, and the Constitution says that a power, to be incidental, must be necessary and proper.

Mr. ALSTON. In the 10th article, 1st section, of the Constitution, it is said, “No state shall coin money, emit bills of credit, or make any thing but gold and silver coin a legal tender in payment of debts.” The interpretation which I give to it is, that the United States possess power to make any thing, besides gold and silver, a legal tender. If what I conceive to be a fair interpretation be admitted, it must follow that they have a right to make bank paper in a legal tender. Much more, then, sir, have they the power of causing it to be received by themselves, in payment of taxes.

January 16, 1811

Mr. BURWELL. It is my most deliberate conviction, that the Constitution of the country gives no authority to Congress to incorporate a bank, and endow the stockholders with chartered immunities.

The power to establish a bank cannot be deduced from the general phrases, “to provide for the common defence and general welfare,” because they merely announce the object for which the general government was instituted. The only means by which this object is to be attained are specifically enumerated in the Constitution; and if they are not ample, it is a defect which Congress are incompetent to supply.

P. B. PORTER. The Constitution is a specification of the powers, or means, themselves, by which certain objects are to be accomplished. The powers of the Constitution, carried into execution according to the strict terms and import of them, are the appropriate means, and the only means, without the reach of this government, for the attainment of its ends. It is true, as the Constitution declares,—and it would be equally true if the Constitution did not declare it,—That Congress have a right to pass all laws necessary and proper for executing the delegated powers; but this gives no latitude of discretion in the selection of means or powers.

Mr. KEY. The end, or power given, is to lay and collect taxes, and pay the public debt. The power to make laws necessary and proper to effect that end is also given, and consists in devising and establishing the means of accomplishing it. The means to accomplish the end are nowhere restricted.

If a bank is useful and necessary in the collection of taxes and imposts, and payment of the public debt, and is the best mode of effecting it, the creation of a bank for such purposes is definitely within the power of Congress; and more, it is the bounden duty of Congress to establish it, because they are bound to adopt the best practicable, or, in other words, necessary and proper means to collect the tax and imposts.

Mr. EPPES. The Constitution of the United States has universally been considered as a grant of particular, and not of general, powers. Those powers are the primary or expressly delegated, and the derivative or implied. The character of the instrument precluded the necessity of a “bill of rights,” because the question never could arise, what was reserved, but what was granted. The framers of the Constitution were well aware of this, and so were the people who adopted it. It is, therefore, fairly to be inferred that, whenever there appears a limitation or restriction, in the shape of a negative clause, Congress might have exercised the power interdicted had such clause not been made part of the instrument.

Mr. CRAWFORD. If the state governments are restrained from exercising this right to incorporate a bank, it would appear, ex necessitate rei, that this right is vested in the government of the United States. The entire sovereignty of this nation is vested in the state governments, and in the federal government, except that part of it which is restrained by the people, which is solely the right of electing their public functionaries.

The right to create a corporation is a right inherent in every sovereignty. The people of the United States cannot exercise this right. If, then, the states are restrained from creating a bank with authority to emit bills of credit, it appears to be established that the federal government does possess this right. If, however, it is still believed that the law by which this bank has been created was the result of a forced construction, yet I must contend that that construction is entitled to some weight in the decision of this question. The time and state of the public mind, when this construction was given, gives it a strong claim to consideration upon this occasion. This construction was given shortly after the government was organized, when first impressions had not been effaced by lapse of time, or distorted by party feelings or individual animosity. The parties which then existed were literally federal and anti-federal. Those who were friendly to the Federal Constitution, and those who were inimical to it, formed the only parties then known in this nation.

Mr. CLAY. What is the nature of this government? It is emphatically federal; vested with an aggregate of specified powers for general purposes, conceded by existing sovereignties, who have themselves retained what is not so conceded. It is said there are cases in which it must act on implied powers. This is not controverted; but the implication must be necessary, and obviously flow from the enumerated powers with which it is allied. The power to charter companies is not specified in the grant, and, I contend, is of a nature not transferable by mere implication. It is one of the most exalted attributes of sovereignty.

Is it to be imagined that a power so vast would have been left by the wisdom of the Constitution to doubtful inference? It has been alleged that there are many instances, in the Constitution, where powers in their nature incidental, and which would have necessarily been vested along with the principal, and nevertheless expressly enumerated; and the power “to make rules and regulations for the government of the land and naval forces,” which, it is said, is incidental to the power to raise armies, and provide a navy, is given as an example. What does this prove? How extremely cautious the Convention were to leave as little as possible to implication! In all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a common nature. The incidental power ought to be strictly subordinate, and limited to the end proposed to be attained by the specified power. In other words,—under the name of accomplishing one object which is specified, the power implied ought not to be made to embrace other objects, which are not specified in the Constitution. If, then, you could establish a bank to collect and distribute the revenue, it ought to be expressly restricted to the purpose of such collection and distribution.

I contend that the states have the exclusive power to regulate contracts, to declare the capacities and incapacities to contract, and to provide as to the extent of responsibility of debtors to their creditors. If Congress have the power to erect an artificial body, and say it shall be endowed with the attributes of an individual,—if you can bestow on this object of your own creation the ability to contract,—may you not, in contravention of state rights, confer upon slaves, infants, and femes covert, the ability to contract? And if you have the power to say that an association of individuals shall be responsible for their debts only in a certain limited degree, what is to prevent an extension of a similar exemption to individuals? Where is the limitation upon this power to set up corporations! You establish one in the heart of a state, the basis of whose capital is money. You may erect others, whose capital shall consist of land, slaves, and personal estates; and thus the whole property within the jurisdiction of astute might be absorbed by these political bodies. The existing bank contends that it is beyond the power of a state to tax it; and if this pretension be well founded, it is in the power of Congress, by chartering companies, to dry up all the sources of state revenue.

On the Bill for raising a Volunteer Corps.

House of Representative, January 12, 1812.

Mr. POINDEXTER. Can we Constitutionally employ volunteer militia, without the jurisdiction of the United States, in the prosecution of hostilities, in the enemy’s country? He was of opinion, that no legislative act of Congress could confer such a power on the President.

Mr. GRUNDY. If the Constitution forbids the President from sending the militia out of the United States, how can we authorize him to do so by law? We cannot: we should legislate to no purpose. Whether he had the authority or not, would depend upon the construction the President himself shall give to the Constitution. Nor could he see how this proposition gets over the difficulty.

It provides that a militiaman may authorize the President to send him beyond the limits of the United States. He had always understood that, in framing the Constitution of this government, there was great jealousy exhibited lest the general government should swallow up the powers of the state governments; and when the power of making war and raising armies was given to Congress, the militia was retained by the states, except in cases mentioned by the Constitution. How, then, can you permit militiamen to engage in the service of the United States, contrary to the provisions of the Constitution, and by that means leave the state unprotected?

Mr. PORTER. He did not agree with the gentleman, (Mr. Poindexter,) that the militia could in no case be employed without the limits of the United States. He did not think their services were to be confined by geographical limits. If it became necessary for the executive to call out the militia to repel invasion, he thought they might pursue the enemy beyond the limits, until the invaders were effectually dispersed.

Mr. CHEVES. Though the gentleman from New York says the service of the militia is not to be bounded by geographical limits, I cannot, said Mr. C., discover the premises by which he comes to this conclusion, if the general government has no other power over the militia than is given to it in this clause of the Constitution. If they may cross the line, why not go to the walls of Quebec? The principle is trampled upon the instant they pass beyond the territorial limits of the United States; nor, if this be a correct construction, said he, can the consent of the individual add any thing to the powers or the rights of the general government, while be remains a member of the militia of the state.

Mr. CLAY. In one of the amendments, it is declared that a well-regulated militia is necessary to the security of a free state. But if yon limit the use of the militia to executing the laws, suppressing insurrections, and repelling invasions,—if you deny the use of the militia to make war,—can you say they are “the security of a state”? He thought not.

Mr. CHEVES. It is said that the powers of the general government were not sovereign, but limited. This was to deny the existence of any sovereignty which was limited as to its objects, than which nothing is, however, more common. But there is an authority on this point which Mr. C. supposed would not be controverted. He meant Mr. Hamilton’s argument on the constitutionality of the Bank of the United States.

[Here Mr. C. read the following extract from that work: “The circumstance that the powers of the sovereignty are, in this country, between the national and state governments, does not afford the distinction required. It does not follow from this that each of the portions of power, delegated to the one or the other, is not sovereign with regard to its proper objects. It will only follow from it that each has sovereign power with regard to certain things, and not as to other things. To deny that the government of the United States has sovereign power as to its declared purposes and trusts, because its power does not extend to all laws, would be equally to deny that state governments have sovereign power in any case, because their power does not extend to every case.”]

It was said, by the same gentleman, that the writers contemporaneous with the adoption, and the debates of the several conventions on the adoption of the Constitution, repelled the construction now contended for; but that gentleman had not produced, nor had any other gentleman produced, a sentence to that effect, except the gentleman from Tennessee, (Mr. Grundy,) who read from the Virginia debates, in the argument of Mr. Nicholas, a detached sentence, in which, speaking of that article of the Constitution which gives power to Congress “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” he says they cannot call them forth for any other purpose than to execute the laws, suppress insurrections, and repel invasions. But Mr. Madison, in the same debate, says, “The most effectual way to render it unnecessary, is to give the general government full power to call forth the militia, and exert the whole natural strength of the Union, when necessary.” He (Mr. C.) was opposed to the latitude of the bill.

Seamen’s Bill.—For the Regulation of Seamen on Board the Public Vessels, and in the Merchant Service of the United States.

House of Representatives, February, 1813.

Mr. SEYBERT. The Constitution of the United States declares, Congress shall have power “to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States.” Sir, the rule only relates to the mode; it is only operative during the nascent state of the political conversion, and it ceases to have effect the moment after the process has been completed. Your Constitution only recognizes the highest grade of citizenship that can be conferred. The alien is thus made a native, as it were, and is fully vested with every eight and privilege attached to the native, with the exception impressed on the Constitution Your statutes cannot deprive any particular species of citizens of the right of personal liberty, or the locomotive faculty, because the Constitution does not characterize the citizens of the United states as native and naturalized. Our great family is composed of a class of men forming a single genus, who, to all intents and purposes, are equal, except in the instance specified—that of not being eligible to the presidency of the United States. The only exception to the rule is expressed in the Constitution. If other exceptions had been contemplated by the framers of that instrument, they would also have been expressed. None other having been expressed, he said, it followed that your legislative acts could not make individual exceptions touching the occupation of a citizen. All freemen, citizens of the United States, may pursue their happiness in any manner and in any situation they please, provided they do not violate the rights of others. You cannot deny to any portion of your citizens, who desire to plough the deep, the right to do so, whilst you permit another portion of them the enjoyment of that right.

Mr. ARCHER. The framers of our Constitution did not intend to confine Congress to the technical meaning of the word naturalization, in the exercise of that power—the more especially when the comprehensive word rule was made use of. The principle upon which the power was to be exercised was left to the judicious exercise of Congress; all that was required was, that the rule should be uniform throughout the states. In the grant there is no other specification, as to the exercise of it, than that of its uniformity. The term naturalization was borrowed from England. It must be understood here in the sense and meaning which was, there attached to it. Whether it was absolute or qualified, it was still a naturalization. But the grant of a power in general terms necessarily implied the right to exercise that power in all its gradations. It Was in the political as it was in the natural world: the genus included the species. Besides, the power to naturalize was an attribute to sovereignty. It was either absolute or qualified; and if the grant to Congress only implied a power of unlimited naturalization, the power to qualify existed in the states or in the people, for what was not specifically granted was reserved.

In treating of the executive power, the Constitution defines the qualifications of the President. It declares that he should be a natural-born citizen, or a citizen at the adoption of the Constitution. This article is unquestionably no limitation of the power of Congress upon the subject of naturalization. It was impossible to abridge a specific grant of power without a specific limitation, and the article alluded to could not be tortured, by the most ingenious mind, to diminish, even by implication, the authority of Congress upon a subject to which it was totally irrelevant

Internal Improvement.—Extract from Mr. Madison’s Message to Congress.

December 5, 1815.

Among the means of advancing the public interest, the occasion is a proper one for recalling the attention of Congress to the great importance of establishing throughout our country the roads and canals which can best be executed under the national authority. No objects within the circle of political economy so richly repay the expense bestowed on them; there are none the utility of which is more universally ascertained and acknowledged; none that do more honor to the government, whose wise and enlarged patriotism duly appreciates them. Nor is there any country which presents a field where Nature invites more the art of man to complete her own work for their accommodation and benefit. These considerations are strengthened, moreover, by the political effect of these facilities for intercommunication, in bringing and binding more closely together the various parts of our extended confederacy.

Whilst the states, individually, with a laudable enterprise and emulation, avail themselves of their local advantages, by new roads, by navigable canals, and by improving the streams susceptible of navigation, the general government is the more urged to similar undertakings, requiring a national jurisdiction, and national means, by the prospect of thus systematically completing so inestimable a work. And it is a happy reflection, that any defect of constitutional authority which may be encountered, can be supplied in a mode which the Constitution itself has providently pointed out.

On the Commercial Treaty with Great Britain.

House of Representatives, January 8, 1816.

Mr. HOPKINSON. In the nature of things, there cannot exist, at the same time, under the same authority, two contradictory, inconsistent laws, and rules of action. One or the other must give way; both cannot be obeyed; and if, in this case, this [commercial] treaty has no constitutional supremacy over an ordinary act of legislation, it, at least, has the admitted advantages of being earlier in point of time, of being the last constitutional expression of the will of the nation on this subject. It is worthy of remark, that the general power of legislation is given to Congress in one part of the Constitution; the special power of making treaties, to the President and Senate, in another part; and then the acts of both, if done constitutionally, are declared, in the same sentence, in another part of the Constitution, to be the supreme law of the land, and placed upon the same footing of authority.

Mr. CALHOUN. From the whole complexion of the case, said Mr. C., the bill before the house was mere form, and not supposed to be necessary to the validity of the treaty. It would be proper, however, he observed, to reply to the arguments which have been urged on the general nature of the treaty-making power; and as it was a subject of great importance, he solicited the attentive hearing of the house.

It is not denied, he believed, that the President, with the concurrence of two thirds of the Senate, has a right to make commercial treaties; it is not asserted that this treaty is couched in such general terms as to require a law to carry the details into execution. Why, then, is this bill necessary? Because, say gentlemen, that the treaty of itself, without the aid of this bill, cannot exempt British tonnage, and goods imported in their bottoms, from the operation of the law laying additional duties on foreign tonnage and goods imported in foreign vessels; or, giving the question a more general form, because a treaty cannot annul a law. The gentleman from Virginia, (Mr. Barbour,) who argued this point very distinctly, though not satisfactorily, took as his general position, that to repeal a law is a legislative act, and can only be done by law; that, in the distribution of the legislative and treaty-making power, the right to repeal a law fell exclusively under the former.

How does this comport with the admission immediately made by him, that the treaty of peace repealed the act declaring war? If he admits the fact in a single case, what becomes of his exclusive legislative right? He indeed felt that his rule failed him, and in explanation assumed a position entirely new; for he admitted that, when the treaty did that which was not authorized to be done by law, it did not require the sanction of Congress, and might in its operation repeal a law inconsistent with it. He said, Congress is not authorized to make peace; and for this reason a treaty of peace repeals the act declaring war. In this position, he understood his colleague substantially to concur. He hoped to make it appear that, in taking this ground, they have both yielded to the point in discussion. He would establish, he trusted, to the satisfaction of the house, that the treaty-making power, when it was legitimately exercised, always did that which could not be done by law; and that the reasons advanced to prove that the treaty of peace repealed the act making war, so far from being peculiar to that case, apply to all treaties. They do not form an exception, but in fact constitute the rule. Why, then, he asked, cannot Congress make peace? They have the power to declare war. All acknowledge this power. Peace and war are opposite. They are the positive and negative terms of the same proposition; and what rule of construction more clear than that, when a power is given to do an act, the power is also given to repeal it? By what right do you repeal taxes, reduce your army, lay up your navy, or repeal any law, but by the force of this plain rule of construction? Why cannot Congress then repeal the act declaring war? He acknowledged, with the gentleman, they cannot, consistently with reason. The solution of this question explained the whole difficulty. The reason is plain; one power may make war; it requires two to make peace. It is a state of mutual amity succeeding hostility; it is a state that cannot be created but with the consent of both parties. It required a contract or a treaty between the nations at war. Is this peculiar to a treaty of peace? No; it is common to all treaties. It arises out of their nature, and not from any incidental circumstance attaching itself to a particular class. It is no more or less than that Congress cannot make a contract with a foreign nation. Let us apply it to a treaty of commerce—to this very case. Can Congress do what this treaty has done? It has repealed the discriminating duties between this country and England. Either could by law repeal its own. But by law they could go no farther; and for the same reason, that peace cannot be made by law. Whenever, then, an ordinary subject of legislation can only be regulated by contract, it passes from the sphere of the ordinary power of making law, and attaches itself to that of making treaties, wherever it is lodged.

The treaty-making power has many and powerful limits; and it will be found, when he came to discuss what those limits are, that it cannot destroy the Constitution, or personal liberty; involve us, without the assent of this house, in war; or grant away our money. The limits he proposed to this power are not the same, it is true; but they appeared to him much more rational and powerful than those which were supposed to present effectual guards for its abuse. Let us now consider what they are.

The grant of the power to make treaties is couched in the most general terms. The words of the Constitution are, that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.

In a subsequent part of the Constitution, treaties are declared to be the supreme law of the land. Whatever limits are imposed on these general terms, ought to be the result of the sound construction of the instrument. There appeared to him but two restrictions on its exercise—the one derived from the nature of our government, and the other from that of the power itself. Most certainly all grants of power under the Constitution must be controlled by the instrument; for, having their existence from it, they must of necessity assume that form which the Constitution has imposed. This is acknowledged to be the true source of the legislative power, and it is doubtless equally so of the power to make treaties. The limits of the former are exactly marked; it was necessary to prevent collision with similar coexisting state powers. This country within is divided into two distinct sovereignties. Exact enumeration here is necessary to prevent the most dangerous consequences. The enumeration of legislative powers in the Constitution has relation, then, not to the treaty-making power, but to the powers of the states. In our relation to the rest of the world, the case is reversed. Here the states disappear. Divided within, we present, without, the exterior of undivided sovereignty. The wisdom of the Constitution appears conspicuous. When enumeration was needed, there we find the powers enumerated and exactly defined; when not, we do not find what would be vain and pernicious to attempt. Whatever, then, concerns our foreign relations, whatever requires the consent of another nation, belongs to the treaty power—can only be regulated by it; and it is competent to regulate all such subjects, provided—and here are its true limits—such regulations are not inconsistent with the Constitution. If so, they are void. No treaty can alter the fabric of our government; nor can it do that which the Constitution has expressly forbidden to be done; nor can it do that differently which is directed to be done in a given mode, and all other modes prohibited.

For instance, the Constitution says no money “shall be drawn out of the treasury, but by an appropriation made by law.” Of course no subsidy can be granted without an act of law; and a treaty of alliance could not involve the country in war without the consent of this house. Besides these constitutional limits, the treaty power, like all others, has other limits, derived from its object and nature. It has for its object contracts with foreign nations, as the powers of Congress have for their object whatever can be done in relation to the powers delegated to it without the consent of foreign nations. Each, in its proper sphere, operates with genial influence; but when they become erratic, then they are portentous and dangerous. A treaty never can legitimately do that which can be done by law; and the converse is also true. Suppose the discriminating duties repealed on beth sides by law; yet what is effected by this treaty would not even then be done: the plighted faith would be wanting; either side might repeal its law, without a breach of contract. It appeared to him that gentlemen are too much influenced on this subject by the example of Great Britain. Instead of looking to the nature of our government, they have been swayed in their opinion by the practice of that government, to which we are but too much in the habit of looking for precedents.

January 10, 1816.

Mr. TUCKER. It is contended by the gentleman from South Carolina (Mr. Calhoun) that a treaty is superior to the law, because it is a contract between one nation and another power. I am ready to admit, Mr. Speaker, the ingenuity of the gentleman in drawing this distinction. It is what may well be expected from his ingenious and active mind. But I think it will appear that it is more ingenious than solid, more true than applicable to the subject.

I admit that, where a contract has been entered into and completed by all the necessary powers under our Constitution, it is binding upon the nation. But the question still recurs, When is it complete? In the case of a treaty containing stipulations merely executive it is complete when the ratifications are exchanged. In the case of a treaty which requires a legislative act to give it operation, we contend that the legislative sanction must be given before it is complete. Until then it is not a binding contract, and the rights of the third party (the foreign power) do not exist. Is it not the petitio principii, or—if the gentleman will permit me to use the vulgar translation—is it not begging the question, to contend that before the legislative sanction the contract is binding, when the very question before us is, whether that sanction be necessary to make it binding?

Mr. PINCKNEY. I lay it down as an incontrovertible truth, that the Constitution has assumed, (and indeed how could it do otherwise?) that the government of the United States might and would have occasion, like the other governments of the civilized world, to enter into treaties with foreign powers, upon the various subjects involved in their mutual relations; and further, that it might be and was proper to designate the department of the government in which the capacity to make such treaties should be lodged. It has said, accordingly, that the President, with the concurrence of the Senate, shall possess this part of the national sovereignty. It has, furthermore, given to the same magistrate, with the same concurrence, the exclusive creation and control of the whole machinery of diplomacy. He only, with the approbation of the Senate, can appoint a negotiator, or take. any step towards a negotiation. The Constitution does not, in any part of it even intimate that any other department shall possess either a constant or an occasional right to interpose in the preparation of any treaty, or in the final perfection of it. The President and the Senate are explicitly pointed out as the sole actors in that sort of transaction.

The prescribed concurrence of the Senate—and that, too, by a majority greater than the ordinary legislative majority—plainly excludes the necessity of congressional concurrence. If the consent of Congress to any treaty had been intended, the Constitution would not have been guilty of the absurdity of putting a treaty for ratification to the President and Senate exclusively, and again to the same President and Senate as portions of the legislature. It would have submitted the whole matter at once to Congress; and the more especially as the ratification of a treaty by the Senate, as a branch of the legislature, may be by a smaller number than a ratification of it by the same body as a branch of the executive government. If the ratification of any treaty by the President, with the consent of the Senate, must be followed by a legislative ratification, it is a mere nonentity. It is good for all purposes, or for none. And if it be nothing, in effect, it is a mockery by which nobody would be bound. The President and Senate would not themselves be bound by it; and the ratification would at last depend, not upon the will of the President and two thirds of the Senate, but upon the will of a bare majority of the two branches of the legislature, subject to the qualified legislative control of the President.

Upon the power of the President and Senate, therefore, there can be no doubt. The only question is as to the extent of it; or, in other words as to the subject upon which it may be exerted. The effect of the power, when exerted within its lawful sphere, is beyond the reach of controversy. The Constitution has declared that whatsoever amounts to a treaty made under the authority of the United States, shall immediately be supreme law. It has contradistinguished a treaty as law, from an act of Congress as law. It has erected treaties, so contradistinguished, into a binding judicial rule. It has given them to our courts of justice, in defining the jurisdiction, as a portion of the lex terræ, which they are to interpret and enforce. In a word, it has communicated to them, if ratified by the department which it has specially provided for the making of them, the rank of law—or it has spoken without meaning. And if it has elevated them to that rank, it is idle to attempt to raise them to it by ordinary legislation.

It is clear that the power of Congress, as to foreign commerce, is only what it professes to be in the Constitution, a legislative power—to be exerted municipally, without consultation or agreement with those with whom We have an intercourse of trade. It is undeniable that the Constitution meant to provide for the exercise of another power, relatively to commerce, which should exert itself in concert with the analogous power in other countries, and should bring about its results, not by statute enacted by itself, but by an international compact called a treaty; that it is manifest that this other power is vested by the Constitution in the President and Senate, the only department of the government which it authorizes to make any treaty, and which it enables to make all treaties; that, if it be so vested, its regular exercise must result in that which, as far as it reaches, is law in itself, and, consequently, repeals such municipal regulations as stand in its way; since at is expressly declared by the Constitution, that treaties regularly made shall have, as they ought to have, the force of law.

Mr. PICKERING. To a just understanding of the question before the house, a distinction should be taken; that is, between the validity and the execution of a treaty. While gentlemen on the other side (with a single exception) admit that some treaties made by the President and Senate are valid without any act to be done on the part of this house, such as simple treaties of peace, and even of alliance,—seeing no special power is granted to Congress, by the Constitution, to make peace and form alliances,—yet it is said that, when the intervention of this house is necessary, as in providing and making appropriations of money to carry treaties into execution, then the sanction of this house is requisite, to give them a binding force.

But shall treaties operate a repeal of a law of the United States? Yes; because treaties being, equally with acts of Congress, the law of the land, they must repeal all the provisions of prior laws contravening their stipulations—according to the well-known maxim, that the latter laws repeal all antecedent laws containing contrary provisions; and so long as treaties exist, so long the government and nation are bound to observe them, and the decision of the judges must conform to their stipulations. But as treaties may thus annul the laws of Congress, so may these laws annul treaties; and when Congress shall, by a formal act, declare a treaty no longer obligatory on the United States, the judges must abandon the treaty, and obey the law. And why? Because the whole authority, on our part, which gave existence and force to the treaty, is withdrawn by the annulling act.

Mr. PINCKNEY. Such is the effect of a law of Congress declaring war against a nation between whom and the United States any treaties had been made. Take, for example, the case of France, with whom we had a treaty of amity and commerce, a treaty of alliance, and consular convention. These treaties having been repeatedly violated on the part of the French government, and the just claims of the United States for repairing the injuries so committed having been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations having been repelled with indignity,—and as the French persisted in their system of predatory violence, infracting those treaties, and hostile to the rights of a free and independent nation,—for these causes, explicitly, Congress, in July, 1798, passed a law, enacting that those treaties should not, thenceforth, be regarded as legally obligatory on the government or citizens of the United States. And two days afterwards, Congress passed another law, authorizing the capture of all French armed vessels, to which the commerce of the United States long had been, and continued to be, a prey. And as in this, so in every other case, in which Congress shall judge there existed good and sufficient cause for declaring a treaty void, they will so pronounce; either because they intend to declare war, or because they are willing the United States should meet a war, to be declaréd on the other side, as less injurious to the country than an adherence to the treaty. But should Congress, without adequate cause, declare a treaty no longer obligatory, they must be prepared to meet the reproach of perfidy, besides exposing the United States to the evils of war, should the offended nation think fit to avenge the wrong by making war upon them.

Internal Improvement.—Bonus Bill.

House of Representatives, February, 1817.

Mr. PICKERING. He remembered that the supposition that Congress might, under that clause, exercise the power of making roads in any state, and where they pleased, was offered as a serious objection to the adoption of the Constitution, in the Convention of Pennsylvania, of which Mr. P. (then living in that state) was a member And his recollection was probably the more perfect because he answered the objection, observing, that the power “to establish post-offices and post-roads” could mend no more than the power to direct where post-offices should be kept, and on what roads the mails should be carried and this answer appeared, then, to be entirely satisfactory.

Mr. CLAY as to the constitutional point which had been made, he had not a doubt on his mind. It was a sufficient answer to say, that the power was not now to be exercised. It was proposed merely to designate the had, and, from time to time, as the proceeds of it came in, to invest them in the funded debt of the United States. It would thus be accumulating, and Congress could, at some future day, examine into the constitutionality of the question; and if it has the power, it would exercise it; if it has not, the Constitution, there could be very little doubt, would be so amended as to confer it. It was quite obvious, however, that Congress might so direct the application of the fund, as not to interfere which the jurisdiction of the several states, and thus avoid the difficulty which had been started. It might distribute it among those objects of private enterprise which called for national patronage, in the forth of subscriptions to the capital stock of incorporated companies, such as that of the Delaware and Chesapeake Canal, and other similar institutions. Perhaps that might be the best way to employ the fund; but he repeated that this was not the time to go into that inquiry.

Mr. PICKERING. It has been said that the last clause but one, in the 8th section of the 1st article, expressly mentions “the erection of forts, arsenals, dock-yards, magazines, and other needful buildings;” but whoever will examine that clause, will perceive that it does not give Congress any power to erect those works, but simply to exercise exclusive legislation over the places where they are erected, such place having been previously purchased with the consent of the states in which the same shall be. The power to erect such works and buildings is nowhere expressed in the Constitution. It is, then, an implied power, whose existence is recognized by the Constitution itself. But where can it be found, unless it is involved in the express powers to regulate commerce, and provide for the common defence? Without navigation, without commerce by sea, we should need no lighthouses, beacons, or piers.

If, then, it was constitutional to erect the works which have been mentioned, to give facility, safety, and expedition to commerce by sea, will any one deny the constitutional power of Congress to erect similar works on our interior waters on the great lakes?

Internal Improvements.

Senate, February 27, 1817.

A Bill to set apart and pledge, as a permanent Fund for Internal Improvements, the Bonus of the National Bank, and the United States’ Share of its Dividends.

Be it enacted, &c., That the bonus secured to the United States by the “act to incorporate the subscribers to the Bank of the United States,” and the dividends which shall arise from their shares in its capital stock, during the present term of twenty years, for which the proprietors thereof have been incorporated, be, and the same is hereby, set apart and pledged, as a fund for constructing roads and canals, and improving the navigation of watercourses, in order to facilitate, promote, and give security to internal commerce among the several states, and to render more easy and less expensive the means and provisions necessary for their common defence.

Sect. 2. And be it further enacted, That the moneys constituting the said fund shall, from time to time, be applied in constructing such roads or canals, or in improving the navigation of such watercourses, or both, in each state, as Congress, with the assent of such state, shall by law direct, and in the manner most conducive to the general welfare; and the proportion of the said money to be expended on the objects aforesaid, in each state, shall be in the ratio of its representation, at the time of such expenditure, in the most numerous branch of the national legislature.

Sect. 3. And be it further enacted, That the said fund be put under the care of the secretary of the treasury for the time being; and that it shall be his duty, unless otherwise directed, to vest the said dividend, if not specifically appropriated by Congress, in the stock of the United States, which stock shall accrue to, and is hereby constituted a part of, the said fund.

Sect. 4. And be it further enacted, That it shall also be the duty of the said secretary, unless otherwise directed, to vest the bonus for the charter of said bank, as it may fall due, in the stock of the United States, and also to lay before Congress, at their usual session, the condition of the said fund.

Message of the President, transmitting to the House of Representatives his Objections to the [above] Bank Bonus Bill.

To the House of Representatives of the United States:

Having considered the bill this day presented to me, entitled “An Act to set apart and pledge certain funds for internal improvements;” and which sets and pledges funds “for constructing roads and canals, and improving the navigation of watercourses, in order to facilitate, promote, and give security to, internal commerce among the several states, and to render more easy and less expensive the means and provisions for the common defence,” I am constrained, by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States, to return it, with that objection, to the House of Representatives, in which it originated.

The legislative powers vested in Congress are specified and enumerated in the 8th section of the 1st article of the Constitution; and it does not appear that the power, proposed to be exercised by the bill, is among the enumerated powers; or that it falls, by any just interpretation, within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the government of the United States.

The power to regulate commerce among the several states cannot include a power to construct roads and canals, and to improve the navigation of watercourses, in order to facilitate, promote, and secure, such a commerce, without a latitude of construction departing from the ordinary import of the terms, strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress. To refer the power in question to the clause “to provide for the common defence and general welfare,” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power or legislation, instead of the defined and limited one hitherto understood to belong to them—the terms, “the common defence and general welfare,” embracing every object and act within the purview of the legislative trust. It would have the effect of subjecting both the Constitution and laws of the several states, in all cases not specifically exempted, to be superseded by laws of Congress; it being expressly declared, “that the Constitution of the United States, and laws made in pursuance thereof, shall be the supreme law of the land; and the judges of every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the general and the state governments; inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

A restriction of the power “to provide for the common defence and general welfare” to cases which are to be provided for by the expenditure of money, would still leave within the legislative power of Congress all the great and most important measures of government; money being the ordinary and necessary means of carrying them into execution.

If a general power to construct roads and canals, to improve the navigation of watercourses, with the train of powers incident thereto, be not possessed by Congress, the assent of the states, in the mode provided in the bill, cannot confer the power. The only cases in which the consent and cession of particular states can extend the power of Congress, are those specified and provided for in the Constitution.

I am not unaware of the great importance of roads and canals, and the improved navigation of watercourses, and that a power in the national legislature to provide for them might be exercised with signal advantage to the general prosperity; but, seeing that such a power is not expressly given to the Constitution, and believing that it cannot be deduced from any part of it without an inadmissible latitude of construction, and a reliance on insufficient precedents; believing, also, that the permanent success of the Constitution depends on a definitive partition of powers between the general and state governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress, as proposed in the bill,—I have no option but to withhold my signature from it; cherishing the hope that its beneficial objects may be obtained by a resort, for the necessary powers, to the same wisdom and virtue in the nation which established the Constitution in its actual form; and providently marked out, in the instrument itself, a safe and practicable mode of improving it, as experience might suggest.

JAMES MADISON.

March 3, 1817.

[It is understood that Mr. Calhoun, who reported the Bonus bill, did not touch the constitutional question involved in it, as he did not propose to make an appropriation, but simply to set aside the bonus as a fund for internal improvement, leaving it to a future Congress to determine the extent of its powers; or, if it should be determined that it did not possess power over the subject, to obtain an amendment of the Constitution, as recommended by Mr. Madison in his message at the opening of the session. Under these impressions, Mr. C. declined arguing the constitutional question in his speech on the bill, and limited his objections to the question of expediency.]

Bankrupt Bill.

House of Representatives, February 16, 1818.

Mr. HOPKINSON. The subject seems to have been considered in this light by the framers of the Constitution, who have, therefore, among the enumerated powers of Congress, expressly granted the power “to establish uniform laws on the subject of bankruptcies.”

Mr. H. said he considered this as a declaration of the will of the people, that Congress should act on this subject—at least, so far as to establish a uniform rule. It binds us to no particular system, it is true; but it does enjoin on us most impressively to provide some one which shall be uniform in its operations on the different states, giving a certain known rule, and preventing those numerous and obvious evils that must arise from various and conflicting systems in the different states, by which the relation between debtor and creditor, so interesting to all classes of our citizens, must forever be changing, be imperfectly understood, and be daily producing inequality and injustice between the creditors and debtors residing in the different states. Mr. H. insisted that, when the several states parted with this power, it was only to attain that uniformity of system which could be established only by the general government; and that the states, having surrendered the power for this purpose, had a fair claim on the general government not to disappoint this expectation, but to apply the power to the uses intended by the grant of it.

February 17, 1818.

Mr. TYLER, (of Virginia.) The honorable gentleman yesterday demanded of this house to carry all the powers of the government; and represented it as our bounden duty, in every instance, in which the Constitution gave power, to exercise it. The gentleman’s position leaves us no alternative. Our discretion is taken from us—our volition is gone. If the gentleman be correct, we are stopped at the threshold of this inquiry; for inasmuch as the Constitution confers on Congress the power to adopt a uniform system of bankruptcy,—according to his doctrine, we are not to inquire into the expediency of adopting such system, but must yield it our support. Here, sir, I join issue with that gentleman. What, sir, is the end of all legislation? Is it not the public good? Do we come here to legislate away the rights and happiness of our constituents, or to advance and secure them? Suppose, then, by carrying into effect a specified power m the Constitution, we inflict serious injury upon the political body; will gentlemen contend that we are bound by a blind fatality, and compelled to act? Sir, such a doctrine cannot be supported even by the distinguished talents of that gentleman. The powers of this Constitution are all addressed to the sound discretion of Congress. You are not imperatively commanded, but authorized to act, if by so acting the good of the country will be promoted.

Mr. SERGEANT, (of Pennsylvania.) Why, it is said, why not extend the provisions to all classes of the community? Why confine them to a single class? The answer is a very plain one. The design of the Constitution was to vest in the government of the United States such powers as were necessary for national purposes, and to leave to the states all other powers. Trade, commercial credit, and public or national credit, which is intimately allied to it, were deemed, and rightly deemed, to be national concerns of the highest importance. In the adjustment of our government, at once national and federal, they were intended to be confided, and were confided, to the care of the public authority of the nation.

It does not appear to me that we need inquire, whether the term “bankruptcy” had a definite meaning, to which we are limited, nor whether we are bound to follow the model of the statutes of England, or any state bankrupt laws that may have existed here before the Constitution was formed. For the present purpose, the general spirit and scope of the Constitution furnish a sufficient guide. The design of that instrument was to occupy national ground, and leave the rest to the states.

February 19, 1818.

Mr. MILLS, (of Massachusetts.) Once establish the principle that the situation of the country is such as to require the exercise of that power with which the Constitution has vested you upon this subject,—and whether the prominent features of your system shall be drawn from the commercial code of Napoleon, or the acts of the British Parliament, will be a mere question of expediency, to be determined by their relative merits, and their analogy to your habits and institutions. Sir, I shall not stop here to inquire into the extent of the obligation imposed on you by the Constitution. It is enough for me to find the power “to establish uniform laws on the subject of bankruptcies throughout the United States” expressly delegated to Congress by that instrument, and to satisfy myself that the exigencies of the country require its exercise, to appreciate the weight of this obligation. Too long already has this delegation of authority remained a mere dead letter in that compact; and too long have those, for whose benefit it was introduced, called upon you to give it life, and energy, and action.

Are you sure that, since the adoption of the Federal Constitution, the state legislatures have any legitimate authority to pass those laws? By that instrument, it is contended, Congress alone have power to establish a uniform system of bankruptcy, and the states are expressly prohibited from passing “any laws impairing the obligation of contracts.” So far, therefore, as these laws impugn either of those provisions, so far they transcend the powers retained by the states. Upon this subject, however, I wish not to be understood as giving an opinion, or attempting to sustain an argument.

Mr. HOPKINSON. I have never contended that there is an absolute, indisputable, constitutional obligation on Congress to pass a bankrupt law; but I do contend that it comes so recommended by the Constitution, and by the people who speak in and by that Constitution, that we may not disregard it; that it is Our duty to exercise that power, to execute the trust,—unless, on a full and fair investigation of the subject, it shall be unwise, and injurious to the nation, to do so. I do contend that this high and general duty ought not to be dispensed with on doubtful reasons, on hypothetical arguments, drawn altogether from a presumed abuse of the law; much less from an indulgence of old prejudices or local views and interests. It is a great national object of legislation; it should be decided on national principles; it is deeply interesting to a vast and valuable portion of the people of this country; it should, therefore, be considered in relation to those interests, and determined on a fair comparison between the good it will certainly produce to this class, and the evil it may inflict, if any, on the rest of the community. This government is founded on a compromise of interests, and every one has a fair claim to attention and regard.

Military Appropriation Bill.

House of Representatives, January 4, 1819.

Mr. LOWNDES. He thought there was no inconsistency in denying the general power of constructing internal improvements, and yet voting an appropriation for making any road where there should be a temporary encampment, &c. There was, he conceived, no inconsistency between the expressed opinion of the executive respecting the general power, and the Conduct of the executive on this subject. The propriety of making specific appropriations for all objects, where it could well be done, he did not deny; but he was also apprehensive that it might be pushed to an improper extent. All appropriations could not be specific; but, after making them as minute as possible, and limiting the executive to a certain extent, there would be always some discretion left him. It was proper, also, he admitted, where it could be done, to designate and fix the place where the public money is to be applied; but this could not in all cases be done, and he mentioned instances in which this was left by law to the discretion of the executive; and the present was one of those cases in which this must necessarily be done.

Seminole War.

House of Representatives, January 21, 1819.

Mr. R. M. JOHNSON, (of Kentucky.) As early as 1787, and farther back, if it were necessary to trace, provisions of the same nature as those now existing were enacted by the venerable Congress of the Confederation. By various statutes, the same provisions had been continued to the present day. The statute gave to the President a discretionary power to employ the forces of the United States, and to call forth the militia to repress Indian hostility; and gave it to him properly on the principles of the Constitution. By the Constitution, the President is made commander-in-chief of the army; and it is made his duty to take care that the laws are executed, to suppress insurrections, and repel invasions; and by the same instrument it is made our duty to provide for calling forth the militia, to be employed in these objects. That power has been exercised in the manner which will be shown by the laws of the United States. [Mr. J. here requested the clerk to read the statute to which he alluded; and it was read accordingly.] Now, Mr. J. said, he thought this was a declaration of war of at least equal dignity to the manner in which the savages make war against us, and to the light in which we view them. We treat them, it is true, and we ought to treat them, with humanity; we have given them privileges beyond all other nations; but we reserve the right to repel their invasions, and to put to death murderers and violators of our peace, whether Indians or white men.

Tariff.

House Of Representatives, April 26, 1820.

Mr. CLAY. Sir, friendly as I am to the existence of domestic manufactures, I would not give them unreasonable encouragement by protecting duties. Their growth ought to be gradual, but sure. I believe all the circumstances of the present period highly favorable to their success. But they are the youngest and the weakest interest of the state. Agriculture wants but little or no protection against the regulations of foreign powers. The advantages of our position, and the cheapness, and abundance, and fertility of our land, afford to that greatest interest of the state almost all the protection it wants. As it should be, it is strong and flourishing; or, if it be not at this moment prosperous, it is not because its produce is not ample, but because, depending, as we do, altogether upon a foreign market for the sale of the surplus of that produce, the foreign market is glutted. Our foreign trade, having almost exclusively engrossed the protecting care of government, wants no farther legislative aid; and whatever depression it may now experience, it is attributable to causes beyond the control of this government. The abundance of capital, indicated by the avidity with which loans are sought, at the reduced rate of five per centum; the reduction in the wages of labor; and the decline in the price of property of every kind, as well as that of agricultural produce,—all concur favorably for domestic manufactures. Now, as when we arranged the existing tariff, is the auspicious moment for government to step in and cheer and countenance them. We did too little then, and I endeavored to warn this house of the effects of inadequate protection. We were called upon, at that time, by the previous pledges we had given, by the inundation of foreign fabrics, which was to be anticipated from their free admission after the termination of the war, and by the lasting interests of this country, to give them efficient support. We did not do it; but let us not now repeat the error. Our great mistake has been in the irregularity of the action of the measures of this government upon manufacturing industry. At one period it is stimulated too high, and then, by an opposite course of policy, it is precipitated into a condition of depression too low. First, there came the embargo; then non-intercourse, and other restrictive measures followed; and finally, that greatest of all stimuli to domestic fabrication, war. During all that long period, we were adding to the positive effect of the measures of government all the moral encouragement which results from popular resolves legislative resolves, and other manifestations of the public will, and the public wish to foster our home manufactures, and to render our confederacy independent of foreign powers. The peace ensued, and the country was flooded with the fabrics of other countries; and we, forgetting all our promises, coolly and philosophically talk of leaving things to themselves; making up our deficiency of practical good sense by the stores of learning which we collect from theoretical writers. I, too, sometimes amuse myself with the visions of these writers; and, if I do not forget, one of the best among them enjoins it upon a country to protect its industry against the influence of the prohibitions and restrictions of foreign countries, which operate upon it.

Let us manifest, by the passage of this bill, that Congress does not deserve the reproaches, which have been east on it, of insensibility to the wants and the sufferings of the people.

The Petition of Matthew Lyon.

Senate, March, 1821.

Mr. SMITH, (of South Carolina.) The Constitution of the United States is not the production of Congress; it is not the property of Congress. It is the production of the people, and the property of the people. It is their shield against the abuse of powers, as well as against the usurpation of powers, both by Congress and the judges. Your powers are limited. All legislative powers are granted to Congress, and all judicial powers are granted to the judges. You have, therefore, the power to enact laws, but no power to sit in judgment upon those laws. It is expressly and exclusively given to the judges to construe the laws, and to decide upon their constitutionality. The judges are an independent and coördinate branch of the government, deriving their authority from the Constitution, and not from Congress. They are accountable to the sovereign people; and if guilty of malpractice in administering the laws, they can and ought to be impeached; and you are the tribunal before which they are to answer, but there your powers cease. You have powers to punish judges for corruption, but none to revise or correct their decisions.

Mr. S. added, within three years after the adoption of the Federal Constitution, Mr. President Madison, in debate upon a proposition to incorporate the former Bank of the United States, opposed it, on the ground of its being unconstitutional. He said,—

“In making these remarks on the merits of the bill, he had reserved to himself the right to deny the authority of Congress to pass it. He had entertained this opinion from the date of the Constitution. His impression might, perhaps, be the stronger, because he well recollected that a power to grant charters to incorporations had been proposed in the General Convention, and rejected.”

But when a bill to incorporate the present United States’ Bank was submitted for his approval, and when he could have put it down forever, he found means to get over all his constitutional scruples, and approved the act.

Missouri Question.

House of Representatives, December 13, 1821.

Mr. LOWNDES. The Constitution gives to Congress the power to admit states in the broadest terms. The high privileges which it is authorized to impart may commence instantly, and extend through all future time. When the convenience of a territory required that it should become a member of the Union at a future day, what principle of the Constitution was opposed to this prospective admission? Congress may raise armies: has any man ever suspected that this power could not be executed by giving a prospective, and even a contingent authority? Congress may lay taxes: may they not be limited to take effect sometime after the passage of the law? Congress may institute inferior courts: would such an act be void, because its operation was to commence from a future day? void because it was not inconvenient and absurd? Run your eye along the whole list of powers which are given to the federal legislature, and you will find no countenance for the doctrine which would require that, at the very moment when their will is pronounced, the object which they are empowered to effect should be instantly executed. The power of making treaties, too, although given to another depository, is supposed to be pursued, although the convention with a foreign state may take effect from a future day. There is nothing plausible in the assertion which denies to Congress the power of admitting states by an act which shall not go into operation for some time after its passage. The house would see, in his subsequent observations, the importance of determining whether Congress had the constitutional right of admitting states by a prospective law. He need not say that this question of right was distinct from that of expediency.

Bankrupt Bill.

House of Representatives, March 12, 1822.

Mr. BUCHANAN, (of Pennsylvania.) It has been urged that, as the powers of the Constitution gave to Congress the power of passing a bankrupt law, we are bound to put that power into practical operation, and not to suffer it to remain dormant.

In answer to this argument I would reply, that power and duty are very different in their nature. Power is optional; duty is imperative. The language of power is, that you may; that of duty, you must. The Constitution has, in the same section and in the same terms, given to Congress the power to declare war, to borrow money, to raise and support armies, &c. Will any gentleman, however, undertake to say we are under an obligation to give life and energy to these powers, by bringing them into action? Will it be contended, because we possess the power of declaring war and of borrowing money, that we are under a moral obligation to embroil ourselves with foreign powers, or load the country with a national debt? Should any individual act upon the principle, that it is his duty to do every thing which he has the legal power of doing, he would soon make himself a fit citizen for a madhouse.

Power, whether vested in Congress or in an individual, necessarily implies the power of exercising the right of a sound discretion. The Constitution was intended not only for us, and for those who have gone before us, but for generations yet to come. It has vested in Congress ample powers, to be called into action whenever, in their sound discretion, they believe the interest or the happiness of the people require their exertion. We are, therefore, left to exercise our judgment on this subject, entirely untrammelled by any constitutional injunction.

On the Constitutionality of the Tariff.

Senate, April, 1824.

Mr. HAYNE. Will gentlemen suffer me to ask them to point out to me, if they can, the power which this government possesses to adopt a system for the avowed purpose of encouraging particular branches of industry? The power to declare war may involve the right of bringing into existence the means of national defence. But to tell us we have a right to resort to theoretical speculations, as to the most convenient or profitable employments of industry, and that you can, by law, encourage certain pursuits and prohibit others, is to make this not merely a consolidated, but an unlimited government. If you can control and direct any, why not all the pursuits of your citizens? And if all, where is the limitation to your authority? Gentlemen surely forget that the supreme power is not in the government of the United States. They do not remember that the several states are free and independent sovereignties, and that all power not expressly granted to the federal government is reserved to the people of those sovereignties. When I say expressly delegated, I wish to be understood that no power can be exercised by Congress which is not expressly granted, or which is not clearly incident to such a grant. Now, when we call upon gentlemen to show their authority, they tell us it is derived from the authority to “regulate commerce.” But are regulation and annihilation synonymous terms? Does one include the other? Or are they not rather opposites, and does not the very idea of regulation exclude that of destruction? I rejoice, sir, to find that gentlemen refer us to commerce; for the very clause which expressly confers the right to regulate commerce, by saying nothing of the regulation of manufactures, or of agriculture, or home industry, seems to demonstrate that they were intended to be put beyond our control, and to be reserved to the people of the states respectively.

But our opponents gravely inform us that this is a bill to levy imposts, and that it is, therefore, within the very letter of the Constitution. True sir, if imposts were the end and aim of the bill. But, surely, gentlemen will not attempt to justify a departure from the spirit, by an adherence to the letter, of the Constitution. Will they contend that we could, by law, adopt and enforce the Chinese policy, and, by virtue of our authority to regulate commerce, interdict all intercourse with foreign nations? And if you could not do that directly, can you accomplish the same thing indirectly, by levying such imposts as will produce the same result? It may be difficult to draw the exact line which divides the lawful exercise from the abuse of authority—where regulation ceases, and unconstitutional prohibition begins. But it is certain, if you have a right to prohibit the importation of cottons, and woollens, and cotton bagging, for the encouragement of domestic manufactures, you may, whenever you please, prohibit importations, and shut up your ports entirely An embargo can only be justified as a branch of the war power, and I think no one will contend, at this day, that a general and perpetual embargo could be lawfully laid. If it be sufficient to adhere to the letter without regard to the spirit and intent of the Constitution, if we may use a power granted for one purpose for the accomplishment of another and very different purpose, iris easy to Show that a constitution on parchment is worth nothing.

Orders of nobility, and a church establishment, might be created even under the ewer to raise armies We are informed that in Russia military titles alone confer civil rank, and all the departments of the government are filled with generals and colonels, entitled to rank, and to pay, without actual command or liability to service. Now, suppose we were to follow the example of Russia, and should give rank and pay to a certain number of generals and CHAPLAINS, with total or qualified exemption from service; might we not easily build up orders of nobility, and a church establishment? Sir, this government was never established for the purpose of divesting the states of their sovereignty; and I fear it cannot long exist, if the system, of which this bill is the foundation, shall be steadily pursued to the total destruction of foreign commerce, and the ruin of all who are connected with it. Sir, it is my most sober and deliberate opinion, that the Congress of the United States have no more power to pass laws, for the purpose of directly or indirectly compelling any portion of the people to engage in manufactures, than they have to abolish trial by jury, or to establish the inquisition. I will invoke gentlemen on the other side, while we yet pause on the brink of this mighty danger, in the name of Liberty and the Constitution, to examine this question, carefully and candidly; and if they shall search in vain, in our great charter, for power to pass this bill, they must surely suffer it to perish.

I must be permitted, while on this topic, to declare that, however this bill may be modified, still the system is one against which we feel ourselves constrained, in behalf of those we represent, to enter our most solemn protest. Considering this scheme of promoting certain employments, at the expense of others, as unequal, oppressive, and unjust,—viewing prohibition as the means, and the destruction of all foreign commerce the end of this policy,—I take this occasion to declare, that we shall feel ourselves fully justified in embracing the very first opportunity of repealing all such laws as may be passed for the promotion of these objects. Whatever interests may grow up under this bill, and whatever capital may be invested, I wish it to be distinctly understood, that we will not hold ourselves hound to maintain the system; and if capitalists will, in the face of our protests, and in defiance of our solemn warnings, invest their fortunes in pursuits made profitable at our expense, on their own heads be the consequences of their folly. This system is in its very nature PROGRESSIVE. Grant what you may now, the manufacturers will never be satisfied; do what you may for them, the advocates of home industry will never be content, until every article imported from abroad, which comes into competition with any thing made at home, shall be prohibited—until, in short, foreign commerce shall be entirely cut off.

Internal Improvement.—Dismal Swamp Canal.

Senate, May, 1824.

Mr. VAN BUREN. He would not vote for the bill, for he did not believe that this government possessed the constitutional power to make these canals, or to grant money to make them. * * * If he believed in the power of the government to grant money for this purpose, the present mode would be the last one he should think of adopting. If there was any grant of money, at all, for this purpose, it should be direct. Where aid was granted in the mode now proposed, abuses would creep in, and, in nine cases out of ten, deception would be practised. In the state of New York, Mr. Van Buren said, they had had full experience of this, in the application for charters for banks. Plausible pretences were set up, that the state would be thereby benefited, till these practices became so numerous, that, in the end, public opinion was decidedly against them; and the last legislature, to their honor, had refused all applications of this description. * * * As to the question (of constitutionality) being settled, he should protest against the admission of such a doctrine; and he should resist, to all intents and purposes, the idea that the acts of this Congress were to bind him and his constituents hereafter.

Note.—Mr. Van Buren is by no means certain that, in this respect, he himself has been altogether without fault. At the very first session after he came into the Senate, the knowledge of the perpetual drain that the Cumberland road was destined to prove upon the public treasury unless some means were taken to prevent it, and a sincere desire to go, at all times, as far as he could consistently with the Constitution, to aid in the improvement, and promote the prosperity, of the western country, had induced him, without full examination, to vote for a provision authorizing the collection of toll on this road. The affair of the Cumberland road, in respect to its reference to the constitutional powers of this government, is a matter entirely sui generis. It was authorized during the administration of Mr. Jefferson, and grew out of the disposition of the territory of the United States through which it passed. He has never heard an explanation of the subject (although it has been a matter of constant reference) that has been satisfactory to his mind. All that he can say is, that, if the question were again presented to him, he would vote against it, and that his regret for having done otherwise would be greater, had not Mr. Monroe—much to his credit—put his veto upon the bill, and were it not the only vote, in the course of a seven years’ service, which the most fastidious critic can torture into an inconsistency with the principles which Mr. Van Buren professed to maintain, and in the justice of which he is every day more and more confirmed.

Judiciary.

House of Representatives, January 10, 1825.

Mr. WEBSTER. In defining the power of Congress, the Constitution says, it shall extend to the defining and punishing of piracies and felonies upon the high seas, and offences against the law of nations. Whether the Constitution uses the term “high seas” in its strictly technical sense, or in a sense more enlarged, is not material. The Constitution throughout, in distributing legislative power, has reference to its judicial exercise, and so, in distributing judicial power, has respect to the legislature. Congress may provide by law for the punishment, but it cannot punish. Now, it says that the judicial power Shall extend to all eases of maritime jurisdiction; and it has lately been argued that, as soon as a judicial system is organized, it had maritime jurisdiction at once, by the Constitution, without any law to that effect; but I do not agree to this doctrine, and I am very sure that such has not been the practice of our government, from its origin, in 1789, till now.

The Constitution defines what shall be the objects of judicial power, and it establishes only a Supreme Court; but in the subordinate courts, the jurisdiction they shall exercise must be defined by Congress: the defining of it is essential to the creation of those courts. The judicial power is indeed granted by the Constitution; but it is not, and cannot be, exercised till Congress establishes the courts by which it is to be so exercised. And I hold there is still a residuum of judicial power, which has been granted by the Constitution, and is not yet exercised, viz., for the punishment of crimes committed within the admiralty jurisdiction of the United States’ courts, and yet not without the jurisdiction of the particular states. So the Constitution says that the federal courts shall have jurisdiction of all civil cases between citizens of different states; and yet the law restricts this jurisdiction in many respects—as to the amount sued for, &c. There is a mass of power intrusted to Congress; but Congress has not granted it all to specific courts, and therefore the courts do not exercise it. The Constitution gives to Congress legislative power in all cases of admiralty jurisdiction, from whence has occurred one of the most extraordinary of all circumstances—that causes of revenue have become cases of admiralty jurisdiction. * * *

Many things are directed to be punished, in the act of 1800, on the high seas, which are neither piracies nor felonies, although the Constitution, speaking of the judicial power, restricts it to piracies and felonies, which would infer that the Constitution was then held to grant larger power by the other clause.

Internal Improvement.

January 18, 1825.

Mr. CAMBRELENG said he had hitherto uniformly, but silently, opposed measures of this character, only from a doubt of the constitutional power of the federal government. He had, however, devoted much attention to the question; and, after mature deliberation, he had been led to the conclusion that, if a government, enjoying the entire post-road and military powers of this Union, could not constitutionally construct a road or a canal, then it had no incidental power whatever. He had, accordingly, for the first time, given his vote in favor of a subscription to the Chesapeake and Delaware Canal.

February 13, 1826.

Mr. BERRIEN said, as to the general right, asserted for the Union, to make roads through all the Indian countries, against such a doctrine he should desire to protest. He would draw a distinction between those lands of Indians living Within limits of the states which came into the confederation, with certain chartered limits, and those living within states who, at the time of the formation of the Constitution, had no limits, and whose limits were only defined by the laws regulating their admission into the Union

Bankruptcy.

Senate, January, 1826.

Mr. VAN BUREN. At the time of the adoption of the Constitution, they [bankruptcy and insolvent laws] were known and distinguished, both in England and in this country, as distinct systems—the one having for its object to afford a summary and speedy remedy for creditors against fraudulent or failing traders; the other affording relief to insolvent debtors of all denominations. The Constitution of the United States, he said, had clothed the national legislature with power to establish the former, and had left the right to pass, and the duty of establishing, the latter, upon the state governments. The 93d section of this bill, he said, was, upon any definition that might be given of the different terms, an insolvent law. If it passed,—that is, if Congress had the constitutional power to pass it,—the states had no right to pass any law upon the subject of insolvency; not even to authorize the discharge of debtors imprisoned upon a process issuing out of their own courts, otherwise than as it might suit the pleasure or convenience of Congress to permit. There was, he said, no middle ground. If the partition wall between bankruptcy and insolvency was once broken down, all state legislation was subjected to the absolute and arbitrary supervision of Congress. He did not believe that such was the design of the framers of the Constitution. He did not believe that such was the Constitution. He therefore objected to the constitutional power of Congress to pass the section referred to. He had before said that he rose to explain, not to discuss, and he would not depart from the Course he had marked out for himself. He would therefore only add, that, in his judgment, the provision contained in the 93d section was not Within the reasons which induced the framers of the Constitution to vest this power of establishing uniform laws on the subject of bankruptcies in Congress; that it was a power which never ought to be, or to have been, vested in Congress; that it could only be well and successfully executed by the states, where those who made the Constitution had left it; that its exercise would operate most injuriously upon the system which governed the Union and the states separately: those mischiefs would, among other things, consist in an injurious extension of the patronage of the federal government, and an insupportable enlargement of the range of its judicial power.

Florida Canal.

February 14, 1826.

Mr. BRANCH perfectly coincided with the gentleman from Tennessee, (Mr. White.) Doubting of the constitutional right of the United States to cut roads and canals through the states, he had hitherto abstained from exercising it; but as regarded the territory, the objection did not seem to exist; for not only had Congress the right to make this appropriation for a road through the Indian country, acquired by treaty before it came into the Union, but it was an obligation on the general government to complete the work it had commenced and he had therefore voted for it.

Mr. ROWAN. In the general government, they were, Mr. R. said, to look into the Constitution for all the power they possessed. There was no such power given in the Constitution; and he believed, with deference to the opinion entertained, that to convey the exercise of such a power was incompatible with what was the acknowledged power of the states. There was no power given to expend money in roads and canals in the state; there was no such power specifically given to the United States; and when once it was settled in this house that power could be derived to this government by construction, you have discovered the means by which the whole power of a state might be frittered down and annihilated.

On the Constitutional Power of the President to originate the Appointment of a Foreign Minister.

Senate, March, 1826.

Mr. BERRIEN. By the Constitution, the President is authorized to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, and other public ministers and consuls, judges of the supreme courts, and all other officers of the United States, whose appointments are not therein otherwise provided for, and which shall he established by law. Now, it is plain that the appointing power does not include the power to create the office; in other words, that the office to which the appointee is nominated must be previously created by law. If an appointment be to an office to be exercised within the limits of the United States or its territories, it must be to one which exists, and has been created by the municipal laws of the United States. If to an office which is to be exercised without the limits of the United States, within the dominions of a foreign sovereign, it must be to one which exists, and is recognized by t e general principles of international law, or which is specially created by positive and particular pacts and conventions. The limitation in the latter case results not only from the fundamental law of this government, but from the exclusive dominion, within his own territories, of the sovereign within whose territories this minister is to exercise his functions. That sovereign is bound, as a member of the great family of nations, to recognize as legitimate an appointment which is consonant to the code of international law, and of course to acknowledge one which, by express convention, he has stipulated; but this is the extent of his obligation, and consequently the limit of the appointing power under our Constitution.

Let us look to the first of these propositions. Is it within the “constitutional competency” of the President to appoint to an office the functions of which are to be exercised within the limits of the United States, which office has not been created by the laws of the United States? Take an example. The President deems it expedient to establish a home department. Is there any one sufficiently absurd to assert that he has a right, ex mero motu, or even with the assent of a majority of the Senate; to appoint a secretary for that department—to assign to him certain specific duties, and then to call on Congress for the requisite appropriation, to compensate his services?—to imagine that the acts of such an officer would be valid, or that his attestations would be respected by our judicial tribunals?

Before the passing of an act of Congress for the organization of a newly-acquired territory, and the creation, by that act, of the legislative, executive, and judicial officers deemed necessary for its government, is it within the “constitutional competency” of the President, aided even, as before, by a majority of the Senate, to appoint an officer or officers to exercise all or either of these functions? The proposition is believed to be too clear for argument.

Within the United States, the office must be created by law before the appointing power can be called into action. Why should a different rule prevail without? The law of nations operates on this government, in its intercourse with other sovereignties, as the municipal law does in its action on its own citizens. In this case, then, the law of nations, as in the other the municipal law, must have created the office, before the power of appointment can exist. Now, the law of nations does recognize ambassadors and other ministers, in the intercourse between sovereigns. But this law does no where recognize the right of a congress of ministers to receive an embassy. The right to receive, and the right to send, a minister, are co-relative. The one does not exist without the other. A congress of ministers is not authorized to receive an ambassador, unless it is authorized to send one. Who will assert, for the congress of Panama, the right to exercise the latter power?

A sovereign cannot, then, he represented in a congress of ministers, otherwise than by a deputy, who becomes a member of that congress. He is not an ambassador to that congress, but is himself a constituent part of it. He is not accredited to any particular power, but is commissioned as one of a number of deputies who are collectively to compose the congress. How are these deputies created? The answer is obvious. From the necessity of the thing, it must be by conventions or treaties between the respective powers who are to be represented by those deputies. In this manner the congress at Verona was created by the treaty of Paris. The deputies who appeared there were called into existence by the express stipulations of that treaty. So, too, in the congress of Panama, the office of deputy to that congress is created by the special provisions of the treaties between the several powers who are to be represented there.

The result of what has been said is this: The office of a deputy to an international congress does not exist permanently under the law of nations, butts the offspring of particular convention—and this of necessity, because the congress itself is not preëxisting, but is the creature of treaty; and the treaty which creates the congress stipulates also for the appointment of the deputies of whom it is to be composed. Then the clause of the Constitution which authorizes the appointment of ambassadors, or other ministers, cannot be invoked to sustain this nomination, because a deputy ton congress is not a minister existing by force of the law of nations, but created by particular conventions between the powers represented in that congress; and we have no such conventions with the powers represented in the congress of Panama. Consequently, as to us, the office of minister or deputy to that congress does not exist, not being derived from the law of nations, nor provided for by any convention. A very simple view of the subject seems to be decisive. Could the President have sent ministers to the congress of Panama uninvited by the powers represented there? Could he, without such invitation, have required such ministers to be accredited by that congress? Would a refusal to receive them have furnished just ground of complaint? If these questions are answered in the negative, as I presume they must be, the conclusion is obvious: the office exists only by force of the invitation.

Unless, then, the mere invitation of a foreign nation is competent to create an office, and thus to call into action the appointing power of the President,—unless this appointing power includes the power to create the office, which we have seen that it does not,—the appointment by the President of ministers to the congress of Panama cannot be valid, nor can it be rendered so by the advice and consent of a majority of the Senate, nor by any power short of that which is competent to create the office; and that, we have seen, is the treaty-making power. The President can appoint a minister to the republic of Colombia, because such an office exists under the law of nations, and is, therefore, a legitimate object of the appointing power; and he may instruct such minister to communicate with the congress of Panama; but he cannot appoint a minister to take a seat in that congress, because we have no conventions with the powers represented there, by which, as to us, the office is created; nor can he send a minister, as an ambassador or legate, to that congress, because the congress, as such, has not the rights of embassy. If it be said t hat this is mere form, the answer is obvious: form becomes substance in this case, by force of the constitutional provision which requires the assent of two thirds of the Senate to the ratification of a treaty, while a bare majority is sufficient to give effect to an exercise of the appointing power.

Let us consider this question, for a moment, freed from the prejudices which operate in favor of the Spanish American republics. If the states represented in the congress of Vienna or Verona, or the Holy Alliance, had given us an invitation to be represented there, apart from the expediency of the measure, could it have been within the “constitutional competency” of the President to have sent ministers to take their seats in either of those assemblies? If the nations of Europe should, by treaties, provide for a congress to devise the means of abolishing the slave trade, of resisting the extortions of the Barbary powers, or of suppressing the piracies of the West Indian seas, could the President, the United States not being parties to those treaties, of his own mere will, make us members of that congress, by sending deputies to represent us there? The question is proposed in this form, because our ministers would, of necessity, if received at all, be members, and not ambassadors, since such a congress is neither competent to send or to receive an embassy.

Why, then, in the creation of this office of deputy or minister to the congress of Panama, was not the constitutional organ, the treaty-making power, resorted to? What would have been the result of such a course is obvious, I think, in the recorded votes of the Senate, on the preliminary questions which have arisen. The object could not have been effected. Two thirds of the Senate could not have been obtained, The office would not have had existence; or the Senate, in the exercise of their legitimate powers, would have so modified the treaty, as to have limited the functions of the ministers to those objects of which they would have approved.

Mr. ROBBINS. The theory of our Constitution charges the executive with the care of our foreign relations, and of the public interest connected therewith: it supposes him intimately acquainted with all those interests, and therefore possessed of the means of forming a correct opinion of the measures conducive to their advancement. This opinion, though not binding as authority, is yet, I think, entitled to much weight, as well as to much respect, in our deliberations. We have the executive opinion in this case, under circumstances that entitle it to peculiar consideration. The credit of the government, in the estimation of all those nations, as in a degree connected with the adoption of this measure; and that estimation ought not, in my opinion, lightly to be forfeited, nor unnecessarily impaired.

On Slavery, [Panama Mission.]

Senate, March, 1826.

Mr. HAYNE. The question of slavery is one, in all its bearings, of extreme delicacy; and concerning which I know of but a single wise and safe rule, either for the states in which it exists or for the Union. It must be considered and treated entirely as a DOMESTIC QUESTION. With respect to foreign nations, the language of the United States ought to be, that it concerns the peace of our own political family, and therefore we cannot permit it to be touched; and in respect to the slave-holding states, the only safe and constitutional ground on which they can stand, is, that they will not permit it to be brought into question either by their sister states or by the federal government. It is a matter for ourselves. To touch it at all, is to violate our most sacred rights—to put in jeopardy our dearest interests—the peace of our country—the Safety of our families, our altars, and our firesides. Sir, on the question of our slave institutions, so often incidentally mentioned, I will take this opportunity, once for all, to declare, in a few words, my own feelings and opinions. It is a subject to which I always advert with extreme reluctance, and never except when it is forced upon me. On the present occasion, the subject has been forced upon our consideration; and when called upon to give my sanction to the discussion, by our ministers, (in connection with a foreign congress,) of questions so intimately connected with the welfare of those whom I represent, I cannot consent to he silent. On the slave question, my opinion is this: I consider our rights in that species of property as not even open to discussion, either here or elsewhere; and in respect to our duties, (imposed by our situation,) we are not to be taught them by fanatics religious or political. To call into question our rights, is grossly to violate them; to attempt to instruct us on this subject, is to insult us; to dare to assail our institutions, is wantonly to invade our peace. Let me solemnly declare, once for all, that the Southern States never will permit, and never can permit, any interference whatever in their domestic concerns; and that the very day on which the unhallowed attempt shall be made by the authorities of the federal government, we will consider ourselves as driven from the Union. Let the consequences be what they may, they never can be worse than such as must inevitably result from suffering a rash and ignorant interference with our domestic peace and tranquility. But while I make these declarations, I must be permitted to add, that I apprehend no such violation of our constitutional rights. I believe that this house is not disposed, and that the great body of our intelligent and patriotic fellow-citizens in the other states have no inclination whatever, to interfere with us. There are parties, indeed, composed, some of them, of fanatics, and others of political aspirants, who are attempting, vainly I hope, to turn the current of popular opinion against us. These men have done us much harm already, and seem still fatally bent upon mischief. But if we are true to ourselves, we shall have nothing to fear. Now, sir, if it the policy of the states not to suffer this great question to he touched by the federal government, surely it must be the policy of this government, exercising a paternal care over every member of the political family, not to suffer foreign nations to interfere with it. It is their imperative duty to shun discussion with them, and to avoid all treaty stipulations whatever, on any point connected, directly or remotely, with this great question. It is a subject of too delicate a nature—too vitally interesting to us—to be discussed abroad. On this subject, we committed an error when we entered into treaties with Great Britain and Colombia for the suppression of the slave trade. That error has been happily corrected.

The first treaty has failed, and the second was nearly unanimously rejected by this body. Our policy, then, is now firmly fixed—our course is marked out. With nothing connected with slavery, can we consent to treat with other nations?—and, least of all, ought we to touch the question of the independence of Hayti, in conjunction with revolutionary governments, whose own history affords an example scarcely less fatal to our repose. Those governments have proclaimed the principles of “liberty and equality,” and have marched to victory under the banner of “universal emancipation.” You find men of color at the head of their armies, in their halls, and in their executive departments. They are looking to Hayti even now with feelings of the strongest confraternity; and show, by the very documents before us, that they acknowledge her to be independent, at the very moment when it is manifest to all the world beside, that she has resumed her colonial subjection to France. Sir, it is altogether hopeless that we could, if we would, prevent the acknowledgment of Haytien independence by the Spanish American states; and I am constrained to add, that I must doubt, from the instruments to be employed by our government, whether they mean to attempt to do so. We are to send, it seems, an honest and respectable man, but a distinguished advocate of the Missouri restriction—an acknowledged abolitionist—to plead the cause of the south at the congress of Panama. Our policy with regard to Hayti is plain. We never can acknowledge her independence. Other states will do as they please; but let us take the high ground, that these questions belong to a class which the peace and safety of a large portion of our Union forbid us even to discuss. Let our government direct all our ministers in South America and Mexico to protest against the independence of Hayti. But let us not go into council on the slave trade and Hayti. These are subjects not to be discussed any where. There is not a nation on the globe with whom I would consult on that subject; and least of all, the new republics.

Judicial System.

Senate, April 7, 1826.

Mr. VAN BUREN. It has been justly observed that “there exists not upon this earth, and there never did exist, a judicial tribunal clothed with powers so various and so important” as the Supreme Court.

By it, treaties and laws made pursuant to the Constitution are declared to be the supreme law of the land. So far, at least, as the acts of Congress depend upon the courts for their execution the Supreme Court is the judge whether or no such acts are pursuant to the Constitution, and from its judgment there is no appeal. Its veto, therefore, may absolutely suspend nine tenths of the acts of the national legislature. Although this branch of its jurisdiction is not that which has been most exercised; still instances are not wanting in which it has disregarded acts of Congress, in passing upon the rights of others, and in refusing to perform duties required of it by the legislature, on the ground that the legislature had no right to impose them.

Not only are the acts of the national legislature subject to its review, but it stands as the umpire between the conflicting powers of the general and state governments. That wide field of debatable ground between those rival powers is claimed to be subject to the exclusive and absolute dominion of the Supreme Court. The discharge of this solemn duty has not been unfrequent, and certainly not uninteresting. In virtue of this power, we have seen it holding for nought the statutes of powerful states, which had received the deliberate sanction, not only of their legislatures, but of their highest judicatories, composed of men venerable in years, of unsullied purity, and unrivalled talents—statutes, on the faith of which immense estates had been invested, and the inheritance of the widow and the orphan were suspended. You have seen such statutes abrogated by the decision of this court, and those who had confided in the wisdom and power of the state authorities plunged in irremediable ruin—decisions final in their effect, and ruinous in their consequences. I speak of the power of the court, not of the correctness or incorrectness of its decisions. With that we have here nothing to do.

But this is not all. It not only sits in final judgment upon our acts, as the highest legislative body known to the country,—it not only claims to be the absolute arbiter between the federal and state governments,—but it exercises the same great power between the respective states forming this great confederacy, and their own citizens. By the Constitution of the United States, the states are prohibited from passing “any law impairing the obligation of contracts.” This brief provision has given to the jurisdiction of the Supreme Court a tremendous sweep. Before I proceed to delineate its tendency and character, I will take leave to remark upon some extraordinary circumstances in relation to it. We all know the severe scrutiny to which the Constitution was exposed—some from their own knowledge, others from different sources, We know with what jealousy, with what watchfulness, with what scrupulous care, its minutest provisions were examined, discussed, resisted, and supported, by those who opposedand those who advocated its ratification. But of this highly consequential provision, this provision which carries so great a portion of all that is valuable in state legislation to the feet of the federal judiciary, no complaints were heard, no explanation asked, no remonstrances made. If they were, they have escaped my researches. It is most mysterious, if the Constitution was then understood as it now is, that this was so. An explanation of it has been given—how correct I know not.

The difficulties which existed between us and Great Britain, relative to the execution of the treaty of peace, are known to all. Upon the avowed ground of retaliation for the refusal of England to comply with the stipulation on her part, laws were passed, between the years 1783 and 1788, by the states of Virginia, South Carolina, Rhode Island, New Jersey, and Georgia, delaying execution, liberating the body from imprisonment on the delivery of property, and admitting executions to be discharged in paper money. Although those laws were general in their terms, applicable as well to natives as to foreigners, their chief operation was upon the British creditors; and such was the leading design of their enactment. England remonstrated against them as infractions of the stipulations in the treaty, that creditors, on either side, should meet with no impediments to the recovery of the full value, in sterling money, of all debts previously contracted, and attempted to justify the glaring violations of the treaty, on her part, on that ground. An animated discussion took place between the federal government and Great Britain, and between the former and the states in question, upon the subject of the laws referred to, their character and effect. It was during this time that the Constitution was formed and ratified. It is supposed that the difficulties, thus thrown in the way of adjustment with England, through the acts of the state governments, suggested the insertion in the Constitution of the provision in question, and that it was under a belief that its chief application would be to the evil then felt, that so little notice was taken of the subject.

If it be true that such was its object, and such its supposed effect, it adds another and a solemn proof to that which all experience has testified, of the danger of adapting general provisions for the redress of particular and partial evils. But whatever the motive that led to its insertion, or the cause that induced so little observation on its tendency, the fact of its extensive operation is known and acknowledged. The prohibition is not confined to express contracts, but includes such as are implied by law, from the nature of the transaction. Any one conversant with the usual range of state legislation, will at once see how small a portion of it is exempt, under this provision, from the supervision of the seven judges of the Supreme Court. The practice under it has been in accordance with what should have been anticipated.

There are few states in the Union, upon whose acts the seat of condemnation has not, from time to time, been placed by the Supreme Court. The sovereign authorities of Vermont, New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Missouri, Kentucky, and Ohio, have, in turn, been rebuked and silenced, by the overruling authority of this court. I must not be understood, sir, as complaining of the exercise of this jurisdiction by the Supreme Court, or to pass upon the correctness of their decisions. The authority has been given to them, and this is not the place to question its exercise. But this I will say—that, if the question of conferring it was now presented for the first time, I should unhesitatingly say, that the people of the states might with safety be left to their own legislatures, and the protection of their own courts.

Add to the immense powers of which I have spoken those of expounding treaties, so far, at least, as they bear upon individuals, citizens or aliens,—of deciding controversies between the states of the confederacy themselves, and between the citizens of the different states; and the justice of the remark will not be questioned, that there is no known judicial power so transcendently omnipotent as that of the Supreme Court of the United States.

Let us now consider the influence which this ought to have upon our legislation. It would not be in accordance with the common course of nature, to expect that such mighty powers can long continue to be exercised, without accumulating a weight of prejudice that may, one day, become dangerous to an institution which all admit to be of inestimable value. It is true, as has elsewhere been said, with apparent triumph, that the states whose legislative acts have successively fallen under the interdiction of the court have excited little or no sympathy on the part of their sister states, and, after struggling with the giant strength of the court, have submitted to their fate. But, sir, it is feared that this will not always be the case. Those who are most ardent in their devotion to this branch of the government, knowing the feelings produced by these decisions in those states affected by them,—sensible that those feelings are rather smothered, than abandoned upon conviction of their injustice,—fear that, by adding another and another state to the ranks of those who think they have reason to complain, an accumulation of prejudice may be produced, that will threaten, if not endanger, the safety of the institution.

April 11, 1826.

Mr. WOODBURY. The proposed bill not only alters the system for local purposes, by requiring the attendance of an additional judge at the Circuit Court in regions of country not so populous as those where the judges of the Supreme Court now attend, but it alters the system for general purposes, by enlarging the Supreme Court itself one half its whole original number; by leaving its quorum so that contradictory decisions may constantly be made without any change in the court itself; and boy increasing it to as great an extent as a majority of its present quorum,—so that new results may possibly he produced in all its grand supervising powers over each state, and over the whole confederation.

It is thus that a principle lurks in the last effect of this great alteration, which, in the opinion of many, should carry anxiety and dismay into every heart; because, among other objections, it places at the mercy of legislative breath, in any moment of overheated excitement, all that is valuable in any constitutional judgment on its records. We have only, as in this case, to add a number to any court sufficient to balance a majority of its quorum, and, by a union of feeling with the appointing power, secure judges of certain desirable opinions; and any political or constitutional decision can, in the next case which arises, be overturned. Every security is thus prostrated. The system is not extended, but is, in principle, destroyed; for thus does this increase open an avenue to a radical change in the highest functions of one great department of our government, and a department, too, of all others the most endangered by any change, because, in its very nature, designed for permanency, independence, and firmness, amidst those tempests which at times convulse most of the elements of society.

Gentlemen must perceive that I speak only of the general tendency and alarming character of such an increase, without reference to the motives which have now recommended it. They are doubtless pure. But its propriety is to be tried by the reasons for it, and not by motives. * * *

If this system is to be extended to the six new states, because most excellent, without regard to the effect of such an extension on the Supreme Court itself, and without regard to population or expense, then why not extend it to every part of the Union now destitute of it? When gentlemen talk of equality and broad American grounds,—when they, with indignation and justice, disdain sectional views and favoritism,—why create new circuits for the people in these new states, and not, at the same time, create them for more than three times as many people, now destitute of such circuits, in Western New York, Pennsylvania, and Virginia? For, if the circuit system of itself be superior, and therefore, without regard to other circumstances, is to be extended to the west and south-west, for the safety and advantage of about half a million of people now destitute, then, surely, a million and a half of people, in the three great Atlantic states, are equally entitled to its security and blessings.

Disposal of the Public Lands.

Senate, May, 1826.

Mr. VAN BUREN said, the subject of the public lands was becoming daily more and more interesting, and would occupy much time in legislation. It extended the patronage of the government over the states in which they were situated to a great extent; it subjected them to an unwise and unprofitable dependence on the federal government. * * * No man could render the country a greater service than he who should devise some plan by which the United States might be relieved from the ownership of this property, by some equitable mode. He would vote for a proposition to vest the lands in the states in which they stood, on some just and equitable terms, as related to the other states in the confederacy. He hoped that, after having full information on the subject, they would be able to effect that great object. He believed that, if those lands were disposed of at once to the several states, it would be satisfactory to all.

Presidential Election.

Senate, 1826.

Mr. VAN BUREN. Under the Articles of Confederation, the representation of each state in the general government was equal. The Union Was in all respects purely federal, a league of sovereign states upon equal terms. To remedy certain defects, by supplying certain powers, the Contention which framed the present Constitution was called. That Convention it is now well known, was immediately divided into parties, on the interesting question of the extent of power to be given to the new government—whether it should be federal or national; whether dependent upon or independent of the state governments. It is equally well known that that point, alter having several times arrested the proceedings of the Convention, and threatened a dissolution of the Confederation, subsequently divided the people of the states on the question of ratification. He might add that, with the superadded question of what powers have been given by the Constitution to the federal government, to the agitation of which the feelings which sprang out in the Convention greatly contributed, it had continued to divide the people of this country down to the present period. The party in the Convention in favor of a more energetic government, being unable to carry, or, if able, unwilling to hazard the success of the plan with the states, a middle course was agreed upon. That was, that the government should be neither federal nor national, but a mixture of both; that of the legislative department, one branch—the power of representation—should be wholly national, and the other—the Senate—wholly federal; that, in the choice of the executive, both interests should be regarded, and that the judicial should be organized by the other two. But, to quiet effectually the apprehensions of the advocates for the rights and interest of the states, it was provided that the general government should be made entirely dependent, for its continuance, on the will and pleasure of the state governments. Hence it was decided that the House of Representatives should be apportioned among the states, with reference to their population, and chosen by the people; and power was given to Congress to regulate and secure their choice, independent of and beyond the control of the state governments. That the Senate should be chosen exclusively by the state legislatures; and that the choice of the electors of President and Vice-President, although the principle of their apportionment was established by the Constitution, should, in all respects, except the time of their appointment and of their meeting, be under the exclusive control of the legislatures of the several states.

On reference to the proceedings of the state conventions, it will be seen that, in several of the states, the control by Congress over the choice of representatives merely, was strongly remonstrated against; that amendments were proposed for its qualification by the states of South Carolina, North Carolina, Virginia, Massachusetts, New Hampshire, Rhode Island, and New York; that most of them resolved that it should be a standing instruction to their delegates in Congress, to endeavor to effect that and other amendments proposed. The proposition of the gentleman from New Jersey, to which Mr. Van Buren had alluded, would, if adopted, break an important link in the chain of dependency of the general upon the state governments. It would surrender to the general government all control over the election of President and Vice-President, by placing the choice of electors on the same footing with that of representatives. It would at this time be premature to go into a minute examination of the provisions of the resolution alluded to, to show that such would be its effects. Upon examination, it will be found thai such would be its construction; that it does in substance what another proposition upon their table, originating in the other house, does in words. But even were there doubt upon that subject, that doubt should be removed by an express provision, reserving to the states their present control over the election, except as to what is particularly provided for in the resolution now proposed. If it is fit to take from the states their control over the choice of electors of President and Vice-President, and give it to the federal government, it would be equally proper, under the popular idea of giving their election to the people, to divide the states into districts for the choice of senators, as was proposed in the Convention, and give to Congress the control over their election also. If the System be once broken in upon in this respect, the other measure will naturally follow, and we shall then have what was so much dreaded by those who have gone before us, and what he feared would be so much regretted by those who come after,—a completely consolidated government a government in which the state governments would be no otherwise known or felt than as it became necessary to control them. To all this Mr. Van Buren was opposed.

At the time of the adoption of the Federal Constitution, it was a question of much speculation and discussion, which of the two governments would be most in danger from the accumulation of influence by the operation of the powers distributed by the Constitution. That discussion was founded on the assumption that they were, in several respects, rival powers, and that such powers would always be found in collision. The best lights which could be thrown upon the subject were derived from the examples afforded by the fates of several of the governments of the old world, which were deemed to be, in some respects, similar to ours. But the governments in question having operated upon, and been administered by, people whose habits, characters, tempers, and conditions, were essentially different from ours, the inferences to be derived from that source were, at best, unsatisfactory. Mr. Van Buren thought that experience the only unerring criterion by which matters of this description could be tested—had settled for us the general point of the operation of the powers Conferred by the Constitution upon the relative strength and influence of the respective governments. It was, in his judgment, susceptible of entire demonstration, that the Federal Constitution had worked a gradual, if not an undue, increase of the strength and control of the general government, and a correspondent reduction of the influence, and, consequently, of the respectability, of the state governments.

On the Bankrupt Law.

Senate, May 1, 1826.

Mr. HAYNE. The first question which presents itself for consideration is, the necessity of a bankrupt law. It is asked “whether the laws of the states, on this subject, are not adequate to the object.” I answer, decidedly and unequivocally, that there exists the most pressing necessity for now establishing “uniform laws on the subject of bankruptcy throughout the United States;” and that the laws of the states, un this subject, are inefficient, unjust, and ruinous in their operation. In the remarks I am about to make on this branch of the subject, I wish to be distinctly understood as confining my observations to the effect of the state insolvent laws on persons concerned in trade. It is from the operation of these laws on the commerce of the country that those evils flow which demand a speedy and effectual remedy.

There now exist, in the several states of this Union, upwards of twenty distinct systems of bankruptcy, or insolvency, each differing from all the rest in almost every provision intended to give security to the creditor or relief to the debtor; differing in every thing which touches the rights and remedies of the one or the duties and liabilities of the other.

By the laws of some of the states, debtors cannot be arrested either on mesne or final process; by others, personal property may be held in defiance of creditors; while, by others, real estate cannot be touched. In some instances, executions are suspended; in others, the courts of justice are closed, or, which is the same thing, delays are sanctioned which amount to a denial of justice. In some states, a few creditors in the immediate neighborhood are suffered, by attachment, or other legal proceedings, (often the result of collusion with the debtor,) to secure to themselves the whole estate of an insolvent. In several states, persons arrested for debt are permitted to “swear out,” as it is called, after a notice of a few days; while in other states, they are required to lie in jail for three or four months. In some instances, the relief extended is confined to the discharge of the debtor from arrest in the particular suit; in others, from arrest in all suits; and in some few cases, the attempt has been made to release him from all future liability on existing contracts. These various systems, unequal and inconsistent as they must be admitted to be, are rendered still more objectionable by being perpetually fluctuating. It was the opinion of one of the ablest judges that ever sat on the English bench, or any other bench, that it was better for the community “that a rule should be certain than that it should be just;” for the obvious reason, that we can shape our conduct, or our contracts, in reference to any known and settled rule, so as to avoid its injurious effects; but when the rule is uncertain, we cannot avoid falling under its operation.

We are told that it was felt as a grievance by the Roman people, that the tyrant should write his laws “in a small character, and hang them up on high pillars,” so that it was difficult to read them; but that grievance would have been rendered still more intolerable, if the inscriptions had been varied with the rising and setting of the sun.

Not a year, hardly a month passes by, which does not witness numerous, and, in many instances, radical changes in the insolvent systems of the several states. It is found utterly impracticable to conform to them, or to guard against them. It defies the wisdom of the bench, or the learning of the bar, to give certainty or consistency to a system of laws, upon which twenty-four different legislatures are constantly acting, and almost daily innovating—a system which changes with a rapidity that deceives the mental vision, and leaves us in the grossest ignorance.

It is manifest, Mr. President, that the states are now reduced to the necessity of entering into a competition with each other, in restricting the rights of creditors, and impairing the liabilities of debtors; and this, too, in a matter in which, as it is impossible to mark the exact line of equality, there must be great danger of their advancing, step by step, until every thing is unsettled. I am persuaded that nothing but the constitutional prohibition on the states a against “impairing the obligation of contracts,” and the general—I might almost say the universal—belief that they have no right to pass an efficient bankrupt law, have hitherto prevented, such an interference between debtor and creditor, as would have given a fatal blow to commercial credit and enterprise.

Sir, this whole country is filled with unfortunate debtors who owe their failure to such causes. I have no hesitation in declaring it to be my firm belief, and settled convict on founded on some personal knowledge, and information derived from those well acquainted with the subject, and worthy of entire confidence, that, from these causes, there is a mass of talent, industry—ay, sir and virtue too—in our country, idle and useless; and that their number is daily and rapidly increasing. Thousands of individuals, who, in the commercial vicissitudes of the last twenty years, have become bankrupt,—sometimes from fraud, oftener from imprudence, but most frequently from misfortune,—are now struggling out a miserable existence, a burden to their friends and to their country. They live without hope, and will die without regret.

If we look into the proceedings of the Convention, or examine the commentaries on the Constitution by the great men who framed it, we shall find abundant reason to believe that the article which gives to Congress power over this subject, was designed to prevent frauds. The Journals of the Convention show that, on the 29th August, 1787, it was moved to commit the following proposition, to wit, “to establish uniform laws on the subject of bankruptcy, and respecting the damages arising from the protest of foreign bills of exchange;” which passed in the affirmative by a vote of nine states against two—Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, voting in the affirmative, and New Hampshire and Massachusetts in the negative. On the 1st of September following, Mr. Rutledge, of South Carolina. (from the committee,) reported and recommended the insertion of the following words, viz.: “to establish uniform laws on the subject of bankruptcies;” which, on the 3d of September, was agreed to by yeas and nays, every state voting in the affirmative, except Connecticut.

I confess I felt my confidence in the wisdom of this provision of the Constitution strengthened and confirmed, when I discovered that it had been introduced by John Rutledge, and had received the unequivocal sanction of James Madison. In a number of the Federalist, written by that distinguished statesman, speaking of this particular provision of the Constitution, he says, “Uniform laws on the subject of bankruptcy will prevent so many frauds, that the expediency of it seems not likely to be called in question.” Sir, we are wiser than our ancestors; that which they designed to “prevent frauds” we pronounce to be the most fruitful source of frauds. A proposition which seemed to them so clear that it was “not likely to be called in question,” we have for twenty years rejected as unworthy even of a trial. It may be, Mr. President, that I am bigoted in my reverence for the authors of this Constitution but I am free to confess that I distrust my own judgment when I find it leading me to discard their precepts, or to reject their injunctions.

In relation to bankruptcy, it is the federal government only that ever will enact a wise and judicious system, and no power but Congress can establish UNIFORMITY. This is the great desideratum. This is the true, the only remedy for the evils which I have pointed out. The wise man now at the head of the Supreme Court of the United States (whose character, has been drawn with a master’s hand by the gentleman from Virginia, in a finished picture that I cannot venture to touch, lest I should impair its beauty)has given us his opinion on this clause of the Constitution in terms worthy of consideration:—

“The peculiar terms of the grant (saw Chief Justice Marshall) certainly deserve notice. Congress is not authorized merely to pass laws, the operation of which shall be uniform,but to establish uniform laws on the subject throughout the United States. This establishment of uniformity is, perhaps, incompatible with state legislation on that part of the subject to which the acts of Congress may extend.”

Now, let it be remembered, that while, on the one hand, the power is expressly conferred on the federal government of acting efficiently on this subject, the right has been taken away from the states. This the Supreme Court of the United States have decided in the cases of Sturges and Crowninshield, and M’Millan and M’Neill, (4 Wheat. 122, 209.) A discharge under the bankrupt or insolvent law of a state is, in these cases, declared to be invalid, in consequence of the constitutional prohibition on the states of passing any law “impairing the obligation of contracts,” Now, prior to the adoption of the Constitution, the states possessed this fight, and, in some instances, exercised it to the most unlimited extent, It is a right essential to commercial credit and prosperity. It has been taken from the states, and vested in us; and if proper to be exercised at all, can only be exerted by us. I am aware, sir, that there are cases still pending before the Supreme Court, in which the question is involved, whether a state bankrupt law may not be enforced, in such state, on parties residing there, and contracting in reference to that law. This question has remained for several years undecided; but, whatever may be the final decision, it is obvious that it will not restore to the states the power of acting on the subject matter in the only way at all adequate to the exigencies of the country. The application of the lex loci contractus would be but a miserable substitute or a general bankrupt law. And even if it were possible that the case of Sturges and Crowninshield could be reversed, and the power be restored to the states of passing bankrupt laws, without restriction or limitation, I should consider twenty-four different bankrupt laws as infinitely worse than none.

In this bill the committee have framed a system of bankruptcy, which will, in their opinion, greatly contribute to give security to creditors, and relief to debtors, within the sphere of its operation. It is believed that it offers the strongest inducements to debtors for honest dealing; that it holds out a temptation to insolvent traders to make a timely surrender of their effects to their creditors; and that, thus, it will haven powerful tendency to prevent over-trading and desperate adventures. This bill gives power to creditors to arrest the fraudulent career of their debtors, furnishes a prompt remedy for the recovery of debts, and time and means for thorough investigations; it prevents all unjust preferences, and secures an impartial distribution of insolvent estates: it puts citizens of different states on an equal footing, and gives a certain, a just rule for commercial contracts; it puts our own citizens on a footing with foreigners; and, lastly, it will restore to society, to honor, and usefulness, a mass of industry and talent which, under the present system, is irretrievably lost—thus “paying a just tribute to the rights of humanity, by depriving the creditor of the power he now has over the whole life of his debtor.”

January 24, 1827.

Mr. WOODBURY. The gentleman on his right (Mr. Berrien) had said that Congress might legislate without limitation as to the objects or manner of a bankrupt system, because no limitation as to them had been expressed in the Constitution. But the limitation existed in the subject matter of the grant. The grant was not to legislate on the subject of contracts generally, of descents, of suits at law, but on the subject of bankruptcy. To bankruptcies and to bankruptcies alone, then, was the power confined. And the word bankruptcies, as used in the Constitution, was never, in h s apprehension, intended to extend beyond embarrassments and failures among mercantile men.

The bankrupt system had been limited essentially to persons more or less engaged in trade. The word itself, as remarked last year by the gentleman from South Carolina, had been derived from the circumstance that the person coming within its operation had his bench ruptured or broken up. The bench of whom? Not of the farmer—not of the mechanic—but the bench of the money-dealer, and the bench, or counter, of the merchant. Grant that some persons, not strictly traders, may, at times, have been included in the provisions of some laws on the subject of bankruptcies; yet this was where the power of legislation was unlimited—where all legislation, as to all creditors and debtors, was invested in one body. It has but seldom occurred any where, and existed nowhere at the time of this grant of power to Congress.

That laws on the subject of bankruptcies were then deemed commercial only, is further manifest from the fact that when, late in the session of the Convention which framed the Constitution, this clause was introduced, it was coupled with a clause regulating the rate of damages, &c., on bills of exchange. It was well known to our fathers, that, in thirteen distinct sovereignties, the laws as to debtors and creditors were, and must always be, in many respects, very various, to meet their different usages, pursuits, prejudices, and educations; but that the merchants, throughout the confederacy, must carry on their business in other and remote states from those where they resided; and hence, as to their debts, their failures, and their adjustment of their affairs, it might be highly convenient and salutary to have similar rules and laws. In a Constitution, therefore, created, in a great degree, throughout, to benefit commerce, it was natural to confer power to make uniformity, or uniform laws, on a Commercial subject.

It was impossible that Congress could, constitutionally, bring farmer’s and mechanics, by their individual consent, within the provisions of this act, where they would not be compelled to come without consent. It was no question between Congress and those individuals; it was solely a question between the general government and the individual states. He was opposed to this feature of the act; because to pass it would be to bring subjects and citizens within the scope of the general government, never contemplated by our fathers.

The question lay in a very narrow compass. It was, whether Congress had been clothed with power to pass laws regulating the insolvencies of persons not traders, and making their operation upon such persons dependent on their consent. The solution of this question rested mainly on the meaning of the word bankruptcies, as used in the grant of power on this subject, by the states, to the general government, in the 8th section of the 1st article of the Constitution. It thus became a momentous question of state rights, and hence deserved most deliberate consideration.

Amendment to the Constitution.

Senate, March, 1826.

Mr. DICKERSON. If, by our Constitution, the President of the United States was elected to hold his office during good behavior, our government would be, by whatever name it might be called, an elective monarchy, limited in its powers, but with sufficient inherent energy to break down, in time, any harriers that a written constitution could present against the encroachment of arbitrary power. If, under our Constitution, we adopt the practice of electing our Presidents from period to period, until the infirmities of age admonish them to retire, our system will soon become that of an elective monarchy. That the want of the limitation now proposed has not been practically felt, must be attributed, not to any corrective principle in our Constitution, nor to any rigid adherence to the jealous maxims of democracy on the part of the people, but to the motives of action which have governed our chief magistrates. As yet, there has been nothing to excite alarm upon this subject.

The limitation proposed has not yet been wanted; and probably will not be for many years to come; but it is the dictate of prudence to provide for the danger while it is yet remote.

Although this question excites but little feeling at present, it once created more agitation than any other subject that came before them, as will appear by a few extracts from the Journal of that Convention:—

On the 1st of June, 1787, in the Federal Convention, Mr. Randolph introduced a resolution, that the national executive should not be eligible a second time, (p. 191;) and the next day it was agreed to eight states being for the resolution, one against it, and one divided. (p. 191.) Seven years was the term then in contemplation.

On the 15th of June, Mr. Patterson submitted a proposition, that the United States in Congress be authorized to elect a federal executive for—years, to be ineligible a second time. (p. 208.) The term in contemplation then was also seven years.

On the 18th of June, Colonel Hamilton submitted resolutions, that the President and Senate should be elected to serve during good behavior; that is, for life, with powers nearly as extensive as those of the King and House of Lords of Great Britain. (p. 212.)

Colonel Hamilton was one of the greatest men in this country, and, without doubt, believed that his plan was well calculated to promote the happiness and prosperity of the Union. Many of our distinguished citizens thought with him then, who afterwards changed their opinions, on witnessing the success of our present system.

On the 19th of June, the resolutions of Mr. Randolph, as altered and agreed to in the committee of the whole, were submitted, of which the 9th resolution was, “that a national executive be instituted, to consist of a single person, to be chosen by the national legislature, for the term of seven years, to be ineligible a second time.” (pp. 75, 214.) July 17th, it was moved to strike out the words “to be ineligible a second time,” which passed in the affirmative,—yeas, Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, and Georgia; nays, Delaware, Virginia, North Carolina, and South Carolina. (p. 215.) On this occasion, Massachusetts, Maryland, and Georgia, changed their votes, which were first in favor of the limitation. Pennsylvania, which was divided before, now voted against the limitation. Delaware, Virginia, North Carolina, and South Carolina, maintained their ground. New Jersey did not vote on the first question.

It was moved to strike out “seven years,” and insert “good behavior;” which passed in the negative—yeas, 4; nays, 6. It would seem that four states, at this time, preferred an executive for life.

A motion was made to reconsider, and passed in the affirmative.

On the 19th July, a motion was made to restore the words “to be ineligible a second time.” It passed in the negative. (p. 242.)

July 25th, it was moved that no person should be capable of holding the office of President more than six years in any twelve; which passed in the—yeas, 5; nays, 6.

The next day, it was moved to amend the resolution, so as to read, “for the term of seven years, to be ineligible a second time.” It passed in the affirmative,—yeas, New Hampshire, New Jersey, Maryland, Virginia North Carolina, South Carolina; nays, Connecticut and Delaware. (p. 243.)

The same day, it was reported to the Convention as one of the resolutions agreed to.

This resolution, together with those offered by Mr. Pinckney, and those offered by Mr. Patterson, were referred to a committee, who, on the 6th of August, reported a draft of a constitution, the 1st section of the 10th article of which was, “The President shall be elected by the legislature. He shall hold his office during seven years, but shall not be elected a second time.” (p. 255.)

The friends of this limitation now considered the question at rest; but they were deceived: it was too important in the eyes of the friends to an executive for life to be given up yet.

On the 24th August, a motion was made to postpone the consideration of the two last clauses of the 1st section of article 10, to wit, the term of years and the limitation. It passed in the negative. It was moved to refer them to a committee of a member from each state. It passed in the negative.

August 31, it was agreed to refer such parts of the plan of a constitution as had been postponed, and such reports as had been acted on, to a committee of one member from each state. (p. 30.7)

On the 4th of September, Mr. Brearly reported certain alterations, &c., the fourth of which was, “The President shall hold his office for four years.”In this the limitation was omitted. (p. 312.)

On the 5th of September, it was moved to postpone the report, and take up the following: “The President shall be elected by joint ballot of the legislature. He shall hold his office during seven years, but shall not be elected a second time.” This was decided in the negative, and seems to have been the last effort in the Convention in favor of limitation.

On the ratification of the Constitution, several states proposed amendments.

Virginia proposed that no person should be capable of being President more than eight years in sixteen; North Carolina, the same.

New York proposed, that no person should be elected President a third time—exactly what is now proposed.

Although the principle of hereditary succession has gained no force in our presidential elections, the principle of a different succession has already become almost irresistible. It is, that the President shall designate his successor, by placing him in the most important office in his gift, and clothing him with such a degree of patronage and power, as to make him an overmatch for any competitor in the walks of private life, whatever may be his merits or his services. The Federal Convention could not have foreseen the operation of this principle as we now see it, or they would have adopted some rule analogous to that most important provision of the Roman law, that no one could be a candidate for the consulship, unless he presented himself in a private station. As no President has yet discovered a disposition to hold the office more than eight years, it may be considered by some as having grown into a law, that no one shall hold the office for a longer period.

State Rights.—Foote’s Resolutions.

Senate, January, 1830.

Mr. WEBSTER. There remains to be performed by far the most grave and important duty, which I feel to be devolved on me by this occasion. It is to state, and to defend, what I conceive to be the true principles of the Constitution under which we are here assembled.

I understand the honorable gentleman from South Carolina [Mr. Hayne] to maintain that it is a right of the state legislatures to interfere, whenever, in their judgment, this government transcends its constitutional limits, and to arrest the operations of its laws.

I understand him to maintain this right, as a right existing under the Constitution; not as a right to overthrow it, on the ground of extreme necessity, such as would justify violent revolution.

I understand him to maintain an authority, on the part of the states, thus to interfere, for the purpose of correcting the exercise of power by the general government of checking, it and of compelling it to conform to their opinion of the extent of its powers.

I understand him to maintain that the ultimate power of judging of the constitutional extent of its own authority is not lodged exclusively in the general government, or any branch of it; but that, on the contrary, the states may lawfully decide for themselves, and each state for itself, whether, in a given case, the act of the general government transcends its power.

I understand him to insist that, if the exigency of the case, in the opinion of any state government, require it, such state government may, by its sovereign authority, annul an act of the general government, which it deems plainly and palpably unconstitutional.

This is the sum of what I understand from him to be the South Carolina doctrine, and the doctrine Which he maintains. I propose to consider it, and to compare it with the Constitution. Allow me to say, as a preliminary remark, that I call this the South Carolina doctrine only because the gentleman himself has so denominated it. I do not feel at liberty to say that South Carolina, as a state, has ever advanced these sentiments. I hope she has not, and never may. That a great majority of her people are opposed to the tariff laws is doubtless true. That a majority, somewhat less than that just mentioned, conscientiously believe those laws unconstitutional, may probably also be true. But that any majority holds to the right of direct state interference, at state discretion,—the right of nullifying acts of Congress by acts of state legislation,—is more than I know, and what I shall be slow to believe.

That there are individuals, besides the honorable gentleman, who do maintain these opinions, is quite certain. I recollect the recent expression of a sentiment which circumstances attending its utterance and publication justify us in supposing was not unpremeditated—”The sovereignty of the state—never to be controlled, construed, or decided on, but by her own feelings of honorable justice.”

[Mr. HAYNE here rose, and said that, for the purpose of being clearly understood, he would state that his proposition was in the words of the Virginia resolution, as follows: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties, as limited by the plain sense aria intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.”]

Mr. WEBSTER resumed: I am quite aware of the existence of the resolution which the gentleman read, and has now repeated, and that he relies on it as his authority. I know the source, too, from which it is understood to have proceeded. I need not say that I have much respect, for the constitutional opinions of Mr. Madison; they would weigh greatly with me, always. But, before the authority of his opinion be vouched for the gentleman’s proposition, it will be proper to consider what is the fair interpretation of that resolution, to which Mr. Madison is understood to have given his sanction. As the gentleman construes it, it is an authority for him. Possibly he may not have adopted the right construction. That resolution declares that, in the case of the dangerous exercise of powers not granted by the general government the states may interpose to arrest the progress of the evil. But how interpose? and what does this declaration purport? Does it mean no more than that there may be extreme cases, in which the people, in any mode of assembling, may resist usurpation, and relieve themselves from a tyrannical government? No one will deny this. Such resistance is not only acknowledged to be just in America, but in England, also. Blackstone admits as much, in the theory, and practice, too, of the English constitution. We, sir, who oppose the Carolina doctrine, do not deny that the people may, if they choose; throw off any government, when it becomes oppressive and intolerable, and erect a better in its stead. We all know that civil institutions are established for the public benefit, and that when they cease to answer the ends of their existence, they may be changed. But I do not understand the doctrine now contended for to be that which, for the sake of distinctness, we may call the right of revolution. I understand the gentleman to maintain that, without; revolution, without civil commotion, without rebellion; a remedy for supposed abuse and transgression of the powers of the general government lies in a direct appeal to the interference of the state government. [Mr. Hayne here rose He did not contend, he said, for the mere right of revolution, but for the right of constitutional resistance. What he maintained was, that, in case of plain, palpable violation of the Constitution, by the general government, a state may interpose; and that this interposition is constitutional.] Mr. Webster resumed: So, sir, I understood the gentleman, and am happy to find that I did not misunderstand him. What he contends for is, that it is constitutional to interrupt the administration of the Constitution itself, in the hands of those who are chosen and sworn to administer it, by the direct interference, in form of law, of the states, in virtue of their sovereign capacity. The inherent right in the people to reform their government, I do not deny; and they have another right, and that is, to resist unconstitutional laws, without overturning the government. It is no doctrine of mine, that unconstitutional laws bind the people. The great question is, Whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws? On that the main debate hinges. The proposition, that, in case of a supposed violation of the Constitution by Congress, the states have a constitutional right to interfere, and annul the law of Congress, is the proposition of the gentleman. I do not admit it, If the gentleman had intended no more than to assert the right of revolution, for justifiable cause, he would have said only what all agree to. But I cannot conceive that there can be a middle course between submission to the laws, when regularly pronounced constitutional, on the one hand, and open resistance, which is revolution, or rebellion, on the other. I say, the right of a state to annul a law of Congress cannot be maintained but on the ground of the unalienable right of man to resist oppression; that is to say, upon the ground of revolution. I admit that there is an ultimate violent remedy, above the Constitution, and in defiance of the Constitution, which may be resorted to, when a revolution is to be justified. But I do not admit that, under the Constitution, and in conformity with it, there is any mode in which a state government, as a member of the Union, can interfere and stop the progress of the general government, by force of her own laws, under any circumstances whatever.

This leads us to inquire into the origin of this government, and the source of its power. Whose agent is it? Is it the creature of the state legislatures, or the creature of the people? If the government of the then they may United States be the agent of the state governments, control it, provided they can agree in the manner of controlling it; if it be the agent of the people, then the people alone can control it, restrain it, modify, or reform it. It is observable enough, that the doctrine for which the honorable gentleman contends leads him to the necessity of maintaining, not only that this general government is the creature of the states, but that it is the creature of each of the states severally; so that each may assert the power, for itself, of determining whether it acts within the limits of its authority. It is the servant of four-and-twenty masters, of different wills and different purposes, and yet bound to obey all. This absurdity (for it seems no less) arises from a misconception as to the origin of this government. and its true character. It is, sir, the people’s Constitution, the people’s government—made for the people, made by the people, and answerable to the people. The people of the United States have declared that this Constitution shall be the supreme law. We must either admit the proposition, or dispute their authority The states are, unquestionably sovereign, so their as their sovereignty is not affected by this supreme law. But the state legislatures, as political bodies, however sovereign, are yet not sovereign over the people So far as the people have given power to the general government, so far the grants are unquestionably good, and the government holds of the people, and not of the state governments. We are all agents of the same supreme power, the people. The general government and the state governments derive their authority from the same source. Neither can, in relation to the other, be called primary, though one is definite and restricted, and the other general and residuary. The national government possesses those powers which it can be shown the people have conferred on it, and no more. All the rest belongs to the state governments or to the people themselves. So far as the people have restrained state sovereignty, by the expression of their will, in the Constitution of the United States, so far, it must be admitted, state sovereignty is effectually controlled. I do not contend that it is, or ought to be, controlled further. The sentiment to which I have referred propounds that state sovereignty is only to be controlled by its own “feeling of justice;” that is to say, it is not to be controlled at all; far one who is to follow his own feelings is under no legal control. Now, however men may think this ought to be, the fact is, that the people of the United States have chosen to impose control on state sovereignties. There are those, doubtless, who wish they had been left without restraint; but the Constitution has ordered the matter differently. To make war, for instance, is an exercise of sovereignty; but the Constitution declares that no state shall make war. To coin money is another exercise of sovereign power; but no state is at liberty to coin money. Again, the Constitution says that no sovereign state shall be so sovereign as to make a treaty These prohibitions; it must be confessed, are a control on the state sovereignty of South Carolina, as well as of the other states, which does not arise from her own feelings of honorable justice.” Such an opinion, therefore, is in defiance of the plainest provisions of the Constitution.

There are other proceedings of public bodies, which have already been alluded to, and to which I refer again, for the purpose of ascertaining more fully what is the length and breadth of that doctrine, denominated the Carolina doctrine, which the honorable member has now stood up on this floor to maintain. In one of them I find it resolved, that “the tariff of 1828, and every other tariff designed to promote one branch of industry at the expense of others, as contrary to the meaning and intention of the federal compact, and such a dangerous, palpable, and deliberate usurpation of power, by a determined majority, wielding the general government beyond the limits of its delegated powers, as calls upon the states which compose the suffering minority, in their sovereign capacity, to exercise the powers which, as sovereigns, necessarily devolve upon them, when their compact is violated.”

Observe, sir, that this resolution holds the tariff of 1828, and every other tariff designed to promote one branch of industry at the expense of another, to be such a dangerous, palpable, and deliberate usurpation of power, as calls upon the states, in their sovereign capacity, to interfere by their own authority. This denunciation, Mr. President, you will please to observe, includes our old tariff of 1816, as well as all others; because that was established to promote the interest of the manufacturers of cotton, to the manifest and admitted injury of the Calcutta cotton trade.

Observe, again, that all the qualifications are here rehearsed and charged upon the tariff, which are necessary to bring the case within the gentleman’s proposition. The tariff is usurpation; it is dangerous usurpation; it is a palpable usurpation; it is a deliberate usurpation. It is such a usurpation, therefore, as calls upon the states to exercise their right of interference. Here is a case, then, within the gentleman’s principles, and all his qualifications of his principles. It is a case for action. The Constitution is plainly, dangerously, palpably, and deliberately violated; and the states must interpose their own authority to arrest the law. Let us suppose the state of South Carolina to express this same opinion, by the voice of her legislature. That would be very imposing. But what then? Is the voice of one state conclusive? It so happens, at the very moment when South Carolina resolves that the tariff laws are unconstitutional, Pennsylvania and Kentucky resolve exactly the reverse. They hold those laws to be both highly proper and strictly constitutional. And now, sir, how does the honorable member propose to deal with this case? How does he relieve us from this difficulty, upon any principle of his? His construction gets us into it; how does he propose to get us out?

In Carolina, the tariff is a palpable, deliberate usurpation; Carolina, therefore, may nullify it, and refuse to pay the duties. In Pennsylvania, it is both clearly constitutional and highly expedient; and there the duties are to be paid. And yet we live under a government of uniform laws, and Under a Constitution, too, which contains an express provision, as it happens, that all duties shall be equal in all the states! Does not this approach absurdity?

If there be no power to settle such questions, independent of either of the states is not the whole Union a rope of sand? Are we not thrown again, precisely, upon the old Confederation?

It is too plain to be argued. Four-and-twenty interpreters of constitutional law, each with a power to decide for itself, and none with authority to bind any body else, and this constitutional law the only bond of their union! What is such a state of things but a mere connection during pleasure, or, to use the phraseology of the times, during feeling?—and that feeling, too, not the feeling of the people, who established the Constitution, but the feeling of the state governments.

In another of the South Carolina addresses, having premised that the crisis requires “all the concentrated energy of passion,” an attitude of open resistance to the laws of the Union is advised Open resistance to the laws, then, is the constitutional remedy, the conservative power of the state, which the South Carolina doctrine teaches for the redress of political evils, real or imaginary. And its authors further say, that, appealing with confidence to the Constitution itself to justify their opinions, they cannot consent to try their accuracy by the courts of justice. In one sense, indeed, sir, this is assuming an attitude of open resistance in favor of liberty. But what sort of liberty? The liberty of establishing their own opinions in defiance of the opinions of all others; the liberty of judging and of deciding exclusively themselves, in a matter in which others have as much right to judge and decide as they; the liberty of placing their own opinions above the judgment of all others, above the laws, and above the Constitution. This is their liberty, and this is the fair result of the proposition contended for by the honorable gentleman. Or it may be more properly said, it is identical with it, rather than a result from it.

In the same publication, we find the following: “Previously to our revolution, when the arm of oppression was stretched over New England, Where did our northern brethren meet with a braver sympathy than that which sprang from the bosoms of Carolinians? We had no extortion, no oppression, no collision with the king’s ministers, no navigation interests springing up in envious rivalry of England.”

This seems extraordinary language. South Carolina no collision with the king’s ministers in 1775! No extortion! No oppression! But, sir, it is most significant language. Does any man doubt the purpose for which it was penned? Can any one fail to see that it was designed to raise in the reader’s mind the question, whether, at this time,—that is to say, in 1828,—South Carolina has any collision with the king’s ministers, any oppression or extortion to fear from England?—whether, in short, England is not as naturally the friend of South Carolina, as New England, with her navigation interests springing up in envious rivalry of England?

Is it not strange, sir, that an intelligent man in South Carolina, in 1828, should thus labor to prove, that, in 1775, there was no hostility, no cause of war, between South Carolina and England ?—that she had no occasion, in reference to her own interest, or from a regard to her own welfare, to take up arms in the revolutionary contest? Can any one account for the expression of such strange sentiments, and their circulation through the state, otherwise than by supposing the object to be. what I have already intimated, to raise the question, if they had no “collision” (mark the expression) with the ministers of King George III., in 1775, what collision have they, in 1828, with the ministers of King George IV.? What is there now, in the existing state of things, to separate Carolina from Old, more, or rather, than from New England?

Resolutions, sir, have been recently passed by the legislature of South Carolina. I need not refer to them; they go no farther than the honorable gentleman himself has gone; and, I hope, not so far. I content myself, therefore, with debating the matter with him.

And now, sir, what I have first to say on this subject is, that at no time, and under no circumstances, has New England, or any state in New England, or any respectable body of persons in New England, or any public man of standing in New England, put forth such a doctrine as this Carolina doctrine.

The gentleman has found no case—he can find none—to support his own opinions by New England authority. New England has studied the Constitution in other schools, and under other teachers. She looks upon it with other regards, and deems more highly and reverently both of its just authority and its utility and excellence. The history of her legislative proceedings may be traced; the ephemeral effusions of temporary bodies, called together by the excitement of the occasion, may be hunted up; the have been hunted up The opinions and votes of her public men, in and out of Congress, may be explored. It will all be vain. The Carolina doctrine can derive from her neither countenance nor support. She rejects it now: she always did reject it; and till she loses her senses, she always will reject it. The honorable member has referred to expressions on the subject of the embargo law, made in this place by an honorable and venerable gentleman (Mr. Hillhouse) now favoring us with his presence. He quotes that distinguished senator as saying, that, in his judgment, the embargo law was unconstitutional, and that, therefore, in his opinion, the people were not bound to obey it. That, sir, is perfectly constitutional language. An unconstitutional law is not binding; but, then, it does not rest with a resolution, or a law of a state legislature, to decide whether an act of Congress be, or be not, constitutional. An unconstitutional act of Congress would not bind the people of this district, although they have no legislature to interfere in their behalf; and, on the other hand, a constitutional law of Congress does bind the citizens of every state, although all their legislatures should undertake to annul it, by act or resolution. the venerable Connecticut senator is a constitutional lawyer, of sound principles and enlarged knowledge—a statesman, practised and experienced, bred in the company of Washington, and holding just views upon the nature of our governments. He believed the embargo unconstitutional, and so did others. But what then? Who did he suppose was to decide that question? The state legislatures? Certainly not. No such sentiment ever escaped his lips. Let us Follow up, firm this New England opposition to the embargo laws; let us trace it till we discern the principle which controlled and governed New England, throughout the whole course of that opposition. We shall then see what similarity there is between the New England school of constitutional opinions and this modern Carolina school. The gentleman I think, read a petition from some single individual, addressed to the legislature of Massachusetts, asserting the Carolina doctrine; that is, the right of state interference to arrest the laws of the Union. The fate of that petition shows the sentiment of the legislature. It met no favor. The opinions of Massachusetts were otherwise. They had been expressed in 1798, in answer to the resolutions of Virginia; and she did not depart from them, nor bend them to the times. Misgoverned, wronged, oppressed, as she felt herself to be, she still held fast her integrity to the Union. The gentleman may find in her proceedings much evidence of dissatisfaction with the measures of the government, and great and deep dislike to the embargo: all this makes the case so much the stronger for her; for, notwithstanding all this dissatisfaction and dislike, she claimed no right, still, to sever asunder the bonds of union. There was heat, and there was anger, in her political feeling, Be it so. Her heat or her anger did not, nevertheless, betray her into infidelity to the government. The gentleman labors to prove that she disliked the embargo as much as South Carolina dislikes the tariff, and expressed her dislike as strongly. Be it so. But did she propose the Carolina remedy? Did she threaten to interfere, by state authority, to annul the laws of the Union? That is the question for the gentleman’s consideration.

No doubt, sir, a great majority of the people of New England conscientiously believe the embargo law of 1807 unconstitutional; as conscientiously, certainly, as the people of South Carolina hold that opinion of the tariff. They reasoned thus: “Congress has power to regulate commerce; but here is a law,” they said, “stopping all commerce, and stopping it indefinitely. The law is perpetual; that is, it is not limited in point of time, and must, of course, continue until it shall be repealed by some other law. It is as perpetual, therefore, as the law against treason or murder. Now, is this regulating commerce, or destroying it? Is it guiding, controlling, giving the rule to commerce as a subsisting thing, or is it putting an end to it altogether?” Nothing is more certain, than that a majority in New England deemed this law a violation of the Constitution. The very case required by the gentleman to justify state interference, had then arisen. Massachusetts believed this law to be “a deliberate, palpable, and dangerous exercise of a power not granted by the Constitution.” Deliberate it was, for it was long continued; palpable she thought it, as no words in the Constitution gave the power, and only a construction, in her opinion most violent, raised it; dangerous it was, since it threatened utter ruin to her most important interests. Here, then, was a Carolina case. How did Massachusetts deal with it? It was, as she thought, a plain, manifest. palpable violation of the Constitution; and it brought ruin to her doors. Thousands of families, and hundreds of thousands of individuals, were beggared by it. While she saw and felt all this, she saw and felt, also, that, as a measure of national policy, it was perfectly futile; that the country was no way benefited by that which caused so much individual distress; that it was efficient only for the production of evil, and all that evil inflicted upon ourselves. In such a case, under such circumstances, how did Massachusetts demean herself? Sir, she remonstrated, she memorialized, she addressed herself to the general government, not exactly “with the concentrated energy of passion,” but with her own strong sense, and the energy of sober conviction. But she did not interpose the arm of her own power to arrest the law and break the embargo. Far from it. Her principles bound her to two things; and she followed her principles, lead where they might. First, to submit to every constitutional law of Congress; and, secondly, if the constitutional validity of the law he doubted, to refer that question to the decision of the proper tribunals. The first principle is vain and ineffectual without the second. A majority of us in New England believed the embargo law unconstitutional; but the great question was, and always will be, in such cases, who is to decide this? Who is to judge between the people and the government? And, sir, it is quite plain that the Constitution of the United States confers on the government itself, to be exercised by its appropriate department, and under its own responsibility to the people, this power of deciding, ultimately and conclusively, upon the just extent of its own authority. If this had not been done, we should not have advanced a single Step beyond the old Confederation.

Being fully of opinion that the embargo law was unconstitutional, the people of New England were yet equally clear in the opinion—it was a mutter they did not doubt upon—that the question. after all, must be decided by the judicial tribunals of the United States. Before those tribunals, therefore, they brought the question. Under the provisions of the law, they had given bonds, to millions in amount, and which were alleged to be forfeited. They suffered the bonds to be sued, and thus raised the question. In the old-fashioned way of settling disputes, they were to law. The case came to bearing, and solemn argument; and he who espoused their cause, and stood up for them against the validity of the embargo act, was none other than that great man of whom the gentleman has made honorable mention, Samuel Dexter. He was then, sir, in the fulness of his knowledge, and the maturity of his strength. He had retired from long and distinguished public service here, to the renewed pursuit of professional duties; carrying with him all that enlargement and expansion, all the new strength and force, which an acquaintance with the more general subjects discussed in the national councils is capable of adding to professional attainment, in a mind of true greatness and comprehension. He was a lawyer and he was also a statesman. He had studied the Constitution, when he filled a public station, that he might defend it; he had examined its principles, that he might maintain them. More than all men, or at least as much as any man, he was attached to the general government, and to the union of the states. His feelings and opinions all ran in that direction. A question of constitutional law, too, was, of all subjects, that one which was best suited to his talents and learning. Aloof from technicality, and unfettered by artificial rules, such a question gave opportunity for that deep and clear analysis, that mighty grasp of principle, which so much distinguished his higher efforts. His very statement was argument; his inference seemed demonstration. The earnestness of his own conviction wrought conviction in others. One was convinced, and believed; and assented, because it was gratifying, delightful to think, and feel, and believe, in unison with an intellect of such evident superiority.

Mr. Dexter, sir, such as I have described him, argued the New England cause. He put into his effort his whole heart, as well as all the powers his understanding; for he had avowed, in the most public manner, his entire concurrence with his neighbors on the point in dispute. He argued the cause; it was lost, and New England submitted. The established tribunals pronounced the law constitutional, and New England acquiesced; Now, sir, is not this the exact opposite of the doctrine of the gentleman from South Carolina? According to him, instead of referring to the judicial tribunals, we should have broken up the embargo by laws of our own, we should have repealed it, quoad New England; for we had a strong, palpable, and oppressive case. Sir, we believed the embargo unconstitutional; but still, that was matter of opinion, and who was to decide it? We thought it a clear case; but, nevertheless, we did not take the law into our own hands, because we did not wish to bring about a revolution, nor to break up the Union; for I maintain that, between submission to the decision of the constituted tribunals, and revolution or disunion, there is no middle ground—there is no ambiguous condition, half allegiance and half rebellion. And, sir, how futile, how very futile, it is, to admit the right of state interference, and then attempt to save it from the character of unlawful resistance, by adding terms of qualification to the causes and occasions, leaving all these qualifications, like the case itself, in the discretion of the state governments! It must be a clear case, it is said; a deliberate case; a palpable case, a dangerous case. But then the state is still left at liberty to decide for herself what is clear, what is deliberate, what is palpable, what is dangerous. Do adjectives and epithets avail any thing? Sir, the human mind is so constituted, that the merits of both sides of a controversy appear very clear and very palpable to those who respectively espouse them; and both sides usually grow clearer as the controversy advances. South Carolina sees unconstitutionality in the tariff; she sees oppression there, also; and she sees danger Pennsylvania, with a vision not less sharp, looks at the same tariff, and sees no such thing in t; site sees it all constitutional, all useful, all safe. The faith of South Carolina is strengthened by opposition, and she now not only sees, but resolves, that the tariff is palpably unconstitutional, oppressive, and dangerous; but Pennsylvania, not to be behind her neighbors, and equally willing to strengthen her own faith by a confident asseveration, resolves, also, and gives to every warm affirmative of South Carolina a plain, downright, Pennsylvania negative. South Carolina, to show the strength, and unity of her opinion, brings her Assembly to a unanimity, within seven voices; Pennsylvania, not to be outdone in this respect more than others, reduces her dissentient fraction to a single vote. Now, sir, again I ask the gentleman, what is to be done? Are these states both fight? Is he bound to consider them both right? If not, which is in the wrong? or, rather, which has the best right to decide? And if he, and if I, are not to know what the Constitution means, and what it is, till those two state legislatures, and the twenty-two others, shall agree in its construction, what have we sworn to, when we have sworn to maintain it? I was forcibly struck with one reflection, as the gentleman (Mr. Hayne) went on in his speech. He quoted Mr. Madison’s resolutions to prove that a state may interfere, in a case of deliberate, palpable, and dangerous exercise of a power not granted. The honorable gentleman supposes the tariff law to be such an exercise of power; and that, consequently, a case has arisen in which the state may, if they see fit, interfere by its own law. Now, it so happens, nevertheless, that Mr. Madison himself deems this same tariff law quite constitutional. Instead of a clear and palpable violation, it is, in his judgment, no violation at all. So that, while they use his authority for a hypothetical case, they reject it in the very case before them. All this, sir, shows the inherent—futility—I had almost used a stronger word—of conceding this power of interference to the states, and then attempting to secure it from abuse by imposing qualifications, of which the states themselves are to judge. One of two things is true—either the laws or the Union are beyond the discretion, and beyond the control, of the states: or else we have no constitution of general government, and are thrust back again to the days of the confederacy.

Let me here say, sir, that if the gentleman’s doctrine had been received and acted upon in New England, in the times of the embargo and non-intercourse, we should probably now not have been here. The government would, very likely, have gone to pieces, and crumbled into dust, No stronger case can ever arise than existed under those laws; no states can ever entertain a clearer conviction than the New England States then entertained; and if they had been under the influence of that heresy of opinion, as I must call it, which the honorable member espouses, this Union would, in all probability, have been scattered to the four winds. I ask the gentleman, therefore, to apply his principles to that case. I ask him to come forth and declare, whether, in his opinion, the New England States would have been justified in interfering to break up the embargo system, under the conscientious opinions which they held upon it. Had they a right to annul that law? Does he admit, or deny? If that which is thought palpably unconstitutional in South Carolina justifies that state in arresting the progress of the law, tell me, whether that which was thought palpably unconstitutional, also, in Massachusetts, would have justified her in doing the same thing? Sir, I deny the whole doctrine. It has not a foot of ground in the Constitution to stand on. No public man of reputation ever advanced it in Massachusetts, in the warmest times, or could maintain himself upon it there at any time.

I wish now, sir, to make a remark upon the Virginia resolutions of 1798. I cannot undertake to say how these resolutions were understood by those who passed them. Their language is not a little indefinite. In the case of the exercise, by Congress, of a dangerous power, not granted to them, the resolutions assert the right, on the part of the state, to interfere and arrest the progress of the evil. This is susceptible of more than one interpretation. It may mean no more than that the states may interfere by complaint and remonstrance; or by proposing to the people an alteration of the Federal Constitution. This would be all quite unobjectionable; or it may be, that no more is meant than to assert the general right of revolution, as against all governments, in cases of intolerable oppression. This no one doubts; and this, in my opinion, is all that he who framed the resolutions could have meant by it; for I shall not readily believe, that he was ever of opinion that a state, under the Constitution, and in conformity with it, could, upon the ground of her own opinion of its unconstitutionality, however clear and palpable she might think the case, annul a law of Congress, solar as it should operate on herself, by her own legislative power.

I must now beg to ask, sir, whence is this supposed right of the states derived?—where do they find the power to interfere with the laws of the Union?—Sir, the opinion which the honorable gentleman maintains is a notion founded in a total misapprehension, in my judgment, of the origin of this government, and of the foundation on which it stands. I hold it to be a popular government, erected by the people; those who administer it responsible to the people; and itself capable of being amended and modified, just as the people may choose it should he. It is as popular, just as truly emanating from the people, as the state governments. It is created for one purpose, the state governments for another. It has its own powers, they have theirs. There is no more authority with them to arrest the operation of a law of Congress, than with Congress to arrest the operation of their laws, We are here to administer a Constitution emanating immediately from the people, and trusted by them to our administration. It is not the creature of the state governments. It is of no moment to the argument that certain acts of the state legislatures are necessary to fill our seats in things body. That is not one of their original state powers, a part of the sovereignty of the state. It is a duty which the people, by the Constitution itself, have imposed on the state legislatures, and which they might have left to be performed elsewhere, if they had seen fit. So they have left the choice of President with electors; but all this does not affect the proposition, that this whole government—President, Senate, and House of Representatives—is a popular government. It leaves it still all its popular character. The governor of a state (in some of the states) is chosen, not directly by the people, but by those who are chosen by the people, for the purpose of performing, among other duties, that of electing a governor. Is the government of a state, on that account, not a popular government? This government, sir, is the independent offspring of the popular will. It is not the creature of state legislatures; nay, more, if the whole truth must be told, the people brought it into existence; established it, and have hitherto supported it, for the very purpose; amongst others, of imposing certain salutary restraints on state sovereignties. The states cannot now make war; they cannot contract alliances; they cannot make, each for itself, separate regulations of commerce; they cannot lay imposts; they cannot coin money; If this Constitution, sir, be the creature of state legislatures, it must be admitted that it has obtained a strange control over the volition of its creators.

The people, then, sir, erected this government. They gave it a Constitution, and in that Constitution they have enumerated the powers which they bestow on it. They have made it a limited government. They have, defined its authority. They have restrained it to the exercise of such powers are granted; and all others, they declare are reserved to the states or the people. But, sir, they have not stopped here. If they had, they would have accomplished but half their work. No definition can be so clear as to avoid possibility of doubt; no limitation so precise as to exclude all uncertainty. Who, then, shall construe this grant of the people. Who shall interpret their will, where it maybe supposed they have left it doubtful? With whom do they repose this ultimate right of deciding on the powers of the government? Sir, they have settled all this in the fullest manner. They have left it, with the government itself, in its appropriate branches. Sir, the very chief end, she main design for which the whole Constitution was framed and adopted, was to establish a government that should not be obliged to act through state agency, depend on state opinion and state discretion.

But who shall decide on the question of interference? To whom lies the last appeal? This, sir, the Constitution itself decides, also, by declaring, “that the judicial power shall extend to all eases arising under, the Constitution and laws of the United States.” These two provisions, sir, cover the whole ground. They are, in truth, the keystone of the arch. With these, it is a constitution; without them, it is a confederacy. In pursuance of these clear and express provisions, Congress established, at its very first session, in the judicial act, a mode for carrying them into full effect, and for bringing all questions of constitutional power to the final decision of the Supreme Court. It then, sir, became a government. It then had the means of self-protection; and, but for this, it would in all probability have been now among things which are past. Having constituted the government, and declared its powers, the people have further said, that, since somebody must decide on the extent of these powers, the government shall itself decide—subject, always, like other popular governments, to its responsibility to the people. And now, sir, I repeat, how is it that a state legislature acquires any power to interfere? Who, or what, gives them the right to say to the people, “We, who are your agents and servants for one purpose, will undertake to decide that your other agents and servants, appointed by you for another purpose, have transcended the authority you gave them ?” The reply would be, I think, not impertinent—”Who made you a judge over another’s servants? To their own masters they stand or fall.”

Sir, I deny this power of state legislatures altogether. It cannot stand the test of examination. Gentlemen may say, that, in an extreme case, a state government might protect the people from intolerable oppression. Sir, in such a case, the people might protect themselves, without the aid of the state governments. Such a case warrants revolution. It must make, when it comes, a law for itself. A nullifying act of a state legislature cannot alter the case, nor make resistance any more lawful. In maintaining these sentiments, sir, I am but asserting the rights of the people. I state what they have declared, and insist on their right to declare it. They have chosen to repose this power in the general government, and I think it my duty to support it, like other constitutional powers.

For myself, sir, I do not admit the jurisdiction of South Carolina, or any other state, to prescribe my constitutional duty, or to settle, between me and the people, the validity of laws of Congress for which I have voted. I decline her umpirage. I have not sworn to support the Constitution according to her construction of its clauses. I have not stipulated, by my oath of office, or otherwise, to come under any responsibility, except to the people, and those whom they have appointed to pass upon the question, whether laws, supported by my votes, conform to the Constitution of the country. And, sir, if we took to the general nature of the case, could any thing have been more preposterous than to make a government for the whole Union, and yet leave its powers subject, not to one interpretation, but to thirteen, or twenty-four, interpretations? Instead of one tribunals, established by all, responsible to all, with power to decide for all,—shall constitutional questions be left to four-and-twenty popular bodies, each at liberty to decide for itself, and none bound to respect the decisions of others; and each at liberty, too, to give a new construction on every new election of its own members? Would any thing, with such a principle in it, or rather with such a destitution of all principle, be fit to be called a government? No, sir, it should not be denominated a constitution. It should; be called, rather, a collection of topics for everlasting controversy—heads of debate for a disputatious people. It would not be a government. It would not be adequate to any practical good, nor fit for any country to live under. To avoid all possibility of being misunderstood, allow me to repeat again, in the fullest manner, that I claim no powers for the government by forced or unfair construction. I admit that it is a government of strictly limited powers,—of enumerated, specified, and particularized powers,—and that whatsoever is not granted is withheld. But notwithstanding all this, and however the grant of powers may be expressed; its limits and extent may yet, in some cases, admit of doubt; and the general government would be good for nothing—it would be incapable of long existing—if some mode had not been provided, in which these doubts, as they should arise, might be peaceably, but authoritatively, solved.

Let it be remembered that the Constitution of the United States is not unalterable. It is to continue in its present form no longer than the people, who established it, shall choose to continue it. If they shall become convinced that they have made an injudicious or inexpedient partition and distribution of power between the state governments and the general government, they can alter that distribution at will.

If any thing be found in the national Constitution, either by original provisions, or subsequent interpretation, which ought not to be in it, the people know how to get rid of it. If any construction be established, unacceptable to them, so as to become practically a part of the Constitution, they will amend it at their own sovereign pleasure. But while the people choose to maintain it as it is—while they are satisfied with it, and refuse to change, it—who has given, or who can give, to the state legislatures a right to alter it, either by interference, construction, or otherwise? Gentlemen do not seem to recollect that the people have any power to do any thing for themselves: they imagine there is no safety for them, any longer than they are under the close guardianship of the state legislatures. Sir, the people have not trusted their safety, in regard to the general Constitution, to these hands. They have required other security, and taken other bonds. They have chosen to trust themselves, first, to the plain words of the instrument, and to such construction as the government itself; in doubtful cases, should put on its own powers, under their oaths of office, and subject to their responsibility to them, just as the people of state trusts their own state governments with a similar power. Secondly, they have reposed their trust in the efficacy of frequent elections, and in their own power to remove their own servants and agents, whenever they see cause. Thirdly, they have reposed trust in the judicial power, which, in order that it might be trustworthy, they have made as respectable, as disinterested, and as independent, as was practicable. Fourthly, they have seen fit to rely, in case of necessity, or high expediency, on their known and admitted power to alter or amend the Constitution, peaceably and quietly, whenever experience shall point out defects or imperfections. And, finally, the people of the United States have at no time, in no way, directly or indirectly, authorized any state legislatures to construe or interpret their high instrument of government, much less to interfere, by their own power, to arrest its course and operation.

Mr. Hayne’s Reply to Mr. Webster, abridged by himself.

Senate, January 27, 1830.

Mr. HAYNE. The proposition which I laid down, and from which the gentleman dissents, is taken from the Virginia resolutions of ’98, and is in these words—”that, in case of a deliberate, palpable, and dangerous exercise, by the federal government, of powers not granted by the compact, (the Constitution,) the states who are parties thereto have a right to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.” The gentleman insists that the states have no right to decide whether the Constitution has been violated by acts of Congress or not; but that the federal government is the exclusive judge of the extent of its own powers; and that, in case of a violation of the Constitution, however “deliberate, palpable, and dangerous,” a state has no constitutional redress, except where the matter can be brought before the Supreme Court, whose decision must be final and conclusive on the subject. Having thus distinctly stated the points in dispute between the gentleman and myself, I proceed to examine them. And here it will be necessary to go back to the origin of the federal government. It cannot be doubted, and is not denied, that before the Constitution, each state was an independent sovereignty, possessing all the rights and powers appertaining to independent nations; nor can it be denied, that, after the Constitution was formed, they remained equally sovereign and independent, as to all powers not expressly delegated to the federal government. This would have been the case even if no positive provisions to that effect had been inserted in that instrument. But to remove all doubt, it is expressly declared, by the 10th article of the amendment of the Constitution, “that the powers not delegated to the states, by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The true nature Of the Federal Constitution, therefore, is (in the language of Mr. Madison) “a compact to which the states are parties,”—a compact by which each state, acting in its sovereign capacity, has entered into an agreement with the other states, by which they have consented that certain designated powers shall be exercised by the United States, in the manner prescribed in the instrument. Nothing can be clearer than that, tinder such a system, the federal government, exercising strictly delegated powers, can have no right to act beyond the pale of its authority, and that all such acts are void. A state, on the contrary, retaining all powers not expressly given away, may lawfully act in all cases where she has not voluntarily imposed restrictions on herself. Here, then, is a case of a compact between sovereigns; and the question arises, what is the remedy for a clear violation of its express terms by one of the parties? And here the plain, obvious dictate of common sense is in strict conformity with the understanding of mankind and the practice of nations in all analogous cases—”that, where resort can be had to no common superior, the parties to the compact must themselves be the rightful judges whether the bargain has been pursued or violated.” (Madison’s Report, p. 20.) When if it insisted by the gentleman that one of the parties “has the power of deciding ultimately and conclusively upon the extent of its own authority,” I ask for the grant of such a power. I call upon the gentleman to show it to me in the Constitution. It is not to be found there.

But if there be no common superior, it results, from the very nature of things that the parties must be their own judges. This is admitted to be the case where treaties are formed between independent nations; and if the same rule does not apply to the federal compact, it must be because the federal is superior to the state government, or because the states have surrendered their sovereignty. Neither branch of this proposition can be maintained for a moment.

Here, however, we are met by the argument that the Constitution was not formed by the states in their sovereign capacity, but by the people; and it is therefore inferred that the federal government, being created by all the people, must be supreme; and though it is not contended that the Constitution may be rightfully violated, yet it is insisted that from the decision of the federal government there can be no appeal.

I deny that the Constitution was framed by the people in the sense in which that word is used on the other side, and insist that it was framed by the states, acting in their sovereign capacity. When, in the preamble of the Constitution, we find the words, “We, the people of the United States,” it is clear they can only relate to the people as citizens of the several states because the federal government was not then in existence.

We accordingly find, in every part of that instrument, that the people are always spoken of in that sense. Thus, in the 2d section of the 1st article, it is declared, “that the House of Representatives shall be composed of members chosen every second year by the people of the several states.” To show that, in entering into this compact, the states acted in their sore. reign capacity, and not merely as parts of one great community, what can be more conclusive than the historical fact, that when every state had consented to it except one, she was not held to be bound. A majority of the people in any state bound that state; but nine tenths of all the people of the United States could not bind the people of Rhode Island, until Rhodes Island, as a state, had consented to the compact.

I am not disposed to dwell longer on this point, which does appear to my mind to be too clear to admit of controversy. But I will quote from Mr. Madison’s Report, which goes the whole length in support of the doctrines for which I have contended.

Having now established the position that the Constitution was a compact between sovereign and independent states, having no common superior, “it follows of necessity” (to borrow the language of Mr. Madison) “that there can be no tribunal above their authority, to decide, in the last resort, whether the compact made by them be violated and consequently that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”

But the gentleman insists that the tribunal provided by the Constitution, for the decision of controversies between the states and the federal government, is the Supreme Court

It is clear that questions of sovereignty are not the proper subjects of judicial investigation. They are much too large, and of too delicate a mature, to be brought within, the jurisdiction of a court of justice. Courts, whether supreme or subordinate, are the mere creatures of the sovereign power, designed to expound and carry into effect its sovereign will. No independent state ever yet submitted to a judge on the bench the true construction of a compact between itself and another sovereign. All courts may incidentally take cognizance of treaties, where rights are claimed under them; but who ever heard of a court making an inquiry into the authority of the agents of the high contracting parties to make the treaty—whether its terms had been fulfilled, or whether it had become void on account of a breach of its conditions on either side? All these are political and not judicial questions. Some reliance has been placed on those provisions of the Constitution which constitute “one Supreme Court,” which provide “that the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties,” and which declare “that the Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land,” &c. Now, as to the name of the Supreme Court, it is clear that the term has relation only to its supremacy over the inferior courts provided for by the Constitution, and has no reference whatever to any supremacy over the sovereign states. The words are, “The judicial power of the United States shall be vested in one Supreme Court, and such inferior courts as Congress may, from time to time, establish,” &c. Though jurisdiction is given “in cases arising under the Constitution,” yet it is expressly limited to “cases in law and equity,” showing conclusively that this jurisdiction was incidental merely to the ordinary administration of justice, and not intended to touch high questions of conflicting sovereignty. When it is declared that the “Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land,” it is manifest that no indication is given, either as to the power of the Supreme Court to bind the states by its decisions, or as to the course to be pursued in the event of laws being passed not in pursuance to the Constitution. And I beg leave to call gentlemen’s attention to the striking fact, that the powers of the Supreme Court, in relation to questions arising under “the laws and the Constitution,” are coëxtensive with those arising under treaties. In all of these cases, the power is limited to questions arising in law and equity; that is to say, to cases where jurisdiction is incidentally acquired in the ordinary administration of justice. But as, with regard to treaties, the Supreme Court has never assumed jurisdiction over questions arising between the sovereigns who are parties to them, so, under the Constitution, they cannot assume jurisdiction over questions arising between individual States and the United States.

But to prove, as I think conclusively, that the judiciary were not designed to act as umpires, it is only necessary to observe that, in a great majority of cases, that court could manifestly not take jurisdiction of the matters in dispute. Whenever it may be designed by the federal government to commit a violation of the Constitution, it can be done, and always will be done in such a manner as to deprive the court of all jurisdiction over the subject. Take the case of the tariff and internal improvements; whether constitutional or unconstitutional, it is admitted for the Supreme Court have no jurisdiction. Suppose Congress should, for the acknowledged purpose of risking an equal distribution Of the property of the country among states or individuals, proceed to lay taxes to the amount of $50,000,000 a year. Could the Supreme Court take cognizance of the act laying the tax, or making the distribution? Certainly not.

Take another case, which is very likely to occur. Congress have the unlimited power of taxation. Suppose them also to assume an unlimited power of appropriation. Appropriations of money are made to establish presses, promote education, build and support churches, create an order of nobility, or for any other unconstitutional object; it is manifest that in none of these oases could the constitutionality of the laws making those grants be tested before the Supreme Court.

It would be in vain that a state should come before the judges with an act appropriating money to any of these objects, and ask of the court to decide whether these grants were constitutional. They could not even be beard, the court would say they had nothing to do with it; and they would say rightly. It is idle, therefore, to talk of the Supreme Court affording any security to the states, in cases where their rights may be violated by the exercise of unconstitutional powers on the part of the federal government. On this subject Mr. Madison, in his Report, says: “But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort; and it may be asked, for what reason the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day, and in so solemn a manner.

“On this objection it might be observed, first, that there may be instances of usurped power which the forms of the Constitution would never draw within the control of the judicial department.”

“But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it.

“However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which t the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”

If, then, the Supreme Court are not, and, fresh their organization, cannot be, the umpires in questions of conflicting sovereignty, the next point to be considered is, whether Congress themselves possess the right of deciding conclusively on the extent of their own powers. This, I know, is a popular notion, audit is founded on the idea that, as all the states are represented here, nothing can prevail which is not in conformity with the will of the majority; and it is supposed to be a republican maxim, “that the majority must govern.”

Now, will any one contend that it is the true spirit of this government, that the, will, of a majority of Congress should, in all eases, he the supreme law? If no security was intended to be provided for the rights of the states, and the liberty of the citizens, beyond the mere organization of the federal government, we should have had no written constitution, but Congress would have been authorized to legislate for us in all cases whatsoever, and the acts of our state legislatures, like those of the present legislative councils in the territories, would have been subjected to the revision and control of Congress. If the will of a majority of Congress is to be the supreme law of the land, it is clear the Constitution is a dead letter, and has utterly failed of the very object for which it was designed—the protection of the rights of the minority. But when, by the very terms of the compact, strict limitations are imposed one every branch of the federal government, and it is, moreover, expressly declared that all powers not granted to them “are reserved to the states or the people,” with what show of reason can it be contended that the federal government is to be the exclusive judge of the extent of its own powers? A written constitution was resorted to in this country, as a great experiment, for the purpose of ascertaining how far the rights of a minority could be secured against the encroachments of majorities—often acting under party excitement, and not unfrequently under the influence of strong interests. The moment that Constitution was formed, the will of the majority ceased to be the law, except in cases that should be acknowledged by the parties to be within the Constitution, and to have been thereby submitted to their will; But when Congress (exercising s delegated and strictly limited authority) pass beyond these limits, their acts become null and void, and must be declared to be so by the courts, in cases within their jurisdiction; and may be pronounced to be so by the states themselves, in cases not within the jurisdiction of the courts, of sufficient importance to justify such an interference.

But what then? asks the gentleman. A state is brought into collision with the United States, in relation to the exercise of unconstitutional powers; who is to decide between them? Sir, it is the common case of difference of opinion between sovereigns, as to the true construction of a compact. Does such a difference of opinion necessarily produce war? No. And if not among rival nations, why should it do so among friendly states? In all such cases, some mode must be devised, by mutual agreement, for settling the difficulty; and, most happily for us, that mode is clearly indicated in the Constitution itself, and results, indeed, from the very form and structure of the government. The creating power is three fourths of the states. By their decision, the parties to the compact have agreed to be bound, even to the extent of changing the entire form of the government itself; and it follows of necessity, that, in case of a deliberate and settled difference of opinion between the parties to the compact, as to the extent of the powers of either, resort must be had to their common superior, (that power which may give any character to the Constitution they may think proper,) viz., three fourths of the states.

But, it has been asked, why not compel a state objecting to the constitutionality of a law to appeal to her sister states by a proposition to amend the Constitution? I answer, because such a course would, in the first instance, admit the exercise of an unconstitutional authority, which the states are not bound to submit to, even for a day; and because it would be absurd to suppose that any redress would ever be obtained by such an appeal, even if a state were at liberty to make it. If a majority of both houses of Congress should, from any motive, be induced deliberately to exercise “powers not granted,” what prospect would there be of “arresting the progress of the evil,” by a vote of three fourths? But the Constitution does not permit a minority to submit to the people a proposition for an amendment of the Constitution. Such a proposition can only come from “two thirds of the two houses of Congress, or the legislatures of two thirds of the states.” It will be seen, therefore, at once, that a minority, whose constitutional fights are violated, can have no redress by an amendment of the Constitution. When any state is brought into direct collision with the federal government, in the case of an attempt, by the latter, to exercise unconstitutional powers, the appeal must be made by Congress, (the party proposing to exert the disputed powers,) in order to have it expressly conferred; and until so conferred, the exercise of such authority must be suspended. Even in case of doubt, such an appeal is due to the peace and harmony of the government. On this subject our present chief magistrate, in his opening message to Congress, says, “I regard an appeal to the source of power, in cases of real doubt, and where its exercise is deemed indispensable to the general welfare, as among the most sacred of all our obligations. Upon this country, more than any other, has, in the providence of God, been cast the special guardianship of the great principle of adherence to written constitutions. If it fail here, all hope in regard to it will be extinguished. That this was intended to be a government of limited and specific, and not general powers, must be admitted by all; and it is our duty to preserve for it the character intended by its framers. The scheme has worked well. It has exceeded the hopes of those who devised it, and become an object of admiration to the world. Nothing is clearer, in my view, than that we are chiefly indebted for the success of the Constitution, under which we are now acting, to the watchful and auxiliary operation of the state authorities. This is not the reflection of a day, but belongs to the most deeply-rooted convictions of my mind. I cannot, therefore, too strongly or too earnestly, for my own sense of its importance, warn you against all encroachments upon the legitimate sphere of state sovereignty. Sustained by its healthful and invigorating influence, the federal system can never fail.”

I have already shown, that it has been fully recognized by the Virginia resolutions of ’98, and by Mr. Madison’s report on these resolutions, that it is not only “the right but the duty of the states” to “judge of infractions of the Constitution,” and to interpose for maintaining within their limits the authorities, rights, and liberties, appertaining to them.

Mr. Jefferson, on various occasions, expressed himself in language equally strong. In the Kentucky resolutions of ’98, prepared by him, it is declared that the federal government “was not made the exclusive and final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as the mode and measure of redress.”

In the Kentucky resolutions of ’99, it is even more explicitly declared ‘that the several states which formed the Constitution, being sovereign and independent, have the unquestionable right to judge of its infraction, and that nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy.”

But the gentleman says, this right will be dangerous. Sir, I insist that, of all the Checks that have been provided by the Constitution, this is by far the safest, and the least liable to abuse.

But there is one point of view in which this matter presents itself to my mind with irresistible force. The Supreme Court, it is admitted, may nullify an act of Congress, by declaring it to be unconstitutional. Can Congress, after such a nullification, proceed to enforce the law, even if they should differ in opinion from the court ? What, then, would be the effect of such a decision ? And what would be the remedy in such a case? Congress would be arrested in the exercise of the disputed power, and the only remedy would be, an appeal to the creating power—three fourths of the states—for an amendment to the Constitution. And by whom must such an appeal be made ? It must be made by the party proposing to exercise the disputed power. Now, I will ask whether a sovereign state may not be safely intrusted with the exercise of a power, operating merely as a check, which is admitted to belong to the Supreme Court, and which may be exercised every day by any three of its members. Sir, no idea that can be formed of arbitrary power on the one hand, and abject dependence on the other, can be carried farther than to suppose that three individuals, mere men, “subject to like passions with ourselves,’ may be safely intrusted with the power to nullify an act of Congress, because they conceive it to be unconstitutional; but that a sovereign and independent state—even the great state of New York—is bound, implicitly, to submit to its operation, even where it violates, in the grossest manner, her own rights, or the liberties of her citizens. But we do not Contend that a common case would justify the interposition.

This is the “extreme medicine of the state,” and cannot become our daily bread.

Mr. Madison, in his Report, says, “It does not follow, however, that because the states, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior occasions.

“The resolution has, accordingly, guarded against any misapprehensions of its object, by expressly requiring, for such an interposition, ‘the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise of powers not granted by it.’

“But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition, which it contemplates to be solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights, and liberties, appertaining to the states, as parties to the Constitution.”

No one can read this without perceiving that Mr. Madison goes the whole length, in support of the principles for which I have been contending.

The gentleman has called upon us to carry out our scheme practically. Now, sir, if I am correct in my view of this matter, then it follows; of course, that, the right of a state being established, the federal government is bound to acquiesce in a solemn decision of a state. acting in its sovereign capacity, at least so far as to make an appeal to the people for an amendment of the Constitution. This solemn decision of a state made either through its legislature or a convention, as may be supposed to be the proper organ of its sovereign will—a point I do not propose now to discuss) binds the federal government, under the highest constitutional obligation, not to resort to any means of coercion against the citizens of the dissenting state. How, then, can any collision ensue between the federal and state governments—unless, indeed, the former should determine enforce the law by unconstitutional means?

Sir, I will put the case home to the gentleman. Is there any violation of the constitutional rights of the states, and the liberties of the citizen, (sanctioned by Congress and the Supreme Court,) which he would believe it to be the right and duty of a state to resist? Does he contend for the doctrine “of passive obedience and non-resistance ?” Would he justify an open resistance to an act of Congress, sanctioned by the courts, which should abolish the trial by jury, or destroy the freedom of religion, or the freedom of the press? Yes, sir, he would advocate resistance in such cases; and so would I, and so would all of us. But such resistance would, according to this doctrine, be revolution: it would be rebellion. According to my opinion, it would be just, legal, and constitutional resistance. The whole difference between us, then, consists in this: the gentleman would make force the only arbiter in all cases of collision between the states and the federal government; I would resort to a peaceful remedy the interposition of the state to “arrest the progress of the evil,” until such times as “a convention (assembled at the call of Congress or two thirds of the states) shall decide to which they mean to give an authority claimed by two of their organs.” Sir, I say, with Mr. Jefferson, (whose words I have here borrowed,) that “it is the peculiar wisdom and felicity of our Constitution to have provided this peaceable appeal, where that of other nations” (and I may add that of the gentleman) “is at once to force.”

Mr. WEBSTER, in some closing remarks, said a few words on the constitutional argument, which the honorable gentleman (Mr. Hayne) labored to reconstruct.

His argument consists of two propositions, and an inference. His propositions are—

1. That the Constitution is a compact between the states.

2. That a compact between two, with authority reserved to one to interpret its terms, would be a surrender, to that one, of all power whatever.

3. Therefore (such is his inference) the general government does not possess the authority to construe its own powers.

Now, sir, who does not see, without the aid of exposition or detection, the utter confusion of ideas involved in this so elaborate and systematic argument?

The Constitution, it is said, is a compact between states: the states, then, and the states only, are parties to the compact. How comes the general government itself a party? Upon the honorable gentleman’s hypothesis, the general government is the result of the compact, the creature of the compact, not one of the parties to it. Yet the argument, as the gentleman has now stated it, makes the government itself one of its own creators. It makes it a party to that compact to which it owes its own existence.

For the purpose of erecting the Constitution on the basis of a compact, the gentleman considers the states as parties to that compact; but as soon as his compact is made, then he chooses to consider the general government, which is the offspring of that compact, not its offspring but one of its parties; and so, being a party, has not the power of judging on the terms of compact.

If the whole of the gentleman’s main proposition were conceded to him—that is to say, if I admit, for the sake of the argument, that the Constitution is a compact between states,—the inferences which he draws from that proposition are warranted by no just reason; because, if the Constitution be a compact between states, still that Constitution, or that compact, has established a government with certain powers; and whether it be one of those powers, that it shall construe and interpret for itself the terms of the compact in doubtful cases, can only be decided by looking to the compact, and inquiring what provisions it contains on this point. Without any inconsistency with natural reason, the government, even thus created, might be trusted with this power of construction. The extent of its powers, therefore, must still besought for in the instrument itself.

If the old Confederation had contained a clause, declaring that resolutions of the Congress should be the supreme law of the land, any state law or constitution to the contrary notwithstanding, and that a committee of Congress, or any other body created by it, should possess judicial powers, extending to all cases arising under resolutions of Congress, then the power of ultimate decision would have been vested in Congress under the Confederation, although that Confederation was a compact between states; and for this plain reason—that it would have been competent to the states, who alone were parties to the compact, to agree who should decide in cases of dispute arising on the construction of the compact.

For the same reason, sir, if I were now to concede to the gentleman his principal proposition, viz., that the Constitution is a compact between states, the question would still be, what provision is made, in this compact, to settle points of disputed construction, or contested power, that shall come into controversy; and this question would still be answered, and conclusively answered, by the Constitution itself. While the gentleman is contending against construction, he himself is setting up the most loose and dangerous construction. The Constitution declares that the laws of Congress shall be the supreme law of the land. No construction is necessary here. It declares, also, with equal plainness and precision, that the judicial power of the United States shall extend to every case arising under the laws of Congress. This needs no construction. Here is a law, then, which is declared to be supreme: and here is a power established which is to interpret that law. Now, sir, how has the gentleman met this? Suppose the Constitution to be a compact; yet here are its terms; and how does the gentleman get rid of them? He cannot argue the seal off the bond, nor the words out of the instrument. Here they are. What answer does he give to them? None in the world, sir, except that the effect of this would be to place the states in a condition of inferiority; and because it results, from the very nature of things, there being no, superior, that the parties must be their own judges! Thus closely and cogently does the honorable gentleman reason on the words of the Constitution. The gentleman says, if there be such power of final decisions in the general government, he asks for the grant of that power. Well, sir, I show him the grant—I turn him to the very words—I show him that the laws of Congress are made supreme, and that the judicial power extends, by express words, to the interpretation of these laws. Instead of answering this, he retreats into the general reflection, that it must result from the nature of things that the states, being the parties, must judge for themselves,

I have admitted, that, if the Constitution were to be considered as the creature of the state governments, it might be modified, interpreted, or construed, according to their pleasure. But, even in that case, it would he necessary that they should agree. One, alone, could not interpret it conclusively; one, alone, could not construe it; one, alone, could not modify it. Yet the gentleman’s doctrine is, that Carolina, alone, may construe and interpret that compact which equally binds all, and gives equal rights to all.

So then, sir, even supposing the Constitution to be a compact between the states, the gentleman’s doctrine, nevertheless, is not maintainable; because, first, the general government is not a party to that compact, but a government established by it, and vested by it with the powers of trying and deciding doubtful questions; and, secondly, because, if the Constitution be regarded as a compact, not one state only, but all the states, are parties to that compact, and one can have no right to fix upon it her own peculiar construction.

So much, sir, for the argument, even if the premises of the gentleman were granted, or could be proved. But, sir, the gentleman has failed to maintain, his leading proposition. He has not shown—it cannot be shown—that the Constitution is a compact between state governments The Constitution itself, in its very front, refutes that proposition; it declares that it is ordained and established by the people of the United States. So far from saying that it is established by the governments of the several states, it does not even say that it is established by the people of the several states; but it pronounces that it is established by the people of the United States, in the aggregate. The gentleman says, it must mean no more than that the people of the several states, taken collectively, constitute the people of the United States. Be it so; but it is in this their collective capacity, t is as all the people of the United States, that they establish the Constitution. So they declare; and words cannot be plainer than the words used.

When the gentleman says, the Constitution is a compact between the states, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the states, as states, were parties to it. We had no other general government. But that was found insufficient, and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a general government which should stand on a new basis—not a confederacy, not a league, net a compact between states, but a constitution; a popular government, founded in popular election. directly responsible to the people themselves, and divided into branches, with prescribed limits of power, and prescribed duties. They ordained such a government; they gave it the name of a constitution; and therein they established a distribution of powers between this, their general government, and their several state governments. When they shall become dissatisfied with this distribution, they can alter it. Their own power over their own instrument remains. But until they shall alter it, it must stand as their will, and is equally binding on the general government and on the states.

The gentleman sir, finds analogy where I see none. He likens it to the case of a treaty, in which, there being no common superior, each party must interpret for itself, reader its own obligation of good faith. But this is not a treaty, but a constitution of government, with powers to execute itself, and fulfil its duties.

I admit, sir, that this government is a government of checks and balances; that is, the House of Representatives is a check on the Senate, and the Senate is a check on the House, and the President is a check on both. But I cannot comprehend him—or if I do, I totally differ from him—when he applies the notion of checks and balances to the interference of different governments. He argues that, if we transgress, each state, as a state, has a right to check us. Does he admit the converse of the proposition—that we have a right to check the states? The gentleman’s doctrines would give us a strange jumble of authorities and powers, instead of governments of separate and defined powers. It is the part of wisdom, I think, to avoid this; and to keep the general government and the state governments each in its proper sphere—avoiding, as carefully as possible, every kind of interference.

Finally, sir, the honorable gentleman says that the states will only interfere, by their power, to preserve the Constitution. They will not destroy it, they will not impair it—they will only save, they will only preserve, they will only strengthen it ! All regulated governments, all free governments, have been broken up by similar disinterested and well-disposed interference!

Mr. EDWARD LIVINGSTON. I think that the Constitution is the result of a compact entered into by the several states, by which they surrendered a part of their sovereignty to the Union, and vested the part so surrendered in a general government.

That this government is partly popular, acting directly on the citizens of the several states; partly federative, depending for its existence and action on the existence and action of the several states.

That, by the institution of this government, the states have unequivocally surrendered every constitutional right of impeding or resisting the execution of any decree or judgment of the Supreme Court, in any case of law or equity between persons or on matters, of whom or on which that court has jurisdiction, even if such decree or judgment should, in the opinion of the states, be unconstitutional.

That, in cases in which a law of the United States may infringe the constitutional right of a state, but which, in its operation, cannot be brought before the Supreme Court, under the terms of the jurisdiction expressly given to it over particular persons or matters, that court is not created the umpire between a state that may deem itself aggrieved and the general government.

That, among the attributes of sovereignty retained by the states, is that of watching over the operations of the general government, and protecting its citizens against their unconstitutional abuse; and that this can be legally done—

First, in the case of an act, in the opinion of the state palpably unconstitutional, but affirmed in the Supreme Court in the legal exercise of its functions;

By remonstrating against it to Congress:

By an address to the people, in their elective functions, to Change or instruct their representatives;

By a similar address to the other states, in which they will have a right to declare that they consider the act as unconstitutional, and therefore void;

By proposing amendments to the Constitution in the manner pointed out by that instrument;

And, finally, if the act be intolerably oppressive, and they find the general government persevere in enforcing it, by a resort to the natural right which every people have to resist extreme oppression.

Secondly, if the act be one, of the few which, in its Operation; cannot be submitted to the Supreme Court, and be one that will, in the opinion of the state, justify the risk of a withdrawal from the Union, that this last extreme remedy may at once be resorted to.

That the right of resistance to the operation of an act of Congress, in the extreme cases above alluded to, is not a right derived from the Constitution, but can be justified only on the supposition that the Constitution has been broken, and the state absolved from its obligation; and that, whenever resorted to, it must be at the risk of all the penalties attached to an unsuccessful resistance to established authority.

That the alleged right of a state to put a veto on the execution of a law of they United States, which such state may declare to be unconstitutional, attended (as, if it exist, it must be) with a correlative obligation, on the part of the general government, to refrain from executing it; and the further alleged obligation, on the part of that government, to submit the question to the states, by proposing amendments, are not given by the Constitution, nor do they grow out of any of the reserved powers.

That the exercise of the powers last mentioned would introduce a feature in our government not expressed in the Constitution; not implied from any right of sovereignty reserved to the states; not suspected to exist, by the friends or enemies of the Constitution, when it was framed or adopted; not warranted by practice or contemporaneous exposition, nor implied by the true construction of the Virginia resolutions in ’98.

That the introduction of this feature in our government would totally change its nature, make it inefficient, invite to dissension, and end, at no distant period, in separation; and that, if it had been proposed in the form of an explicit provision in the Constitution, it would have been unanimously rejected, both in the Convention which framed that instrument and in those which adopted it.

That the theory of the federal government being the result of the general will of the people of the United States in their aggregate capacity, and founded in no degree on compact between the states, would tend to the most disastrous practical results; that it would place three fourths of the states at the mercy of one fourth, and lead inevitably to a consolidated government, and finally to monarchy, if the doctrine were generally admitted; and if partially so, and opposed, to civil dissensions.

Mr. WOODBURY. From the very fact of there being two parties in the federal government, it would seem a necessary inference that the agents of each party, on proper occasions, must be allowed, and are required by an official oath, to conform to the Constitution, and to decide on the extent of its provisions, so far as is necessary for the expression of their own views, and for the performance of their own duties. This being, to my mind, the rationale of the case, I look on the express words of the Constitution as conforming to it, by limiting the grant of judicial jurisdiction to the Supreme Court, both by the Constitution and by the acts of Congress, to specify enumerated objects. In the same way, there are limited grants of judicial jurisdiction to state courts, under most of the state constitutions. When cases present themselves within these grants, the judges, whether of the state or United States, must decide, and enforce their decision with such means as are confided to them by the laws and the constitutions. But, when questions arise, not confided to the judiciary of the states, or United States, the officers concerned in those questions must themselves decide them; and, in the end, must pursue such course as their views of the Constitution dictate. In such instances, they have the same authority to make this decision as the Supreme Court itself has in other instances.

On Powers of the State and Federal Governments.

February 29.

Mr. GRUNDY. I will proceed to an examination of a subject upon which a great diversity of Opinion seems to prevail. I mean the powers of the state and federal governments. As to the true division or distribution of their powers, no difficulty exists so long as we speak in general terms; differences of opinion arise when we come to an act on particular cases. At present, we have no case before the Senate, and are only discussing the subject for the purpose of ascertaining the true rule by which to test cases as they arise; and in the event Congress should transcend the limits or boundaries of its constitutional powers, to ascertain where we are to look for the ultimate corrective tribunal.

The states existed prior to this government. Each of them possessed all the rights and powers which appertain to sovereign and independent nations. For all the purposes of self-government, no want of power, or the means of using it, was felt by any of these communities. Life, liberty, reputation, and property, all found an ample protection in the state governments. If any internal improvement were necessary, within its limits, the sovereign power of the state, having entire and uncontrolled jurisdiction, could cause it to be undertaken and effected. For none of these purposes or objects was there a defect of competency in the state governments. There were objects, however, of high importance, to which the states, separately, were not equal or adequate to provide. These are specified n the recommendatory letter by the Conventions, and signed by General Washington, which accompanied the Constitution, when presented to he old Congress for its consideration. The language is, “The friends of our country have long seen and desired, that the power of making war, peace, and treaties; that of levying money and regulating commerce; and the correspondent executive and judicial authorities, should be fully and effectually vested in the general government of the Union.” Here is an enumeration of the objects which made it necessary to establish this government; and when we are called on to decide whether a subject he within our powers, we ought not to lose sight of the purposes for which the government was created. When it is recollected that all the powers now possessed by the general and state governments belonged originally to the latter, and that the former is constructed from grants of power yielded up by the state governments, the fair and just conclusion would be, that no other power was conferred except what was plainly and expressly given. But if doubt could exist, the 10th article in the amendments to the Constitution settles this question. It declares that “the powers not the United States the Constitution, nor prohibited by it delegated to the states, are reserved to the states, respectively, or to the people,” The conclusion hence arises, that this government is one of limited, delegated powers, and can only act on subjects expressly placed under its control by the Constitution, and upon such other matters as may be necessarily and properly within the sphere of its action, to enable it to carry the enumerated and specified powers into execution, and without which the powers granted would be inoperative.

Public Lands.

Senate, February 23, 1830.

MR. WOODBURY. Not examining the particular kind of sales the government can make for the common benefit, such as grants to the new states for such schools, receiving virtual compensation therefore, by having the rest of the land freed from taxation, I merely lay down what I suppose to be the general principle.

On that principle, no reasoning has been offered which convinces me that lands can be legally appropriated to any object for which we might not legally appropriate money. The lands are as much the property of the Union as its money in the treasury. The cessions and purchases of them were as much for the benefit of all as the collection of the money. The Constitution, as well as common sense, seems to recognize no difference; and if the money can only be appropriated to specified objects, it follows that the land can only be so appropriated. Within those specified objects I have ever been, and ever shall be, as ready to give lands or money to the west as to the east; but beyond them, I never have been ready to give either to either. Towards certain enumerated objects, Congress have authority to devote the common funds—the land or the money; because those objects were supposed to be better managed under their control than under that of the states; but the care of the other objects is reserved to the states themselves, and can only be promoted by the common funds, in a return or division of these funds to proprietors, to be expended as they may deem judicious.

The whole debate on these points goes to satisfy my mind of the correctness of that construction of the Constitution, which holds no grants of money or lands valid, unless to advance some of the enumerated objects intrusted to Congress. When we once depart from that great landmark on the appropriation of lands or money, and wander into indefinite notions of “common good” or of the “general welfare,” we are, in my opinion, at sea without compass or rudder; and in a government of acknowledged limitations, we put every thing at the caprice of a fluctuating majority here; pronouncing that to be for the general welfare to-day, which tomorrow maybe denounced as a general curse. Were the government not limited, this broad discretion would, of course, be necessary and right. But here every grant of power is defined. Many powers are not ceded to the general government, but are expressly withheld to the states and people; and right is, in my opinion, given to promote the “general welfare,” by granting money or lands, but in the exercise of specific powers granted, and in the modes prescribed, by the Constitution.

In fine, if the government, and the principles of strict construction of the Constitution, cannot be prosperously administered, it requires no spirit of prophecy to foresee, that, in a few brief years, in a new crisis approaching, and before indicated, it must, as a confederation, probably cease to be administered at all. It will, in my judgment, become a government of usurped, alarming, undefined powers; and the sacred rights of the states will become overshadowed in total eclipse. When that catastrophe more nearly approaches, unless the great parties to the government shall arouse, and in some way interfere and rescue it from consolidation, it will follow, as darkness does the day, that the government ends, like all republics of older times, either in anarchy or despotism.

Nullification.

Senate, April 2, 1830.

Mr. JOHNSTON. The right of a state to annul a law of Congress must depend on their showing that this is a mere confederation of states; which has not been done, and cannot be said to be true, although it should not appear to be absolutely a government of the people. It is by no in cans necessary to push the argument, as to the character of the government, to its utmost limit; the ground has been taken, and maintained with great force of reasoning, that this government is the agent of the supreme power, the people. It is sufficient for the argument, that this is not a compact of states. It may be assumed that it is neither strictly a confederation nor a national government: it is compounded of both; it is an anomaly in the political world; an experiment growing out of our peculiar circumstances; a compromise of principles and opinions: it is partly federal, partly national.

“The proposed Constitution is, in strictness, neither national nor federal; it is a composition of both; in its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal, partly national; in the operation of these powers, it is national, not federal; in the mode for amendment, it is neither wholly federal nor wholly national.”—Federalist.

The following list will exhibit the nature and number of the causes decided, [in the Supreme Court.] The same case is sometimes counted under different heads:

1. Declaring acts of Congress unconstitutional,…2
2. Constitutional,…
3. Declaring state laws constitutional,…9
4. Declaring state laws unconstitutional,…26
5. Affirming judgments of state courts, 14
6. Annulling judgments of state courts 14
7. Assenting to appeal jurisdiction, 7
8. Acquiescing in appeal jurisdiction, 21
9. States parties, really and nominally…6
10. States parties, incidentally,…4
11. Opinions against the President,…2
12. Opinions in favor of the President,…2
13. Opinions against the Secretary of State,…2

They have decided twenty-six state laws robe unconstitutional; that is, interfering with the rights of the general government; which, considering these as twenty-four states, are not equal to the number of decisions against the acts of Congress. * * *

The [Supreme] Court has annulled the judgments of state courts in fourteen cases, which drew in question the Constitution, laws, or treaties of the United States; but has affirmed as many; which shows they have no bearing against the rights of states, and which if it has had no other effect, has preserved the uniformity so essential to the administration of justice under them. * * *

Indian “Treaties.”

Senate, May, 1830.

Mr SPRAGUE. These contracts with aboriginal communities have been denominated treaties from the first settlement of this country. It has been their peculiar and appropriate name without even an alias dictus. Great Britain made treaties with the Indians; the several colonies formed many, and gave them the same appellation. The Continental Congress, from the time it first assembled until it was merged in the present national government, uniformly called them treaties. They did so in 1775, 1776, 1778, 1783, 1784, 1785, 1786, 1787, 1788, and even to the day of the formation and adoption of the Constitution. We find them repeatedly and particularly mentioned in July, August, and October, 1787, the Constitution being formed in September of the same year.

United States Bank.

House of Representatives, April 13, 1830.

Mr. M’DUFFIE. It remains for the committee to show that the Bank of the United States is a necessary and proper,” or, in other words, a natural and appropriate, means of executing the powers vested in the federal government. In the discussion of 1791, and also in that before the Supreme Court, the powers of raising, collecting, and disbursing, the public revenue, of borrowing money on the credit of the United States, and paying the public debt, were those which were supposed most clearly to carry with them the incidental right of incorporating a bank, to facilitate these operations. There can be no doubt that these fiscal operations are greatly facilitated by a bank, and it is confidently believed that no person has presided twelve months over the treasury, from its first organization to the present time, without coming to the conclusion that such an institution is exceedingly useful to the public finances in time of peace, but indispensable in time of war. But as this view of the question has been fully unfolded in former discussions familiar to the house, the committee will proceed to examine the relation which the Bank of the United States hears to another of the powers of the federal government, but slightly adverted to in former discussions of the subject.

The power to “coin money and fix the value thereof” is expressly and exclusively vested in Congress. This grant was evidently intended to invest Congress With the power of regulating the circulating medium. “Coin” was regarded, at the period of framing the Constitution, as synonymous with “currency,” as it was then generally believed that bank notes could only be maintained in circulation by being the true representative of the precious metals. The word “coin,” therefore, must be regarded as a particular term, standing as the representative of a general idea. No principle of sound construction will justify a rigid adherence to the letter, in opposition to the plain intention of the clause. If, for example, the gold bars of Ricardo should be substituted for our present coins, by the general consent of the commercial world, could it be maintained that Congress would not have the power to make such money, and fix its value, because it is not “coined”? This would be sacrificing sense to sound, and substance to mere form This clause of the Constitution is analogous to that which gives Congress the power “to establish post-roads” Giving to the word “establish” its restricted interpretation, as being equivalent to “fix” or “prescribe,” can it be doubted that Congress has the power to establish a canal, or a river, as a post-route, as well as a road? Roads were the ordinary channels of conveyance, and the term was, therefore, used as synonymous with “routes,” whatever might be the channel of transportation; and, in like manner, “coin” being the ordinary and most known form of a circulating medium, that term was used as synonymous with currency.

An argument in favor of the view just taken may be fairly deduced from the fact, that the states are expressly prohibited from “coining money, or emitting bills of credit,” and from “making any thing but gold and silver a lawful tender in payment of debts” This strongly confirms the idea, that the subject of regulating the circulating medium, whether consisting of coin or paper, was, at the same time that it was taken from the control of the states, vested in the only depository in which it could be placed, consistently with the obvious design of having a common measure of value throughout the Union.

MR. MONROE’S OBJECTIONS TO
“AN ACT FOR THE PRESERVATION AND REPAIR OF THE CUMBERLAND ROAD.”

Having duly considered the bill, entitled “An Act for the Preservation and Repair of the Cumberland goad,” it is with deep regret, approving as I do the policy, that I am compelled to object to its passage, and to return it to the House of Representatives, in which it originated, under a conviction that Congress do not possess the power, under the Constitution, to pass such a law.

A power to establish turnpikes with gates and tolls, and to enforce the collection of tolls by penalties, implies a power to adopt and execute a system of internal improvement. A right to impose duties, to be paid by all persons passing a certain road, and on horses and carriages, as is done by this bill, involves the right to take land from the proprietor, on a valuation, and to pass laws for the protection of the road from injuries; and if it exist as to one road, it exists as to any other, and teas many roads as Congress may think proper to establish. A right to legislate for one of these purposes, is a right to legislate for the others. It is a complete right of jurisdiction and sovereignty, for all the purposes of internal improvement, and not merely the right of appropriating money, under the power vested in Congress to make appropriations,—under which power, with the consent of the states through which the road passes, the work was originally commenced, and has been so far executed. I am of opinion that Congress do not possess this power; that the states, individually, cannot grant it; for, although they may assent to the appropriation of money within their limits for such purposes, they can grant no power of jurisdiction or sovereignty by special compacts with the United States. This power can be granted only by an amendment to the Constitution, and in the mode prescribed by it.

If the power exist, it must, either because it has been specifically granted to the United States, or that which is incidental to some power which has been specifically granted. If we examine the specific grants of power, we do not find it among them; her is it incidental to any power which has been specifically granted.

It never has been contended that the power was specifically granted. It is claimed only as being incidental to one or more of the powers which are specifically granted The following are the powers from which it is said to be derived:—

1st, from the right to establish post-offices and post-roads; 2d, from the right to declare war; 3d, to regulate commerce; 4th, to pay the debts and provide for the common defence and general welfare; 5th, from the power to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the government of the Un ted States, or in any department or officer thereof 6th and lastly, from the power to dispose of, and make all needful rules and regulations respecting, the territory and other property of the United States.

According to my judgment, it cannot be derived from either of those powers, nor from all of them united; and, in consequence, does not exist.

JAMES MONROE

Washington, May 4, 1822,

On the evening of the 24th, President Monroe also transmitted his “views,” in Support of his veto, in an elaborate argument, which is the exposition quoted in President Jackson’s objections.

OBJECTIONS OF THE PRESIDENT OF THE UNITED STATES
ON RETURNlNG TO THE HOUSE OF REPRESENTATIVES THE ENROLLED BILL, ENTITLED
“AN ACT AUTHORIZING A SUBSCRIPTION OF STOCK IN THE MAYSVILLE, WASHINGTON, PARIS, AND LEXINGTON TURNPIKE ROAD COMPANY.”

The constitutional power of the federal government to construct or promote works of internal improvement presents itself in two points of view—the first, as bearing upon the sovereignty of the states Within whose limits their execution is contemplated, if jurisdiction of the territory which they may occupy be claimed as necessary to their preservation and use; the second, as asserting the simple right to appropriate money from the national treasury in aid of such works when undertaken by state authority, surrendering the claim of jurisdiction. In the first view, the question of power is an open one, and can be decided without the embarrassment attending the other, arising from the practice of the government.

Although frequently and strenuously attempted, the power, to this extent, has never been exercised by the government in a single instance. It does not, in my opinion, possess it, and no bill, therefore, which admits it, can receive my official sanction.

But, in the other view of the power, the question is differently situated. The round taken at an early period of the government was, “that, whenever money has been raised by the general authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it; if not, no such application can be made.” The document in which this principle was first advanced is of deservedly high authority, and should be held in grateful remembrance for its immediate agency in rescuing the country from much existing abuse, and for its conservative effect upon some of the most valuable principles of the Constitution. The symmetry and purity of the government would, doubtless, have been better preserved, if this restriction of the power of appropriation could have been maintained without weakening its ability to Fulfil the general objects of its restitution—an effect so likely to attend its admission, notwithstanding its apparent fitness, that every subsequent administration of the government, embracing a period of thirty out of the forty-two years of its existence, has adopted a more enlarged construction of the power.

In the administration of Mr. Jefferson, we have two examples of the exercise of the right of appropriation, which, in the consideration that led to their adoption, and in their effects upon the public mind, have had a greater agency in marking the character of the power, than any subsequent events. I allude to the payment of fifteen millions of dollars for the purchase of Louisiana, and to the original appropriation for the construction of the Cumberland Road; the latter act deriving much weight from t e acquiescence and approbation of three of the most powerful of the original members of the confederacy, expressed through their respective legislatures. Although the circumstances of the latter case may be such as to deprive so much of it as relates to the actual construction of the road of the force of an obligatory exposition of the Constitution, it must, nevertheless, be admitted that, so far as the mere appropriation of money is concerned, they present the principle in its most imposing aspect. No less than twenty-three different laws have been passed through all the forms of the Constitution, appropriating upwards of two millions of dollars out of the national treasury in support of that improvement, with the approbation of every President of the United States, including my predecessor, since its commencement.

Independently of the sanction given to appropriations for the Cumberland and other roads and objects, under this power the administration of Mr. Madison was characterized by an act which furnishes the strongest evidence of his opinion extant. A bill was passed through both houses of Congress, and presented for his approval, “setting apart and pledging certain funds for constructing roads and canals, and improving the navigation of watercourses, in order to facilitate, promote, and give security to internal commerce among the several states; and to render more easy, and less expensive, the means and provision for the common defence.” Regarding the bill as asserting a power in the federal government to construct roads and canals within the limits of the states in which they were made, he objected to its passage, on the ground of its unconstitutionality, declaring that the assent of the respective states, in the mode provided by the bill, could not confer the powers in question; that the only eases in which the consent and cession of particular states can extend the power of Congress are those specified and provided for in the Constitution; and superadding to this avowal his opinion, that “a restriction of the power ‘to provide for the common defence and general welfare,’ to cases which are to be provided for by the expenditure of money, would still leave within the legislative power of Congress all the great and most important measures of government, money being the ordinary and necessary means of carrying them into execution.” I have not been able to consider these declarations in any other point of view than as a concession that the right of appropriation is not limited by the power to carry into effect the measure for which the money is asked as was formerly contended.

The view of Mr. Monroe upon this subject were not left to inference. During his administration, a bill was passed through both houses of Congress, conferring the jurisdiction, and prescribing the mode by which the federal government should exercise it in the case of the Cumberland road. He returned it, with objections to its passage, and, in assigning them, took occasion to say that, in the early stages of the government, he had inclined to the construction that it had no right to expend money, except in the performance of acts authorized by the other specific grants of power, according to a strict construction of them; but that, on further reflection and observation, his mind had undergone a change; that his opinion then was, “that Congress have unlimited power to raise money, and that, in its appropriation, they have a discretionary power; restricted only by the duty to appropriate it to purposes of common defence, and of general, national, not local, or state, benefit;” and this was avowed to be the governing principle through the residue of his administration. The views of the last administration are of such recent date as to render a particular reference to them unnecessary. It is well known that the appropriating power, to the utmost extent which had been claimed for it, in relation to internal improvements, was fully recognized and exercised by it.

This brief reference to known facts will be sufficient to show the difficulty, if not impracticability, of bringing back the operation of the government to the construction of the Constitution set up in 1798, assuming that to be its true reading, in relation to the power under consideration; thus giving an admonitory proof of the force of implication, and the necessity of guarding the Constitution, with sleepless vigilance, against the authority of precedents which have not the sanction of its most plainly defined powers; for, although it is the duty of all to look to that sacred instrument, instead of the statute-book,—to repudiate, at all times, encroachments upon its spirit, which are too apt to be effected by the conjuncture of peculiar and facilitating circumstances,—it is not less true that the public good and the nature of our political institutions require that individual differences should yield to a well-settled acquiescence of the people and confederated authorities, in particular constructions of the Constitution. on doubtful points. Not to concede this much to the spirit of our institutions would impair their stability, and defeat the objects of the Constitution itself.

The only remaining yew which t is my intention to present at this time, involves the expediency of embarking in a system of internal improvement, without a previous amendment of the Constitution, explaining and defining the precise powers of the federal government over it. Assuming the right to appropriate money, to aid in the construction of national works, to be warranted by the contemporaneous and continued exposition of the Constitution, its insufficiency for the successful prosecution of them must be admitted by all candid minds. If we look to usage to define the extent of the right, that will be found so variant, and embracing so much that has been overruled, as to involve the whole subject in great uncertainty, and to render the execution of our respective duties in relation to it replete with difficulty and embarrassment. It is in regard to such works, and the acquisition of additional territory, that the practice obtained its first footing. In most, if not all, other disputed questions of appropriation, the construction of the Constitution may be regarded as unsettled, if the right to apply money, in the enumerated cases, is placed on the ground of usage.

If it be the desire of the people that the agency of the federal government should be confined to the appropriation of money, in aid of such undertakings, in virtue of the state authorities then the occasion the manner, and the extent of the appropriations, should be made the subject of constitutional regulation. This is the more necessary, in order that they may be equitable among the several states; promote harmony between sections of the Union and their representatives; preserve other parts of the Constitution from being undermined by the exercise of doubtful powers, or the too great extension of those which are not so; and protect the whole subject against the deleterious influence of combinations to carry, by concert, measures which, considered by themselves, might meet but little countenance.

That a constitutional adjustment of this power, upon equitable principles, is, in the highest degree, desirable, can scarcely be doubted; nor can it fail to be promoted by every sincere friend to the success of our political institutions. In no government are appeals to the source of power in cases of real doubt, more suitable than in ours. No good motive can be assigned for the exercise of power by the constituted authorities while those, for whose benefit it is to be exercised, have not conferred it, and may not be willing to confer it. It would seem to me that an honest application of the conceded powers of the general government to the advancement of the common weal presents a sufficient scope to satisfy a reasonable ambition. The difficulty and supposed impracticability of obtaining an amendment of the Constitution, in this respect, is, I firmly believe, in a great degree, unfounded.

In presenting these opinions, I have spoken with the freedom and candor which I thought the occasion for their expression called for; and now respectfully return the bill which has been under consideration, for your further deliberation and judgment.

ANDREW JACKSON.

[General Jackson, in addition to the above, has exercised the veto power on several bills.—See Appendix].

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