sarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure." Again, "In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may be said as truly to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger." We have still higher authority, the unhappy existing examples, of which we are the victims. The committee have labored to little purpose if they have not demonstrated, that the very case which Mr. Hamilton so forcibly describes, does now exist in our country, under the name of the "American System;" which if not speedily arrested must be followed by all the consequences that never fail to spring from the exercise of irresponsible power. On the great and vital point, the industry of the country, which comprehends nearly all the other interests, two great sections of the Union are opposed. We want free trade; they, restrictions. We want moderate taxes, frugality in the government, economy, accountability, and a rigid application of the public money, to the payment of the public debt, and the objects authorized by the constitution; in all these particulars, if we may judge by experience, their views of their interest are the opposite. They act and feel on all questions connected with the American System, as sovereigns; as those always do who impose burdens on others for their own benefit; and we, on the contrary, like those on whom such burdens are imposed. In a word, to the extent stated the country is divided and organized into two great opposing parties, one sovereign and the other subject; marked by all the characteristics which must ever accompany that relation, under whatever form it may exist. That our industry is controuled by the many, instead of one, by a majority in Congress elected by a majority in the community having an opposing interest, instead of hereditary rulers, forms not the slightest mitigation of the evil. In fact, instead of mitigating, it aggravates. In our case one opposing branch of industry cannot prevail without associating others, and thus instead of a single act of oppression we must bear many. The history of the woollens' bill will illustrate the truth of this position. The woollen manufacturers found they were too feeble to enforce their exactions alone, and of necessity resorted to the expedient, (which will ever be adopted in such cases,) of associating their interests till a majority was formed; the result of which was in this case, that instead of increased duties on woollens alone, which would have been the case if that interest alone governed us, we have to bear increased duties on more than a dozen of the leading articles of consumption. It would be weakness to attempt to disguise the fact, on a full knowledge of which, and of the danger which it threatens, the hope of deriving some means of security depends; that different and opposing interests do, and must ever exist in this country, against the danger of which representation affords not the slightest protection. Laws, so far from being uniform in their operation, are scarcely ever so. It requires the greatest wisdom and moderation to form over any country, a system of equal laws; and it is this very opposition of interest, which in all associations of men for common purposes, be they public or private, constitutes the main difficulty in forming and administering free and just governments. Liberty comprehends the idea of responsible power, that those who make and execute the laws should be controuled by those on whom they operate; that the governed should govern. Thus to prevent rulers from abusing their trust, constituents must controul them through elections; and so to prevent the major from oppressing the minor interests of society, the constitution must provide (as the committee hope to prove

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EXPOSITION it does,) a check founded on the same principle, and equally efficacious. AND In fact the abuse of delegated power, and the tyranny of the greater over the lesser interests of society, are the two great dangers, and the only two, to be guarded against; and if they be effectually guarded, liberty must be eternal. Of the two, the latter is the greater danger, and most difficult to check. It is less perceptible. Every circumstance of life teaches us the liability of delegated power to abuse. We cannot appoint an agent without being admonished of the fact; and therefore it has become well understood, and is sufficiently guarded against in our political institutions. Not so with the other and greater danger. Though it exists in all associations, the law, the courts, and the government itself, are checks to its extreme abuse in most cases of private and subordinate companies, which prevents them from displaying their real tendency. But let it be supposed that there was no paramount authority, no court, no government to controul, what sober individual, who intended to act honestly, would place his property in joint stock with any number of individuals, however repectable, to be disposed of by the unchecked will of the majority, whether acting in a body as stockholders, or through representation by a direction? Who does not see, that sooner or later, a major and a minor interest would spring up, and that the former would in a short time monopolize all the advantages of the concern. And what is government itself but a joint stock company, which comprehends every interest, and which, as there can be no higher power to restrain its naturaul operation, if not checked by its peculiar organization, must follow the same law? The actual condition of man in every country, at this and all preceding periods, attests the truth of the remark. No government based on the naked principle, that the majority ought to govern, however true the maxim in its proper sense and under proper restrictions, ever preserved its liberty, even for a single generation. The history of all has been the same, injustice, violence and anarchy, succeeded by the government of one, or a few, under which the people seek refuge from the more oppressive despotism of the majority. Those governments only which provide checks, which limit and restrain within proper bounds the power of the majority, have had a prolonged existence, and been distinguished for virtue, power and happiness. Constitutional government, and the government of a majority, are utterly incompatible, it being the sole purpose of a constitution to impose limitations and checks upon the majority. An unchecked majority is a despotism-aud government is free, and will be permanent in proportion to the number, complexity and efficiency of the checks, by which its powers are controuled.

The committee entertain no doubt, that the present disordered state of our political system originated in the diversity of the interests of the several sections of the country. This very diversity the Constitution itself recognizes; and to it owes one of its most distinguished and peculiar features, the division of the sovereign power between the state and general government. Our short experience before the formation of the present government had conclusively shewn, that while there were powers which were in their nature local and peculiar, and which could not be exercised by all, without oppression to some of the parts; so also there were those which in their operation necessarily affected the whole, and could not therefore be exercised by any one of the parts, without affecting injuriously the others. To a certain extent we have a community of interest, which can only be justly and fairly supervised by concentrating the will and authority of the whole in one general government; while, at the same time, the states have distinct and separate interests, which

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cannot be consolidated in the general power, without injustice and EXPOSITION oppression. Thence the division of the sovereign power; and it is upon this distribution of power, that the whole system of our government rests. In drawing the line between the general and state governments, the great difficulty consisted in determining correctly to which the various political powers belonged. This difficult duty was, however, performed with so much success, that, to this day, there is an almost uniform acquiescence in the correctness with which it was executed. It would be extraordinary if a system thus based, with profound wisdom, on the diversity of geographical interests, should make no provision against the danger of their conflict. The framers of our constitution have not exposed themselves to the imputation of such weakness. When their work is fairly examined, it will be found, that they have provided, with admirable skill, the most effective remedy, and that if it has not prevented the approach of the dangers, the fault is not theirs, but ours, in neglecting to make the proper application of it. The powers of the general government are particularly enumerated, and specifically delegated; all others are expressly reserved to the states and the people. Those of the general government are intended to act uniformly on all the parts, the residue are left to the states, by whom alone, from the nature of these powers, they can be justly and fairly exercised.

Our system then consists of two distinct and independent sovereignties. The general powers conferred on the general government, are subject to its sole and separate controul, and the States cannot, without violating the constitution, interpose their authority to check, or in any manner counteract its movements, so long as they are confined to its proper sphere; so also the peculiar and local powers reserved to the States, are subject to their exclusive controul, nor can the general government interfere with them, without on its part also violating the constitution. In order to have a full and clear conception of our institutions, it will be proper to remark, that there is in our system a striking distinction between the government and the sovereign power. Whatever may be the true doctrine in regard to the sovereignty of the States individually, it is unquestionably clear that while the government of the Union is vested in its legislative, executive and political departments, the actual sovereign power resides in the several States, who created it, in their separate and distinct political character. But by an express provision of the constitution it may be amended or changed, by three fourths of the States; and each State, by assenting to the constitution with this provision, has surrendered its original rights as a sovereign, which made its individual consent necessary to any change in its political condition, and has placed this important power in the hands of three-fourths of the States; in which the sovereignty of the union under the constitution does now actually reside. Not the least portion of this high sovereign authority, resides in Congress or any of the departments of the general government. They are but the creatures of the constitution, appointed but to execute its provisions, and therefore, any attempt in all or any of the departments to exercise any power definitely, which in its consequences may alter the nature of the instrument or change the condition of the parties to it, would be an act of the highest political usurpation. It is thus, that our political system, recognizing the opposition of geographical interests in the community, has provided the most efficient check against its dangers. Looking to facts and not mere hypothesis, the constitution has made us a community only to the extent of our common interest, leaving the States distinct and independent, as to their peculiar interests, and has drawn the line of sep

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EXPOSITION aration with consummate skill. The great question, however, is, what means are provided by our system for the purpose of enforcing this fundamental provision. If we look to the practical operation of the system, we will find, on the side of the States, not a solitary constitutional means resorted to, in order to protect their reserved rights against the encroachment of the general government, while the latter has from the beginning, adopted the most efficient, to prevent that of the States on their authority. The 25th section of the Judiciary Act, passed in 1789, provides an appeal from the States Courts to the Supreme Court of the United States, in all cases in the decision of which the construction of the Constitution, the laws of Congress, or treaties of the United States, may be involved; thus giving to that high tribunal the right of final interpretation, and the power in reality of nullifying the Acts of the State Legislatures, whenever in their opinion they may conflict with the power delegated to the general government. A more ample and complete protection against the encroachments of the States by their Legislatures cannot be imagined; and for this purpose, this high power may be considered indispensable and constitutional; but by a strange misconception of the nature of our system, in fact, of the nature of government, it has been regarded not only as affording protection to the general government against the States, but also to the States against the general government; and as the only means provided by the Constitution of restraining the State and general government within their respective spheres; and consequently of deciding on the extent of the powers of each, even where a State in its highest sovereign capacity, is at issue with the general government on the question whether a particular power be delegated, or not. Such a construction of the powers of the Federal Court, which would raise one of the departments of the general government above the sovereign parties who created the Constitution, would enable it in practice to alter at pleasure the relative powers of the States and General Government. This most erroneous and dangerous doctrine, in regard to the powers of the Federal Court, has been so ably refuted by Mr. Madison in his report to the Virginia Legislature in 1800, that the committee avail themselves at once of his argument and authority. Speaking of the rights of the State to interpret the constitution for itself in the last resort, he says that it has been objected that the judicial authority is to be regarded as the sole expositor of the Constitution; on this objection it might be observed-"1st. That there may be instances of usurped power," (the case of the Tariff is a striking illustration of its truth) "which the forms of the Constitution could never draw within the controul of the judicial department; secondly, that if the decision of the judiciary, be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the constitution before the judiciary, must be equally authoritative and final with the decision of that 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. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise, or sanction, dangerous powers beyond the grant of the Constitution, and consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another-by the judiciary as well as by the Executive, or the Legislature.

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"However true, therefore, it may be, that the judicial department is in all EXPOSITION questions submitted to it, by the forms of the Constitution, to decide in PROTEST. 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 the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, 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 constituted to preserve."

Although this constitutional mode of restraining the encroachments of the general government, was thus early and clearly pointed out by Mr. Madison, an effort has been made to substitute for it what has been called a rigid rule of construction, which would inhibit the exercise of all powers not plainly delegated, or that were not obviously necessary and proper as means to their execution. A government like ours, of divided powers, must necessarily give great importance to a proper system of construction, but it is perfectly clear that no system of the kind, however perfect, can prescribe bounds to the encroachment of power. They constitute in fact, but an appeal by the minority to the justice of the majority, and if such appeals were sufficient to restrain the avarice and ambition of those who are invested with power, then would a system of technical construction be sufficient. But on such a supposition, reason and justice might alone be relied on, without the aid of any constitutional or artificial restraint whatever. Universal experience, in all ages and countries, however, teaches that power can only be met by power and not by reason and justice, and that all restrictions on authority, unsustained by an equal antagonist power, must forever prove wholly insufficient in practice. Such also has been the decisive proof of our own short experience. From the beginning, a great and powerful minority gave every force of which it was susceptible, to construction, as a means of restraining a majority of Congress to the exercise of its proper powers; and though that original minority, through the force of circumstances, has had the advantage of becoming a majority, and to possess, in consequence, the administration of the general government, during the greater portion of its existence, yet we this day witness, under these most favourable circumstances, an extension of the powers of the general government, in spite of mere construction, to a point so extreme as to leave few powers to the States worth possessing. In fact, that very power of construction, on which reliance is placed to preserve the rights of the States, has been wielded, as it ever will and must be, if not checked, to destroy those rights. If the minority has a right to select its rule of construction, a majority will exercise the same, but with this striking difference, that the power of the former will be a mere nullity, against that of the latter. But that protection, which the minor interest ever fails to find in any technical system of construction, where alone in practice it has heretofore been sought, it may find in the reserved rights of the States themselves, if they be properly called into action; and there only will it ever be found of sufficient efficacy. The constitutional power to protect their rights as members of the confederacy, results, necessarily, by the most simple and demonstrable arguments, from the very nature of the relation subsisting between the States and general government. If it be conceded, as it must by every one who is the least conversant with our institutions, that the sovereign power is divided between the States and general govern VOL. I.-31.