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the Constitution, if that instrument be not a splendid pageant, or a delusive phantom of sovereignty ?" It was, indeed, the object of the framers of the Constitution “to remove all
possible doubt" from this subject. They desired neither a splendid pageant nor a splendid government. They knew that without this restriction ours would be both; and as powerful as splendid. They did not design that any power with which they thought proper to clothe it should be inoperative, for want of means to carry it into execution; but they never designed to give it the boundless field of its own mere will, for the selection of those means. Having specifically enumerated its powers, as far as was practicable, *they never designed to involve themselves in the absurdity of removing, by a single
[*106] clause, every restriction which they had previously imposed. They meant to assure their agent that, while none of the powers with which they had thought proper to clothe it should be nugatory, none of them should be executed by any means which were not both “necessary” and “proper.”
The lovers of a strong consolidated government have labored strenuously, and I fear with too much success, to remove every available restriction upon the powers of congress. The tendency of their principles is to establish that legislative omnipotence which is the fundamental principle of the British Constitution, and which renders every form of written constitution idle and . useless. They suffer themselves to be too much attracted by the splendors of a great central power. Dazzled by these splendors, they lose sight of the more useful, yet less ostentatious purposes of the State governments, and seem to be unconscious that, in building up this huge temple of federal power, they necessarily destroy those less pretending structures from which alone they derive shelter, protection and safety. This is the ignis fatuus which has so often deceived nations, and betrayed them into the slough of despotism. On all such, the impressive warning of Patrick Henry, drawn from the lessons of all experience, would be utterly lost. “ Those nations who have gone in search of grandeur, power and splendor, have also fallen a sacrifice and been the victims of their own folly. While they acquired those visionary blessings, they lost their freedom. The consolidationists forget these wholesome truths, in their
eagerness to invest the federal government with every power which is necessary to realize their visions in a great and splendid nation. Hence they do not discriminate between the several classes of federal powers, but contend for all of them, with the same blind and devoted zeal. It is remarkable that, in the exercise of all those functions of the federal government which concern our foreign relations, scarcely a case can be supposed, requiring the aid of any implied or incidental power, as to which any serious doubt can arise. The powers of that government, as to all such matters, are so distinctly and plainly pointed out in the very letter of the Constitution, and they are so ample for all the purposes contemplated, that it is only necessary to understand them according to their plain meaning, and to exercise them according to their acknowledged extent. No auxiliaries are required; the government has only to go on in the execution of its trusts, with powers at once ample and unquestioned. It is only in matters which concern our domestic policy, that any
serious *struggle for federal power has ever arisen, or [*107]
is likely to arise. Here, that love of splendor and display, which deludes so large a portion of mankind, unites with that self-interest by which all mankind are swayed, in aggrandizing the federal government, and adding to its powers. He who thinks it better to belong to a splendid and showy government, than to a free and happy one, naturally seeks to surround all our institutions with a gaudy pageantry, which belongs only to aristocratic or monarchical systems. But the great struggle is for those various and extended powers, from the exercise of which avarice may expect its gratifications. Hence the desire for a profuse expenditure of public money, and hence the thousand schemes under the name of internal improvements, by means of which hungry contractors may plunder the public treasury, and wily speculators prey upon the less skilful and cunning. And hence, too, another sort of legislation, the most vicious of the whole, which, professing a fair and legitimate object of public good, looks, really, only to the promotion of private interests. It is thus that classes are united in supporting the powers of government, and an interest is created strong enough to carry all measures, and sustain all abuses.
Let it be borne in mind that, as to all these subjects of do
mestic concern, there is no absolute necessity that the federal government should possess any power at all. They are all such as the State governments are perfectly competent to manage ; and the most competent, because each State is the best judge of what is useful or necessary to itself. There is, then, no room to complain of any want of power to do whatever the interests of the people require to be done. This is the topic upon which our author has lavishly expended his strength. Looking upon government as a machine contrived only for the public good, he thinks it strange that it should not be supposed to possess all the faculties calculated to answer the purposes of its creation. And surely it would be strange, if it were, indeed, so defectively constructed. But the author seems to forget that in our system the federal government stands not alone. That is but a part of the machine; complete in itself, certainly, and perfectly competent, without borrowing aid from any other source, to work out its own part of the general result. But it is not competent to work out the whole result. The State governments have also their part to perform, and the two together make the perfect work. Here, then, are all the powers which it is necessary that government should possess; not lodged in one place, but distributed; not the power of the State governments, nor of the federal government, but the aggregate of their several and *respective powers. In the exercise of those functions which [*108] the State governments are forbidden to exercise, the federal government need not look beyond the letter of its charter for any needful power; and in the exercise of any other function, there is still less necessity that it should do so; because, whatever power that government does not plainly possess, is plainly possessed by the State governments. I speak, of course, of such powers only as may be exercised either by the one or the other, and not of such as are denied to both. I mean only to say, that so far as the States and the people have entrusted power to government at all, they have done so in language plain and full enough to render all implication unnecessary. Let the federal government exercise only such power as plainly belongs to it, rejecting all such as is even doubtful, and it will be found that our system will work out all the useful ends of government, harmoniously and without contest, and without dispute, and without usurpation,
I have thus finished the examination of the political part of these commentaries, and this is the only object with which this review was commenced. There are, however, a few topics yet remaining, of great public concern, and which ought not to be omitted. Some of these, as it seems to me, have been presented by the author in false and deceptive lights, and others of them, from their intrinsic importance, cannot be too often pressed upon public attention. I do not propose to examine them minutely, but simply to present them in a few of their strongest lights.
In his examination of the structure and functions of the house of representatives, the author has given his views of that clause of the Constitution which allows representation to three-fifths of the slaves. He considers the compromise upon this subject as unjust in principle, and decidedly injurious to the people of the non-slaveholding States. He admits that an equivalent for this supposed concession to the South was intended to be secured by another provision, which directs that “Representatives and direct taxes shall be apportioned among the several States, according to their respective numbers ;” but he considers this provision “more specious than solid; for while in the levy of taxes it apportions them on three-fifths of persons not free, it on the other hand, really exempts the other two-fifths from being taxed at all as property. Whereas, if direct taxes had been apportioned, as upon principle they ought to be, according to the real value of property within the State, the whole of the slaves would have been taxable as property. But a far more striking inequality
has been disclosed *by the practical operations of the [*109]
government. The principle of representation is constant and uniform; the levy of direct taxes is occasional and
In the course of forty years, no more than three direct taxes have been levied, and those only under very extraordinary and pressing circumstances. The ordinary expenditures of the government are, and always have been, derived from other sources. Imposts upon foreign importations have supplied, and will generally supply, all the common wants; and if these should not furnish an adequate revenue, excises are next resorted to, as the surest and most convenient mode of taxation.
Direct taxes constitute the last resort; and, as might have been foreseen, would never be laid until other resources had failed.”
This is a very imperfect, and, as it seems to me, not a very candid view of a grave and important subject. It would have been well to avoid it altogether, if it had been permitted; for the public mind needs no encouragement to dwell, with unpleasant reflections, upon the topics it suggests. In an examination of the Constitution of the United States, however, some notice of this peculiar feature of it was unavoidable; but we should not have expected the author to dismiss it with such criticism only as tends to show that it is unjust to his own peculiar part of the country. It is manifest to every one that the arrangement rests upon no particular principle, but is a mere compromise between conflicting interests and opinions. It is much to be regretted that it is not on all hands acquiesced in and approved, upon that ground; for no public necessity requires that it should be discussed, and it cannot now be changed without serious danger to the whole fabric. The people of the slave-holding States themselves have never shown a disposition to agitate the question at all, but, on the contrary, have generally sought to avoid it. It has, however, always “ been complained of as a grievance,” by the non-slaveholding States, and that too in language which leaves little doubt that a wish is very generally entertained to change it. A grave author, like Judge Story, who tells the people, as it were ex cathedra, that the thing is unjust in itself, will scarcely repress the dissatisfaction, which such an announcement, falling in with preconceived opinions, will create, by a simple recommendation to acquiesce in it as a compromise, tending upon the whole to good results. His remarks may render the public mind more unquiet than it now is; they can scarcely tranquillize or reconcile it. For myself, I am very far from wishing to bring the subject into serious discussion, with any view to change; but I cannot agree that an arrangement, obviously injurious to the South, should be *held up as giving her advantages of which the North has
[*110] reason to complain.
I will not pause to inquire whether the rule apportioning representatives according to numbers, which, after much contest, was finally adopted by the convention, be the correct one