Abbildungen der Seite
PDF
EPUB

port the legislative and executive acts of the general government when consistent with the constitution. As therefore it is neither a stranger, nor properly speaking a confederate, it seems to follow that it must be considered as part of the greater nation, a term, which in the course of this work we shall chiefly use in reference to the United States, because although every political body, governed only by its own laws or internal regulations, may be denominated a nation, yet the states, not possessing that absolute independence, cannot with full propriety be so designated. But a name is of little importance if the substance is retained, and if Virginia or Pennsylvania are not known abroad as nations, it does not affect their power at home as states. In this relation every state must be viewed as entirely sovereign in all points not transferred by the people who compose it to the government of the Union and every exposition that may be given to the constitution, inconsistent with this principle, must be unsound. The supremacy of the Union in all those points that are thus transferred, and the sovereignty of the state in all those which are not transferred, must therefore be considered as two co-ordinate qualities, enabling us to decide on the true mode of giving a construction to the constitution. As different views have prevailed, different theories of construction have been formed. Some have contended that it should be construed strictly, others have asserted, that the most liberal construction should be allowed. By construction we can only mean the ascertaining the true meaning of an instrument, or other form of words, and by this rule alone ought we to be governed in respect to this constitution. A strict construction, adhering to the letter, without pursuing the sense of the composition, could only proceed from a needless jealousy, or

rancorous enmity. On the other hand, a liberal construction may be carried to an injurious extreme; concessions of power may be conceived, or assumed, which never were intended, and which therefore are not necessary for its legitimate effect. The true rule therefore seems to be no other than that which is applied in all cases of impartial and correct exposition; which is to deduce the meaning from its known intention and its entire text, and to give effect, if possible, to every part of it, consistently with the unity, and the harmony of the whole.

In many respects we have the benefit of the learned elucidations of judicial tribunals, and wherever the supreme court of the United States has pronounced its solemn decision upon constitutional points, the author has gladly availed himself of the irrefragable authority; but where a guide so certain, cannot be found, recourse can only be had, to an anxious and serious endeavour to display, and expound with truth and justice, the main features of a constitution which must always be more admired, as it is more considered, and better understood. If these examinations produce the same effect upon the reader, that they have upon the author, the attachment of our native citizens, and the attractions to foreigners will be increased, and those who are now here, and those who may hereafter be here, will concur to venerate and support a government, eminent above all others in promoting the freedom and the happiness of man.

CHAPTER II.

Of the Legislative Power.

THE course proposed to be pursued is first to consider the legislative power as it resides in the senate and house of representatives, to what extent the president participates in general legislation, his power in conjunction with the senate relative to making treaties, with the operation and effect of treaties; we shall then proceed to those powers of general legislation which are implied by the constitution, or expressly enumerated, and conclude this head with a view of the restraints under which both the United States and the states severally, are placed by the constitution.

The legislative power is vested in the congress of the United States, consisting of the senate and house of representatives. The first paragraph evinces that it is a limited, and not a general government. The term "all legislative powers hereby granted," remind both the congress and the people of the existence of some limitation. The introduction displays the general objects. The constitution itself enumerates some of the powers of congress, and excludes others which might perhaps fall within the general expressions of the introductory part. These prohibitions are in some degree auxiliary to a due construction of the constitution. When a general power over certain objects is granted, accompanied with certain exceptions, it may be considered as leaving that general power undiminished in all those respects which are not thus excepted.

[ocr errors]

The value and effect of this proposition may be adverted to hereafter.

The legislative power possesses with us a great advantage over those countries where it may be adjourned or dissolved at the pleasure of the executive authority. It is a self-moving and self-dependent body. Although it may be convened by the executive, it cannot be adjourned or dissolved by it. The time of its assembling is fixed by the constitution, until which, unless a law has been passed appointing an earlier day, or the president on extraordinary occasions has thought proper to convene them, the action of the legislature cannot commence; but if in their opinion the public good shall require it, they may continue uninterruptedly in session, till the arrival of the period for which the members of the house of representatives are elected. And they may fix as early a time for the meeting of the next congress as they think proper. A similar principle prevails in all the state constitutions, and it is only where it exists, that the legislature is truly independent. It is as inconsistent with sound principles for the executive to suspend, at its pleasure, the action of the legislature, as for the latter to undertake to deprive the executive of its constitutional functions.

But without a constitutional limit on its duration, it must be conceded, that a power in the legislature to protract its own continuance, would be dangerous. Blackstone attributes the misfortunes of Charles I. to his having unadvisedly passed an act to continue the parliament, then in being, till such time as it should please to dissolve itself, and this is one of the many proofs that the much praised constitution of that country wants the character of certainty. No act of congress could prolong the continuance of the legislature beyond the term fixed by the constitution.

CHAPTER III.

Of the Senate.

THE senate, on account of its more permanent duration and various functions, will receive our first attention. If the infusion of any aristocratic quality can be found in our constitution, it must be in the senate; but it is so justly tempered and regulated by other divisions of power, that it excites no uneasiness. The mounds and safeguards with which it is surrounded, must be violently broken down, before any political injury can arise from the senate.

The senators are appointed from time to time, by the legislatures of the different states, but if a vacancy happens during the recess of the state legislature, the executive thereof may make temporary appointments, until the next meeting of the legislature, which shall then fill such vacancies.

The vesting this power in the state legislature is the only material remnant of the federative character of the late congress; but the delegates then appointed were to possess the whole power; the present but a part of the powers of government. It is recommended by the double advantage of favouring a select appointment, and of giving to the state governments such an agency in the formation of the general government as preserves the authority of the former, and contributes to render them living members of the great body. (8)

(8) Federalist, No. 62. The author avails himself of the first occasion to quote this excellent work, to unite in the general homage that has been paid to it. The letters signed Publius were

« ZurückWeiter »