Charles William Eliot.

American historical documents 1000-1904, with introductions, notes and illustrations online

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AMERICAN HISTORICAL DOCUMENTS 21

ambition more often lurks behind the specious mask of zeal
for the rights of the people, than under the forbidding ap-
pearance of zeal for the firmness and eflficiency of Govern-
ment. History will teach us, that the former has been found
a much more certain road to the introduction of despotism,
than the latter; and that of those men who have overturned
the liberties of republics the greatest number have begun
their career, by paying an obsequious court to the people;
commencing Demagogues, and ending Tyrants.

In the course of the preceding observations I have had an
eye, my Fellow-Citizens, to putting you upon your guard
against all attempts, from whatever quarter, to influence
your decision in a matter of the utmost moment to your
welfare by any impressions other than those which may re-
sult from the evidence of truth. You will, no doubt, at the
same time, have collected from the general scope of them
that they proceed from a source not unfriendly to the new
Constitution. Yes, my Countrymen, I owe to you, that,
after having given it an attentive consideration, I am clearly
of opinion, it is your interest to adopt it I am convinced,
that this is the safest course for your liberty, your dignity,
and your happiness. I affect not reserves, which I do not
feel. I will not amuse you with an appearance of delibera-
tion, when I have decided I frankly acknowledge to you my
convictions, and I will freely lay before you the reasons on
which they are founded. The consciousness of good inten-
tions disdains ambiguity. I shall not however multiply pro-
fessions on this head. My motives must remain in the de-
pository of my own breast: My arguments will be open to
all, and may be judged of by all. They shall at least be
offered in a spirit which will not disgrace the cause of truth.

I propose, in a series of papers, to discuss the following
interesting particulars. — The utility of the UNION to your
political prosperity — The insufficiency of the present Con"
federation to preserve that Union — The necessity of a Gov-
emment at least equally energetic with the one proposed, to
the attainment of this object — The conformity of the pro-
posed Constitution to the true principles of republican Gov-
ernment — Its analogy to your own state constitution — and
lastly. The additional security which its adoption will afford



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216 AMERICAN HISTORICAL DOCUMENTS

to the preservation of that species of Government, to liberty,
and to property.

In the progress of this discussion I shall endeavor to give
a satisfactory answer to all the objections which shall have
made their appearance, that may seem to have any claim to
your attention.

It may perhaps be thought superfluous to offer arguments
to prove the utility of the UNION, a point, no doubt, deeply
engraved on the hearts of the great body of the people in
every State, and one, which it may be imagined, has no
adversaries. But the fact is, that we already hear it whis-
pered in the private circles of those who oppose the new
Constitution, that the Thirteen States are of too great ex-
tent for any general system, and that we must of necessity,
resort to separate confederacies of distinct portions of the
whole.* This doctrine will, in all probability, be gradually
propagated, till it has votaries enough to countenance an
open avowal of it. For nothing can be more evident, to
those who are able to take an enlarged view of the subject,
than the alternative of an adoption of the new Constitution
or a dismemberment of the Union. It will, therefore, be of
use to begin by examining the advantages of that Union, the
certain evils, and the probable dangers, to which every State
will be exposed from its dissolution. This shall accordingly
constitute the subject of my next address.

PUBLIUS,

FOR THE INDEPENDENT JOURNAL

THE FCEDERALIST, NO. II
BY JOHN JAY

To THE People of the State of New York:

When the people of America reflect that they are now
called upon to decide a question, which, in its consequences,
must prove one of the most important, that ever engaged
their attention, the propriety of their taking a very compre-
hensive, as well as a very serious, view of it, will be evident.
Nothing is more certain than the indispensable necessity

^The same idea, tracins the arguments to their consequences, is held out
in several of the late publications against the new ConBtitation.-^PubHus*



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AMERICAN HISTORICAL DOCUMENTS 217

of Government, and it is equally undeniable, that whenever
and however it is instituted, the people must cede to it some
of their natural rights, in order to vest it with requisite
powers. It is well worthy of consideration, therefore,
whether it would conduce more to the interest of the people
of America, that they should, to all general purposes, be
one nation, under one Foederal Government, or that they
should divide themselves into separate confederacies, and
give to the head of each, the same kind of powers which they
are advised to place in one national Government.

It has until lately been a received and uncontradicted
opinion, that the prosperity of the people of America de-
pended on their continuing firmly united, and the wishes,
prayers, and efforts of our best and wisest Citizens have
been constantly directed to that object. But Politicians
now appear, who insist that this opinion is erroneous, and
that instead of looking for safety and happiness in union,
we ought to seek it in a division of the States into distinct
confederacies or sovereignties. However extraordinary this
new doctrine may appear, it nevertheless has its advocates;
and certain characters who were much opposed to it for-
merly, are at present of the number. Whatever may be the
arguments or inducements which have wrought this change
in the sentiments and declarations of these Cxentlemen, it cer-
tainly would not be wise in the people at large to adopt
these new political tenets without being fully convinced that
they are founded in truth and sound Policy.

It has often given me pleasure to observe, that Inde-
pendent America was not composed of detached and distant
territories, but that one connected, fertile, wide-spreading
country was the portion of our western sons of liberty.
Providence has in a particular manner blessed it with a
variety of soils and productions and watered it with innum-
erable streams, for the delight and accommodation of its
inhabitants. A succession of navigable waters forms a kind
of chain round its borders, as if to bind it together; while
the most noble rivers in the world, running at convenient
distances, present them with highways for the easy com-
munication of friendly aids, and the mutual transportation
and exchange of their various commodities.



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218 AMERICAN HISTORICAL DOCUMENTS

With equal pleasure I have as often taken notice, that
Providence has been pleased to give this one connected
coimtry, to one united people; a people descended from the
same ancestors, speaking the same language, professing the
same religion, attached to the same principles of govern-
ment, very similar in their manners and customs, and who,
by their joint counsels, arms and efforts, fighting side by
side throughout a long and bloody war, have nobly estab-
lished their general Liberty and Independence.

This country and this people seem to have been made for
each other, and it appears as if it was the design of Provi-
dence, that an inheritance so proper and convenient for
a band of brethren, united to each other by the strongest
ties, should never be split into a number of unsocial, jeal-
ous, and alien sovereignties.

Similar sentiments have hitherto prevailed among all
orders and denominations of men among us. To all general
purposes we have uniformly been one people; each individual
citizen everywhere enjoying the same national rights, priv-
ileges, and protection. As a nation we have made peace and
war : as a nation we have vanquished our common enemies :
as a nation W6 have formed alliances and made treaties, and
entered into various compacts and conventions with foreign
States.

A strong sense of the value and blessings of Union in-
duced the people, at a very early period, to institute a Foederal
Government to preserve and perpetuate it. They formed
it almost as soon as they had a political existence; nay, at
a time, when their habitations were in flames, when many
of their Citizens were bleeding, and when the progress of
hostility and desolation left little room for those calm and
mature inquiries and reflections, which must ever precede
the formation of a wise and well-balanced government for
a free people. It is not to be wondered at, that a Govern-
ment instituted in times so inauspicious, should on experi-
ment be found greatly deficient and inadequate to the pur-
pose it was intended to answer.

This intelligent people perceived and regretted these de-
fects. Still continuing no less attached to Union, than
enamored of Liberty, they observed the danger, which imme-



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AMERICAN HISTORICAL DOCUMENTS 219

diately threatened the former and more remotely the latter ;
and being persuaded that ample security for both, could
only be found in a national Government more wisely framed,
they, as with one voice, convened the late Convention at
Philadelphia, to take that important subject under considera-
tion.

This Convention, composed of men who possessed the
confidence of the people, and many of whom had become
highly distinguished by their patriotism, virtue, and wis-
dom, in times which tried the minds and hearts of men,
undertook the arduous task. In the mild season of peace,
with minds unoccupied by other subjects, they passed many
months in cool, uninterrupted, and daily consultations; and
finally, without having been awed by power, or influenced
by any passions except love for their Country, they pre-
sented and recommended to the people the plan produced
by their joint and very unanimous councils.

Admit, for so is the fact, that this plan is only recom-
mended, not imposed, yet let it be remembered, that it is
neither recommended to blind approbation, nor to blind rep-
robation; but to that sedate and candid consideration, which
the magnitude and importance of the subject demand, and
which it certainly ought to receive. But this, (as was re-
marked in the foregoing number of this Paper,) is more to
be wished than expected, that it may be so considered and
examined. Experience on a former occasion teaches us not
to be too sanguine in such hopes. It is not yet forgotten,
that well grounded apprehensions of imminent danger in-
duced the people of America to form the Memorable Con-
gress of 1774. That Body recommended certain measures
to their Constituents, and the event proved their wisdom;
yet it is fresh in our memories how soon the Press began
to teem with Pamphlets and weekly Papers against those
very measures. Not only many of the Oflicers of Govern-
ment, who obeyed the dictates of personal interest, but
others, from a mistaken estimate of consequences, or the
undue influence of former attachments, or whose ambition
aimed at objects which did not correspond with the public
good, were indefatigable in their endeavors to persuade the
people to reject the advice of that Patriotic Congress. Many



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220 AMERICAN HISTORICAL DOCUMENTS

indeed were deceived and deluded, but the great majority
of the people reasoned and decided judiciously; and happy
they are in reflecting that they did so.

They considered that the Congress was composed of
many wise and experienced men. That being convened from
different parts of the country they brought with them and
communicated to each other a variety of useful informa-
tion. That in the course of the time they passed together
in inquiring into and discussing the true interests of their
country, they must have acquired very accurate knowledge
on that head. That they were individually interested in the
public liberty and prosperity, and therefore that it was not
less their inclination than their duty, to recommend only
such measures as after the most mature deliberation they
really thought prudent and advisable.

These and similar considerations then induced the people
to rely greatly on the judgment and integrity of the Con-
gress; and they took their advice, notwithstanding the
various arts and endeavors used to deter and dissuade them
from it. But if the people at large had reason to confide
in the men of that Congress, few of whom had then been
fully tried or generally known, still greater reason have they
now to respect the judgment and advice of the Convention,
for it is well known that some of the most distinguished
members of that Congress, who have been since tried and
justly approved for patriotism and abilities, and who have
grown old in acquiring political information, were also
members of this Convention, and carried into it their ac-
cumulated knowledge and experience.

It is worthy of remark, that not only the first, but every
succeeding Congress, as well as the late Convention, have
invariably joined with the people in thinking that the
prosperity of America depended on its Union. To preserve
and perpetuate it, was the great object of the people in
forming that Convention, and it is also the great object
of the plan which the Convention has advised them to
adopt. With what propriety, therefore, or for what good
purposes, are attempts at this particular period, made by
some men, to depreciate the importance of the Union? Or
why is it suggested that three or four confederacies would



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AMERICAN HISTORICAL DOCUMENTS 221

be better than one? I am persuaded in my own mind, that
the people have always thought right on this subject, and that
their universal and uniform attachment to the cause of the
Union rests on great and weighty reasons, which I shall en-
deavor to develop and explain in some ensuing papers. They
who promote the idea of substituting a number of distinct
confederacies in the room of the plan of the Convention,
seem clearly to foresee that the rejection of it would put
the continuance of the Union in the utmost jeopardy: that
certainly would be the case, and I sincerely wish that it
may be as clearly foreseen by every good Citizen, that
whenever the dissolution of the Union arrives, America
will have reason to exclaim in the words of the Poet,
•♦Farewell I a long Fasewell^ to all my Greatness."

PUBLIUS.



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OPINION OF

CHIEF JUSTICE MARSHALL

IN THE CASE OF MCCULLOCH VS.

THE STATE OF MARYLAND

(1819)

[John MarsliAll (x755-x835)» third Chief Justice of the Supreme
Cbttrt of the United States, and the greatest of American judges,
laid down in the following opinion certain principles which have
come to be accepted as fundamental in all questions touching the
respective powers of the Federal government and the State legis-
latures. In 181 6, Congress had incorporated the Bank of the
United States; and in 1818, the legislature of Maryland had passed
a law taxing " all Banks, or branches thereof, in the State of
Maryland, not chartered by the legislature." The purpose of this
law was to prevent the United States Bank from doing business
in the State. McCulloch, the Cashier of the Baltimore branch,
refused to pay the tax, was sued in the state courts, and lost.
The case was appealed to the United States Supreme Court, where
the Maryland decision was unanimously reversed. Chief Justice
Marshall, in writing the opinion of the court, is regarded as having
established certain principles on which depend "the stability of
our peculiar dual system of national and local governments.'*]

MR. Chief Justice Marshall delivered the opinion of
the Court.
In the case now to be determined, the defendant,
a sovereign State, denies the obligation of a law enacted
by the legislature of the Union, and the plaintiff, on his
part, contests the validity of an act which has been passed
by the legislature of that State. The constitution of our
country, in its most interesting and vital parts, is to be con-
sidered; the conflicting powers of the government of the
Union and of its members, as marked in that constitution,
are to be discussed; and an opinion given, which may es-
sentially influence the great operations of the government

222



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AMERICAN HISTORICAL DOCUMENTS 223

No tribunal can approach such a question without a deep
sense of its importance, and of the awful responsibility in-
volved in its decision. But it must be decided peacefully,
or remain a source of hostile legislation, perhaps of hostility
of a still more serious nature; and if it is to be so decided,
by this tribunal alone can the decision be made. On the
Supreme Court of the United States has the constitution of
our country devolved this important duty.

The first question made in the cause is, has Congress power
to incorporate a bank?

It has been truly said, that this can scarcely be considered
as an open question, entirely unprejudiced by the former
proceedings of the nation respecting it The principle now
contested was introduced at a very early period of our
history, has been recognised by many successive legislatures,
and has been acted upon by the judicial department, in cases
of peculiar delicacy, as a law of undoubted obligation.

It will not be denied that a bold and daring usurpation
might be resisted, after an acquiescence still longer and more
complete than this. But it is conceived that a doubtful
question, one on which human reason may pause, and the
human judgment be suspended, in the decision of which
the great principles of liberty are not concerned, but the
respective powers of those who are equally the representa-
tives of the people, are to be adjusted; if not put at rest by
the practice of the government, ought to receive a consider-
able impression from that practice. An exposition of the
institution, deliberately established by legislative acts, on
the faith of which an immense property has been advanced,
ought not to be lightly disregarded.

The power now contested was exercised by the first Con-
gress elected under the present constitution. The bill for
incorporating the bank of the United States did not steal
upon an unsuspecting legislature, and pass unobserved. Its
principle was completely understood, and was opposed with
equal zeal and ability. After being resisted, first in the fair
and open field of debate, and afta-wards in the executive
cabinet, with as much persevering talent as any measure has
ever experienced, and being supported by arguments which
convinced minds as pure and as intelligent as this country



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224 AMERICAN HISTORICAL DOCUMENTS

can boast, it became a law. The original act was pennitted
to expire; but a short experience of the embarrassments to
which the refusal to revive it exposed the government, con-
vinced those who were most prejudiced against the measure
of its necessity, and induced the passage of the present law.
It would require no ordinary share of intrepidity to assert
that a measure adopted under these circumstances was a
bold and plain usurpation, to which the constitution gave
no countenance.

These observations belong to the cause; but they are not
made under the impression that, were the question entirely
new, the law would be found irreconcilable with the consti-
tution.

In discussing this question, the cotmsel for the State of
Maryland have deemed it of some importance, in the con-
struction of the constitution, to consider that instrument not
as emanating from the people, but as the act of sovereign
and independent States. The powers of the general gov-
ernment, it has been said, are delegated by the States, who
alone are truly sovereign; and must be exercised in sub-
ordination to the States, who alone possess supreme
dominion.

It would be difficult to sustain this proposition. The Con-
vention which framed the constitution was indeed elected by
the State legislatures. But the instrument, when it came
from their hands, was a mere proposal, without obligation,
or pretensions to it. It was reported to the then existing
Congress of the United States, with a request that it might
"be submitted to a Convention of Delegates, chosen in
each State by the People thereof, under the recommenda-
tion of its Legislature, for their assent and ratification."
This mode of proceeding was adopted; and by the Conven-
tion, by Congress, and by the State Legislatures, the in-
strument was submitted to the people. They acted upon it
in the only manner in which they can act safely, effectively,
and wisely, on such a subject, by assembling in Conven-

s — and

olitical

down

ng the



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AMERICAN HISTORICAL DOCUMENTS 225

American people into one common mass. Of consequence,
when they act, they act in their States. But the measures
they adopt do not, on that account, cease to be the measures
of the people themselves, or become the measures of the
State governments.

From these Conventions the constitution derives its whole
authority. The government proceeds directly from the
people; is "ordained and established" in the name of the
people; and is declared to be ordained, "in order to form
a more perfect union, establish justice, ensure domestic
tranquillity, and secure the blessings of liberty to them-
selves and to their posterity/' The assent of the States,
in their sovereign capacity, is implied in calling a Con-
vention, and thus submitting that instrument to the people.
But the people were at perfect liberty to accept or reject it;
and their act was final. It required not the affirmance, and
could not be negatived, by the State governments. The
constitution, when thus adopted, was of complete obliga-
tion, and bound the State sovereignties.

It has been said, that the people had already surrendered
all their powers to the State sovereignties, and had nothing
more to give. But, surely, the question whether they may
resume and modify the powers granted to government does
not remain to be settled in this country. Much more might
the legitimacy of the general government be doubted, had
it been created by the States. The powers delegated to
the State sovereignties were to be exercised by themselves,
not by a distinct and independent sovereignty, created by
themselves. To the formation of a league, such as was the
confederation, the State sovereignties were certainly com-
petent. But when, " in order to form a more perfect imion,"
it was deemed necessary to change this alliance into an
effective government, possessing great and sovereign powers,
and acting directly on the people, the necessity of referring
it to the people, and of deriving its powers directly from
them, was felt and acknowledged by all.

The government of the Union, then, (whatever may be
the influence of this fact on the case,) is, emphatically, and
truly, a government of the people. In form and in sub-
stance it emanates from them. Its powers are granted by

HC ZLin (8)



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226 AMERICAN HISTORICAL DOCUMENTS

them, and are to be exercised directly on them, and for their
benefit

This government is acknowledged by all to be one of
enumerated powers. The principle, that it can exercise only
the powers granted to it, would seem too apparent to have
required to be enforced by all those arguments which its
enlightened friends, while it was depending before the
people, found it necessary to urge. That principle is now
universally admitted. But the question respecting the extent
of the powers actually granted, is perpetually arising, and will
probably continue to arise, as long as our system shall exist

In discussing these questions, the conflicting powers of the
general and State governments must be brought into view,
and the supremacy of their respective laws, when they are
in opposition, must be settled.

If any one proposition could command the universal as-
sent of mankind, we might expect it would be this — ^that
the government of the Union, though limited in its powers,
is supreme within its sphere of action. This would seem to
result necessarily from its nature. It is the government of
all; its powers are delegated by all; it represents all, and
acts for all. Though any one State may be willing to control
its operations, no State is willing to allow others to control
them. The nation, on those subjects on which it can act,



Online LibraryCharles William EliotAmerican historical documents 1000-1904, with introductions, notes and illustrations → online text (page 19 of 48)