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An appeal for the Constitution. Theory and practice of the government online

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B A L T I M R E :





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A review of political events, if heretofore a privilege,
has now become a duty which is devolved upon every
American citizen. The eminent Fisher Ames, who, per-
haps, more than any other person, suggested the terms
and conditions of the Federal Union, speaking of American
affairs, says: "The events have been so interesting and
so rapid, that the public mind has been confounded bythe
magnitude and oppressed by the variety of the reflections
which result from them." This language is strictly
applicable to the present condition of public affairs. He
adds with equal force, that " experience which makes in-
dividuals wise, sometimes makea public mad." Whether
this sentiment has found its verification in the events of
the day or not, it is clearly the duty of thinking men, to
examine, with candor and fairness, the policy and measures
of the government. Whatever differences of opinion there
may be touching the propriety of its course, there can be
none about the existence of great public evils. _ In the dis-
cussion of the subject, all pre-conceived opinions, and all
past political influences,, should be discarded. This is
made the more necessary, because, in my judgment, the
manifold difficulties, in which we are involved, spring, in
a great degree, from purely partisan sources. Ignorance,
ambition and selfishness, lay at the very foundation of all
our troubles. They have not only occupied the entire
political field, but have so polluted the very atmosphere of
government, that men of high intellect and patriotism
could not be induced to breathe it. This condition of
things could hardly end in anything but evil, and that we
now have in its most aggravated form.

I am no partisan in the unhappy war which now devas-
tates the country. My allegiance has been freely given,
as I trust it ever will be given, to the government of the
federal Constitution. It is not a blind devotion to a name,
an emblem or a form. It is rendered to no administration,

but to the principles of the Constitution. I know no indi-
vidual in connection with the subject. In forming the
government of the Union, we did not recognise the exist-
ence at all, of individuals. We proscribed them in pro-
scribing the Dynastic system of England. That was, in
fact, all we effected by a separation from England.

It may be proper, in these preliminary, but necessary
suggestions, to show what we condemned in the British
system, and what we approved by the act of revolution.

We condemned the dynasty of George the III, and all
other dynasties. The British people also condemned the
Dynasty of the King who " ruled and reigned," and who
assumed the right to exercise absolute powers. We con-
demned his settled purpose to tax the colonies without the
consent of the people: We condemned his interference
with our local State governments. We condemned his
effort to make the military independent of, and superior to,
the civil power. We condemned the suppression of our
judiciary, and the erection amongst us of tribunals un-
known to our laws. We condemned the unauthorized
creation of offences, and the conviction and imprisonment
of the people upon them } in violation of their rights as
subjects of the crown. We condemned the entire scheme
of despotism which asserted the principle that the govern-
ment could, in any contingency or peril, transcend the
powers conferred upon it by the free system of English

Junius says to the King: "They (the people) con-
sider you united to your servants against America ; and
know how to distinguish yourself and a venal parliament
on one side, from the real sentiments of the English peo-
ple on the other."

What we approved, on the other hand, was that very
system of laws which the king had shamelessly violated in
our persons and estates. We approved the Habeas Corpus
Act. We approved the great doctrine of the inviolability
of the citizens from arrest and imprisonment u without
cause shown." We approved of the absolute freedom of
speech and of the press, a right which every subject of the
British Crown niighl exercise in defiance of all other than
usurped and despotic power. We approved of trial by
jury, and the supremacy, on all occasions, of the civil over
the military power. We approved of the principles of
representative, elective government, and of the subordi-
nation of all public agents to the will of the people. We

demanded integrity in the magistrate, and that ^should
ever hold it to be his first dnty to obey the law he might
be called upon to enforce.

These things we condemned and approved.
We established a new government and ordained by it
that the Civil Power should be first . the military power
second, and that both should be held in complete subordi-
nation to the people. The latter constitutes at once the
foundation and the superstructure of our system We
have but one political estate. In England,, there are two
the Dynasty and the people. We have citizens governed
by laws of their own making. .

In establishing the government of the Union, we neither
discovered new principles, nor secured their application
for the first time. We drew all our political maxims ti om
the operations of the British system. _

What we undertook to do, was, to ordain a government
so as to secure at all times, and under all circumstances,
the ascendency of the popular will over delegated authority
If there is anything in the recent practice of the adminis-
tration which violates this fundamental principle, it is
most clearly a usurpation. ;„;„„+>,«

There was another object to be attained m organizing the
present system: the maintenance of absolute State inde-
pendence and sovereignty, excepting over the par cular
interests delegated to the United States It is this prmei,
pie of the organic system, which has been J^mitted to
us, and finds expression now, in what is called State Eights
I would not be understood as giving the least sanction
to the pretended right of Secession, as claimed by the
Southern States. It is a theory not only misch levons m
itself, but absurd. The right to secede could not have been
reserved without imparting to the Government an ephem-
eral character, utterly at war with the policy of the nat on.
All governments are supposed to be perpetual A nation
gains position and commands res pect by virtue ot the
evidence it is able to exhibit to the world of its ability ^to
maintain the integrity of its organism. ^P^^T " *
vital element of its character. There would be no force in
a covenant reserving the right of Secession , for no mem-
ber of the Union could ever avail itself of such a right
except for gooi cause, and where the latter exists it could
not be strengthened by any reservation in the bond.


The commencement of the war in 1775 made it necessary,
as a means of defence!, to combine or unite the colonies.
This union culminated the following year in the Declara-
tion of Independence, and in 1778, in the adoption of
"Articles of Confederation and perpetual Union" under
the style of " the United States of America." The second
article of this compact expresses the leading thought and
purpose of the day :

"Each State retains its sovereignty, freedom and inde-
pendence, and every power, jurisdiction and right, which
is not by this Confederation expressly delegated to the
United States."

The government, thus created, was radically deficient.
It, however, possessed all the powers which the States
were willing, at the time, to confer upon it. It continued
three years after the close of the war, without eliciting, as
far as I can find, a single proposition to enlarge its sphere,
except the naked suggestion of conferring upon the Union
exclusive jurisdiction over the commerce of the country.
The first formal proposition of a larger grant came, in a
back-handed sort of way, from New Jersey, in 1786; and,
as the suggestion is an interesting historical fact, I will
give it to the reader. That State appointed federal com-
missioners to proceed to Annapolis to "consider how far
an uniform system in their commercial regulations, and
other important matters, might be necessary to the common
interest and permanent harmony of the several States."
It is thus seen how gradual was the abandonment of abso-
lute State government, and how cautious the approach to
(lie present Constitutional system.

While a necessity existed for enlarging the powers of
the government, it was the fixed purpose of the people
that it should be done with as little infringement as pos-

sible, upon the rights of the States. The absolute free-
dom and independence of the latter, was a fundamental
principle of all. Nor was this freedom, as many weak-
minded persons argue, incompatible with the efficiency of
the federal system. Precisely the opposite, is the judg-
ment of reason and philosophy. The freedom and inde-
pendence of the States, which are the sources of all au-
thority, and the creators of the federal Constitution itself,
are necessary conditions to a just maintenance of the integ-
rity of that great compact. The latter is an out-birth of
the former — an extension of the governments of the former.
This is manifest on the slightest examination. Since the
organization of civil society in this country, the States
have maintained, without interruption, all the ordinary
powers of political government. There has been no shadow
of change in this particular. Before, during and subse-
quent to the Kevolutionary War ; and pending the gov-
ernment of the Confederation and of the Constitution, the
States have continued to maintain absolute freedom and


The principal powers conferred upon the United States,
by the Constitution, are embraced in the 8th Section, 1st
Article, as follows:

"The Congress shall 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 ; but all duties, im-
posts and excises, shall be uniform throughout the United
States ;

"To borrow money on the credit of the United States;

"To regulate commerce with foreign nations, and among
the several States, and with the Indian Tribes ;

"To establish a uniform rule of naturalization, and
uniform laws on the subject of bankruptcies throughout
the United States ;

"To coin money and regulate the value thereof, and of
foreign coin, and fix the standard of weights and measures;

"To provide for the punishment of counterfeiting the
securities and current coin of the United States ;

" To establish post offices and post-roads;

" To promote the progress of science and useful arts, by
securing for limited times to authors and inventors the
exclusive right of their respective writings and discoveries;

" To constitute tribunals inferior to the Supreme Court;

"To define and punish piracies committed on the high
seas, and offences against the law of nations ;

" To declare war, grant letters of marque and reprisal,
and make rules concerning captures on land and on water;

" To raise and support Armies ; but no appropriation of
money to that use shall be for a longer term than two
years ; «

" To provide and maintain a Navy ;

" To make rules for the government < f the land and
naval forces ;

" To provide for calling forth the militia to execute the
laws of the Union, to suppress insurrections and repel in-
vasions ;


cc 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 ; reserving to
the States respectively, the appointment of the officers and
the authority of training the militia according to the dis-
cipline prescribed by Congress ;

" To exercise exclusive legislation in all cases whatso-
ever, over such District (not exceeding ten miles square)
as may, by cession of particular States, and the acceptance
of Congress, become the seat of the Government of the
United States, and to exercise like authority over all places
purchased by the consent of the legislature in which the
same shall be, for the erection of forts, magazines, arsenals,
dock-yards, and other needful buildings ; and

11 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 thereof."

This section embraces, as I have said, all the specific
delegations of power to the United States. It defines the
powers of Congress, and prescribes the precise limits within
which they may be exercised. It constitutes, in fact, the
G-overnme^f '• iwBJtelbl tile" >6«?afttf softer e of its action. Nor
is it possible, under an honest administration, to misappre-
hend or transcend its authority. The Government is an
open record. Its length, breadth, and dimensions are
measured with a sort of mathematical accuracy.

There are but four delegations of power to it affecting
the ordinary concerns of the people in time of peace. 1.
To lay and collect taxes, duties, imposts, and excises. 2.
To regulate commerce with foreign nations and among the
States. 3. To establish post offices and post-roads. 4. To
coin money and regulate the value thereof. It is thus seen
to be very limited and partial, so limited as to be utterly
insufficient to be more than a Government of sovereign
States. It is but a superstructure resting upon solid polit-
ical foundations. This is proven by recurring to the trusts
confided to it and by every historical event attending its
creation. It is shown in the meager array of powers con-
ferred, and in the studied limitations and restrictions, by
which they are, at every point, surrounded. It is shown
in the condition of public sentiment at the time the Consti-
tution was adopted, and in the bundle of additional re-


strictions so soon thereafter added to it. Amongst the
latter are these two striking provisions :

Art. IX. " The enumeration in the Constitution of cer-
tain rights shall not be construed to deny or disparage oth-
ers retained by the people."

Art. X. " The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively or to the people/'

All authority was, it is seen, delegated to Congress. It
established a legislative, not an executive Government. It
conferred really no power whatever upon the President.
His orifice is called a Department, but its legitimate author-
ity, in peace and in war, extends no farther than to enforce
the judgments of the Legislature. He is made Command-
er-in-Chief of the Army and Navy, and of the militia, when
in actual service ; but this power is conferred upon him in
order that he may the more effectually execute the laws of
Congress. It gives him no power to originate measures,
no original jurisdiction.

What, then, is the Government of the United States ?
Has it an existence independent of, and superior to, the States
which created and uphold it ? Can the stream rise higher
than its fountain? QiAiiW^rffas<j|J^^e4i^di^ ai ^'# t ? Is it not
true that the creation of the Union contemplated, as a neces-
sary part of our political system, that the States should re-
main intact, and continue to be the source of all vital author-
ity? I think so ; and, I venture the prediction, that although
the tendency of the day is to clothe the Union with supreme
powers, to magnify its office and sanctify all its acts, good
and bad, legal and illegal, the time will soon come when
the States will rise, in the majesty of their power, to assert
their rights, maintain their independence, and punish the
whole family of federal usurpers, who have sought to de-
grade and ignore them. John Quincy Adams said of the
Union in 1820, to Sir Stratford Canning : " The supreme
unlimited power is considered as inherent in the whole
body of the people, whilst its delegations are limited by
the terms of the instruments sanctioned by them, under
which the powers of Legislation, judgment and execution,
are administered." The Constitution is a bundle of grants,
checks and prohibitions, so interwoven as to array before
the representative, at every point, the restraints upon, and
the limits to, his official authority. It is impossible to ex-
amine it without being struck with the conviction, that its


framers not only distrusted the patriotism and fidelity of
those who might be intrusted with the public adminis-
tration, but determined to so mark out their path, that a
failure to pursue it, would, of itself, convict the delinquent
of wilful infidelity to the Constitution.

The United States have express and implied power to
punish crimes committed against their authority, being
restricted only in the trials thereof, to "the State where
the said crimes shall have been committed." That of trea-
son, the gravest of all offences, is expressly defined, and
the Government is limited to the scope of this constitu-
tional provision, viz :

" Treason shall consist only in levying war against them,
or in adhering to their enemies, giving them aid and
comfort." And,

" Congress shall have power to declare the punishment
of treason, but no attainder of treason shall work corrup-
tion of blood or forfeiture, except during the life of the
person attainted."

Blackstone says : " By attainder, for treason or other
felony, the blood of the person attainted is so corrupted as
to be rendered no longer inheritable." The Constitution
modifies this rule of law, confining the forfeiture to the
lifetime of the person convicted, and the trial of persons
charged, to the State where the oifence is committed. The
reason for this seeming tenderness on the subject of trea-
son, is found in the fact that we had but just emerged from
a successful rebellion — just relieved ourselves from the
responsibilities of the crime of treason in its most aggra-
vated form. It is perfectly natural, therefore, that, in
providing for its punishment, under our system, we should
take away from it the severe penalties of the English law.

I submit to the reader, without comment, the foregoing
provisions of the Constitution, touching the powers of the
Government over alleged political offences, including the
questions of forfeitures or confiscations, with the simple
request that he will recur to its practice during the last
year and a half, with reference to persons charged with
disloyalty to the Constitution. The most charitable con-*
elusion, in which perhaps one ought to take refuge for a
little time at least, is, that the heads of the Government,
in the language of Silas Wright, constitute a part of that
" large proportion of our statesmen who appear never to
have read the Constitution of the United States."


Having presented, in some detail, trie powers of the
federal government, by way of contrast, and for the better
understanding of the distinctive features of the two sys-
tems, I shall now undertake an analysis of the State
governments, embracing a short review of their principal
rights and functions.

I have treated the Union as a Confederacy, and not as
" a consolidated or national system," as some of its early
opponents called it. Its political anatomy, presented to
the Virginia Convention, by Mr. Madison, may be inter-
esting. He says: "It is of a mixed nature — it is, in a
" manner, unprecedented ; we cannot find one example in
1 ' the experience of the world. It stands by itself. In some
" respects it is a government of a federal nature ; in others,
:< it is of a consolidated nature."

As a mere anatomy of the system, and very imperfect at
that, this is, perhaps, technically correct. It is almost
entirely federal in the election of President and Vice Presi-
dent. These functionaries are chosen by electoral colleges
of the several States. The machinery of the elections, the
representatives, and the award of the colleges, appertain
exclusively to the States. Some of the States refer the
question of presidential choice to their local Legislatures ;
and it is competent for all of them to do.

The Senate of the United States is not only federal in
the choice of its members, but is peculiarly so in its very
structure and functions. It is composed of two Senators
from each State. These persons represent the State. New
York, with its four millions of inhabitants, and Rhode
[sland, with considerably less than a tenl h of that number,
appear in the Senate upon terns of absolute political
equality. That body, too, is tl e highest branch of the
Legislature. It divides the duties and responsibilities of
the Executive Office. It exercises a supervisory control


over appointments. No treaty is valid without its ap-
proval. The Senate is exclusively federal.

The House of representatives, on the other hand, has
many national features. Its members are chosen from
specified districts, directly by the people. They hold their
credentials from the people of their respective districts.
The elections, however, are prescribed by the laws of the
States ; all judges and officers of elections, are State offi-
cers. The Congressional Districts are fixed by State legis-
lation. Credentials even must receive, in many cases, the
seal of the State.

Now, let us examine the great mass of powers exercised
by the States. The constitution calls them : " the powers
reserved to the States respectively, or to the people." By
whatever name they may be known, they embrace, as we
know, the entire machinery of the State governments.

They determine the relations of husband and wife,
parent and child, guardian and ward ; they establish the
conditions of marriage and divorce ; they regulate the
tenures of estates and the estates of deceased persons ; they
decide all controversies between citizens involving rights
of property, personal rights and injuries ; they redress
wrongs; they punish crime; they charter municipalities,
institutions of charity, education, science and arts ; they
incorporate banking, canal, road, manufacturing and other
companies ; they maintain the poor ; they authorize and
construct great works of internal improvement! ; they
borrow money and pledge the public faith for its payment,
giving; out bonds which have found credit throughout the

These are some of the ordinary powers exercised by the
State governments: the "reserved" powers to which I
have referred. Now, what are the visible features of a
system of political vitality like this ? They consist of an
Executive, Legislature, and a Judiciary, of a complete, com-
prehensive scheme of government, embracing the power
of taxation ; the right to bear arms, and, by inexorable
logic, the sovereign right to maintain its perfect integrity
against all and every authority ; because it is original
government here, the Union being an offspring or out-
birth from it, created by authority delegated to it, which
is expressly defined and limited to the enumerated trusts
of the Constitution, none of which interfere witli the exer-
cise, by the States, of the great mass of " reserved" pow-
ers. The latter, in plain speech, constitute the foundation


which sustains the federal superstructure. If they are
weakened or broken, so must the whole edifice suffer. Nor
is it possible, without serious damage, if I may strain the
figure, to enlarge the superstructure, at the expense of the
foundation. The harmony and perfection of the system
depend upon the maintenance of the perfect integrity of
the parts.

There is no other real element of consolidation in it,
except what relates to foreign intercourse, commerce, cus-
toms, gold and the post-office. The States work their
accustomed machinery, outside of these exceptions, in the
very spirit of independence. Else what means their elabo-
rate and almost perfect governments? Why, otherwise,
do they execute nineteen-twentieths of all the functions of
the civil administration ? Have their magistrates no au-

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Online Librarypseud DemocratusAn appeal for the Constitution. Theory and practice of the government → online text (page 1 of 5)